United States v. Scott

877 F.3d 42
CourtCourt of Appeals for the First Circuit
DecidedDecember 8, 2017
Docket16-1434P
StatusPublished
Cited by6 cases

This text of 877 F.3d 42 (United States v. Scott) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Scott, 877 F.3d 42 (1st Cir. 2017).

Opinion

KAYATTA, Circuit Judge.

Michael David Scott claims, among other things, that the district court acted improperly in rejecting a plea agreement he had negotiated with the government, in not allowing him to negotiate and submit a new agreement, and in sentencing him before he read the presentence report (“PSR”). Finding no combination of error and prejudice sufficient to set aside Scott’s sentence, we affirm,

I. Background

In August 2010, the government charged Scott with wire and bank fraud in violation of 18 U.S.C §§ 1343-44 and unlawful monetary transactions in violation of 18 U.S.C. § 1957, all as described in our opinion issued today affirming Scott’s conviction on those charges. See United States v. Scott, No. 15-2405. While those charges were pending, the government secured Scott’s indictment on additional wire fraud charges arising out of acts committed after his first indictment. Scott was arrested and detained pending trial.

In May 2015, Scott pled guilty in the first case, without a plea agreement. In November 2015, the district court sentenced him to 135 months’ imprisonment in that case. Two months later, Scott and the government entered into a plea agreement in this second case pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). If accepted by the court, the agreement would have bound the court to sentence Scott to six months’ imprisonment on the new wire fraud charges, to be served concurrently with the term of imprisonment from the prior case, plus six additional months to be served consecutively to Scott’s other sentences in accord with 18 U.S.C. § 3147, which mandates that an individual convicted of a crime committed while on release pending trial serve an additional sentence. The agreement also called for $49,000 in restitution, an amount that did not include attorneys’ fees and interest for the victims, and likewise did not include losses related to certain uncharged conduct. The district court conducted a change-of-plea hearing and conditionally accepted the plea agreement, but noted that it would reserve final acceptance or rejection until it had considered the PSR. Sentencing was set for March 25, 2016.

On March 23, a group of victims filed a sentencing memorandum, urging the district court to reject the proposed plea agreement and impose, at a minimum, a consecutive prison term of at least twelve months and a restitution award that included attorneys’ fees and interest. The next day, the district court docketed a notice stating: “Having considered the pre-sentence report and the Victim’s sentencing memorandum ... the Court hereby notifies the parties ... of its intention to reject the ... plea.... The Court concludes that any consecutive sentence of incarceration of less than 12 months ... is insufficient.” The next day, counsel for Scott told the district court at the sentencing hearing that he had conferred with the government and prepared “a revised agreement to submit to you with what we interpreted as the considerations within your order.” Neither counsel disclosed the terms of the proposed submission, and the district court rejected the effort, saying:

[A]s I understand [Rule 11], ... the defendant has a choice when the judicial officer rejects a (C) plea: He can withdraw his plea and go to trial.... Or he can choose not to withdraw his plea and go forward with the sentencing as of that moment. There is no new plea to be negotiated.

The record reflects that Scott and his attorney then had a private conversation, following which Scott’s attorney, in Scott’s presence, told the court that Scott intended to maintain his guilty plea and move forward with sentencing. The district court then proceeded with the sentencing, ultimately imposing a sentence of forty-one months’ imprisonment, with twenty-nine months attributed to the wire fraud charge to be served concurrently with Scott’s 135-month sentence and twelve months attributed to section 3147 to be served consecutively to both of Scott’s other sentences. In short, as a practical matter, this sentence meant that Scott would likely serve six additional months of prison time beyond the amount to which he and the government had conditionally agreed. The court also ordered Scott to pay a total of $265,535 in restitution to various victims identified by their initials in the PSR. .■

■ At the conclusion of the sentencing hearing, the following-exchange occurred: '

MR. GLEASON [counsel for Scott]: Judge, [Scott] wants to wish to express to the Court that he did not see the Presentence Report and that he was not aware of initials and people being owed money on initials as being an issue for purposes of the restitution,
DEFENDANT: Yes. -
THE COURT: Does Probation wish to respond to that? , ,
MS. ROFFO [representative from the probation office]: Your Honor, the Pre-sentence Report was disclosed to counsel, and counsel is to share it with' his client. '
THE COURT: Mr. Gleason, you got the Presentence Report, correct?
MR. GLEASON: Yes, we did, your Hon- or.
THE COURT: All right. Anything further, Mr. Wild?
MR. WILD [Assistant U.S, Attorney]: Only on the question that’s, usually asked, your Honor, by the Court, is whether counsel and the defendant have discussed it, and I’m assuming they have.
THE COURT: You discussed the Pre-sentence Report with your client?
MR. GLEASON: I have, your Honor, I discussed it. I discussed it with the original and that it was the additional facts which were presented relative to this charge.
THE COURT: Thank you, We’re adjourned.

II. Discussion

Scott contends that the district court committed six specific errors: it improperly rejected his plea agreement based on an erroneous understanding of the relevant law, it impermissibly prevented him from securing and submitting a new plea agreement after his first was rejected; it imper-missibly participated in plea discussions; it wrongly denied him a continuance; it imposed a sentence even though he had not read the PSR; and it failed to provide adequate notice of certain information upon which it relied. Additionally, Scott argues that the cumulative effect of these errors was sufficient to deny him a full and fair sentencing hearing, in violation of his due process rights. We address each argument separately.

A.

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Cite This Page — Counsel Stack

Bluebook (online)
877 F.3d 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-scott-ca1-2017.