United States v. McCoy

280 F.3d 1058, 350 U.S. App. D.C. 110, 2002 U.S. App. LEXIS 2884, 2002 WL 246633

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 22, 2002
• Docket: No. 01-3052
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge HENDERSON.

Opinion concurring in part and dissenting in part filed by Senior Circuit Judge WILLIAMS.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellant, JoAnn McCoy, appeals the district court’s May 9, 2001 judgment resentencing her to a 33-month prison term and ordering her to pay $542,781.89 in restitution and a $150 special assessment. She offers two challenges to the district court’s judgment.

First, McCoy argues that the district court erred in refusing to consider a legal issue made “newly relevant” by this court’s remand for resentencing in United States v. McCoy, 242 F.3d 399 (D.C.Cir.) (McCoy I), cert. denied, — U.S. -, 122 S.Ct. 166, 151 L.Ed.2d 114 (2001). Second, she challenges the $542,781.89 restitution figure, contending that the district court erred in refusing to reconsider that amount in light of her “current ability to pay.” Her contentions are without merit and we therefore affirm the district court’s May 9 resentencing judgment in both respects.

I.

On September 22, 1998 a jury found McCoy guilty of violating: 18 U.S.C. § 1014, by making false statements in a loan application to a bank (Count One); 15 U.S.C. § 645, by making the same false statements to the Small Business Administration (Count Two); and 18 U.S.C. § 1623, by perjuring herself in a 1995 bankruptcy proceeding (Count Three).¹

On June 3, 1999 the district court imposed prison terms of 37 months each on Counts One and Three and 24 months on Count Two, all to be served concurrently. The court also ordered McCoy to pay $542,781.89 in restitution — at the rate of $300 per month upon her release from incarceration — and imposed a $150 special assessment.

McCoy appealed to this court, arguing that there was insufficient evidence to support her perjury conviction, McCoy I, 242 F.3d at 402-03, and disputing the district court’s application of the United States Sentencing Guidelines (U.S.S.G. or Guidelines) “which collectively increased her offense level from 6 to 21, thereby substantially increasing her range of imprisonment.” Id. at 403. McCoy asserted that the district court erroneously imposed: (i) an eight-point increase in the offense level of her false statement offenses (Counts One and Two), pursuant to U.S.S.G. § 2Fl.l(b)(l), for causing a loss of $200,000 to $350,000; (ii) a two-point increase, pursuant to section 2F1.1(b)(2), for “more than minimal planning” of her false statement offenses; (iii) a two-point increase in her false statement offenses level, pursuant to section 3C1.1, for “willfully obstruct[ing] or imped[ing] ... the administration of justice”; (iv) a one-point increase in her “combined offense level,” pursuant to section 3D 1.2, because her perjury offense (Count Three) was not grouped with her two false statement offenses; and (v) a two-point increase in her false statement offenses level, pursuant to section 3Bl.l(c), for her role as an “organizer, leader, manager, or supervisor in [a] criminal activity.” See McCoy I, 242 F.3d at 403. Although the district court had applied the same two-point obstruction-of-justice adjustment to McCoy’s perjury offense level as it had to her false statement offenses level, she challenged only the two-point addition to her false statement offenses level. And at no time did she challenge the district court’s order that she pay $542,781.89 in restitution.

On appeal, we found “no ground for McCoy’s challenge to her perjury conviction,” McCoy I, 242 F.3d at 403, and we rejected all of McCoy’s sentencing challenges save one — her contention that the district court improperly imposed a two-point “managerial role” adjustment under section 3Bl.l(c). Id. at 410; see also id. at 404-10. McCoy had argued that her employees were “unwitting participants” in her criminal acts and therefore she could not have been the “organizer, leader, manager, or supervisor” in a “criminal activity.” See id. at 410. We agreed, holding that “supervision of an unwitting individual cannot justify an enhancement under U.S.S.G. § 3Bl.l(c).” Id. Accordingly, we remanded for resentencing “with instructions to resolve the ambiguities” we had discovered “in the [district] court’s application of U.S.S.G. § 3B1.1.” Id. (citing 18 U.S.C. § 3742(f)(1) (mandating remand if sentence imposed results from incorrect application of Guidelines)).

