United States v. Michael Charles Beatty

“extraordinary” to fall outside the (c)(2)(C). On scope of subsection broad although the district court we find that

basis Lovett, interpretation of

erred its proof has carried burden

nonetheless industry conformity

demonstrating payments, loan

practice dealing with late objective requirement satisfied (c)(2)(C) by showing that such

of subsection are common within the payments loan

late industry con- that it is

savings loan ordinary practice. business

sidered analysis, we find of the above

On basis judgment should

that the district

affirmed. America, Appellee, STATES

UNITED BEATTY, Appellant.

Michael Charles 92-2920.

No. Appeals, Court of

Eighth Circuit. March 1993.

Submitted 10, 1993.

Decided Nov.

Rehearing Denied Dec. MN, Minneapolis,

Kevin J. Short of ar- gued, appellant. Peterson, MN,

Douglas Minneapolis, R. ar- (Thomas gued Heffelfinger, B. Elizabeth L. Vega De La Laura Engleson, on the brief), appellee. FAGG, HEANEY, Judge,

Before Circuit HANSEN, Judge, Senior Circuit Circuit Judge.

HANSEN, Judge. Circuit Beatty pled Michael guilty Charles to one conspiracy count of to commit mail fraud in §§ violation of 18 U.S.C. and 1341 and to one count of mail fraud in violation departed U.S.C. applicable from the otherwise Sen- range of 27 to 33 months and sentenced to a term 41-month imprisonment. Beatty appeals and raises challenging numerous issues his sentence. We affirm. “more not contend that than

I. does planning” present minimal was not that he did not re- Beatty first contends merely offense conduct. He adequate possibility notice of the ceive engaged improper the district court and, depart upward might court district “double-counting” it used the form of when therefore, the court abused its discre- district punishment factor to increase his under same denying in his motion for a continuance tion separate provisions two and different of the regarding the de- to submit written brief Sentencing disagree. Guidelines. We disagree. parture issue. We Double-counting permitted in cir- some Beatty received sufficient notice v. Compare United States Bur- cumstances. (8th Cir.1991) departure nett, 187, issue. The about 952 F.2d 188-90 (PSR) may report (holding included a section de- investigation that district court consider May Depar underlying under That fendant’s conviction both entitled “Factors Warrant (d) 2J1.6(a) 4Al.l(a) ture,” § § specific & when sen- listed the factors that appear him for failure to to serve upward departure under justify could an Thomas, sentence), v. 930 and United States specifically § 2F1.1 and informed U.S.S.G. (8th Cir.1991) 12, (holding that 13-14 Beatty “upward departure might may 16-17.) un- consider defendant’s PSR at We con warranted.” 2P1.1(a)(1) § derlying under conviction both provided infor clude that PSR sufficient 4Al.l(d) (e) sentencing § & when him Beatty possibility mation to about escape), Werlinger, with United States might depart upward. See the district (hold- Cir.1990) Andrews, 449 ing that of crime Cir.1991) defendant’s concealment States, (citing Burns v. United — adjustment for does not warrant obstruction U.S.—,—, 2182, 2187, 115 111 S.Ct. justice provided because Commission (1991) (defendant 123 received suffi L.Ed.2d level). The concealment base offense dis- cient notice when either the PSR indicates court, however, actually engage trict did not justify facts could an that certain “double-counting.” A two-level increase government requests departure or when the required offense level if one four addition, Beatty’s departure)). In specific present. offense characteristics are acknowledged that he was aware the dis 2Fl.l(b)(2) (1987). § If U.S.S.G. “several up power” “inherent trict court’s present, the enumerated factors” are then thought he ward and that had about the “upward departure might be warranted.” departure prepared orally issue and was comment, (n. 1) (1987). § 2F1.1 U.S.S.G. during hearing. address Beatty’s adjusted upward offense level was 4.) Consequently, dis two levels because first factor enumer- trict did not abuse its discretion in i.e., 2Fl.l(b)(2), §in minimal ated more than Beatty’s denying motion for continuance. subjected planning. Beatty was then Voss, 401- See United States 787 possibility if upward departure of an addi- (8th Cir.) (standard of review for denial of present. tional enumerated factors were discretion), a motion continue is abuse of case, Beatty’s the district court found that denied, cert. 479 U.S. 107 S.Ct. four “enumerated were three factors” (1986). L.Ed.2d i.e., present, engaged in “more planning,” than minimal he had defrauded II. (the more than one victim court found Beatty next investors), the district had defrauded 57 and he had vio- misapplied Sentencing lated administrative decree issued by relying specific on the offense characteris Department Rely- Minnesota Commerce. tic, planning,” than minimal as ing “more presence on the of the additional factors upward adjustment Thus, a two departed upward. basis for both level no district court 2Fl.l(b)(2)(A) pursuant directly responsible § single U.S.S.G. factor was two upward depar Beatty’s one its stated reasons for discrete increases in sentence. We 5K2.0, p.s. pursuant ture to U.S.S.G. thus conclude that district court did Cir.), adjusted offense err when it both U.S. S.Ct. departed L.Ed.2d The spe level and

