United States v. Balgooyen

39 F. App'x 215
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 19, 2002
DocketNo. 01-2170
StatusPublished

This text of 39 F. App'x 215 (United States v. Balgooyen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Balgooyen, 39 F. App'x 215 (6th Cir. 2002).

Opinion

OPINION

MOORE, Circuit Judge.

Defendant-Appellant Jeffrey John Balgooyen pleaded guilty to one count of conspiracy to distribute one hundred kilograms or more of marijuana and was sentenced to forty-one months’ imprisonment and five years’ supervised release. He now appeals the district court’s application of a two-level sentencing enhancement for use of a “special skill” pursuant to United States Sentencing Guideline § 3B1.3. For the following reasons, we VACATE Balgooyen’s sentence and REMAND for resentencing.

I. BACKGROUND

Jeffrey John Balgooyen (“Balgooyen”) was an attorney in Grand Rapids, Michigan. In May, 2000, Balgooyen’s car was pulled over in Arizona by a patrolman with the Arizona Department of Public Safety. Following an alert by a drug-detecting dog, the patrolman searched the trunk of Balgooyeris car and found over seventy-five kilograms of marijuana. Balgooyen was arrested, and he subsequently cooperated with the police. On March 29, 2001, a grand jury in the United States District Court for the Western District of Michigan issued an indictment against two of Balgooyeris co-conspirators, and on April 24, 2001, the same grand jury issued a superseding indictment against Balgooyen and seven co-conspirators. The superseding indictment charged Balgooyen with one count of conspiracy to distribute over one hundred kilograms of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). In addition, the superseding indictment included a forfeiture count against Balgooyen and his co-conspirators pursuant to 21 U.S.C. § 853.

On April 24, 2001, Balgooyen pleaded guilty to the conspiracy count. In the plea agreement, the parties stipulated that a drug quantity of 76.2 kilograms of marijuana should be used in calculating Balgooyeris base offense level. A probation officer prepared a presentence investigation report (“PSR”), calculating Balgooyeris base .offense level at 22. The PSR then recommended a two-level enhancement for use of a “special skill” pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 3B1.3, a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a), and a one-level reduction for timely notification of a guilty plea pursuant to U.S.S.G. § 3El.l(b). In regard to the two-level enhancement for use of a “special skill,” the PSR stated:

Mr. Balgooyen, as an attorney, used his skills in a manner that significantly facilitated this conspiracy by the laundering and concealment of drug proceeds. He drafted and witnessed quit claim deed(s) transferring ownership of 910 Underhill, Grand Rapids, Michigan, from Mr. Elmer to Mr. Austin in satisfaction of a drug debt. He instructed his wife to notarize this transaction. He processed [217]*217other quit claim deeds. In order to prepare quit claim deeds for another person, the preparer must be licensed by the state. To do so without a license would be the unauthorized practice of law.

Joint Appendix (“J.A.”) at 91(PSR). Finally, the PSR recommended that Balgooyen’s criminal history established a criminal history category of III.

Balgooyen and the government both filed objections to the PSR. Balgooyen objected, in pertinent part, to the two-level enhancement for use of a “special skill.” He contended that: (1) the PSR derived its factual basis for the enhancement from information Balgooyen provided to the government in violation of U.S.S.G. § 1B1.8; and (2) no special skill is required to draft a quitclaim deed. J.A. at 109-112 (Def.’s Objections to PSR). On August 7, 2001, the district court held a sentencing hearing, at which the following exchange occurred regarding Balgooyen’s objection to the two-level “special skill” enhancement:

MR. O’HARA: ... It is our position, Your Honor, that although it is true that Mr. Balgooyen was a lawyer and did prepare this quit claim deed—
THE COURT: He prepared it as a lawyer?
MR. O’HARA: Yes, he did, Your Honor.
THE COURT: Doesn’t that answer the question?
MR. O’HARA: It’s our position that that did not significantly facilitate the commission or concealment of the offense, and that’s what we kind of focused in on in that the guideline speaks of a special skill which significantly facilitated the commission of the offense. It’s our position that when Mr. Balgooyen prepared that quit claim deed, that it was recorded in the Kent County Register of Deeds. It was not hidden. It was not difficult to detect. And Mr. Austin certainly could have had any other person who was a lawyer prepare the quit claim deed for himself for $30 or $35.
The Act of preparing the deed we contend did not significantly facilitate the commission of this offense. Mr. Austin, whatever he did for his own purposes and gain was his own doing. Mr. Balgooyen prepared a simple quit claim deed which was not hidden, which was openly recorded; and quite frankly, Mr. Austin could have gone to anyone else, including preparing the deed himself. So it is our position that 3B1.3 does not apply because even though Mr. Balgooyen was a lawyer and prepared the quit claim deed, that act alone did not significantly contribute to the facilitation of the commission of this offense.
THE COURT: I’m going to overrule the objection. Mr. Balgooyen acted as a lawyer when he prepared the deed. Now, whether or not other persons could have done that is not the issue. He was acting as a lawyer.
Mr. Underhill, co-defendant, co-conspirator in the larger enterprise, the purpose of preparing the deed was to transfer laundered monies used in the purchase of it....

J.A. at 74A-75 (Sentencing Hearing Tr.). On August 8, 2001, the district court sentenced Balgooyen to forty-one months’ imprisonment and five years’ supervised release. The court adopted the factual findings and guideline application in the PSR, except the court found that Balgooyen’s criminal history category was II instead of III. Balgooyen timely appeals.

II. ANALYSIS

On appeal, Balgooyen challenges only the district court’s application of the two-[218]*218level enhancement for use of a “special skill” pursuant to U.S.S.G. § 3B1.3. Balgooyen’s offense level was calculated at 21, which results in a sentencing range of forty-one to fifty-one months; without the enhancement, Balgooyen’s offense level would be calculated at 19, which results in a sentencing range of thirty-three to forty-one months. We review the district court’s interpretation of the Sentencing Guidelines de novo, and we review the district court’s findings of fact at sentencing for clear error. United States v. Canestraro, 282 F.3d 427, 431 (6th Cir.2002). “A district court’s application of the facts to the Sentencing Guidelines is a mixed question of law and fact that we review de novo.” United States v. Georgia, 279 F.3d 384, 386 (6th Cir.2002) (quoting United States v. Middleton,

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Bluebook (online)
39 F. App'x 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-balgooyen-ca6-2002.