United States v. Hoyle

• Court: Court of Appeals for the First Circuit
• Decided: January 6, 2000
• Docket: 99-1167
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1167



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                     REX W. CUNNINGHAM, JR.,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



       [Hon. Frank H. Freedman, Senior U.S. District Judge]


Before



                     Torruella, Chief Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Lynch, Circuit Judge.


Barbara J. Sweeney, with whom Jack St. Clair was on brief for

appellant.



     Todd E. Newhouse, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.


January 6, 2000


BOWNES, Senior Circuit Judge.  Defendant-Appellant, Rex

W. Cunningham, Jr., pled guilty to an eight-count indictment. 

Count one of the indictment charged Cunningham with a racketeering

conspiracy in violation of 18 U.S.C.  962(d) (1994).  The second

count charged a racketeering offense under 18 U.S.C.  962(c). 

Counts three and five charged Cunningham with making an

extortionate extension of credit in violation of 18 U.S.C.  892

(1994).  Counts four and six charged him with collecting an

extortionate extension of credit with extortionate means in

violation of 18 U.S.C.  894 (1994).  The seventh count charged

another violation of 18 U.S.C.  894, conspiring to use

extortionate means to collect a debt.  The eighth count charged

Cunningham with operating an illegal gambling business in violation

of 18 U.S.C.  1955 (1994).  

  At sentencing, the district court awarded Cunningham a

two-level decrease for acceptance of responsibility, pursuant to

United States Sentencing Guidelines Manual ("U.S.S.G.")  3E1.1(a)

(1995 & Supp. 1997), but declined to give him an additional one-

level decrease for timely notification of his intent to plead

guilty.  The district court also applied a four-level increase,

pursuant to U.S.S.G.  2E2.1(b)(3)(A), for abduction in the course

of making or financing an extortionate extension of credit or

collecting an extension of credit by extortionate means.  

  Cunningham appeals his sentence on the ground that the

district court erred in refusing to grant him an additional one-

level reduction, pursuant to U.S.S.G.  3E1.1(b).  He also appeals

the district court's imposition of a four-level increase, pursuant

to U.S.S.G.  2E2.1(b)(3)(A).  

                               I.

  The government's key evidence was obtained by electronic 

recordings of Cunningham's statements at his principal place of

business, Dillon's Tavern, in Springfield, Massachusetts, and by

interception and recording of his cellular phone conversations. 

The electronic surveillance was conducted pursuant to a warrant

issued by a state court.

  This is the second time this case has come before us.  In

the prior case, defendant moved to suppress the recorded wire and

oral communications.  The district court allowed the motion, and

subsequently denied the government's motion for reconsideration. 

The government filed a timely appeal, and we reversed the district

court's order of suppression.  See United States v. Cunningham, 113

F.3d 289 (1st Cir. 1997).  We denied defendant's petitions for a

rehearing and a rehearing en banc.  Thereafter, the defendant filed

a petition for a writ of certiorari with the Supreme Court, which

was denied, see Cunningham v. United States, 118 S. Ct. 165 (1997)

(mem.), and mandate entered on December 12, 1997.

  The parties engaged in plea negotiations in December 1997

and January 1998, after the Supreme Court's denial of certiorari. 

Nonetheless, by the time the district court held a status

conference in late January 1998, the parties had not settled on a

plea agreement.  They informed the court that the case would go to

trial and that there were still suppression issues outstanding. 

The court set a trial date of May 4, 1998.

  On March 16, 1998, the defendant informed the government

by letter that he intended to plead guilty to all counts of the

indictment, but it was his "intention to try the issues relating to

[the] forfeiture allegations."  Cunningham officially entered his

guilty plea on April 20, 1998 and the court held a sentencing

hearing on July 31, 1998.  The court did not pronounce sentence at

that time, but agreed to defer sentencing until after resolution of

the forfeiture issues and until Cunningham had an opportunity to

locate a witness to testify at the hearing.  An agreement was

eventually reached with Cunningham's wife regarding forfeiture on

October 23, 1998.  Cunningham never located the witness and the

court entered sentence on October 27, 1998.  The court sentenced

Cunningham to 200 months in prison on each count, to be served

concurrently, and to three years of supervised release on each

count, to be served concurrently and with certain conditions.

