                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                     REVISED OCTOBER 13, 2005
                                                               August 25, 2005
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                   Clerk

                            No. 04-40410


UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
versus


ALFRED BOURGEOIS,

                                                 Defendant - Appellant


          Appeal from the United States District Court
               for the Southern District of Texas



Before JOLLY, WIENER & DENNIS, Circuit Judges.

WIENER, Circuit Judge:

     Defendant-Appellant    Alfred   Bourgeois     was   convicted      of

murdering his two-year-old daughter (“JG”) and sentenced to death

under the Federal Death Penalty Act (“FDPA”). Bourgeois challenges

his conviction and sentence on grounds that (1) the government

failed to charge any aggravating factors in the indictment, (2) the

FDPA statutory-intent factor that renders a defendant with a

reckless state of mind eligible for the death penalty violates the

Eighth Amendment, (3) the district court erred when it delegated to

the Director of the Federal Bureau of Prisons supervision over

Bourgeois’s execution, and (4) the aggravating factors used in his

                                 1
sentencing were vague and ambiguous.

                      I. FACTS AND PROCEEDINGS

A.   JG’s Life Before Bourgeois

     JG was born to Katrina Harrison in October, 1999.      For the

first two and one-half years of her life, JG lived with her mother

and grandmother in Livingston, Texas.    In April of 2002, Harrison

petitioned a local court to have JG’s paternity determined.     The

paternity test showed that Bourgeois, of LaPlace, Louisiana, was

JG’s biological father.     At the time, he was married to Robin

Bourgeois, with whom he had two children (“AB1994” and “AB2001”).

Bourgeois also had a child from a previous marriage to whose mother

he was paying child support.

     In May of 2002, Bourgeois appeared in Texas for a child-

support hearing regarding JG.   He brought his niece to Texas with

him with the intention of telling the judge that she was his

daughter and had kidney problems in the event that the court

ordered high child support payments.    Bourgeois, however, was not

allowed to take his niece (or any other family member) into the

hearing with him.     At the conclusion of the hearing, the court

ordered Bourgeois to pay Katrina Harrison $160 per month in child

support for JG.     The court also granted Bourgeois’s request for

visitation rights with JG for the ensuing seven weeks, and he took

custody of JG that afternoon.         When JG left her mother and

grandmother, she was in good health and free of injuries.


                                  2
B.    The Final Weeks of JG’s Life

      Initially, JG lived with the Bourgeois family at their home in

LaPlace, where they remained until May 28, 2002.              After that, JG

accompanied the family on Bourgeois’s long-haul trucking route,

residing with the other four in his 18-wheel tractor/trailor until

her death,     approximately   one    month     later.     From   the   outset,

Bourgeois    systematically    abused     and   tortured   his    two-year-old

daughter in several ways. For example, Bourgeois became fixated on

JG’s toilet training.    Her training potty became JG’s primary seat

during the day, and Bourgeois even forced her to sleep on it when

they were traveling at night.        When she had “accidents,” Bourgeois

would strike JG and then tell his older daughter, AB1994, that it

was her fault.

      In addition, Bourgeois constantly beat and otherwise assaulted

JG.     He punched her in the face with enough force give her black

eyes.    He whipped her with an electrical cord, and he beat her with

a belt so hard that it broke.        Bourgeois hit JG in the head with a

plastic baseball bat so many times that her head “was swollen like

a football.”     Later, when he was in jail, Bourgeois laughed to a

fellow inmate that “[t]hat f---ing baby’s head got as big as a

watermelon.”     There was also evidence that, before the Bourgeois

family left LaPlace, Bourgeois had thrown JG against the wall of

the master bedroom.     He scratched and pulled her ears, bit her

hands, feet, and forehead, and burned the bottom of her foot with



                                      3
a cigarette lighter.   Bourgeois’s wife, Robin, and others noticed

that bruises and other injuries appeared on JG’s body shortly after

she came to stay with the Bourgeois family, and that, between the

middle and end of May, JG’s hands and feet had become extremely

calloused and swollen.    When others tried to clean the sores on

JG’s feet, Bourgeois would stop them and jam his dirty thumb into

the wounds, then force JG to walk on her injured feet.

