United States v. Carey

• Court: Court of Appeals for the Third Circuit
• Decided: September 2, 2004
• Docket: 03-3780
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

9-2-2004

USA v. Carey Precedential or Non-Precedential: Precedential

Docket No. 03-3780

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Recommended Citation "USA v. Carey" (2004). 2004 Decisions. Paper 289. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/289

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Thomas Livingston, Esquire (ARGUED) Assistant Federal Public Defender UNITED STATES COURT OF Shelley Start, Esquire APPEALS FOR THE THIRD CIRCUIT Federal Public Defender Lisa B. Freeland Acting Federal Public Defender No. 03-3780 1450 Liberty Center 1001 Liberty Avenue Pittsburgh, PA 15222

UNITED STATES OF AMERICA, Attorneys for Appellant Jean M arie Carey

v. Christine A. Sanner, Esquire (ARGUED) JEAN MARIE CAREY, Assistant United States Attorney Appellant Mary Beth Buchanan, Esquire Bonnie R. Schlueter, Esquire ____________ United States Attorney 700 Grant Street, Suite 400 Pittsburgh, PA 15219 APPEAL FROM THE UNITED STATES DISTRICT COURT Attorneys for Appellee United States of FOR THE W ESTERN DISTRICT OF America PENNSYLVANIA (D.C. Crim. No. 02-cr-00089-1) _______________ District Judge: Honorable Gary L. Lancaster OPINION ____________ Argued May 11, 2004 Before: NYGAARD, McKEE and WEIS, Circuit Judge. WEIS, Circuit Judges. Defendant complains that a (Filed: September 2, 2004) downward departure for cooperation ____________ with the government was improperly limited because she was given no notice in advance that the sentencing judge had

1 doubts about her credibility. Because she of her plea agreement and § 5K1.1. . ..” failed to present any reason that the The Guideline calculation result would have been different had she yielded a range of 30-37 months’ challenged the judge’s impression, we incarceration. After counsel’s argument will affirm the judgment. at the sentencing hearing, Judge Defendant pleaded guilty Lancaster commented on the defendant’s to one count of bank fraud in violation of extensive criminal history, filled as it was 18 U.S.C. § 1344(1) and was sentenced “with theft and fraud offenses so great to 24-months incarceration. Following that she is in the same category as career the denial of her motion to reopen the offenders for sentencing purposes.” He sentencing record, defendant appealed. noted that he had intended “to give the She contends that she was denied due maximum penalty of 37 months.” process and advance notice of the The judge did, however, sentencing judge’s intention to determine agree to consider the government’s a fact adverse to her entitlement to a motion for a sentence reduction for the downward departure. See U.S.S.G. § defendant’s assistance during the Ogden 6A1.3.1 trial. In determining the downward As part of her plea departure, the judge noted that he was agreement, the defendant agreed to taking the accuracy of her testimony in provide assistance to the government in the Ogden case into account. “In all the prosecution of her co-defendant, Jack candor in my view I do not believe she Ogden. She testified against him at his was truthful during the testimony. I trial, but the jury acquitted. Judge believe she embellished the criminality Lancaster presided over the two-day trial, of her co-defendant in order to get this as well as the defendant’s sentencing downward departure. She attributed which occurred two weeks later. conduct to him even the government Following the Ogden trial, the didn’t . . ..” After allowing a 10-month government filed a § 5K1.1 motion for a credit for pretrial incarceration, the judge downward departure stating that “[Carey] granted an additional three month gave truthful responses to all questions reduction pursuant to the § 5K1.1 put to her and has otherwise cooperated motion. fully and completely within the meaning Defense counsel then asked the court to reconsider the sentence based on the defendant’s good behavior during 1. This case is not governed by Blakely the preceding year. The judge v. Washington, 542 U.S. ____ (2004), responded, “I have given thought to the because it does not involve an upward sentence. I don’t do this lightly. I departure affected by criminal conduct to understand what I am doing. I which the right of jury trial applies.

