*1 Thus, pending April from Rules of Civil 1999. was Rule 91 of the Missouri 24, 1996, 24, 1997, denied in petition That was one- April Procedure. while the 1999, of Supreme 2244(d)(1) and the Court October §in ran. year period limitations petition Rule 91 a second denied Missouri statutory tolling provid- to the addition this February Gray 2000. then filed in 2244(d)(2), § recognized in we have ed 26, September petition federal habeas equitably is tolled one-year period peti court1 denied the 2000. The district “extraordinary when circumstances” one-year as time-barred under tion impossible petition- made it for the habeas 28 U.S.C. period limitations But timely petition. er to file a federal 2242(d)(1). arguing the Gray appeals, § Gray pre- no circumstances that cites such tolled his Rule 91 period limitations was 24, acting prior April vented him from Reviewing court. this proceedings state the district court Accordingly, 1997. novo, affirm. See issue of law de we Whit ruling Gray’s September correct (8th Kemna, 431, 432 more v. 213 F.3d petition 2000 federal is time-barred. See Cir.2000) (standard review). (8th 761, Hopkins, Hatcher v. 256 F.3d one-year statute of limitations Cir.2001). 2244(d)(1) 24, April took effect on 1996. judgment district court is was then final under Gray’s conviction affirmed. Therefore, year— he had one state law. April until 1997—to file a federal habe- one-year limitation petition,
as unless 2244(d)(1)
§in was tolled. See Moore v. (8th States, 173 F.3d 1133-35
Cir.1999). tolling The statute itself has a
provision. during prop- “The time which a
erly post-convic- application filed State ... pend- tion or other collateral review is America, UNITED STATES period shall not be counted toward Appellant, Plaintiff - limitation under subsection.” 2244(d)(2). Gray argues that his Rule proceedings qualify the state courts Faye REINKE, Appellee. S. Defendant - statutory tolling, for this and therefore the one-year running period did commence No. 00-3954. February responds until 2000. The State Appeals, Court of not “other collateral re- Rule is Eighth Circuit. 2244(d)(2) §of purposes
view” for scope of its limited under Missouri law. Aug. Submitted: Purkett, Compare Duvall v. 15 F.3d 15, 2002. Filed: March (8th Norris, Cir.1994), 746-47 with Mills v. (8th Cir.1999). 883-84 need not whether a We decide
pending proceeding qualifies Rule 91 as Gray
“other collateral review” because did petition May
not file his first Rule 91 until SIPPEL, 1. The HONORABLE RODNEY W. of Missouri. District Judge United States District for the Eastern *2 sentencing range pre-
downward from ar- scribed in a riving at a sentence six months community facility, two *3 year community per with 150 hours service, supervised and three re- contends that lease. The United States the district court abused its discretion sentencing because court found not fall outside the Reinke’s case did guideline and applicable heartland of the because the factors the district court relied deciding depart on in downward were already adequately by into taken account guidelines. We vacate the sentence and remand.
I. co-defendant, and Reinke her Glenn Rois, marketed and sold hundreds throughout the Midwest over a ten- trusts year period. Rois and Reinke told trust they purchasers assign could their then assets and income to the trusts and money their taxes the deduct from they paid personal living expenses, for clothing. pur- As such as food and one it, assets, put put your chaser “You all trust, everything you have into the and the you.” trust takes care of Rois and Reinke tax helped purchasers get the trust identi- Div., Quesnel, argued, Karen M. Tax They in- fication numbers for the trusts. (Robert Washington, E. Dept., Justice DC identify purchasers structed the brief), Lindsay, Hechtkopf, Aan on the for number, by trusts tax identification rather appellant. security purchaser’s than own social Grau, MN, Minneapolis, Dean argued, S. number, so that the trust’s bank accounts appellee. for purchaser. could not be traced back to the for people Reinke notarized documents LAY, BYE, Before and R. JOHN them, actually signed who never and Rois GIBSON, Judges. Circuit purchasers trust Reinke advised GIBSON, Judge. JOHN R. Circuit the trust instruments. When backdate Rois learned that customers were about to appeals from the sen- audited the Internal Revenue Ser- Faye imposed tence S. Reinke after her vice, purged Rois and Reinke the custom- of conspiring conviction to defraud the files, States, ers’ substituted new documents for in violation of 18 U.S.C. (1994). ones, departed original and asked the customers 3C1.1, their because of the prepared harassing who letter questioned if about lie trust documents. Reinke sent to the officer. on one count of con- Rois was indicted request The court denied Reinke’s for a the United States and to defraud spiracy adjustment mitigating downward for role making subscribing counts of four offense, following findings: with the only tax return. Reinke was indicted false clearly The Defendant was less of a to defraud the United conspiracy moving colleague actor than her [Rois]. jury, The case was tried to States. in my will take that into account sen- conspiracy Reinke of the which convicted But, tencing. person she was also a who After charge charges. and Rois of all five assisted, fully cooperated, fully made it investiga- presentence received their *4 work, easier for Mr. Rois his and and sent a reports, tion both Rois Reinke signed on her own. doc- participated