     In addition to physically torturing JG, Bourgeois traumatized

her emotionally. For example, on one occasion, Bourgeois decided

that it was time for JG to learn how to swim, despite her tender

years and fear of the water.   Bourgeois picked up the two-year-old

and tossed her several feet in the air and into a swimming pool.

He allowed her to sink for several seconds before pulling her out,

then repeated the “lesson” for thirty minutes while JG choked and

gasped for air.   Similarly, when the family visited a California

beach on Bourgeois’s long-haul trucking route, he forced JG into

the ocean even though she was terrified of the water, holding her

under the water and letting the waves roll over her.   By the time

they left the beach, JG had swallowed so much salt water that she

had difficulty walking and was ill with a swollen stomach.

     There was also evidence of sexual abuse.   When the family was

staying in LaPlace in May, Bourgeois slept in the master bedroom

with JG and AB1994 behind a locked door, while Robin slept in a

different bedroom.   Late that month, a family friend noticed blood

in JG’s diaper and convinced Bourgeois and Robin to take JG to

                                 4
Louisiana Child Protective Services (“CPS”) for an evaluation.

There, the examining physician concluded that the source of the

blood was external irritation to JG’s genitalia.                 Although the

doctor determined that the cause of the injury was inconclusive, he

noted that it could have been the result of vaginal trauma.               The

same doctor examined JG after her death and found a similar but

more severe irritation to JG’s genitalia, this time concluding that

the irritation was likely caused by vaginal trauma.              Furthermore,

after JG’s death, rectal swabs revealed the presence of semen.

C.     Concealed Abuse; Planning for JG’s Death

       Bourgeois actively tried to conceal the evidence of his

continuous abuse.      For example, he covered JG’s injured feet with

socks, made her wear sunglasses to hide her battered face, and

told people that she had been in a terrible car accident to explain

her swollen head.

       Around the time that the blood appeared in JG’s diaper,

Bourgeois reported to Texas CPS that JG had been abused while

living with Katrina, that Katrina was living with a convicted sex

offender, and that the house was unsuitable for a child.                  CPS

investigated Bourgeois’s complaint and concluded that it was not

only   untrue,   but   also   was   made   “in   bad   faith.”     Similarly,

Bourgeois told friends along his trucking route that JG’s mother

had neglected and abused JG and that she had been sexually molested

with a finger.



                                      5
     Furthermore, Bourgeois fostered the misleading appearance that

everything was fine by sending postcards to Katrina, stating that

JG was well and having fun on the trucking route/family vacation,

and that they had visited, inter alia, Disneyland and the Elvis

Presley Museum.    Bourgeois signed the postcards “JG.”   None of the

information on the postcards, however, was true.

     In stark contrast to these postcards’ Rockwellian portrayals,

Bourgeois told little JG that she made him want to kill her.    When

Robin asked him what he would do if he killed JG, Bourgeois replied

unhesitatingly that he would throw her out of the truck, and they

would concoct a story for the police.    Specifically, he said that

they would stop at a rest stop, where Robin would take the children

into the bathroom and then come out and claim that someone had

kidnapped JG.     Bourgeois added that Robin would then call 911 to

report the “kidnapping,” and the police would blame the phantom

kidnapper for JG’s death.      Similarly, AB1994 recalled that her

father had said that if JG died, he would take her into the swamp

and leave her there.     On June 23, 2002 —— four days before JG’s

death —— Bourgeois called his sister and said, “You get your black

dress out.   I’m going through a lot.   I don’t know what I’m going

to do.”

D.   The Murder

     On July 26, 2002, the Bourgeois family stopped by their home

in LaPlace get their mail and check on their house.        Bourgeois



                                  6
found a court order directing him to remit $519.99 in child support

to his ex-wife.    During the brief visit, Bourgeois made JG wait for

them in the hot cab of the truck.