2 understand two years in the federal States v. Khalil, 132 F.3d 897 (3d Cir. penitentiary is rough. I think she needs 1997) (no jurisdiction where there has to be in a structured environment for a been some exercise of the court’s while.” discretion in departing downward); United States v. Denardi, 892 F.2d 269 Following the sentencing (3d Cir. 1989)(same). 2 However, in this hearing, the defendant moved to reopen case, the defendant alleges a violation of the record, asserting that the court’s the Constitution, a rule of criminal failure to put her on notice that the procedure, as well as an incorrect truthfulness of her testimony was a application of a Guideline. 18 U.S.C. §§ disputed sentencing factor foreclosed her 3742(a)(1) and (2) permit appeal of a opportunity to respond. The District sentence if it was imposed in violation of Court denied the motion, noting that it law [or] was imposed as a result of an had granted a departure that took “into incorrect application of the Sentencing consideration, among other things, the Guidelines. See United States v. Ruiz, defendant’s own testimony. Defendant 536 U.S. 622 (2002). should not be surprised or feel ambushed because the court undertook the Whether a sentencing evaluation required by § 5K1.1.” factor is a permissible basis for departure is a question of law. Accordingly, we On appeal, defendant cites have jurisdiction to entertain this appeal. Sentencing Guideline § 6A1.3, which We exercise plenary review over the states that a court should not rely on a District Court’s interpretation and factor important to a sentencing application of the Guidelines. United determination without first alerting the States v. Figueroa, 105 F.3d 874, 875-6 parties that the factor is in dispute and (3d Cir. 1997). Under the PROTECT granting the right to challenge any ACT’s amendments to 18 U.S.C. adverse finding. She also claims that this 3742(e), which are applicable to this lack of notice denied her Due Process case, see United States v. Dickerson, ___ under the Fifth Amendment. F.3d ___ (3d Cir. 2004), we are required I. to “give due regard to the opportunity of the district court to judge the credibility Generally speaking, we do of the witnesses.” not have jurisdiction to hear a defendant’s claim that a downward departure was inadequate. United States v. Minutoli, ____ F.3d ____ (3d Cir. 2 But see United States v. 2004) (no jurisdiction “where a District Dickerson, ___ F.3d ___ (3d Cir. 2004) Court allegedly made a mistake of fact (government may appeal a downward when, in the exercise of its discretion, it departure under 18 U.S.C. 3742(b)(1) - refused” to depart downward); United (4))

3 II. assistance departures listed in § 5K1.1 are not meant to be exhaustive, they are It may be helpful to review instructive.” Casiano, 113 F.3d at 429. the procedures applicable to a downward According to the Guideline, “(a) the departure based upon the defendant’s appropriate reduction shall be determined cooperation with the government. First, by the court for reasons stated that may the sentencing court may lower the include, but are not limited to, period of incarceration only after a consideration of the following: motion by the prosecutor under 18 U.S.C. § 3553(e). See United States v. (1) the Court’s evaluation Bruno, 897 F.2d 691 (3d Cir. 1990). of the significance and usefulness of a defendant’s assistance taking into Once the government has consideration the government’s filed an appropriate motion, the authority evaluation of the assistance rendered; returns to the district court. “It is the District Court’s decision, not the (2) the truthfulness, prosecutor’s, whether to depart and to competent completeness and reliability what extent . . . [T]he government’s of any information or testimony provided filing of a § 5K1.1 motion ‘does not bind by the defendant.” a sentencing court to abdicate its U.S.S.G. § 5K1.1(a). As we said in responsibility [or] stifle its independent United States v. King, 53 F.3d 589, 591 judgment.’” United States v. Casiano, (3d Cir. 1995), a proper exercise of the 113 F.3d 420 (3d Cir. 1997) (citing District Court’s discretion under 5K1.1 United States v. Mariano, 983 F.2d 1150, “involves an individualized qualitative 1155 (1 st Cir. 1993)). As one court examination of the incidents of the phrased it, “[t]he District Court is not defendant’s cooperation . . ..” obligated to depart downward simply because a grateful prosecutor prefers a On occasion, and despite lighter sentence.” Mariano, 983 F.2d at the terms of a government 1155. A prosecutor’s opinion of the recommendation, factors other than those defendant’s truthfulness stated in a § listed in 5K1.1 have been considered in 5K1.1 motion is understandably affected deciding the extent of a departure. by an advocate’s bias and does not Casiano, 113 F.3d at 430 (nature and foreclose a contrary appraisal by a circumstances of the offense may be neutral, impartial judge. taken into account in limiting the extent of a § 5K1.1 reduction); United States v. Nevertheless, once the Webster, 54 F.3d 1, 4 (1st Cir. 1995) district court decides to grant a § 5K1.1 (limiting extent of §5K1.1 departure so motion, “there are some parameters to as not to "offset" the impact of a the exercise of the court’s discretion.” mandatory 60-day month consecutive Although “the bases for substantial sentence); United States v. Alvarez, 51

