UNITED STATES оf America, Appellee v. Chester D. RANSOM, Jr., Appellant.
Nos. 12-3049, 12-3075.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 15, 2013. Decided July 1, 2014.
756 F.3d 770
Again, lest we overlook anything which we should address, we note that Jersey City has made no real attempt to demonstrate standing. Wе further note that while Jersey City asserts that there is actual bias and not merely an appearance, it provides no foundation upon which we could review that claim. Its only asserted basis for the actual bias is that FERC has consistently granted applications from pipelines. This adds nothing to the strength of an otherwise unsupported claim. Presumably under most regulatory schemes, by the time applicants and their expert counsel have worked through changes, adaptations, and amendments, they are not likely to pursue many certificates that are hopeless. The fact that they generally succeed in choosing to expend their resources on applications that serve their own financial interests does not mean that an agency which recognizes merit in such applications is biased.
We finally note that Jersеy City‘s alleged constitutional claim of actual bias is also barred as untimely. Jersey City has shown us nothing of record to establish that it raised this issue before FERC‘S issuance of the initial order. FERC regularly rejects requests for rehearing that raise issues not previously presented where there is no showing that the issue is “based on matters not available for consideration ... at the time of the final decision.”
CONCLUSION
In short, the petitions are dismissed.
Richard Seligman, appointed by the court, argued the cause and filed the joint briefs for appellant Chester D. Ransom, Jr.
Jay Apperson, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen, Jr., U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge SENTELLE.
SENTELLE, Senior Circuit Judge:
Appellants Chester Ransom and Bryan Talbott pled guilty to fraud charges in the district court in connection with the operation of their property management company. Although their plea agreements stipulated the range of prison sentences under the United States Sentencing Guidelines, the district court sentenced both Ransom and Talbott to above-Guidelines sentences. Both appellants claim that the district court committed procedural and substantive errors in entering the sentences. For the reasons set forth below, we conclude that the district court committed no error, and therefore affirm the judgment of the district court.
Background
From 2004 until 2011 appellants Chester Ransom and Bryan Talbott owned and operated a property management company. In 2012 the government charged Ransom and Talbott, in connection with their running of the company, with conspiracy to commit bank fraud; conspiracy to commit mail fraud; and conspiracy to defraud the United States. Both Ransom and Talbott signed plea agreements with the government, acknowledging their guilt of the charges. The plea agreements contained waiver-of-appeal clauses. Each plea agreement also contained a stipulated United States Sentencing Guidelines (“USSG” or “Guidelines“) range of 46-57 months. At Ransom‘s sentencing hearing, the district court calculated the Guidelines range at the stipulated 46-57 months, but sentenced Ransom to an above-Guidelines sentence of 72 months. Ransom did not object to his sentence. At Talbott‘s sentencing hearing, the court calculated the Guidelines range at 63-78 months, but imposed an above-Guidelines sentence of 120 months. Talbott also did not object to his sentence. In neither plea agreement did the Sentencing Guidelines stipulation purport to bind the sentencing court or promise a specific sentence. Indeed, each agreement explicitly described the Guidelines as non-mandatory and specified that the decision on sentencing would be made by the presiding judge.
Ransom and Talbott now аppeal their above-Guidelines sentences.
A. Waiver of Appeal
Both Ransom and Talbott acknowledge that in their plea agreements they waived their right to appeal their sentences. But Talbott notes that in the plea agreement both he and the government agreed that neither party would seek a sentencing departure from what was stated in the agreement. Since the government subsequently asked to be relieved оf this agreement, seeking an upward departure, Talbott argues then he should be relieved of his waiver of appeal. The government replies that in light of its departure request it is not seeking to enforce Talbott‘s waiver.
Ransom, in turn, argues that, notwithstanding the appeal waiver in his plea agreement, he in fact never waived his rights because his lawyer was ineffective and the sentencing court did not follow fair sentencing procedures. The government replies that Ransom knowingly and voluntarily waived his right to appeal his sentence, that at his plea hearing under Rule 11 of the Federal Rules of Criminal Procedure Ransom swore that he had read, understood, and signed the plea agreement, and that Ransom was not prejudiced by any alleged failure on the part of his counsel. The government further replies that it is clear from the record that the sentencing procedures were fair. We need not decide whether Ransom‘s appeal waiver should stand, however, since we determine that even if Ransom had not waived his right to appeal, his arguments made on appeal are meritless.
B. Arguments Made on Appeal by Ransom
Ransom argues (as does Talbott, see section C below) that his sentence was both procedurally flawed and substantively unreasonable. First, he contends that at sentencing the district court erred procedurally when it imposed a Guidelines sentence of 72 months—15 months above the 46-57 months Guidelines range—without proper explanation on the record as to why a sentence above the Guidelines was being imposed. See
Ransom asserts that the only explanations given by the district court for his above-Guidelines sentence were the number of victims, abuse of trust, and the commission of the instant offense while he was on probation. Concerning the number of victims, Ransom claims that this was already taken into account by the Guidelines. Concerning an abuse of trust, Ransom claims that this issue was not addressed by the presentence report and that it is not at all clear that it would apply in his case. Finally, concerning the commission of the instant offense whilе he was on probation, Ransom claims that this too was already taken into account by the Guidelines. Taking all of this into consideration, Ransom contends that the district court failed to explain adequately the reason for the sentence it imposed on him and therefore committed plain error.