                                                              II.

  A.     U.S.S.G.  3E1.1(b)

  U.S.S.G.  3E1.1 allows for downward adjustments in

offense level for acceptance of responsibility.  The district

court found that Cunningham was eligible for the two-level decrease 

provided for in subsection (a).  The district court refused,

however, to grant Cunningham an additional one-level deduction

under subsection (b).  Subsection (b) provides:

    (b) If the defendant qualifies for a decrease

  under subsection (a), the offense level

  determined prior to the operation of

  subsection (a) is level 16 or greater, and the

  defendant has assisted authorities in the

  investigation or prosecution of his own

  misconduct by taking one or more of the

  following steps:

             (1)  timely providing complete

         information to the government

         concerning his own involvement in

         the offense; or

             (2)  timely notifying authorities of

         his intention to enter a plea of

         guilty, thereby permitting the

         government to avoid preparing for

         trial and permitting the court to

         allocate its resources

         efficiently, 

        decrease the offense level by 1

    additional level.



U.S.S.G.  3E1.1(b).  In ruling on this issue, the district court

stated:

      Well, the fact that you were in plea

  negotiations with the government from December

  1997 on does not mean that [you were], in

  fact, going to plead guilty.  The government

  then had to prepare, and it was six months

  after the Supreme Court response, and only six

  weeks before the trial date that you stated

  the intention to plead guilty was actually

  what you were going to do, and you went

  forward.



      And then, of course, there is the

  issue, and you say it is not important, but I

  think it probably is, the government does have

  to prepare for trial regarding the forfeiture

  issue, regardless of whether it is

  preponderance of the evidence and I said no as

  far as anything beyond that is concerned,

  still means they have to prepare for it.  



The court essentially restated the position of the Probation

Department, which, in the Pre-Sentence Report, advised against

making the additional one-level adjustment for three reasons:



    First, the fact that the defendant was in plea

  negotiations with the government in December

  of 1997 does not mean that Cunningham made it

  clear that his intention was to plead guilty. 

  Secondly, it was approximately six months

  after the Supreme Court's response and only

  six weeks before the said trial date that the

  defendant stated his intention to plead

  guilty.  Thirdly, there is the issue of the

  government having to prepare for trial

  regarding the forfeiture issues.  Although

  this is an unusual situation, the Probation

  Department does not believe that by pleading

  guilty to the criminal counts, that he met the

  criteria described in  3E1.1(b)(2). The

  government has still had to prepare for trial.



PSR 87.

  Cunningham makes two arguments that this ruling was in

error.  First, he contends that forfeiture is a part of the

sentence, not the criminal offense, and, therefore, should not be

included within the scope of conduct to which the defendant must

admit before being eligible for the one-level adjustment.  Second,

Cunningham argues that there was no evidence that the government

had to prepare for trial on the criminal charges themselves, or

that the timing of Cunningham's notification of his intent to plead

guilty led to an inefficient allocation of the court's resources.

  Cunningham faces an "uphill battle" in contesting the

district court's ruling.  United States v. Morillo, 8 F.3d 864, 871

(1st Cir. 1993).  The defendant bears the burden of proof on this

"fact-dominated issue" and the district court's ruling will only be

overturned if it is clearly erroneous.  Id.  Because "the

sentencing judge is in a unique position to evaluate a defendant's

acceptance of responsibility[,] . . . the determination of the

sentencing judge is entitled to great deference on review." 

U.S.S.G.  3E1.1, application note 5; see also United States v.

Correa, 114 F.3d 314, 317 (1st Cir.), cert. denied, 118 S.Ct. 326

(1997) ("The standard of review in sentencing appeals ordinarily is

deferential.").  