4 F.3d 36, 39-40, 41 n.5 (5th Cir. 1995) Fed. R. Crim. P. 32(h) was (limiting departure to avoid disparity in amended in 2002 to read somewhat more sentences with less culpable co- expansively than the holding in Burns. conspirators); United States v. Carnes, The Rule currently reads, “[b]efore the 945 F.2d 1013, 1014 (8th Cir. 1991) Court may depart from the applicable (limiting departure in light of sentencing range on a ground not prosecutor’s failure to press weapon identified for departure either in the pre- charges). sentence report or in a party’s pre- hearing submission, the court must give The court’s reservations the parties reasonable notice that it is here as to the extent of the defendant’s contemplating such a departure. The truthfulness were within the factors cited notice must specify any ground on which in the Guidelines and are not subject to the court is contemplating a departure.” attack as being an impermissible Taken together, the Guidelines, Rules of criterion. In sum, a District Court has Criminal Procedure and case law provide authority to refuse or grant a downward that, in general, when there are factors departure under § 5K1.1 and is granted that may have a measurable effect on the broad discretion in determining the applicable punishment, notice must be extent of the reduction. given to the defendant to allow an III. opportunity to comment on their accuracy. We now turn to the defendant’s objection that she was Failure to give notice entitled to notice that the departure which realistically prevents a defendant would be affected by the court’s doubts from presenting evidence on a disputed as to the truthfulness of her testimony at point may, in some circumstances, affect the Ogden trial. substantial rights and require re- sentencing. See United States v. Himler, The Sentencing Guidelines 355 F.3d 735 (3d Cir. 2004). However, require the court to provide the parties in United States v. Reynoso, 254 F.3d with an adequate opportunity to present 467, 475 (3d Cir. 2001), the court information when a sentencing factor is concluded that although Fed. R. Crim. P. reasonably in dispute. See U.S.S.G. § 32 had been violated, the error was 6A1.3(a). In United States v. Burns, 501 harmless because even if notice had been U.S. 129 (1991), the Supreme Court held given there was nothing that defense that Fed. R. Crim P. 32 requires counsel would have done differently at “reasonable notice” to parties before a the sentencing hearing. district court considers an upward departure on a ground not identified in Similarly, United States v. the pre-sentence report or in a pre- Nappi, 243 F.2d 758, 770 (3d Cir. 2001), hearing submission. determined that failure to provide notice

5 was not plain error unless the defendant by the defendant’s conduct, and did so would have done something by way of sua sponte and without any notice to the argument or proof that probably would parties. On appeal, Himler asserted that have affected the outcome. See also if a warning had been given, he would United States v. Rivera, 192 F.3d 81 (2d have subpoenaed certain financial Cir. 1999). records bearing on the financial security of the victims, investigated factors There is a paucity of cases underlying the sale of property which citing a lack of notice to challenge a had a connection with the charged fraud, limited downward adjustment; in most as well as invoked Guidelines provisions cases citing lack of notice, the issue was that disfavored enhancement in the a “surprise” upward adjustment or failure circumstances. Based on the assertion to grant any downward departure that such specific measures would have whatsoever. In United States v. Patrick, been employed had notice been given, 988 F.2d 641, 648 (6 th Cir. 1993), the we concluded that re-sentencing was sentencing judge relied on the testimony required. Himler, 355 F.3d at 743. It is and bearing of a co-defendant at his plea worth noting that the specific avenues of hearing to justify a sentence defense foreclosed by lack of notice in enhancement for defendant Patrick that case were quite different from the because of his leadership role. The circumstances in Patrick. Court of Appeals concluded that advance comment on the co-defendant’s IV. testimony would not have provided Fed. R. Crim. P. 32(h) Patrick with any additional incentive or speaks to a “departure from the ability to challenge its accuracy. “To the applicable sentencing range” when no extent that the sentencing judge relied on notice was given either in the pre- a comparison of the demeanors of the sentence report or a submission by a two defendants, that evidence was party. In this case notice was given essentially irrebuttable.” Had the through the government’s motion under sentencing judge earlier notified Patrick 5K1.1 for a reduction of sentence and that his “bearing, as compared to that of therefore, by its terms, the Rule does not his co-defendant, was that of a leader, it apply. is difficult to see what evidence or arguments such a disclosure would have Moreover, Rule 32(h) does prompted Patrick to offer.” Patrick, 988 not limit a court’s discretion as to the F.2d at 648. extent of a downward departure it may apply. See United States v. King, 53 F.3d By comparison, in United at 591 (noting that the extent of a States v. Himler, the sentencing court departure is a “non-mechanical process,” based an upward departure on the by which a sentencing court must give economic impact on the victims caused