She pre- officer who probation letter to the uments and falsified them and did a reports. their The letter demanded pared things. number of other pay officer the defendants that the They basically equal were in then- $132,555, the tax which was the amount of roles, differing but did kinds activities, their as ascertained loss from I things. And will take that into consid- was, course, legal no the court. There my sentencing. in the course of eration During their demand. the sen- basis for basis, so, And on that I do note that she apologized Reinke to the tencing hearing, present during meetings. was the She and to the court. The probation officer specifically many ways. her what she was assisted And of course court asked for, said, also, know, “I am apologizing and Reinke all of these you she we had wrong, if I done apologizing did, because have really what he silly lies about like anything I never involved with will all thing. wrong sort of It was and she again.” So, I no wrong. knew it was all have fact that she also problem with the was sentencing At the conclusion of the hear- aspects involved in all of this. appro- that the ing, the court determined priate prescribed base offense level was vein, Later, the court ad- a similar .9, Sentencing § 2T1 United States USSG directly: dressed Reinke Manual, Commission, the Guidelines absolutely crystal clear record is [T]he impair, guideline conspiracy impede, for moving part in this largest who was the 2T1.9, obstruct, or defeat tax. Section But, you know that operation. also turn, incorporates by reference another you every way assisted in could guideline prescribing and a table offense infor- provided the various kinds of you according to amount of tax loss. level services, you performed mation and §§ 2T4.1. base 2T1.4 and To the USSG your colleague to do possible made it for 2T1.9, § from the offense level derived .... It doing that he was thing the specific for the points court added two you thought ... Mr. Rois appears to me sophisticated characteristic of con- offense words that were speaking important was 2T1.4(b)(2). under The court cealment doing value.... You knew he wasn’t specific of- points also added two the are too smart for right things. the You conduct intended to fense characteristic of that. law. encourage others to violate the guidelines all these 2T1.9(b)(2). Adding the results of Finally, the court USSG determinations, set court point upward by level two adjusted the offense level at justice, Reinke’s final offense for obstruction of USSG points I am specifically found that ematical construct. court within the heartland of Reinke’s case fell points. a collection of I am “I do not see a appropriate guideline: being real live human who has made that this case falls outside basis indicate mistakes. some However, of the the court heartland.” appeals, arguing sending harassing did observe that if departure appropriate no downward letter to the officer had been found Reinke’s justice, accounted for as an obstruction appli- case fell within the heartland of the authorized to the court would find- guideline, cable even without that guidelines range depart upward from identify any the district court did not to account for it. adequate- basis for that was not guide- determined that The court if ly guidelines. accounted for Even range imprison- was 37-46 months lines permissible, some were However, the court announced that ment. argues, the district court imposed would instead be six sentence by ignoring abused its discretion the struc- community facility, in a two months methodology ture and of the probation, years supervised and three re- arriving when at the sentence. departed lease. The court stated: “I *5 gave you guideline I the here downward. II. I Judge explained and went below it.” The Congress authorized district courts his decision: sentencing from the depart range pre to you I want to the why, tell reasons by Sentencing scribed the Guidelines if active, you were not the most that aggra “the court finds there exists an participant arrange- most active mitigating or vating circumstance of a appear you ment. It to did not me kind, degree, adequately or to a taken appear were the initiator. It does not by into consideration the Sentencing Com you any me derived dollar or cash bene- in formulating guidelines mission the fits of substance this case. Un- should result a sentence different from der those circumstances it appears to 3553(b) § that described.” 18 U.S.C. Also, appropriate. frankly, you me (1994). degree indicated at least a of contrition. things make it appear
Those
to me that
Atypical
adequately
cases were not
tak-
it
depart
is
in this
downward
consideration,
en into
and factors that
circumstance.
may
atypical provide poten-
make a case
departure.
tial bases for
Potential de-
After the court announced the reasons
‘cannot,
parture
very
factors
their
departure,
for its
the Assistant United
nature,
comprehensively
listed and
Attorney inquired
about the court’s
advance,’
analyzed in
1995 U.S.S.G.
methodology
arriving
for
at the sentence:
5K2.0,
of course. Faced with this re-
AUSA:
the Court
tell us
[WJould
ality, the
prohibit
Commission chose to
level it
departed
what
has
from the level
factors,
only
consideration of
a few
and
21?
limit,
categorical
not otherwise to
as a
10,
split
Court: I can do a
at
can’t I?
matter,
that might
considerations
Yes, you
AUSA:
can.
upon
depart.
bear
the decision to
Court: For the moment we will call it
States,
94,
81,
Koon v. United
518
116
U.S.