On remand, the Probation Office revised the Presentence Report, eliminating the two-point upward adjustment for McCoy’s managerial role in the offense. Updated Presentence Report at 3. The change brought her combined offense level down from 21 to 20 — not from 21 to 19, as the arithmetic might ordinarily produce. In McCoy’s case, the Guidelines impose a one-point upward “multi-group adjustment” if the difference between her two offense levels is five to eight points and a two-point multi-group adjustment if the difference is less — i.e., zero to four points.² Compare Presentence Report at 11 with Updated Presentence Report at 4. Under section 3D1.4, McCoy’s multi-group adjustment (be it one or two) must be added to the higher of her two offense levels to produce her “combined offense level.” At sentencing, McCoy’s false statement offenses level was 20 and her perjury offense level was 14. See Presentence Report at 10-11. Thus, the difference was six and section 3D1.4 called for a one-point multi-group adjustment. Adding one point to the higher level of the two resulted in a combined offense level of 21.³ See id. at 11. On remand, however, her false statement offenses level dropped to 18 because the two-point managerial role adjustment was eliminated. Updated Presentence Report at 3^4. Her perjury level remained at 14. See id. at 4. Thus, the difference between the two offense levels was reduced to four and section 3D1.4 called for a two-point multigroup adjustment. Adding two points to the higher level of the two resulted in a combined offense level of 20.⁴ See id.

At the outset of the resentencing proceeding, the district court correctly stated that in McCoy I we had remanded the case “for resentencing without the two-level enhancement that was improperly accorded to [McCoy’s] sentence.... Thus, the only issue presently before [the district court] is the adjustment of [McCoy’s] sentence in accordance with the mandate issued by the Court of Appeals.” App. of Appellee, Tab H, at 2 (Resentencing Tr.). The court declined to consider any issue other than elimination of the two-point managerial role adjustment because in McCoy I we “stated very clearly what issue [the district court] should address on remand.” Id. at 4.

Nonetheless, McCoy argued that her perjury offense level should be 12 rather than 14 because, at her original sentencing, the district court erroneously added a two-point obstruction-of-justice adjustment to that level under section 3C1.1. She therefore insisted that the multi-group differential remain at six (18 minus 12) and that her combined offense level become 19 (18 plus one) instead of 20 (18 plus two).⁵ She also protested that “[t]he McCoy family’s current financial situation does not leave them any hope of paying a half-million dollar restitution obligation.” App. of Appellant at 26. In place of the original $642,781.89 restitution order — which itself mandated payment at a rate of $300 per month — she argued that payment at a rate of $300 per month for 10-20 years (for a total of $36,000 to $72,000) “would be more faithful to the statutory considerations and give [her] hope of someday fully meeting her obligation.” Id. at 27.

The district court resentenced McCoy-on May 9, 2001 to concurrent prison terms of 33 months each on Counts One and Three and 24 months on Count Two, all to be served concurrently. The court reassessed the same amount in restitution, $542,781.89, and it reimposed the same $150 special assessment.

II.

McCoy raises two challenges to the district court’s May 9, 2001 resentencing. In reviewing these challenges, we “accept the findings of fact of the district court unless they are clearly erroneous” and “give due deference to the district court’s application of the [Guidelines to the facts.” 18 U.S.C. § 3742(e); see also McCoy I, 242 F.3d at 403-04. We review issues of law de novo. See McCoy I, 242 F.3d at 404; United States v. Drew, 200 F.3d 871, 876 (D.C.Cir.2000).

First, citing our decision in United States v. Whren, 111 F.3d 956 (D.C.Cir.1997), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed.2d 120 (1998), McCoy contends that the district court erred at re-sentencing by refusing to consider the “newly relevant” issue of whether, at her original sentencing, the two-point obstruction-of-justice upward adjustment was erroneously added to her perjury offense level under section 3C1.1. Further, she argues that the obstruction adjustment was erroneously added, claiming that the “repetition at her criminal trial of precisely the same testimony she was convicted of giving at her bankruptcy trial does not amount to the sort of ‘significant further obstruction’ required to justify an obstruction enhancement to a perjury conviction under Application Note 7” to section 3C1.1.⁶ Br. of Appellant at 13. Thus, she argues that her perjury offense level should be reduced to 12, that her multi-group adjustment should remain at one point (the difference between 12 and 18 being six) and that her combined offense level should be reduced to 19. For the reasons discussed infra, we conclude that McCoy has waived her right to challenge at resentencing the obstruction adjustment to her perjury offense level.⁷

In Whren, we held that

upon a resentencing occasioned by a remand, unless the court of appeals expressly directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals’ decision—whether by the reasoning or by the result.