  The legal issue is whether Cunningham has complied with

the elements of  3E1.1(b)(2) and is, therefore, entitled to an

additional one-level decrease.  This requires an examination of the

language of the guideline.  "The language of subsection (b) is

absolute on its face.  It simply does not confer any discretion on

the sentencing judge to deny the extra one-level reduction so long

as the subsection's stated requirements are satisfied."  United

States v. Talladino, 38 F.3d 1255, 1264 (1st Cir. 1994).  We have

stated:

    We will, of course, defer, in all such

  matters, to the district court's resolution of

  underlying facts and inferences, and pay

  careful attention to its reasoning.  But if

  all Guideline criteria are met, and no basis

  to refuse the one-level decrease can be

  discerned, we cannot defer to the district

  court's refusal to grant the decrease.



United States v. Marroquin, 136 F.3d 220, 223 (1st Cir. 1998).  

  Where the district court's ruling is grounded in an

interpretation of a guideline's legal meaning or scope, our review

is de novo.  See United States v. Voccola, 99 F.3d 37, 43 (1st Cir.

1996).  Cunningham's first argument, concerning the district

court's reliance on his failure to agree to the forfeiture

allegations, merits de novo review; the question whether forfeiture

falls within the guideline's intended scope is a legal one.  This

portion of the district court's ruling was in error.  The Supreme

Court has clearly established that forfeitures made pursuant to the

federal drug and racketeering statutes are elements of the

sentence, rather than a part of the criminal offense itself.  See

Libretti v. United States, 516 U.S. 29, 38-39 (1995) ("Forfeiture

is an element of the sentence imposed following conviction or, as

here, a plea of guilty . . . . Congress plainly intended forfeiture

of assets to operate as punishment for criminal conduct in

violation of the federal drug and racketeering laws, not as a

separate substantive offense.") (emphasis in original).  

  Further, the application notes accompanying the guideline

suggest that the level of acceptance of responsibility required to

be eligible for the adjustment is narrowly defined.  See U.S.S.G.

 3E1.1, application note 1(a) ("Note that a defendant is not

required to volunteer, or affirmatively admit, relevant conduct

beyond the offense of conviction in order to obtain a reduction

under subsection (a).").  Subsection (b) refers to a "plea of

guilty" rather than a plea of guilty and an acceptance of the

sentence proposed by the government.  The plain language of the

guideline allows little flexibility for the sentencing judge.

  Though the district court erred in relying in part or in

whole on Cunningham's refusal to accept the forfeiture allegations,

this court may uphold the denial of the one-level adjustment on

other applicable grounds.  

    A sentencing decision based in part on an

  invalid ground may be affirmed if "excision of

  the improper ground does not obscure or defeat

  the reasoning of the district court," and we

  are "left, on the record as a whole, with the

  definite and firm conviction that removal of

  the inappropriate ground would not be likely

  to alter the district court's view of the

  sentence rightfully to be imposed." 



United States v. Nunez-Rodriguez, 92 F.3d 14, 19 (1st Cir. 1996),

aff'd after remand, 141 F.3d 1150 (1st Cir. 1998) (per curiam)

(quoting United States v. Diaz-Bastardo, 929 F.2d 798, 800 (1st

Cir. 1991)).  

  The district court gave three reasons for denying 

Cunningham the additional one-level adjustment pursuant to

 3E1.1(b).  First, the district court inferred that Cunningham's

notification of his intent to plead guilty was untimely.  Second,

the district court reasoned that the additional one-level

adjustment was unwarranted because the government had to prepare

for trial.  Third, the district court reasoned that the forfeiture

issue would require a trial, for which the government would have to

prepare.  We note that the forfeiture issue was the last of the

three reasons given by the district court in its refusal to award

the additional one-level adjustment.  It should be noted that the

district court stated that forfeiture was only "probably"

important.  It would seem that the district court did not rely

solely on the forfeiture issue when it refused to award Cunningham

the additional one-level adjustment.

  The question, therefore, is whether the district court's

decision not to award the additional one-level adjustment can be

upheld on other grounds.  Another stated ground for the district

court's ruling was the timeliness of Cunningham's notification of

his intent to plead guilty.  The district court noted that the

earlier plea negotiations were not sufficient to constitute

notification of Cunningham's intent to plead guilty, and that

eventual notification was given approximately six months after the

Supreme Court's denial of certiorari and only six weeks before the

trial date.     