cifically that Beatty indicates was never ar rested or charged Van Slooten’s homicide. III. information, therefore, fairly pre following contends that the in unfairly sented prejudice Beatty. and did not formation contained violated Fed 32(c): eral Rule of Criminal Procedure Ninth Another Circuit case addresses objected-to concern that the materi 17, 1988, February On Slooten was Van may disadvantage by al prison be used to his The defendant was identified murdered. officials. suspect as a but never main arrested formally charged.

nor Neither process requires due nor Rule 32 a judge district court to be an editor well (PSR 6.) at he maintained his inno- While justice. as an of Any arbiter concerns a sentencing, Beatty cence of murder at might prison defendant have about officials object accuracy report did not to the of the unfounded, relying on detrimental informa- fact, suspect. that main In he was a his tion in his investigation report objections presentence report, written to the by should be a compli- met district court’s target he that he had been “the of a admitted 32(c)(3)(D). ance Rule degree investigation unprece- first murder intensity scope” Turner, 705, dented in and for more United States v. years. Beatty Cir.), than four and one-half con- 495 U.S. tended that the information about the mur- S.Ct. 109 L.Ed.2d 756 We find unnecessary der was because the no violation Rule 32 in this context. judge already knew all from presid- about it IV. action, wrongful ing over death and it was irrelevant because it occurred after Beatty next contends there was insuf- period by of time covered the Indictment support allegations ficient information to plea agreement. and the also ex- regarding contained in the PSR the issues of pressed concern that the Bureau Prisons acceptance responsibility, U.S.S.G. prejudice would use information to his 3E1.1, offense, § role in and of U.S.S.G. while confined. 3B1.1, § and that the district court violated Federal Beatty’s objec- Criminal Procedure

The district court overruled 32(c)(3)(D). tion to this information and stated: regarding The information Van Slooten’s regard acceptance responsibili- With death, arising from and the circumstances ty, Beatty the PSR contained death, information which “very alleging information that he un- [sic] needs in order understands all of cooperative during the course of Federal stemming from the of- circumstances Investigation.” argues Fraud He that even harm, Any potential fense. from the inclu- though him granted district two- information, mitigated sion by of such adjustment acceptance level downward [Beatty] of fact the inclusion was nev- responsibility, allegation the unsubstantiated charged er arrested or with the murder of might have affected district deci- co-conspirator] [his Van Slooten. therefore, depart upward, sion and he is entitled

(Sent.Tr. 19.) to be resenteneed. at noted, specif- that the As We conclude did not we have the district by refusing ically violate than Rule 32 to strike the enumerated three factors —more victim, concerning planning, reference in PSR Van minimal more than Sloo- one ten’s death. The rule relied does not violation of an administrative decree —as the (See require objected-to upward. departing material Sent.Tr. at basis 28-29.) Johnson, court, According stricken. United States F.2d the district (8th Cir.1985); therefore, cooperation also see the extent (or Robertson, thereof) lack was not relevant its deci- Furthermore, specifically in the that are not tained PSR sion to states, “Al- objected parties. misquotes the PSR. reported Montanye, defen- Cir.