Whren, 111 F.3d at 960. We rejected the de novo approach adopted by our sister courts in the Second, Sixth, Eighth, Ninth and Tenth Circuits, under which a “district court may, upon remand, take any evidence and hear any argument that it could have considered in the original sentencing proceeding.” Id. at 959 (citing United States v. Moore, 83 F.3d 1231, 1235 (10th Cir.1996); United States v. Jennings, 83 F.3d 145, 151 (6th Cir.), cert. denied, 519 U.S. 975, 117 S.Ct. 411, 136 L.Ed.2d 324 (1996); United States v. Atehortva, 69 F.3d 679, 685 (2d Cir.1995), cert. denied, 517 U.S. 1249, 116 S.Ct. 2510, 135 L.Ed.2d 199 (1996); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995); United States v. Cornelius, 968 F.2d 703, 706 (8th Cir.1992)). We adopted instead a “waiver” approach, under which “a defendant may argue at resentencing that the court of appeals’ decision has breathed life into a previously dormant issue, but he may not revive in the second round an issue he allowed to die in the first.” Id. at 960; see also United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir.) (adopting Whren approach), cert. denied, 528 U.S. 850, 120 S.Ct. 129, 145 L.Ed.2d 109 (1999); United States v. Marmolejo, 139 F.3d 528, 530-31 (5th Cir.) (same), cert. denied, 525 U.S. 1056, 119 S.Ct. 622, 142 L.Ed.2d 561 (1998); United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996) (adopting waiver approach similar to that of Whren). We found the waiver approach preferable to de novo resentencing because:

De novo resentencing is in essence a license for the parties to introduce issues, arguments, and evidence that they should have introduced at the original sentencing hearing. The alternative of requiring the parties to raise all relevant issues at the original sentencing hearing serves both equity and efficiency: Each party gets early notice of the other’s position, and the district court can resolve all material issues early on—when the record is fresh in mind—and in a single proceeding, thereby minimizing the scope of any second proceeding, i.e., should the first result in a remand.

Whren, 111 F.3d at 959-60.

McCoy claims that our remand in McCoy I set off a chain reaction that has “breathed life into” the obstruction issue. While McCoy can show the two-point upward adjustment to be relevant,⁸ Whren’s holding declares that whether the obstruction issue is newly relevant turns upon whether or not McCoy had reason to challenge the adjustment at her original sentencing. Whren, 111 F.3d at 960 (“A defendant should not be held to have waived an issue if he did not have a reason to raise it at his original sentencing; but neither should a defendant be able to raise an issue for the first time upon resentenc-ing if he did have reason but failed nonetheless to raise it in the earlier proceeding.”). McCoy argues that she “had no reason to raise the obstruction issue until this Court’s decision led to an offense level correction that suddenly rendered the obstruction issue material to her sentence.” Br. of Appellant at 17. ‘ At oral argument, she iterated that the only relevant obstruction adjustment at her original sentencing was the two-point addition to the “controlling” false statement offenses level. She is mistaken.

McCoy had ample reason in the first round of proceedings to challenge the two-point obstruction addition to her “non-controlling” perjury offense level. Her false statement offenses level, before the first appeal and with the obstruction adjustment (to which she objected at her original sentencing and on appeal), was 20. See Presentence Report at 10-11. Her perjury offense level, before the first appeal and with the obstruction adjustment (to which she now objects for the first time), was 14. See id. at 11. Contrary to McCoy’s assertion, the obstruction adjustment to the “non-controlling” perjury offense level became “relevant” the very instant she challenged the obstruction addition to the false statement offenses level. Had she persuaded the sentencing judge (as, we presume, was her purpose), McCoy’s “controlling” false statement offenses level would have been reduced to 18, bringing it within four points of her perjury offense level and increasing the multi-group adjustment by one for a combined offense level of 20. She had just as much incentive to keep the gap at six then as she did at resentencing. In short, McCoy’s Application Note 7 argument does not fall within the “newly relevant” exception to Whren’s general bar against new arguments at resentencing and it was therefore waived.