  Recently, this court stated that "the notice of an intent

to plead guilty must ordinarily be given well before trial." 

United States v. Hines, No. 98-1821, slip op. at 5 (1st Cir. Nov.

8, 1999).  On the other hand, we have upheld adjustments for

notification provided later in the process than Cunningham's.  We

upheld a one-level adjustment where notification of the defendant's

intent to plead guilty was made more than one year after the

indictment and only two weeks before trial.  See United States v.

Dethlefs, 123 F.3d 39, 43 (1st Cir. 1997) (upholding the one-level

adjustment for timely notification, but vacating the sentences

because of unwarranted downward departures).  Section 3E1.1

"defines timeliness in functional, rather than strictly temporal,

terms."  Id.  For that reason, "[t]imeliness is a concept, not a

constant, and it normally must be evaluated in context."  Id. 

  In terms of legal interpretation of the guideline, the

district court committed no error.  The district court correctly

refused to count the time between Cunningham's indictment and the

denial of certiorari against him.  This is in accordance with cases

protecting a defendant's constitutional rights to file non-

frivolous pre-trial motions without forfeiting his eligibility for

this adjustment.  See Marroquin, 136 F.3d at 224-25; see also

United States v. Kimple, 27 F.3d 1409, 1413 (9th Cir. 1994).  The

record also reflects that the district court properly determined

that, for purposes of the guideline, Cunningham's letter in March

1998 stating his intent to plead guilty, was his official

notification.  See United States v. Munoz, 83 F.3d 7, 9 (1st Cir.

1996) (per curiam) (stating that the date of notification, rather

than the date of the plea itself, is the proper benchmark).  The

district court considered more than just the time that elapsed

before the notification in making its determination; it referred in

its ruling on the matter to the government's need to prepare for

trial.

  Thus, the district court's ruling on this matter can only

be overturned if it was a clearly erroneous application of the

standard to the facts of the case.  Cunningham argues that it was,

because there was no evidence in the record suggesting that the

government had begun preparations for trial or suggesting that the

court was led to allocate its resources inefficiently.  It is,

however, questionable whether the district court's determination

was clearly  erroneous.  As previously stated, the district court

is due substantial deference in its fact-based sentencing

determinations.  This includes "wide latitude to decide what type

of proof is, or is not, sufficiently trustworthy to enter into the

sentencing calculus."  United States v. Robinson, 144 F.3d 104, 108

(1st Cir. 1998).  Moreover, the district court's sentencing inquiry 

is not confined to evidence that would be admissible under the

Federal Rules of Evidence.  See U.S.S.G.  6A1.3(a).  Instead, the

court may consider any evidence that "has sufficient indicia of

reliability to support its probable accuracy" and may draw

reasonable inferences therefrom.  Id.   

  Given the ambiguities in the record and the district

court's rulings, we are not in a position to determine whether the

district court's denial of the additional one-level adjustment was

clearly erroneous.  In such a case, it is proper for us to "remand

for resentencing for clarification, and further factfinding as

appropriate."  Nunez-Rodriguez, 92 F.3d at 23-24 (footnote

omitted).  Therefore, Cunningham's sentence, as it pertains to the

additional one-level adjustment pursuant to  3E1.1(b)(2), is

vacated and the case is remanded for resentencing.

  At the resentencing hearing, the court should determine

how much time the government had spent on preparing for trial prior

to the guilty plea notification.  This information should be

readily available in any case where the government opposes

application of the reduction.  The government has to do more than

make a generalized guess to how much time it had already used in

preparing for trial.  The basic questions are: whether the

government actually began preparing for trial before Cunningham

notified them of his intention to plead guilty and the extent of

this pre-trial preparation; and whether the court's resources were

inefficiently allocated because of the length of time that had

elapsed before the defendant notified the government of his

intention to plead guilty.