6 “appropriate weight to the government’s Berzon, 941 F.2d 8 (1 st Cir. 1991). Here assessment and recommendation, [but it was the testimony of the defendant still] consider all other factors relevant to herself that was under scrutiny. this inquiry.”) Defendant was fully aware of what she had said as a witness. The same judge Accordingly, we conclude who heard all of the testimony in the that the defendant is not entitled to any Ogden trial was in a unique position to relief under Rule 32(h). make a judgment on the defendant’s Finally, we consider the truthfulness as required by § 5K1.1. In defendant’s challenge to the lack of such circumstances, the likelihood of notice under Sentencing Guideline § effective rebuttal is extremely slim. 6A1.3. To some extent the judge’s Nothing in the Guideline evaluation of her veracity is similar to the purports to require the sentencing judge impressions gathered by the sentencing to disclose in advance such matters as his judge in the Patrick case. We need not appraisal of the undisputed material term the appraisal here as “irrebuttable,” contained in the pre-sentence report, but we would expect defendant to point impressions created by the defendant’s to specific steps she could have taken to conduct during a trial, or the nature of change the judge’s conclusion on what the violation. Indeed, such he had seen and heard in the Ogden trial. announcement of the judge’s tentative Only two weeks elapsed between the trial feeling about factors bearing on and the sentencing so the facts were still appropriate punishment might undermine fresh in the minds of both defendant and the efficacy of the sentencing hearing. her counsel who had been in the An unwillingness to change one’s courtroom during her testimony. publicly declared opinion is not a Defendant did not stranger to the judiciary. immediately object to the sentencing Moreover, a remand for re- judge’s reaction to her testimony, but did sentencing should not be required unless so in her motion to reconsider. However, there is reason to believe that an injustice neither in that motion nor in the briefs in has occurred that can be corrected by this appeal did she state what steps she reconsideration. We are not persuaded would have taken to alter the sentencing that that has occurred in this case. judge’s opinion. If the defendant does not point to a deprivation that could This case is unlike those affect the outcome, re-sentencing is not where a sentencing judge relied on required. Thus, this case fails the test set testimony of a co-defendant in another proceeding as the basis for a sua sponte enhancement. See, e.g., United States v.

7 out in Himler.3 Moreover, the sentencing decision was obviously influenced by the defendant’s extensive criminal record which began in 1980. As the judge remarked, “short incarcerations have done little to dissuade her from her criminal life . . . I think she needs to be in a confined environment . . . I think 24 months confined under strict supervision is necessary for this woman.” These comments further indicate that advance notice of the judge’s skepticism about the defendant’s truthfulness at the Ogden trial would likely not have affected the ultimate sentence imposed. Accordingly, the judgment of the District Court will be affirmed.

3 Our holding here preserves notice to the defendants of adverse sentencing factors as required by U.S.S.G. §6A1.3 and Fed. R. Crim P. Rule 32. Burns cautioned that “[w]ere we to read [these provisions] to dispense with notice, we would then have to confront the serious question whether notice in this setting is mandated by the Due Process Clause.” 501 U.S. at 138. We need not address defendant’s due process claims here because the district judge’s exercise of discretion here comported with the requirements of U.S.S.G. §6A1.3 and Fed. R. Crim P. Rule 32 as interpreted by our binding precedent. Id.