though it has been 1993) (en banc) cases). addition, during the in- very uncooperative (citing In dant was it appears offense specifically of the instant vestigation district court addressed recently accepted responsibility rejected he each and two offense level so, however, any his criminal behavior taking It did without PSR. 11.) at is warranted.” specifically reduction The court further evidence. did suffer accurately We conclude found that the information was prejudice. 11, (see unfair at 16- paragraph written Sent.Tr. (see 17), 17), paragraph Sent.Tr. offense, Beatty respect role With (see 18), paragraph agreed that he and the “was making about determinations PSR. supervisor activity a criminal manager objected-to paragraphs, the court re those participants involving five which less than hearsay- facts (principally on additional lied extensive,” thereby war- was not otherwise based) probation officer asserted adjustment ranting under a two-level second addendum the 3Bl.l(c). Designated U.S.S.G. probation prepared after the defen (Plea officer Agreement).) R. at 42 Clerk’s lodged had to the PSR. dant office, however, probation paragraph in 30 of readily conclude that the district court’s We PSR, upward a recommended four-level of heavy allegations on the con reliance fact adjustment concluding Beatty after that objeeted-to paragraphs in the tained of activity organizer and leader of a criminal 11.) (See and its for the version Beatty PSR addendum true at was extensive. PSR they dispute objected of the facts when are in violated specifically to conclusion con- stressed, assessing repeatedly a Rule 32. As paragraph in 30 four-level we tained adjustment “presentence report and for role in the offense is evidence making allegations legally contained is not a sufficient basis for and also to factual 12, 6, 11, paragraphs findings in 18 of the and PSR. on contested issues of material fact.” (Def.’s Streeter, 781, Designated R. at 60-64 Clerk’s States v. 907 F.2d 791- United PSR).) (8th Objections Beatty Cir.1990); to states that he 92 v. see also United States (8th Cir.1993); objected specific paragraphs Ransom, 1011, to in the these 990 F.2d 1014 (8th Wise, 393, PSR in order to make clear “there United States v. 976 F.2d 404 — Cir.1992) (en in the banc), was a substantial difference roles U.S. Beatty played Mr. Mr. Slooten and at —, 1592, Van 123 113 S.Ct. L.Ed.2d 157 64.) (Id company.” at Hammer, recently, in Most United States (8th Cir.1993), again 271 F.3d we a requires Rule 32 district court to emphatically point. made the At the same findings to specific each controvert make redundant, being of we it once risk make fact ed material in the PSR or determine more: finding necessary that no such is rely solely may presen- A court a taken ac controverted fact will into report findings tence relevant to sen- sentencing in count in order to ensure only if the facts in the “meaningful appellate fair review disputed by report are not the defendant. sentencing process.” ness of United Coleman, Fortier, States v. Cir.1993) Candie, (citing added). Cir.1990) (emphasis (8th Cir.1992)). F.2d Nevertheless, we hold that the dis case, comply court’s with Rule this the district court trict failure 32(c)(3)(D)’s in adopted requirement the factual contained and with our eases statements Hammer, by unchallenged at 270 were either harmless error. (harmless 16.) analysis applied party. Under our error erroneous cases, clearly permitted sentencing); see a district court use of PSR as evidence Montoya, allegations accept as true all factual con- also United States Cir.1989) (failure rule on Mr. Short has on of Mr. Beatty behalf in subject matters a controverted number of comments about the analysis). Notwithstanding harmless error [Beatty] fact that loved used his ones’ mo- allegations in specific contained factual nies for his if that proof were venture —as 6, 11, PSR, paragraphs and 18 of the good faith. I proof believe it more object- paragraphs which are the the fact that he advantage also took of his judgment ed to in our were there They obviously loved ones. do not feel sufficient facts uneontroverted contained way. unchallenged para- remaining, factual many people But who were taken graphs plea agreement the PSR advantage Mr. were his support upward adjustment the four-level friends, friends, former peo- and these are imposed by for role in the offense who, ple example, family include a who Consequently, court. fail- the district court’s money college, had saved and their son 32(c)(3)(D) comply ure to with Rule go college was unable to because Mr. case error. was harmless Beatty, people there are who received Having all of considered the defendant’s inheritance, a [sic] a woman who had arguments application about the barely worked whole making lifetime Guidelines, Sentencing we conclude salary, finally inheritance, receiving an pre-departure the district court’s determina- it was all taken Mr. and Mr. Van tions that the defendant’s offense level Slooten, there people are other who lost all I, history with a category criminal their retirement funds. yielding sentencing range of 27-33 months people On behalf those would ask that imprisonment are correct. imposed a substantial sentence be on Mr. Beatty.

