UNITED STATES of America, Plaintiff—Appellee, v. John Alvis JACKSON, Jr., Defendant—Appellant. United States of America, Plaintiff—Appellee, v. Larry Andrew Carey, Defendant—Appellant.
Nos. 07-4103, 07-4094
United States Court of Appeals, Fourth Circuit
Submitted: March 27, 2009. Decided: July 1, 2009.
567 F.3d 282
Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is on remand from the Supreme Court of the United States, see Jackson v. United States, — U.S. —, 129 S.Ct. 1307, 173 L.Ed.2d 575 (2009),
The defendants filed a petition for writ of certiorari in the Supreme Court, and the Court requested a response from the government. In the government‘s brief, the Solicitor General confessed error in our decision with respect to the ERISA theft offenses, explaining that, “[a]lthough the government argued in the courts below that unpaid employer contributions are plan assets, the government now agrees with petitioners [that such unpaid contributions are not assets of an ERISA plan].” Brief for the United States at 9-10, Jackson v. United States, — U.S. —, 129 S.Ct. 1307, 173 L.Ed.2d 575 (2009). The Court granted the defendants’ petition for writ of certiorari and, on the basis of the government‘s confession of error, vacated our decision and remanded the case “for further consideration in light of the position asserted by the Solicitor General in his brief.” Jackson, 129 S.Ct. at 1307.
As explained below, we vacate the defendants’ convictions on the ERISA theft offenses, as well as their sentences, and remand to the district court so that it may consider in the first instance the government‘s new position and its confession of error. We affirm, however, the defendants’ remaining convictions.
I.
The defendants, John Alvis Jackson, Jr. and Larry Andrew Carey, were prosecuted in the Western District of Virginia on multiple fraud and theft offenses. In addition to the ERISA theft offenses, the defendants were convicted by a jury in March 2006 of the following:
- Two counts of bank fraud, in contravention of
18 U.S.C. § 1344 (the “bank fraud offenses“); - Five counts of wire fraud, in violation of
18 U.S.C. § 1343 (the “wire fraud offenses“); - A single count of making false statements in ERISA-mandated documents, in contravention of
18 U.S.C. § 1027 (the “ERISA false statement offense“); and - A single count of theft from a health care benefit program, in violation of
18 U.S.C. § 669 .
Jackson was also convicted of conspiracy to commit various federal offenses, in violation of
The district court sentenced the defendants in January 2007. For purposes of the Sentencing Guidelines, the court grouped all of each defendant‘s offenses, including the ERISA theft offenses, resulting in advisory Guidelines ranges of 108 to 135 months for Jackson and 87 to 108 months for Carey. These ranges were predicated, in part, on offense level increases for causing a loss exceeding $10 million (including the loss amount attributable to the ERISA theft offenses); for jeopardizing the safety and soundness of the pension plan; and for embezzling, while acting as a fiduciary, from the pension and health care benefit plans. The court sentenced Jackson to 108 months and Carey to 87 months, at the bottom of their respective advisory Guidelines ranges.
II.
A.
The government, having now decided that it erred in pursuing the ERISA theft offenses and that we erred in affirming those convictions, confessed error in the Supreme Court. See Young v. United States, 315 U.S. 257, 258, 62 S.Ct. 510, 86 L.Ed. 832 (1942) (recognizing that “[t]he public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent“). Nevertheless, the government‘s “confession does not relieve [us] of the performance of the judicial function.” Id. Although “[t]he considered judgment of the [government] that reversible error has been committed is entitled to great weight, ... our judicial obligations compel us to examine independently the errors confessed.” Id. at 258-59, 62 S.Ct. 510.
The government‘s confession of error implicates the propriety not only of the defendants’ convictions on the ERISA theft offenses, but also of their sentences. Because the district court determined, as did we, that—contrary to the position now being espoused by the government—unpaid employer contributions constitute ERISA plan assets, we deem it prudent to remand so that the district court may consider in the first instance the government‘s confession of error. Accordingly, we vacate the defendants’ convictions on the ERISA theft offenses, as well as their sentences, and remand for such other and further proceedings as may be appropriate. Cf. United States v. Matthews (In re Matthews), 395 F.3d 477, 483 (4th Cir. 2005) (remanding for district court to consider in first instance new theory raised by government on appeal).
B.
As for the defendants’ remaining convictions, we stand by our rejection of their challenges to the sufficiency of the evidence on certain specified counts. In so doing, we note our ongoing agreement with the district court‘s analysis in denying the defendants’
III.
Pursuant to the foregoing, we vacate the defendants’ convictions on the ERISA theft offenses, as well as their sentences, and remand for such other and further proceedings as may be appropriate. We affirm the defendants’ other convictions.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.