     Later that afternoon, the family continued on Bourgeois’s

trucking route, arriving the next morning at the Corpus Christi

Naval Air Station to deliver a shipment.        While Bourgeois was

backing his truck up to the loading dock, JG was sitting on her

training potty.      When she wiggled and the potty tipped over,

Bourgeois became angry and started yelling at JG and spanking her

bare bottom.    He then grabbed her by her shoulders and slammed the

back of her head into the front and side window area around the

dashboard four times.      Meanwhile, warehouse personnel who were

standing in the trailer felt shaking coming from within the cab of

Bourgeois’s truck.

     Robin awakened shortly after this beating and immediately

noticed that JG’s body was limp, her eyes were closed, and her

heart was racing.    Robin attempted unsuccessfully to revive JG by

administering CPR, then told Bourgeois that the child needed

emergency medical attention.    Bourgeois replied that he would take

JG to the emergency room after he finished unloading his truck.

Robin insisted that JG needed help immediately, handing JG to

Bourgeois and telling him to get her help.       Bourgeois responded

that they would just say that JG slipped while following AB1994 out

of the truck.     Bourgeois then left the cab with JG.   After Robin

got dressed, she opened the passenger-side door to exit the cab and

                                   7
there, on the ground, lay JG.        Robin again tried CPR while a

passer-by called 911.     After that, Bourgeois came running from

behind the truck, asking what happened.

     When the ambulance arrived, Bourgeois and Robin told the

driver, then told both CPS workers and the FBI agent, that JG had

fallen out of the truck.    At the hospital, Dr. Noorullah Akhtar

examined JG and concluded that her brain had hemorrhaged and was

swollen. The doctor ventured that JG’s injuries were equivalent to

those of a person who had fallen out a car traveling on the

Interstate.   All of this occurred on June 27, 2002.    The doctors

sustained JG on life support until her mother could get to the

hospital, where the baby died in her mother’s arms the next day.



E.   The Post-Mortem Investigation

     After JG’s death, Dr. Elizabeth Rouse, the medical examiner,

conducted an autopsy which she described as one of the most

involved of her career.    This, she explained, was because of the

sheer number and extent of the injuries to JG’s body.    Dr. Rouse

observed, inter alia, that JG had (1) a bruised shoulder, (2) human

bite marks on her back and arm, (3) scratch marks and injuries to

her ears, (4) loop marks on her body consistent with an electrical

cord, and (5) a circular hole a quarter of an inch deep on the

bottom of one foot.   When she opened JG’s torso for examination,

Dr. Rouse observed deep tissue bruising in every area of JG’s body.



                                 8
All in all, JG exhibited 25 or 26 whip marks, 78 healed scars, 73

to 105 nonspecific contusions, 8 pattern contusions, 9 or 10

abrasions or excoriations, 7 to 9 healing ulcerations, and 3

lacerations.      On the basis of JG’s injuries, Dr. Rouse concluded

that JG was a chronically abused or battered child. She determined

that the ultimate cause of death was an impact to the head

resulting in a devastating brain injury. The location of the fatal

injury was consistent with Bourgeois’s holding JG by the shoulders

and slamming the right side and back of her head against the window

and dashboard of the truck cab.

       Just under one year after JG’s death, the government filed a

second, superseding indictment against Bourgeois.                 It charged him

with    unlawfully     killing     JG     with     premeditation        and    malice

aforethought by physically assaulting her on June 27, 2002 and

causing the injuries from which she died on June 28, 2002.                          The

Grand    Jury’s    indictment    specially       charged,       inter    alia,      the

following    FDPA      statutory        intent     factors:       (1)     Bourgeois

intentionally killed JG, (2) Bourgeois intentionally inflicted

serious   bodily     injury   that      resulted    in   JG’s    death,       and   (3)

Bourgeois intentionally engaged in an act of violence, knowing that

the act created a grave risk of death to JG and constituted

reckless disregard for human life, and JG died as a result of the

violent act.       The indictment also charged the following FDPA

statutory aggravating factors: (1) Bourgeois committed the offense

in an especially heinous, cruel and depraved manner in that it

                                         9
involved torture or serious physical abuse to JG, (2) Bourgeois

committed the offense after substantial planning and premeditation,

and (3) JG was especially vulnerable because of her youth or

infirmity.   In its notice of intent to seek the death penalty, the

government listed all the FDPA intent and aggravating factors from

the   second,   superseding   indictment,   plus     two   non-statutory

aggravating factors: (1) On the basis of his record of violence,

Bourgeois is likely to commit future acts of violence and pose a

threat to the lives and safety of others, and (2) JG’s murder

caused her family severe emotional suffering and irreparable harm.