V. (Id. 14.) Beatty govern- at the argues government the ment plea agreement breached the not to agreement, plea violated the stated which upward departure” “make a motion for government agreed that the “not to make a asking impose the district court to a “sub- upward departure.” Desig for motion ¶ stantial sentence.” 9.) nated Clerk’s R. at sentencing, At district the court informed A review the record shows that the on, parties early the even it deter- before preserve alleged defendant failed to the error mined the defendant’s objection for review. No the that it upward intended to the from prosecutor’s district court remarks applicable range otherwise plea agreement. In violated a similar sought argument counsel’s about that issue. setting, we held that a defendant’s fail- 3.) Sent.Tr. at After the district court object sentencing hearing ure at denied request for a continuance to government claim that waives violat- response regarding submit a written de- agreement by moving plea ed the for an issue, Beatty’s argued parture justice adjustment. obstruction United (Id. 6-13.) against departing at Youmans, (8th States v. 749 granted Beatty The district court then his Cir.1991); Benson, see also United v. States (Id. 13.) right at stat- (8th allocution. Cir.1988) (“com- 836 F.2d “very sorry pain ed that he was plaints brought to the attention of the victims, brought losses that have been the sentencing district court the time of (Id.) my family, my friends.” The district review”). preserved hearing are provided government chance with a the cases where we have found that respond government and the stated: plea violated the terms of a very briefly, agreement by Just Your prosecutor’s Honor. I would remarks at time, speak objec- like to behalf of contemporaneous on the victims Obviously lodged this case. I represent don’t tion was either with the trial court or them, only but I am their in court. it voice was raised motion court. Horn, in the upon assertions of fact 976 F.2d in reliance v. Van States

