UNITED STATES of America v. Everett C. MILLER, Appellant
No. 15-2577
United States Court of Appeals, Third Circuit.
Submittеd Under Third Circuit LAR 34.1(a) March 15, 2016 (Filed: August 12, 2016)
Before: FUENTES, CHAGARES and RESTREPO, Circuit Judges.
“We have repeatedly held that if an argument has not been raised before the district court, we will not consider it....” Kraebel v. N.Y.C. Dep‘t of Hous. Pres. & Dev., 959 F.2d 395, 401 (2d Cir. 1992) (citаtion omitted). We have, on occasion, permitted new arguments in support of “a proposition presented below.” Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221 (2d Cir. 2006). But Mago is not making a new argument for a proposition made below; it never requested this relief from the District Court. In fact, Mago still has not made an argument that the law permits (much less requires) partial payment on an SLOC.4 It has cited no case law on appeal, merely requesting vacatur and remand to the District Court for consideration in the first instance—on the basis of what theory we have not been told. Where a party has had such numerous occasions to request certain relief from the District Court and, failing to do so, has presented no legal argument of error to us on appeal, we will not set aside the District Court‘s judgment.
CONCLUSION
We have considered all of Mago‘s arguments and find them to be without merit. For the reasons stated in this opinion, we AFFIRM the order and judgment of the District Court.
Richard Sparaco, Esq., 1920 Fairfax Avenue, Cherry Hill, NJ 08003, Counsel for Appellant.
Mark E. Coyne, Esq., Office of United States Attorney, 970 Broad Street, Room
OPINION OF THE COURT
RESTREPO, Circuit Judge.
Appellant Everett C. Miller sold investors over $41 million in phony “promissory notes” and then squandered their money. Miller pled guilty to one count of securities fraud,
I
A
Miller was the founder, chief executive and sole owner of Carr Miller Capital, LLC (“Carr Miller“), an investment and financial services firm. Carr Miller was based in New Jersey and had more than thirty affiliates and related entities. Carr Miller received over $41.2 million in capital, from more than 190 investors, between June 2006 and December 2010.
Miller was a registered investment adviser representative under New Jersey securities law. While he had little formal education—a high school GED—Miller passed several securities industry examinations (Series 7, 24, 55, 63 and 65). The District Court found that he “maintained a public persona of a very successful entrepreneur.” App. 293.1
Through Carr Miller, Miller sold investors “Carr Miller Capital promissory notes,” which were securities under the Securities Act of 1933 and the Securities Exchange Act of 1934,
Miller deceived his investors in at lеast three ways. First, Carr Miller operated, in part, as a Ponzi scheme. Carr Miller spent approximately $11.7 million of its investors’ principal to repay earlier investors. Second, Carr Miller invested in risky business ventures without informing its investors. Carr Miller lost approximately $15.7 million of $22.9 million invested by the firm. Third, Carr Miller comingled investors’ funds in seventy-five related bank
Carr Miller began to unravel when the Arkansas Securities Department opened an investigation of an affiliate in August 2009. This investigation put Miller on notice that his promissory notes were unregistered securities. This did not stop him. After becoming aware of the investigation, Miller knowingly sold almost $5 million in promissory notes to forty new investors. He did not return any of their principal. Instead, Miller used a portion of the funds to repay earlier investors and spent the balance of the money on Carr Miller overhead and his own expenses. This period of the Carr Miller fraud, from August 2009 to December 2010, formed thе basis of Miller‘s securities fraud conviction and led to a stipulated loss amount of $2.5 to $7 million.
B
Miller pled guilty pursuant to a plea agreement and a cooperation agreement. The parties stipulated to a combined offense level of 29, followed by a 3-level reduction for acceptance of responsibility. See
Under the cooperation agreement, Miller agreed to provide substantial assistance in exchange for the Government‘s downward departure motion. See
C
At Miller‘s sentencing, three issues arose that are the subject of this appeal. First, the District Court imposed the investment adviser enhancement, which Miller argues is inapplicable. Second, the Government made sentencing recommendations, which Miller contends breached the plea agreement. Third, the District Court imposed an upward variance, resulting in a sentence that Miller claims is substantively unreasonable.