      After a two-week trial, the jury found Bourgeois guilty of

murder.   The district court then conducted the sentencing hearing,

at which Bourgeois presented nine mitigating factors for the jury’s

consideration. Six jurors found by a preponderance of the evidence

that Bourgeois was under stress from family and economic factors,

and all 12 jurors found by a preponderance of the evidence that

Bourgeois was driving across the country with three children and

one other adult in the cab of an 18-wheel tractor-trailer.           No

juror found that Bourgeois established any of the other mitigating

factors by a preponderance of the evidence.        The jury unanimously

found the above-listed FDPA intent factors and aggravating factors

beyond a reasonable doubt.     The jury also unanimously found the

non-statutory   aggravating   factors   beyond   a   reasonable   doubt.

Finally, the jury unanimously found that the aggravating factors

outweighed the mitigating factors, and unanimously recommended that

                                  10
the district court sentence Bourgeois to death, which it did.

     We have jurisdiction over Bourgeois’s appeal of his judgment

of conviction and sentence under 18 U.S.C. §§ 3595, 3742(a), and 28

U.S.C. § 1291.

                               II. ANALYSIS

A.   Standard of Review

     Bourgeois raised none of the constitutional challenges in the

district court that he now raises on appeal.              Accordingly, we

review them for plain error.1       Thus, we shall determine (1) whether

there is an error, (2) if so, whether the error is plain, (3) if it

is, whether it affects the defendant’s substantial rights, and (4)

if so, whether it seriously affects the fairness and integrity of

the district court proceedings.2

B.   Sufficiency of the Indictment

     To render a criminal defendant eligible for the death penalty

under the FDPA, the government must prove, beyond a reasonable

doubt, any one of the statutory intent factors provided in section

3591(a)(2)   and   any   one   of   the   statutory   aggravating   factors

provided in section 3592(c).        Once the defendant is proved to be


     1
      U.S. v. Miranda, 248 F.3d 434, 443 (2001). Bourgeois
argues that he is entitled to a more stringent standard of review
of the constitutional sufficiency of the indictment, citing
Sitrone v. U.S., 361 U.S. 212 (1960). We expressly rejected the
same argument in U.S. v. Robinson, 367 F.3d 278, 286 (5th Cir.
2004).

     2
      Miranda, 248 F.3d at 443.

                                     11
eligible for the death penalty, the government may present non-

statutory aggravating factors, such as victim impact, to argue for

the death penalty.3        The FDPA requires the government to file a

notice of intent to seek the death penalty, informing the defendant

of the factors on which the government intends to rely in seeking

that penalty.4

      The FDPA does not expressly require the government to charge

any of the statutory factors in the indictment.                 In Ring v.

Arizona,5 however, the Supreme Court held that when the finding of

an aggravating factor renders a defendant eligible for the death

penalty, it is “the functional equivalent of an element of a

greater offense.”6 Consequently, the government is required by the

Sixth Amendment to prove the aggravating factor to the jury beyond

a reasonable doubt.7       Although the Supreme Court has yet to hold

that, under the Indictment Clause of the Fifth Amendment, the

government must charge the aggravating factors in the indictment,

we   have    interpreted   Ring   to   apply   with   equal   force   at   the

indictment stage of the proceedings.8          Accordingly, we require the



      3
       18 U.S.C. § 3593(a).
      4
       Id.
      5
       536 U.S. 584 (2002).
      6
       Ring, 536 U.S. at 609.
      7
       See id.
      8
       Robinson, 367 F.3d at 284.