To prevail under the plain error standard, an appellant must “demonstrate that the district court: (1) committed error; (2) that is plain; and (3) that affects [his] substantial rights,” and “[i]f all three conditions are met, and if the error seri-
In arriving at Ransom‘s above-Guidelines sentence, the district court considered the underlying facts of Ransom‘s criminal past, including having operated with Talbott a property management company that embezzled from its clients—the same type of offense that was now before the cоurt. The court also considered that in the present case Ransom‘s clients trusted him with their money and their property, that he abused that trust, and that this abuse of trust was not included in Ransom‘s Guidelines calculation. The district court further made clear in imposing sentence that it considered the number of victims who submitted victim impact statements, which detailed Ransom‘s wrongdoing and the severe harm that he caused them. Finally, the district court еchoed its detailed explanation for an above-Guidelines sentence in its written Statement of Reasons.1 See
Second, Ransom argues that his sentence was substantively unreasоnable. In particular, Ransom asserts that the district court gave no compelling reasons for imposing a sentence 15 months in excess of the Guidelines. See In re Sealed Case, 527 F.3d 188, 191 (D.C.Cir.2008) (“If the court decides to impose a sentence outside the Guidelines, it ‘must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.‘” (quoting Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007))). In support of this contention, Ransom rеlies on what he deems an inconsistency in the court‘s rationale. He points out that the court accepted the presentence report recommendation that the defendant receive a 3-point reduction in the Guidelines calculation based on his acceptance of responsibility. See
Furthermore, at the time of sentencing, Ransom, after repeated requests, had still not submitted a financial statement as contemplated at the time of the plea agreement. As the court explicitly stated at sentencing, “How can he get credit for acceptance of responsibility and for complying with the plea agreement if he hasn‘t done that? That‘s like the most
Ransom further asserts that the district court erred in holding that an upward variance was justified because of Ransom‘s abuse of trust. He argues that an abuse of trust “enhancement” under
This adjustment, for example, applies in the case of an embezzlement of a client‘s funds by an attorney serving as a guardian, a bank executive‘s fraudulent loan scheme ... This adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or a hotel clerk because such positions are not characterized by the above-described factors.
Ransom‘s problem is he is not a bank teller or hotel clerk or anything similar. He was, in fact, the manager of the fraudulently operating scheme. He was vice president of the real estate development company with whom the defrauded apartment owners dealt and whom they trusted. He, according to the victim testimony and impact statements before the district court, defrauded, deceived and deluded them daily. The district court heard and appropriately made reference to the testimony of the parade of victim witnesses, and read and appropriately made reference to the written victim impact statements.
“[W]e review claims of substantive unreasonableness for abuse of discretion, regardless of whether an objection on those terms was made.” United States v. Russell, 600 F.3d 631, 633 (D.C.Cir.2010). During Ransom‘s sentencing hearing, the district court mentioned that there were a number of victims, heard from several of them at that timе, and stated that there were 174 pages of victim impact statements and that he had reviewed all of them. To reiterate, the court also questioned Ransom‘s acceptance of responsibility since Ransom had not yet filed a financial disclosure report as required by the plea agreement. Furthermore, the court noted that in his property management
C. Arguments Made on Appeal by Talbott
Like Ransom, Talbott argues that his sentence was both procedurally and substantively unreasonable. First, Talbott asserts that the district court erred procedurally when its explanation for why it was impоsing an above-Guidelines sentence consisted only of a recitation of the
As noted in our Ransom discussion above, we review the district court‘s sentencing procedures for plain error. It is true, as Talbott contends, that when sentencing Talbott the district court recited the
Second, Talbott argues that his 120 months sentenсe—42 months above the top of the 63-78 months Guidelines range—was substantively unreasonable. He acknowledges that, as the district court stated in its reasons for his sentence, he committed new offenses while on release. But he claims that these offenses were already taken into consideration when his
At this point, it would be perhaps appropriate to review some additional conduct on the part of Talbott. During the pendency of the case, he obtained pretrial release. While on pretrial release, he engaged in financial dealings, in violation of the conditions of his pretrial release and filed falsе vehicle title documents in Delaware. Perhaps the short answer to Talbott‘s complaint that he received more time than his codefendant is: you committed more crimes pending trial; he didn‘t.
However, more formally, as noted above, we review claims of substantive unreasonableness for abuse of discretion. Our discussion above of Talbott‘s procedural error claims shows that the district court explained in dеtail why it imposed Talbott‘s sentence. With respect to Talbott‘s specific arguments here, the district court judge stated that not only had Talbott committed crimes while on release, but had committed the same sort of crimes for which he was now being sentenced. Furthermore, the court stated that Talbott had repeatedly committed fraud, lied, created false documents, and threatened people with legal аction, leading the court to determine that the public had to be protected from Talbott. We conclude that the district court judge did not abuse his discretion in sentencing Talbott.
Conclusion
In the end, we conclude that the district court did not only all that it was required to do in entering the upwardly variant sentences, but more than enough. For the reasons stated above, the judgment of the district court is
Affirmed.
SENTELLE
SENIOR CIRCUIT JUDGE