1
The District Court applied the 4-level investment adviser enhancement. The plea agreement was silent as to this enhancement, which was recommended later in the Presentence Report. Miller objected to the enhancement, but the District Court rejected his argument that he did not meet the definition of an “investment adviser.” The District Court did grant a 3-level downward departure. However, having added 4 levels for the investment adviser enhancement, the downward departure was from offense level 30 to 27, rather than from 26 to 23.
2
At sentencing, the District Court asked the Government for its sentencing recom-
Defense counsel interjected that the District Court had granted the 5K1.1 downward departure from offense level “30 to 27.” App. 274. Defense counsel stated, “I think in so doing, that‘s in contradiction to the plea agreement....” App. 274. In response, the District Court suggested that Government request an additional one-level downward departure to level 26. The Government agreed that this would be “reasonable.” App. 275. However, the District Court did not depart below level 27.
3
The District Court also imposed an upward variance of 2 levels based upon the
II
Miller first challenges the application of the Sentencing Guidelines investment adviser enhancement,
A
We exercise plenary review of a district court‘s interpretation of the Sentencing Guidelines. United States v. Richards, 674 F.3d 215, 219 (3d Cir. 2012). We review a factual challenge to the application of the Guidelines for clear error. Id. at 220.
In the instant case, we consider a Guideline enhancement that incorporates a statutory definition. “Our goal when interpreting a statute is to effectuate Congress‘s intent.” Hagans v. Comm‘r of Soc. Sec., 694 F.3d 287, 295 (3d Cir. 2012). “[W]e begin with the language of the statute itself.” Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 16 (1979). “In trying to divine the intent of Congress, we should consider the entire scope of the relevant statute,” including its larger structure. Hagans, 694 F.3d at 295.
Our starting point is the text of the investment adviser enhancement, which provides: “If the offense involved ... a violation of securities law and, at the time of the offense, the defendant was ... an investment adviser, or a person associated with an investment adviser ... increase by 4 levels.”
The Act “was the last in a series of [a]cts designed to eliminate certain abuses in the securities industry, abuses which were found to have contributed to the stock market crash of 1929 and the depression of the 1930‘s.” SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186 (1963). Under the Act, investment advisers have fiduciary duties to their clients. Id. at 201; Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 501 (3d Cir. 2013). Non-exempt investment advisers must register with the Securities and Exchange Commission (“SEC“) and all investment advisers are prohibited from engaging in fraud. Goldstein v. SEC, 451 F.3d 873, 876 (D.C. Cir. 2006) (citing
In the instant case, the disputed provision of the Act is the definition of “investment adviser.”
“Investment adviser” means any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or whо, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities....
The Act goes on to enumerate exemptions from this definition,
C
Miller contends that he does not meet the definition of an “investment adviser” for three reasons: (1) he was not “in the business” of providing securities advice; (2) he did not provide securities advice “for compensation” and (3) he was not a registered investment adviser. We address each issue in turn.
1
Miller argues that he was not “in the business” of providing securities advice because he personally advised only Carr Miller‘s initial investors. Later, brokers trained by Miller met with potential investors. Our analysis of the “in the business” requirement proceeds in two steps. First, we must determine if and when Miller provided securities advice. Second, we must determine whether Miller was “in the business” of doing so.
