UNITED STATES оf America, Plaintiff-Appellee v. Eugene DOKES, Defendant-Appellant
No. 16-3796
United States Court of Appeals, Eighth Circuit.
Submitted: June 5, 2017. Filed: October 5, 2017
886 F.3d 886
Tracy Berry, U.S. Attorney‘s Office, Eastern District of Missouri, Saint Louis, MO, for Plaintiff-Appellee.
Eugene Dokes, Pro se.
Jonathan Sternberg, Jonathan Sternberg, P.C., Kansas City, MO, for Defendant-Appellant.
Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
LOKEN, Circuit Judge.
Eugene Dokes pleaded guilty to theft of United States property for knowingly reсeiving four Social Security disability benefits to which he was not entitled in December 2012 and January 2013. See
SSA granted Dokes disability benеfits in October 2006. In April 2010, responding to SSA‘s continuing disability review, Dokes reported he had not worked since his last medical decision, his condition had worsened, and he did not believe he could currently work. His wife later reported that Dokes had trouble concentrating, “did not engage in any social activities, had lost any interest in family and friends, and limited his hobbies and interests to playing video games and watching television.” SSA determined Dokes was no longer disabled but then upheld his appeal in October 2010 and continued paying disability benefits.
In March 2013, prompted by Dokes‘s report of self-employment income on his 2011 tax return, SSA initiatеd a criminal investigation into whether he had substantially understated his ability to work. The investigation revealed that Dokes:
- Maintained Missouri realtor and broker licenses between April 2005 and July 2014 and started an investment company in 2008 as a licensed broker.
- Earned a bachelor‘s degree in business administration in 2008, a master‘s degree in 2009, and a Ph.D. in organization and management in 2013.
- Registered six profit and nonprofit companiеs and three fictitious names related to political campaigns between January 2006 and March 2013.
- Campaigned for the Missouri House of Representatives after July 2010, served on the Missouri Advisory Board for the United States Commission on Civil Rights, and served as Vice-Chair of a Republican county committee in July 2011.
- Earned $34,568 from the St. Louis County Missouri Housing Authority between June 2011 and April 2012 and reported self-employment income on his 2012 jоint tax return.
SSA concluded Dokes was not disabled after July 2010 and received $45,835.60 in overpayments between October 2010 and January 2013. This prosecution followed.
The Sentencing Guidelines section of Dokes‘s plеa agreement recited that the government believed six offense levels should be added because the government‘s loss exceeded $40,000; Dokes contended only four levels should be added beсause the loss calculation should begin in July 2011. See
IT IS FURTHER ORDERED that the deadline for filing objections to the Presentence Report is August 29, 2016. . . . No objections will be accepted after the deadline, except for good cause shown. . . .
IT IS FURTHER ORDERED that sentencing memoranda, if any, must be not less than ten (10) days prior to the sentencing date. Objections to the presentence report are not to be included in the sentencing memoranda; objections must be filed as a separate document.
The Probation Office submitted an initial PSR on August 15, noting the parties’ disagreement regarding the amount of actual loss and adopting SSA‘s determination that benefit overpayments began October 2010 and ended January 2013, resulting in total overpayments of $45,835.60. Based on this calculation, the PSR recommended adding six levels for a total offense level of ten. On August 29, consistent with the Scheduling Order deadline, Dokes filed an Acceptance to Presentence Report stating he had reviewed the PSR with his attorney and “all objections have been resolved.” On September 12, the Suрervising Probation Officer approved a final PSR recommending the same loss figure and stating, “[t]he defendant has no objections.” That same day, Dokes filed a Sentencing Memorandum asserting that the PSR “inacсurately overstate[s] the amount of money lost, resulting in a greater total offense level in the guidelines calculations” because Dokes “did not begin successfully functioning in any sort of ‘employment’ aсtivity until he was selected as the Chairman of the St. Charles County Republican Party in July of 2011.”
The district court scheduled Dokes‘s sentencing hearing for Monday, September 19. On Friday, September 16, Dokes filed a motion for leave to file untimely objections to paragraphs 4, 29, 36, and 83 of the PSR and requesting that his Sentencing Memorandum be treated as an objection to the recommendation of a six-level increase because the government‘s loss exceeded $40,000. The motion explained that Dokes had voiced this objection in the Plea Agreement, that his objection was noted in the PSR, and that “counsel mistakenly beliеved that this was sufficient as notification to demonstrate his objections to the loss calculation.”
At the start of the sentencing hearing, counsel for Dokes explained, “I mistakenly believed that [the refеrence to the loss dispute in the plea agreement and the PSR] was sufficient to preserve that as an issue.” The district court responded:
Well, here‘s the thing. There was an acceptance tо the presentence report that you filed, and after the guilty plea, an order was issued that set a deadline for filing objections, and I made it clear in that order that no objections would be received after the deadline except for good cause. I don‘t believe you have shown good cause for filing these objections out of time. I also made it clear in that order that objeсtions are to be filed separately from any sentencing memorandum. The difficulty is that here on the Friday before the sentencing, you are asking the Court and the Probation Office to respond to objeсtions that you have, and that‘s not possible to do with such short notice. Also, the deadlines that are put in place become meaningless if people don‘t adhere to them and don‘t have good reasons for not adhering to them. So I‘m going to deny your motion.
On appeal, Dokes argues the district court abused its discretion in denying his motion for leave to file untimely objec-
We further note that Dokes‘s motion for leave to file untimely objections was no doubt futile. First, he only objected to PSR paragraphs recommending a six-level increase based on amount of loss, not the paragraphs stating facts supporting that recommendation (the SSA determination that overpayments began in October 2010 when the agency sustained Dokes‘s appeal and the payment of continued benefits, based on misrepresentations as to his lifestyle and work capabilities). Unless a party objects “with specificity and clarity” to fact statements in the PSR, the district court may accept those facts аs true at sentencing. See United States v. Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008), cert. denied, 555 U.S. 1193, 129 S.Ct. 1365, 173 L.Ed.2d 624 (2009). Second, Dokes argued in the Sentencing Memorandum that overpayments did not start until July 2011 because that was when he first successfully functioned in employment activity. But overpayments bеgan when he became capable of substantial gainful activity, regardless of when he began earning income. Third, for purposes of the increase in § 2B1.1(b)(1), “loss is the greater of actual loss or intended loss.”
The judgment of the district court is affirmed.