See United (8th Cir.1992) making (contemporane- report in of critical determina- 1182-83 parole. custody or For relating tions McCray, objection); States ous United Cir.1988) (motion). or example, possible that the Bureau We Commission, reaching in the course remarks prosecutor’s reviewed have also institution as- on matters as and decline to decision such standard plain under a error com- signment, eligibility programs, or grant relief. factors, place great will putation salient in the re- upon factual assertions reliance VI. in fact which are untrue and port judgment Accordingly, district court’s unchallenged the time of sen- remained imprisonment sentencing the defendant his counsel tencing defendant or (concur- 1 and each Counts 41 months on in the sen- unimportant the error deemed affirmed. rently) (e.g., sentence context where plea expected conform to an earlier HEANEY, Judge, Circuit Senior judge he agreement, where the said dissenting. concurring and mat- disregard certain controverted would opinion insofar as it I the court’s concur sentence). setting ter provided suffi- holds that first new sentence of subdivision. possibility of an cient notice (c)(3)(D) rec- ensure that a intended departure departure itself was and that exactly as to what resolution ord is made double-counting. I find product of not the as to controverted matter. occurred regarding the PSR and the issues other agreement plea government’s breach Id,1 considerably troubling than does more courts, court, many other along with Our however, and am therefore com- majority, compliance” required “strict pelled to dissent. 32(c)(3)(D). Coleman, See Cir.1993); United Conkins, States Advisory In 1983 Judicial Council’s Villasenor, Cir.1993); on Rules recommended Committee Criminal — Cir.1992), 32, including to the addi- amendments —, 1340, 122 L.Ed.2d U.S. S.Ct. (c)(3)(D), “requires tion of subdivision (1993); Am. Educ. United States Wilfred court, sentencing as to each matter con- the (1st Cir.1992). 717, 721 Corp., 953 F.2d n. 7 troverted, finding as the either to make to Phillips Judge explained in United States proposition accuracy challenged the factual of Daniel, Cir.1993), 3 F.3d 775 that “Rule no reliance will be or to determine 32(c)(3)(D)’s in na prophylactic command the placed proposition on that time ture,” any “remedy and we will therefore 32(c)(3)(D) sentencing.” advi- Fed.R.Crim.P. it, comply or not the failure to with whether sory to committee’s note 1983 amendment. actually the and resolved issue “entirely provision This new” was needed any identifiable harm was whether not Bureau of Prisons and the because both “the suffered_” Id. at 780. use of Parole Commission substantial rule, understanding the the investigation report” prior Despite to presentence the this majority it to practice That allows be twice breached. the amendment. Id. resulted ability furloughs, Advisory facility, obtain to its within the Committee also referred 1. The significance programs." discussion of the the Fed. earlier in the choice of treatment and For 32(a)(1) Bureau of Prisons' determinations. the advisory note to R.Crim.P. committee noted, the example, "[i]f the Committee defen- Hall, (quoting & Due Fennell 1983 amendment incarcerated, presentence report ac- the dant is companies Sentencing: Empirical Legal Process An him to correctional institution Reports Analysis the Disclosure Courts, Presentence background provides information the Bu- 1613, 1651 Federal 93 Harv.L.Rev. which, summary, reau of Prisons' classification (1980)). turn, classification defendant's determines First, the statement information in all the court allows order understand of the suspect co-conspirator’s stemming in his circumstances Beatty was a from the offense— despite remain in nor necessary findings murder did make the sentencing either to evi- accuracy. court’s failure take statement’s issue or that it dence on the to indicate would finding The equally harmless error Second, rely not the statement. égregious. sentencing Whether court’s sentencing court’s er- court holds clear 32(c)(3)(D) comply failure with Rule af on relying the PSR as evidence mak- ror — finding fects the sentence or not —a I am ing findings over —harm- entirely competent unsure we are to make— appear less it does not af- have point. is, Judge misses the Rule 32 as Phil latter fected the sentence. The determina- indicated, lips “prophylactic has in nature.” were, make, tion even if it is not ours but required We have compliance strict with the obligated to be- we would still be remand placed rule great “because of the reliance on effect has on cause of the the PSR investigation reports courts by the treatment Bureau Prisons. and the Bureau of Prisons.” Garbett, 1132, 1136 (8th sentencing Cir.1989). ruling court need satisfy Beatty,’ matter, not “edit” the PSR to the As our court leaves this the Bureau relies on our decision in majority sentencing of Prisons will receive Johnson, 11,12, findings that paragraphs and 18 of the Cir.1985). sentencing only There we that a held PSR are accurate. The for these basis PSR, any and, obligation findings no ... majority “has strike as the notes, go repeatedly material It need no [PSR]. from we have held that the PSR stating objec mat- further than that a controverted cannot be treated as evidence when in sentencing.”2 majority’s ruling ter will tion considered is made. The under case, sentencing Yet in did mines the rationale for the rule and disre disregard gards previous rule it would information our statements on this issue. law, regarding stating quite our existing required Van Slooten’s Under case we are death — contrary needed the to remand this ease to district court with agree jurisdiction. emphatically I do not that the district court is under Courts stated irrelevant, duty potentially no to