10....
in indicating
have no hesitation
(1996).
S.Ct.
923
Koon,
(quot-
at
for
518 U.S.
S.Ct.
adequately accounted
has
Commission
Rivera,
only
by referring
circumstance
particular
(1st Cir.1993)).
policy state-
If the
has
Commission
commentary. 18 U.S.C.
and official
discouraged
particular
ments
use of a
fac-
either
3553(b).
has forbidden
The Commission
already
has
taken account of the
tor or
grounds
as
circumstances
the use
some
range,
guidelines sentencing
factor in the
or encour-
discouraged
for
then the
court cannot base
Koon,
at
518 U.S.
of others.
aged the use
“the factor
departure on the factor unless
93-96,
all possible
2035. Not
116 S.Ct.
exceptional degree”
to an
or
is
anticipated
were
grounds
something else “makes the case dif-
unless
Guidelines, policy
in the
the Commission
ordinary
ferent from the
case where
commentary.
Id. at
statements or
present.”
factor is
Id.
116 S.Ct.
However,
has
Commission
fur-
Supreme
2035. The
Court
Koon
generally
courts
instructed the
ther instructed:
mechanisti-
the Guidelines
apply
must not
in the
If a factor is unmentioned
Guide-
touch-
apply the
cally, but instead should
lines,
must,
considering
after
the court
before them
of whether the offense
stone
rele-
theory
of both
‘structure
the applica-
“heartland” of
falls within the
guidelines and the Guide-
vant individual
ble Guideline:
whole,
taken as a
decide whether
lines
intends
The Commission
out of the
is sufficient to take
case
carving
as
guideline
to treat each
courts
heartland. The court must
Guideline’s
“heartland,”
cases
typical
a set of
out a
expecta-
bear in mind
Commission’s
guide-
the conduct that each
embodying
grounds
based on
departures
tion that
finds an
a court
line describes. When
will be
not mentioned
the Guidelines
a particular
one to which
atypical
*6
ch.
infrequent.’ 1995 U.S.S.G.
‘highly
but where
linguistically applies
guideline
A,
pt.
p. 6.
the
differs from
significantly
conduct
omitted).
(citation
Accord United
Id.
norm,
whether a
may
court
consider
the
(8th
Kapitzke, 130 F.3d
822
v.
States
warranted.
departure is
Cir.1997).
intro,
4(b),
A,
Ch.1, Pt.
comment.
USSG
court’s de
review the district
We
Koon,
at
116 S.Ct.
in
518 U.S.
quoted
unitary
of discre
under the
abuse
cision
2035.
in Koon.
announced
tion standard
considering
depart,
In
whether
McNeil,
n. 1
300 and
sentencing court
ask the follow
the
should
Cir.1996).
(8th
ing questions:
of discretion occurs when
abuse
[A]n
1)
case, potential-
What features of this
factor that should
relevant
“heart-
it outside the Guidelines’
ly, take
is not consid-
significant weight
given
or unusu-
special,
make of it a
land” and
ered,
or improper
an irrelevant
when
al, case?
given significant
factor is considered
2)
forbidden de-
Has the Commission
im-
and no
weight,
when all
or
on those features?
partures based
considered,
the
but
proper factors are
3)
not,
encour-
the
If
has
Commission
factors commits
weighing
in
those
court
those fea-
aged
based on
departures
judgment.
error of
a clear
tures?
omitted).
(citation
“A district
at
Id.
4)
not,
discour-
If
has the Commission
abuses its discretion
by definition
those fea-
based on
aged departures
Koon,
of law.”
makes an error
when
tures?
100, 116
2035. The sen-
heard at trial. an articulation of the causes for his present concerns would
a different landscape for our deferential
review. We must vacate the sen
tence and remand to the district court for justi
articulation reasons that could
fy departure, resentencing.1 or for FRANCOIS, Petitioner, Sihin Hadera
LAY, Judge, Circuit concurring. particular this the defendant has been given six month sentence IMMIGRATION AND years followed two with SERVICE, NATURALIZATION per year 150 hours of community service Respondent. supervised three released. No. 01-1233. experienced An judge district who is much more familiar with the case than this court Appeals, United States Court of has determined that this is fair and Eighth Circuit. equitable I agree sentence. with the dis- trict judge. only exception Submitted: Nov. is that 2001. there is no basis within Filed: March (the law) depart basis, downward. On defendant, rather than looking forward to
“graduating” from her sentence a com-
munity facility days, in a few must face the going prison
alternative of for some
thirty-one forty months.
This case futility demonstrates the
guideline sentencing. The human factor is
totally removed. guidelines under
these extremely circumstances are puni- judges
tive. Circuit have made plea previous occasions, but it has fallen on
deaf ears. The worst tragedy of the last *9 light disposition,
1. In of our we need not methodology determining the extent government's reach argument alternative departure. of the the district court failed to follow the