  B.     U.S.S.G.  2E2.1(b)(3)(A) 

  The second argument Cunningham raises on appeal concerns

the appropriateness of the four-level upward adjustment applied by

the district court under U.S.S.G.  2E2.1(b)(3)(A), which provides:

    If any person was abducted to facilitate the

  commission of the offense [referring to the

  offense of "making or financing an

  extortionate extension of credit" or

  "collecting an extension of credit by

  extortionate means"] or to facilitate escape,

  increase by 4 levels . . . .



U.S.S.G.  2E2.1(b)(3)(A).  "Abducted" is defined in the

application notes to  1B1.1 as follows:

    (a)  "Abducted" means that a victim was forced

  to accompany an offender to a different

  location.  For example, a bank robber's

  forcing a bank teller from the bank into a

  getaway car would constitute an abduction.



U.S.S.G.  1B1.1, application note 1(a).

  The government's key evidence was obtained pursuant to

the electronic surveillance of Cunningham at his principal place of

business, Dillon's Tavern, as well as from his cellular phone. 

While the electronic surveillance captured extensive evidence

relating to Cunningham's dealings, the only evidence relevant to

this appeal concerns his statements regarding his interactions with

a man named Ronald Goulet.  Goulet had borrowed several thousand

dollars from Cunningham at a very high interest rate.  When Goulet

failed to make payments on this loan for a period of two years,

Cunningham and three others severely beat him.  

  The district court found that the electronic surveillance

evidence regarding Cunningham's beating of Ronald Goulet provided

sufficient evidence that Cunningham abducted Goulet and that this

four-level increase was warranted.  This evidence contains

statements by Cunningham that he "followed [Goulet] and got out of

the car," "threw him in the fucking car" and "[t]ook him behind the

Gaslight."  An electronic recording of Cunningham speaking to an

acquaintance recorded him as saying:

  

      Oh yeah, well I got him, his sister

  died.  So I got, we sat outside the wake.  I

  went myself because I prefer that.  We sat

  outside the wake.  I followed him, a perfect

  tail.  Followed him and got out of the car.  I

  threw him in the fucking car.  Took him behind

  the Gaslight.  Had three guys waiting there. 

  Beat him with fucking pipes, tire irons.  I

  dropped his car keys on his chest.  I told him

  four of us beat you up.  And I said I'll call

  an ambulance for you.  Left him. . . .



PSR 21.

  To complicate matters, the tapes also contain statements

by Cunningham that suggest that he used a different tactic to get

Goulet to the Gaslight Lounge.  On the tapes, Cunningham infers

that he tricked Goulet into following him to the Gaslight.  That

portion of the electronic recording reveals Cunningham stating:

    No, no.  When, when, well when he got out of

  the car I said to him the bad news is I said

  there's no meeting.  And I said nobody's here

  but me and I smashed him in the face and he

  went down and them guys come out from behind a

  dumpster.  And I backed off and I said one guy

  at a time and don't hit him in the head.  But

  he went down all over the fucking place.



PSR 22.  Cunningham argued to the district court that his second

statement presented the correct version of events, and that the

first version was simply braggadocio.  He stated in an affidavit

that he did not use any physical force to bring Goulet from his

sister's wake to the Gaslight, but instead tricked him into going

to the Gaslight Lounge by telling him that Cunningham's uncle, with

whom Goulet had a long-term friendship, wished to meet with him. 

  In addressing Cunningham's objections, the district court

held that "regardless of whether he was bodily thrown into the car,

or was put into the car by the way of ruse, which is what your

client states it was, [it] is in my opinion abduction."  At another

point, the court said:

      But at this point I want to make it

  clear if someone says to me, "Get in there or

  I'll beat the hell out of you, get in that

  car", and forces me in the car, that is, of

  course, force.



      If, however, he says, "Why don't you

  get in that car and maybe we'll do something

  here and make it up to you", and encourages

  you by way of ruse that, again, seems to me to

  be abduction.  That is how I feel at this

  time, but it is subject to change.