delete harmful that the inmate should raise the issue with the Commission, ruling information from but such is the Parole but the Commis- Parole question particularly validity of our court. X just emphatically only has sion stated rests, ruling jurisdiction of that because it as have other court has to correct rulings, availability PSI; case, on courts’ of 28 C.F.R. and in the Parole Commission 2.19(c) Beatty's position. someone authority no over defendants sentenced problem this answer that this administra- guidelines. under proceeding auspices Comment, tive exists under Ross, Findley Keith A. & Meredith J. board, parole given parole Access, was eliminat- Accuracy and Fairness: The Federal Pre- guidelines implemented, ed when the were the Investigation Report sentence Under Julian and significant collateral effect such ma- Guidelines, erroneous Sentencing the 1989 Wis.L.Rev. terial in Bureau PSRs within the of Prisons. Findley suggest and Ross that Rule should great clarity This issue was set forth with the in grant jurisdiction be to courts amended over University Wisconsin Review: Law prob- "simple PSI This motion[s].” correction A defendant who to have his or her PSI wishes alleviated, particularly lem be in could somewhat nightmare. procedural corrected ... faces a one, present such as the if courts cases sentencing hearing, At the the can defendant simply recognize injustice leaving would the attempt challenge that to information is "irrel- presentence report. erroneous material in If sentencing, proba- or evant” to but he she will inclined, certainly so district courts are not we bly challenge find the dismissed however, supervisory power If, have it within our to direct court's statement of nonreliance. correct errors. be but them to such This could objection the defendant does not raise way develop judges one in which we as federal sentencing, may he or she find that later Meanwhile, sentencing” for challenge the "common law of called has been waived. Becker, Insuring Judge R. disputed Becker. See Edward information remains in the At- PSI. Sentencing: tempts sentencing Finding Fact after Reliable to correct PSIs motions,” through appeals, direct “Rule 32 Must the Guarantees of Confrontation motions, Applied?, Cap. Rule Due Be or section motions have Process Clauses more than not dismissed often been for lack U.L.Rev. upward depar- to the issue of strictly comply with the comment on that it directions 32(c)(3)(D). ture, It problematic. have it would not been mandate of precisely statement was context, however, a that it constitutes that II agreement. govern- plea The breach Beatty has majority finds that also The respond obligated simply to ment was preserve allegation adequately failed upward departure. agreed not to seek an had agreement violated its government that the for add permissible It it to would have been upward departure. The for an not to move departure appropri- it did not feel a ruling on an rests examination case, though ate, it would had that been the sentencing transcript. Hav- fragment of the say obligated to do so. To have been objection at the close of ing no found anything departure favor of would clear- remarks, court rules government’s ly agreement. breach preserved. ruling This was not issue adequately pre- I did believe assertions on this ignores earlier our had this issue for review. reasonably serve he could point, assertions government’s obli- informed repeat. felt be futile to it to gation agreement yet the plea under the transcript only consists of The respond government to to its court asked the thirty-six boilerplate. of which is pages, much departure. impose an It intention government to by the The statement imposed may that the court would have objects pages on 13 and 14. occurs regardless of the same sentence what already had By point said, ques- government but can be no there sentencing judge that informed been government’s knew the tion that at 3. he intended yet it agreement and allowed responded surprise: with Counsel agreement. I see no reason violate Honor, have not addressed this Your I circumstances, why, should under these we before, writing because it was matter “clearly erro- not review this issue under la part plea agreement, that Ms. de plain rather than under er- neous” standard into, she and I Vega entered would I find error and would remand ror. clear upward depar- make a motion an resentencing compliance plea with the recognize the inher- of course ture —and agreement. so of the court to do on its power ent nevertheless, supplied I have exten- own— just Ill materials on sive written issue, every one.- save this about for the district court’s There no excuse for a Id. Counsel then asked continu- at 3—1. 32(c)(3)(D) comply with Rule failure respond to this- in writ- ance to allow him agreement plea enforced. see request, finding ing. denied his one, is the an In neither case burden onerous adequate provided notice both that the PSR inmate, potential particu- and the harm to an already had and that counsel addressed 32, is larly comply from failure to with Rule issues, though not in the context of relevant great. hope compliance How we can “done upward departure, an ex- rule such Rule 32 when we prophylactic setting job in those matters forth.” cellent me, beyond noncompliance is excuse Id. at 6. therefore dissent. argu- then forth set against departure, and the court asked ments respond. if it government wished litany regard- forth then set

ing crimes and closed the victims of Id. asking for a “substantial sentence.” in a Had statement been made response request other than in to a

context

Case Details

Case Name: United States v. Michael Charles Beatty

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 17, 1993

Citation: 9 F.3d 686

Docket Number: 92-2920

Court Abbreviation: 8th Cir.