                                       12
government to charge the statutory factors of the FDPA in the

indictment,    and   we   consider   the   failure    to    do   so   to   be

constitutional error.9

     Bourgeois contends that the government erred in this case

because it failed to charge the statutory and the non-statutory

aggravating factors in the indictment.           As for the statutory

aggravators, he is simply wrong: They are expressly charged in the

second,     superseding   indictment.      As   for   the    non-statutory

aggravators, he is correct in stating that they were not contained

in the indictment, but neither we nor any other circuit court of

appeals has ever held that non-statutory aggravating factors must

be set forth in the indictment.      As the Supreme Court’s decision in

Ring and our decision in Robinson highlight, the critical issue is

whether a factor will expose a criminal defendant to the death

penalty. Only a factor that renders the defendant eligible for the

death penalty must be charged in the indictment.

     Significantly, non-statutory aggravating factors do not render

a criminal defendant eligible for the death penalty.                  As the

Supreme Court explained in Jones v. U.S., the findings of the

statutory factors of intent and aggravation specified in the FDPA

comprise the eligibility phase of death sentencing.10 As such, only


     9
      Id.
     10
      527 U.S. 373, 377 (1999) (explaining that the jury’s
finding of the statutory intent and statutory aggravating factors
under the FDPA comprises the eligibility phase of sentencing).

                                     13
the FDPA’s statutory factors expose a criminal defendant to the

death penalty.      Alone, non-statutory aggravating factors cannot

make a defendant eligible for a death sentence. This is because the

jury proceeds to consider non-statutory aggravating factors only

after     the   defendant    is   determined   to   be   death-eligible.11

Accordingly, it was neither constitutional nor statutory error for

the non-statutory aggravating factors to be omitted from the

indictment.12

C.   Constitutionality of FDPA Section 3591(a)(2)(D) under the
     Eighth Amendment

     Bourgeois asserts that FDPA section 3591(a)(2)(D) violates the

Eighth Amendment by permitting the imposition of the death penalty

on a murderer who acts with only a reckless state of mind. The

Eighth    Amendment   prohibits     “all   punishments   which   by   their

excessive length or severity are greatly disproportioned to the

offenses charged.”13        Therefore, the punishment imposed must be

     11
      See id. (explaining that once the defendant is death
eligible, the jury may consider non-statutory factors in making
the “selection decision,” i.e., the decision whether to recommend
a punishment of life imprisonment or death). See also U.S. v.
Jones, 132 F.3d 232, 240 (5th Cir. 1998) (noting that the jury
may consider non-statutory aggravating factors only after finding
the existence of statutory aggravating factors).
     12
      See also U.S. v. Higgs, 353 F.3d 281, 298 (4th Cir. 2003),
cert. denied, 125 S.Ct. 627 (2004) (holding that the Fifth
Amendment does not require the government to charge non-statutory
aggravating factors in the indictment because “[t]he finding of a
non-statutory aggravator alone will not support imposition of the
death penalty.”).
     13
      Enmund v. Florida, 458 U.S. 782, 788 (1982) (internal
quotations omitted).

                                     14
proportionate to a defendant’s culpability.             Significantly, in

Tison v. Arizona, the Supreme Court held that “reckless disregard

for   human      life   implicit   in   knowingly   engaging   in   criminal

activities known to carry a grave risk of death presents a highly

culpable mental state... that may be taken into account in making

a capital sentencing judgment when that conduct causes its natural,

though also not inevitable, lethal result.”14          In other words, the

Eighth Amendment is not a per se bar to imposition of the death

penalty when the murderer possessed only a reckless state of mind.15

      When a criminal defendant’s state of mind was reckless, the

Eighth Amendment inquiry hinges on the degree of his participation

in the acts that ultimately led to the victim’s death.                As we

explained in U.S. v. Webster, the sentencer must examine “the

defendant’s ‘own personal involvement in the crimes.’”16 A reckless

defendant who is heavily involved in acts that led to the victim’s

death is sufficiently culpable to be sentenced to death without

violating the Eighth Amendment.17            In contrast, under the Eighth

Amendment, a reckless defendant who is only tangentially involved


      14
           481 U.S. 137, 157-58 (1986).
      15
      See U.S. v. Webster, 162 F.3d 308, 322 (5th Cir. 1998)
(observing that the FDPA imposes the death penalty only on
defendants with sufficient culpability, including those who act
in “reckless disregard for human life”).
      16
           Id.
      17
      See id. See also Tison, 481 U.S. at 153 (noting that “the
greater the defendant’s participation in the felony murder, the
more likely he acted with reckless indifference to human life.”).