Second, McCoy contends that the district court erred in refusing to reconsider the original $542,781.89 restitution amount in light of her “current ability to pay.” She correctly observes that our decision in United, States v. Rhodes, 145 F.3d 1375 (D.C.Cir.1998), permits a resentenc-ing court to consider facts that were unavailable or non-existent at the original sentencing. Rhodes, 145 F.3d at 1377-78 (“[Consideration of post-initial sentencing events, in those rare circumstances in which such events may become relevant, neither contravenes Whren’s concern with ensuring that parties receive fair notice of their opponent’s arguments at initial sentencing nor undermines its goal that district courts ‘resolve all material issues ... when the record is fresh in mind.’ ” (quoting Whren, 111 F.3d at 960) (emphasis added)). She asserts that her current ability to pay restitution is such a fact. Her assertion is without support.

The financial situation in which McCoy now finds herself is utterly irrelevant to the restitution challenge she purports to mount. The district court’s original $542,781.89 restitution order was to be paid at the rate of $300 per month. See App. of Appellant at 17. McCoy did not argue at resentencing, and does not argue now, that she cannot make the $300 monthly payments. Instead, she claims that “given the losses the family [has] suffered as a result of her offense conduct” and the “significant monthly deficit that [is] being made up with help from [her] extended family,” she will not realistically “be able to pay more than the $300 per month the [c]ourt had ordered at the initial sentencing.” Br. of Appellant at 22 (emphasis added). She acknowledges that she has simply “requested that the restitution obligation be reduced to between $36,000 and $72,000-which could be paid off at the rate of the $300 per month ordered by the court in 10 to 20 years.” Id. If McCoy can afford to pay $300 per month currently—a fact she does not dispute—she has no relevant ground to object to the reimpo-sition of a restitution order mandating payment at precisely that rate.

McCoy resists this conclusion, arguing that “by ordering minimum payments of only $300 per month, the resentencing court was implicitly recognizing that [she] did not have the ability to pay more and that it was unlikely she would ever be able to pay the full amount. (It would take 150 years to pay the full amount at a rate of $300 per month).” Id. at 24. The possibility that McCoy will not be able to pay the full $542,781.89 balance during her lifetime is one that existed at the time she was originally sentenced. In failing to protest the restitution order at that time—and, subsequently, on appeal in McCoy I—she waived the half-hearted objection she now raises. We conclude, therefore, that the district court properly declined to reconsider its original restitution order.

For the foregoing reasons, the district court’s May 9, 2001 resentencing judgment is

Affirmed.

1 . For a complete account of McCoy’s conduct supporting the verdict against her, see McCoy /, 242 F.3d at 401-02.

2 . In the introduction to Chapter 3, Part D, the Guidelines explain why a higher adjustment is warranted where a difference in offense levels is lower, and vice-versa:

The rules in this Part seek to provide incremental punishment for significant additional criminal conduct. The most serious offense is used as a starting point. The other counts determine how much to increase the offense level. The amount of the additional punishment declines as the number of additional offenses increases.

U.S.S.G. Manual, ch. 3, pt. D, introductory cmt. (2001); see United States v. Valentine, 100 F.3d 1209, 1212 (6th Cir.1996) (noting that the "principle of declining marginal punishment has been clearly enunciated in the introduction to Chapter 3 of the Guidelines and is implicit in the structure of § 3D 1.4, among other provisions”).

3 .For McCoy — who is in “Criminal History Category I” — a combined offense level of 21 carries a sentencing range of 37-46 months’ imprisonment. See U.S.S.G. Manual ch. 5, pt. A (2001). It bears repeating here that the district court originally sentenced McCoy to the 37-month minimum.

4 . For McCoy, a combined offense level of 20 carries a sentencing range of 33-41 months’ imprisonment. See U.S.S.G. Manual ch. 5, pt. A (2001).

5 . A 19-point combined offense level, as McCoy pointed out, would carry a sentencing range of 30-37 months' imprisonment. See App. of Appellant at 25; see also U.S.S.G. ch. 5, pt. A (2001).

6 . Application Note 7 to section 3C1.1 provides that an obstruction adjustment "is not to be applied to the offense level for [perjury] except if a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction itself.” U.S.S.G. Manual § 3C1.1, cmt. n.7 (2001).

7 . Accordingly, we need not address the underlying merits of McCoy's Application Note 7 argument.

8 . The remand did indeed reduce McCoy's false statement offenses level from 20 to 18. Thus, her perjury offense level of 14 came within four points, causing the multi-group adjustment to increase from one to two. The increase in the multi-group adjustment, in turn, raised the combined offense level from 19 to 20 and the increase in the combined offense level raised her minimum sentence from 30 months to 33 months.