Miller provided securities advice by рersonally advising individuals to invest in Carr Miller promissory notes. At his guilty plea, Miller agreed that he “and others falsely represent[ed] to the investor[s] that their monies would be invested in certain
In response, Miller argues that he did not personally meet with any Carr Miller investors during the specific time period charged in the Information. However, this argumеnt fails to account for the relevant conduct Guideline,
Having established that Miller provided securities advice, the question that follows is whether he was “in the business” of doing so. We have not previously interpreted the phrase “in the business,” which the Act does not define. The SEC has issued an interpretive release (“SEC Release“), which provides the following guidance:
Whether a person giving advice about securities for compensation would be “in the business” of doing so, depends upon all relevant facts and circumstances. The staff considers a person to be “in the business” of providing advice if the person: (i) Holds himself out as an investment adviser or as one who provides investment advice, (ii) receives any separate or additional compensation that represents a clearly definable charge for providing advice about securities ... or (iii) on anything other than rare, isolated and non-periodic instances, provides specific investment advice.
Applicability of the Investment Advisers Act, Investment Advisers Act Release No. 1092, 52 Fed. Reg. 38400, 38402 (Oct. 16, 1987) (emphasis added).
This SEC Release represents only the views of the SEC staff. Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 221 n.24 (3d Cir. 2006). We defer to it because of the SEC‘s expertise and the “‘thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.‘” Gonzales v. Oregon, 546 U.S. 243, 269 (2006) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).6 In doing so, we join the Tenth and Eleventh Circuits, which have also relied on the SEC Release. Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1163 (10th Cir. 2011); United States v. Elliott, 62 F.3d 1304, 1310, 1311 n.8 (11th Cir. 1995). “No clearer alternatives are within our authority or expertise to adopt; and so deference to the agency is appropriate....” Fed. Express
Applying the SEC‘s guidance, we hold that Miller was “in the business” of providing securities advice because he held himself out as a person who provides investment advice. See SEC Release, 52 Fed. Reg. at 38402. Miller was a registered investment adviser representative, which may involve rendering securities advice.
2
Miller next argues that he was not an “investment adviser” because he did not provide securities advice “for compensation” as required by the Act.
The Investment Advisers Act does not define “compensation.” The SEC Release defines compensation as “any economic benefit, whether in the form of an advisory fee or some other fee relating to the total services rendered, commissions, or some combination of the foregoing.” SEC Release, 52 Fed. Reg. at 38403. We find this persuasive, as have our sister Circuits. See Elliott, 62 F.3d at 1311 n.8; see also Thomas, 631 F.3d at 1164 (citing Elliott, 62 F.3d at 1311 n.8). It is not necessary that an investor “pay a discrete fee specifically earmarked as payment for investment advice.” Elliott, 62 F.3d at 1311; accord Abrahamson v. Fleschner, 568 F.2d 862, 870 (2d Cir. 1977) (holding that “compensation” includes salary and a percentage of net profits and capital gains), overruled in part on other grounds by Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11 (1979).
Miller provided securities advice to Carr Miller investors “for compensation.” Based upon Miller‘s securities advice, investors bought Carr Miller promissory notes. The principal they provided became Miller‘s compensation—his “economic benefit“—when he commingled investors’ accounts and spent the money for his own purposes. SEC Release, 52 Fed. Reg. at 38403; see also Elliott, 62 F.3d at 1311 (holding that a defendant compensated himself by spending investors’ funds for his own expenses). Indeed, Miller siphoned money from Carr Miller investors’ accounts like a “credit card” for luxury cars, home furnishings, electronics and vacations. App. 293.
3
Miller also argues that he was not an “investment adviser” because he was not registered as an investment adviser,
III
In his next claim, Miller asserts that the Government breached the parties’ plea agreement. Specifically, Miller contends that thе Government promised in its 5K1.1 motion to recommend offense level 23, but breached this promise during the sentencing hearing. At sentencing, the Government repeatedly requested offense level 23, but wavered slightly from this position by stating that a downward departure to offense level 26 would be reasonable. We hold that Miller failed to preserve his claim and, therefore, plain error review applies. As to the merits, we assume for the sake of argument that the Government was bound to request offense level 23 and we hold that there was no clear or obvious breach оf the plea agreement.
A
Whether the Government has violated the terms of a plea agreement is a question of law, subject to plenary review. United States v. Badaracco, 954 F.2d 928, 939 (3d Cir. 1992). However, where a defendant fails to object in the district court, we review for plain error.