                                        15
in the acts that led to the victim’s death is not sufficiently

culpable to be sentenced to death.18

      In      this    case,      Bourgeois     has    demonstrated          sufficient

culpability to permit the imposition of the death penalty under the

Eighth Amendment, even if his mens rea were only reckless disregard

and not specific intent.                Bourgeois was, after all, the sole

participant in the acts that directly caused JG’s death, making

tangential      participation       a    logical     and    legal    impossibility.

Bourgeois’s “reckless” state of mind is thus sufficient to render

him   eligible       for   the   death    penalty     without       implicating     the

strictures of the Eighth Amendment.             As the Supreme Court noted in

Tison,      “some    nonintentional      murderers    may    be     among    the   most

dangerous and inhumane of all —— the person who tortures another

not caring whether the victim lives or dies” is among them.19

D.    The Place, Manner, and Means of Execution

      Bourgeois contends that the district court erred when it

delegated to the Director of the Federal Bureau of Prisons the

power to determine the place, manner, and means to be used in

carrying out his execution, because Congress did not delegate any

of its power to the judicial branch to make those determinations.

Bourgeois is correct that no provision of the FDPA delegates any

such power to the Third Branch.                 This is of no consequence,


      18
           Tison, 481 U.S. at 148.
      19
           Id. at 157.

                                          16
however. In §§ 3596(a) and 3597(a) of the FDPA, Congress expressly

delegated such power to the Executive Branch, specifically the

Department of Justice in the person of the Attorney General.

Section 3596(a) provides that when the death sentence is to be

imposed under the FDPA, “the Attorney General shall release the

person sentenced to death to the custody of a United States

marshal, who shall supervise implementation of the sentence in the

manner prescribed by the law of the State in which the sentence is

imposed.”     Section 3597(a) authorizes the United States marshal to

employ the use of state and local officials and facilities to carry

out the execution. Accordingly, Bourgeois’s argument that Congress

did not delegate any power to the district court to determine the

mode of carrying out a death sentence misses the mark:      All that

the district court did was to acknowledge that Congress had validly

delegated the requisite authority to the Department of Justice, of

which the Federal Bureau of Prisons is an agency.

     Furthermore, to the extent that Bourgeois challenges the

district court’s acknowledgment of the authority of the Director of

the Federal Bureau of Prisons to determine the particulars of

Bourgeois’s execution, his argument is without merit.        Section

3596(a) specifies that Bourgeois’s execution is to take place “in

the manner prescribed by the law of the State in which the sentence

is imposed.”20      Texas effects the death penalty “by intravenous


     20
          18 U.S.C. § 3596(a).

                                   17
injection     of    a    substance      or   substances         in    a    lethal     quantity

sufficient     to       cause   death    until      such    convict         is   dead,      such

execution procedure to be determined and supervised by the Director

of the institutional division of the Texas Department of Criminal

Justice.”21     Here, the district court ordered that the execution be

carried out by lethal injection and acknowledged the authority of

the Attorney General, through the auspices of the Director of the

Federal Bureau of Prisons, to designate the place of execution and

the substances to comprise Bourgeois’s lethal injection.

     Bourgeois fails to demonstrate that the district court’s order

is inconsistent with Texas law.                   The only difference between the

Texas law and the district court’s acknowledgment is that the

district court recognized Congress’s delegation to the Department

of Justice when the court turned over Bourgeois to the Director of

the Federal Bureau of Prisons and not to the Director of the

Institutional Division of the Texas Department of Criminal Justice.