In its final ruling on this matter, the court said:

    I still find that any will that Mr. Goulet

  might have had to prevent any meeting that day

  of the wake with Mr. Cunningham has been

  completely destroyed, and he had no will to

  overcome the fact that Mr. Cunningham urged

  him to get into the car and then, in fact,

  threw him in the car.  So I find that an

  abduction has been maintained and found on the

  factual situation expressed here in this

  court.



  On appeal, Cunningham makes two arguments that this

ruling was in error.  First, he argues that abduction under the

guidelines must be committed by means of physical force.  Second,

he argues that there was no reliable evidence that physical force

was used to transport Goulet from his sister's wake to the back of

the Gaslight Lounge where he was beaten.

  In support of his first argument, Cunningham refers to

the use of the word "force" in the definition of "abducted"

provided in the guidelines.  The guideline's use of this term is

not sufficient to uphold Cunningham's interpretation of the

guideline.  First, the word "force" in no way suggests that the

force exerted must be of a physical or violent nature.  There is

nothing in the plain meaning of the guideline to suggest that the

force used must be physical.  "Force" is defined as compelling "by

physical, moral, or intellectual means" or "to impose" or "to win

one's way."  Webster's Seventh New Collegiate Dictionary 326

(1970).  Second, as a policy matter, it seems that such a limited

interpretation of the guideline would be unwise.  An abduction

accomplished by use of threat and fear carries the same dangerous

consequences as an abduction accomplished by use of physical force

  the offender is able to isolate the victim, which "increases the

likelihood that the victim will be harmed."  United States v.

Saknikent, 30 F.3d 1012, 1013-14 (8th Cir. 1994) (quoting Webster's

Seventh New Collegiate Dictionary 326).  Third, at least two

circuits have refused such a limitation on the definition of

abduction under the guidelines.  See id.  In Saknikent, the court

found that "the abduction adjustment requires only that force

necessary to overcome the particular victim's will."  Id. at 1014. 

In that case, the Eighth Circuit concluded that trickery used by

the defendant to convince a mentally retarded child to accompany

him was sufficiently forceful to qualify as abduction under the

guidelines.  See id.; see also United States v. Romero, 189 F.3d

576, 590 (7th Cir. 1999) (holding that under U.S.S.G.  2A3.1(b)(5)

"abduction . . . means kidnapping   whether kidnapping was

committed by force of by the use of a force substitute such as

inveigling.").  While it is clear that both Saknikent and Romero

involve the abduction of children by trickery or inveigling, we

think that the age of the victim need not be dispositive. 

  We rule that there was sufficient evidence to support the

district court's conclusion that Cunningham abducted Goulet either

by physical force or trickery.  Cunningham argues that his

statements on the tape regarding physical force are unreliable and

inconsistent and, thus, should not have been given weight by the

district court.  In the face of the beating administered to Goulet

by defendant and his henchmen, about which there is no dispute, the

argument rings very hollow.

  The district court is given substantial leeway in

assessing and weighing the facts.  See United States v. Jimenez

Martinez, 83 F.3d 488, 493 (1st Cir. 1996) ("The court has wide

discretion in determining whether sentencing information is

reliable.").  In addition, in absence of clear error, credibility

assessments "are exclusively within the province of the sentencing

court."  United States v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir.

1993).  This means that "'where there is more than one plausible

view of the circumstances, the sentencing court's choice among

supportable alternatives' is not clearly erroneous and a reviewing

tribunal cannot disturb it."  Correa, 114 F.3d at 317 (quoting

United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)).  Under

this standard, the court's conclusion that some physical force was

used in bringing Goulet to the Gaslight Lounge can easily be

upheld. In fact, the district court indicated that it weighed both

versions of the story and "[t]he government's comments [that

physical force was used to abduct Goulet]. . . make[] more sense to

this Court."  

  After careful review of the record, and giving due

deference to the district court's findings of fact, this court

determines that Cunningham did "abduct" Goulet and it was warranted

in applying a four-level increase pursuant to U.S.S.G.

 2E2.1(b)(3)(A).  Therefore, this part of the district court's

sentence is affirmed.

  Vacated and remanded in part and affirmed in part.