B
“A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party‘s objection to the court‘s action and the grounds for that objection.”
Miller‘s claim on appeal is that the Government breached its promise to recommend offense level 23, which the Government requested in its 5K1.1 motion. Miller asserts that he preserved this claim during the sentencing hearing. Even applying our “flexible” interpretation, we hold that he did not. Russell, 134 F.3d at 178 n.4.
C
We now turn to the merits of Miller‘s breach of plea agreement claim. We hold that there was no clear or obvious error.
When a guilty plea “rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). “Strict compliance with the terms of a plea agreement is not only vital to the efficient function of our criminal justice system, but also required to preserve the integrity of our constitutional rights.” United States v. Larkin, 629 F.3d 177, 186 (3d Cir. 2010) (citing Santobello, 404 U.S. at 262-63). We analyze plea agreements under contract law standards. United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998). The Court determines whether the Government‘s conduct is inconsistent with what the defendant reasonably understood. United States v. Davenport, 775 F.3d 605, 609 (3d Cir. 2015); Nolan-Cooper, 155 F.3d at 239. We give the benefit of the doubt to the defendant in light of the Government‘s bargaining power and the fact that the defendant waives his constitutional rights. Nolan-Cooper, 155 F.3d at 236.
When considering an alleged breach of a plea agreement, we first identify the terms of the agreement. We then determine whether there hаs been a breach. If so, we fashion a remedy. Id. at 235.
In Miller‘s case, the Government filed a written 5K1.1 motion, which requested a downward departure of “‘3 levels from the parties’ stipulated offense level of 26,’ to ‘offense level 23.‘” Br. for Appellee 27 (quoting App. 360). Miller asserts that he reasonably understood this to be a term of the plea agreement and, therefore, that the Government was bound to recommend offense level 23 at sentencing. Cf. United States v. Baird, 218 F.3d 221, 230 (3d Cir. 2000) (holding that the Government was bound by an agreement it treated as binding, although it preceded the formal plea agreemеnt). We will assume for the sake of argument that the Government was bound to request a downward departure to level 23.10
IV
Finally, Miller objects to his sentence as substantively unreasonable. The District Court imposed a Guideline sentence of 120 months’ imprisonment. We reject Miller‘s challenge to this sentence.
Our standard of review is abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We review the totality of the circumstances, and the party challenging the sentence bears the burden of proving unreasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). “[T]he touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in
There was no abuse of discretion in Miller‘s case. The District Court considered all of the Section 3553(a) factors, including the fact that Miller engaged in a “pernicious and predatory” fraud on over 190 investors who entrusted him with $41.2 million. App. 289. The District Court also considered Miller‘s personal characteristics, including his convictions for driving while intoxicated, his deceitful “public persona of a very successful entrepreneur” and his “lavish lifestyle using the investors’ money, which [Miller] said was like using [his] own credit card.” App. 293. As to Miller‘s health, the District Court accounted for the fact that Miller‘s medical condition would make his incarceration more difficult. Indeed, the District Court stated that it would have varied upward more but for Miller‘s health. Thus, the sentence was not substantively unreasonable.11
V
The judgment of the District Court is affirmed.
Monica RAAB, Appellant v. CITY OF OCEAN CITY, NEW JERSEY, a municipal corporation of the State of New Jersey; Ocean City Police Department; Officer Jessie Ruch, in his official and individual capacity; John Does (# 1-25), Fictitious Designation ABC Corps. (# 1-25), Fictitious Designation.
Monica Raab v. City of Ocean City, New Jersey, a municipal corporation of the State of New Jersey; Ocean City Police Department; Officer Jessie Scott Ruch, in his official and individual capacity John Does (1-25), Fictitious Designation ABC Corps, (# 1-25), Fictitious Designation City of Ocean City, Appellant.
No. 15-2127, No. 15-2147
United States Court of Appeals, Third Circuit.
Argued: March 17, 2016 (Filed: August 15, 2016)