There is nothing before us, however, to suggest that the Director

of the Federal Bureau of Prisons is not the equivalent of (1) the

Attorney General,          (2)    the    Department        of    Justice,        or   (3)    the

Director of the Institutional Division of the Texas Department of

Criminal     Justice.           Therefore,     even    if       the       district    court’s

purported “delegation” of power to the Director of the Federal

Bureau of Prisons were error (which it was not), such error would


     21
          TEX. CRIM. PROC. CODE § 43.14 (Vernon 2005).

                                             18
not have been plain.       Furthermore, there is nothing before us to

indicate     that   the   difference   affects   Bourgeois’s   substantial

rights.

E.   The Statutory and Non-Statutory Aggravating Factors

     Bourgeois asserts that all five of the aggravating factors

used in his sentencing are vague and overbroad.            As the Eighth

Amendment prohibits the arbitrary imposition of the death penalty,22

an aggravating factor must meet two distinct thresholds to pass

constitutional muster.23       First, the factor must not be so broad

that it could apply to every murderer potentially eligible for the

death penalty.24      This is because an overbroad aggravator could

invite arbitrariness into the capital sentencing decision, in

violation of the Eighth Amendment.25 Consequently, the factor “must

perform a narrowing function with respect to the class of persons

eligible for the death penalty and must also ensure that capital

sentencing decisions rest upon an individualized inquiry.”26


     22
          Jones, 527 U.S. at 381.
     23
          Tuilaepa v. California, 512 U.S. 967, 972 (1994).
     24
      Id. See also Jones, 527 U.S. at 402 (noting that an
aggravating factor is unconstitutionally overbroad if a jury
could consider it to apply to every defendant who is eligible for
the death penalty).
     25
      See Tuilaepa, 512 U.S. at 973 (noting that the underlying
principle in making the capital sentencing decision is that
“[t]he State must ensure that the process is neutral and
principled so as to guard against bias or caprice in the
sentencing decision.”).
     26
          Jones, 527 U.S. at 381.

                                       19
       Second, an aggravating factor must have “some ‘common-sense

core    of     meaning...that       criminal      juries   should   be   capable   of

understanding.’”27 Simply put, an aggravating factor cannot be

unconstitutionally vague. “[V]agueness review is quite deferential

...and [the Supreme Court has] found only a few factors vague.”28

As we explain below, none of the aggravators targeted by Bourgeois

in this appeal is either vague or overbroad. Thus, the aggravators

are valid under the Eighth Amendment.

       i.         Victim Impact and Victim Vulnerability

       Bourgeois        insists     that    the     victim   impact      and   victim

vulnerability aggravators are unconstitutionally overbroad because

they could apply to any murderer.29 The Supreme Court has, however,

held otherwise. Specifically, the Court has explained that “though

the concepts of victim impact and victim vulnerability may well be

relevant in every case, evidence of victim vulnerability and victim

impact       in    a   particular    case   is    inherently    individualized.”30

Accordingly, these aggravating factors are not overbroad.



       27
      Tuilaepa, 512 U.S. at 973 (quoting Jurek v. Texas, 428
U.S. 262, 279 (1976)).
       28
            Id. at 973-74.
       29
      The victim impact aggravator states that JG’s murder
caused her family “extreme emotional suffering, and [her] family
has suffered severe and irreparable harm.” The victim
vulnerability aggravator states that JG “was particularly
vulnerable due to her youth.”   The vulnerability aggravator is
based on the FDPA section 3592(c)(11).
       30
            Jones, 527 U.S. at 401 (emphasis in original).

                                            20
     Bourgeois also asserts that the victim impact and victim

vulnerability aggravators are unconstitutionally vague.               Again,

Bourgeois’s argument fails.        The jury could have had no difficulty

understanding that it was directed by the victim impact aggravator

to consider the particular effect of JG’s murder on her family.31

Neither could the jury have had difficulty understanding that the

victim vulnerability aggravator directed it to consider whether JG

was especially vulnerable to Bourgeois’s attack because she was

only two years old and under his care, custody, and control by

virtue    of    a   court   order.32    The   victim   impact   and   victim

vulnerability aggravators are not unconstitutionally overbroad or

vague.

     ii.       Heinous, Cruel, or Depraved Manner of Committing Offense

     Bourgeois likewise contends that the aggravating factor that

he “committed the offense in an especially heinous, cruel, or

depraved manner in that it involved torture and serious physical

abuse to JG” is overbroad and vague.          This factor is based on the

language of § 3592(c)(6) of the FDPA, which we have consistently

     31
      See id. (holding that a victim impact aggravator was not
unconstitutionally vague because it directed the jury to
consider, inter alia, “the effect of the crime on [the victim’s]
family”).
     32
      See id. at 400 (holding that a victim vulnerability
aggravator that provided that the adult victim was especially
vulnerable to attack because of, inter alia, her slight stature
and her youth was not unconstitutionally vague because “the jury
should have had no difficulty understanding that [the factor] was
designed to ask it to consider whether the victim was especially
vulnerable to petitioner’s attack”).

                                       21
upheld against such attacks.33        We have so held because the factor

indisputably narrows the class of murderers who are eligible for

the   death      penalty   and   is   sufficiently     specific   to   pass

constitutional muster.

      iii. Substantial Planning and Premeditation

      Bourgeois also asserts that the substantial planning and

premeditation aggravators are unconstitutionally overbroad and

vague.       These factors are based on FDPA section 3592(c)(9), and

they obviously narrow the class of murderers who could be eligible

for the death penalty because not every murder involves substantial

planning or premeditation.       Furthermore, we have explicitly held

that these aggravators are not unconstitutionally vague.34

      iv.     Future Threat

      Finally, Bourgeois urges that the future-threat aggravator ——

that, based on his personal history of violence, he “is likely to

commit criminal acts of violence in the future which would be a

continuing and serious threat to the lives and safety of others” ——

is unconstitutionally overbroad and vague.           It is neither.    It is

axiomatic that not every murderer will pose a serious continuing

threat to society.      Furthermore, like the victim-vulnerability and

      33
      U.S. v. Hall, 152 F.3d 381, 414 (5th Cir. 1998) (upholding
the factor against a challenge that it was both
unconstitutionally overbroad and vague), abrogated on other
grounds by U.S. v. Martinez-Salazar, 528 U.S. 304, 316 (2000)
(peremptory challenges); Jones, 132 F.3d 232 (upholding the
factor against a challenge that it was unconstitutionally vague).
      34
           Webster, 162 F.3d at 354 n.70.

                                      22
victim-impact aggravators, the future-threat aggravator used here

channeled the jury’s attention to the specific facts of the case,

i.e., Bourgeois’s individual history of systematic violence.35 This

factor      is   inherently       individualized         and     thus     is     not

unconstitutionally overbroad.36

     Neither is the future-threat aggravator unconstitutionally

vague.     A jury would easily understand that it is directed by this

aggravator to consider whether Bourgeois will pose a danger to

society in the future.           In Jurek v. Texas, the Supreme Court

reviewed, inter alia, “whether there is a probability that the

defendant     would     commit   criminal    acts   of   violence       that   would

constitute a continuing threat to society.”37                  In his concurring

opinion, Justice White concluded that the factor has “a common-

sense core of meaning and that criminal juries should be capable of

understanding     [it].”38       The   future-threat      aggravator      here    is

substantially similar to the one construed in Jurek, and our



     35
      Cf. Jones, 527 U.S.at 401 (holding that the victim impact
and victim vulnerability aggravators were not overbroad and
explaining that “though the concepts of victim impact and victim
vulnerability may well be relevant in every case, evidence of
victim vulnerability and victim impact in a particular case is
inherently individualized.”).
     36
      See Nguyen v. Reynolds, 131 F.3d 1340, 1354 (10th Cir.
1998) (holding with little discussion that the Oklahoma future
dangerousness aggravator was not applicable to every murderer and
therefore was not unconstitutionally overbroad).
     37
          428 U.S. 262, 277 (1976) (White, J., concurring).
     38
          Id. at 279.

                                        23
conclusion is no different than Justice White’s:      The factor is

constitutionally sound.

                          III. CONCLUSION

     This is not a close case.   Bourgeois fails to prove that there

was any error, much less plain error, in any aspect of his trial.

Bourgeois’s conviction and sentence are, in all respects,

AFFIRMED.




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