United States v. Scott

BAUER, Before WOOD complaint a criminal In June WILLIAMS, Judges. Circuit coconspira- and his charged the defendant Brown, tor, engaging A. Gabriel

BAUER, Judge. Circuit July to defraud investors. scheme jury charged the defen- grand federal guilty to two a Wayne pleaded C. Scott engaging in a indictment for dant six-count fraud in violation of mail counts through investors in a scheme to defraud sentence to appeals He his U.S.C. 1341. mail. The States the use of the United that he is entitled argues this court and ultimately pleaded guilty defendant to two the kinds of sentence and the sen- fraud, and tencing range counts of mail the district court established for— him months in prison, sentenced to 63 (A) applicable category of of- possible lowest sentence within the adviso- fense committed the applicable ry Sentencing United States Guideline category of defendant as set forth reasons, however, range. For unknown ...; guidelines prosecutors charges against dismissed all (5) any pertinent policy statement coconspirator. ap- defendant now court, peals asking his sentence to this (6) the need to avoid unwarranted remand we vacate and for resentenc- disparities sentence among defendants ing. with similar records who have been guilty conduct; found of similar II. DISCUSSION (7) the need provide to restitution to any victims of the offense. The bulk arguments of the defendant’s 3553(a) sentencing concern the § statute codified at 18 U.S.C. The defendant § part, U.S.C. relevant challenges first his sentence focusing on states, statute specific 3553(a)(6), § language of which we will refer to clarity “subpara- for (a) Factors to be considered in imposing (a)(6).” graph The defendant then centers a sentence.—The court impose shall a argument his on all of the factors con- sufficient, greater sentence but not than 3553(a) tained within in general, which necessary, comply to purposes 3553(a)” “§ we will refer to either as or (2) set forth in paragraph of this subsec- 3553(a) “§ generally.” court, tion. The in determining par- ticular sentence to be imposed, shall A. Coconspira- Consideration of a consider— tor’s Lack of Conviction Under

(1) the (a)(6) nature and circumstances of Subparagraph history offense and the and char- The defendant contends that defendant; acteristics of the district court failed proper to follow sen (2) the need for the sentence im- tencing procedures because it implicit was posed— ly required, at permitted, or least to con coconspirator’s sider a non-conviction and

(A) to reflect the seriousness of the (a)(6). non-sentencing subparagraph under offense, promote to respect for the question This is a of law that we review de law, provide just and to punishment novo. See United Curby, States v. offense; for the (7th Cir.2010). F.3d (B) adequate to afford deterrence (a)(6) Subparagraph requires courts to conduct; to criminal consider “the need to avoid unwarranted (C) protect public from fur- sentence disparities among defendants defendant; ther crimes of the with similar records who have been found (D) provide the defendant with guilty of similar conduct.” 18 U.S.C. needed educational or vocational 3553(a)(6). The defendant concedes that training, care, medical or other cor- (a)(6) on its face subparagraph contem- rectional treatment the most ef- plates the avoidance of sentencing dispari- manner; fective only among ties those individuals who have available; the kinds of sentences been convicted of and sentenced for similar Coconspira- a B. Nevertheless, ar- Consideration crimes. tor’s Lack of Conviction Under required, or implicitly are courts gues 3553(a) Generally non- to consider the permitted, least cocon- non-sentencing of conviction argues that the The defendant dis He subparagraph. under this spirators it that it trict court erred when held could of sub- general purpose lack reasons not consider the (a)(6) sentencing dis- is to avoid conviction and paragraph However, coconspirator generally. greater disparity and there is parities, instead, acquitted; here was not tried and coconspirator who one between than the charges against all prosecutor dropped who is coconspirator is sentenced Thus, merely is not her. defendant convicted, or let alone charged not even that the district court should have arguing ar- is therefore The defendant sentenced. coconspirator’s lack of con considered the phrased purpose generally guing that is, he more accu sentencing; viction and to read a permits us subparagraph that the court should rately, arguing have its face as a conviction on requiring statute prosecutor’s considered the decision in require not conviction that does statute in bring charges against coconspirator the application. place. presented first The issue to the therefore involves a conflict be this court subparagraph agree we that While judge’s responsibility tween the to avoid (a)(6) reducing sentencing dis aimed at is interfering prosecutorial with discretion broadly to use a we decline parities, judge’s responsibility and the to consider subparagraph of the phrased purpose under relevant information of its expand the reach opportunity an Gil, 113, v. 9 F.3d Compare United States clear, narrowly unambiguous, phrased (7th Cir.1993) (stating judicial that re 113 Instead, remain true to our we language. prosecutor’s over a decision of when view for sub- holding that order precedent, what sentence to recom prosecute the court applicable, to be paragraph (citing Wayte generally improper) mend is sen disparate with presented must be States, 598, 607, 105 v. 470 U.S. United among codefendants or cocon not tences (1985)) 1524, L.Ed.2d 547 with S.Ct. 84 judges or districts. among spirators Jackson, 786, v. 547 F.3d United States Bartlett, See, v. 567 e.g., United States (7th Cir.2008) (noting that 792 (7th Cir.2009); 901, United F.3d 907-08 broad, open-end vague, factors “are (7th Pisman, 912, F.3d 916 v. 443 States ed,” leaving sentencing judge the with Boscarino, Cir.2006); v. 437 United States to individualize “considerable discretion (7th Cir.2006). 634, We and offender as F.3d 637-38 sentence to the offense reasoning .is consistent long judge’s no as the find that there is therefore 3553(a)”) States v. (quoting United case, additionally noting in this disparity (7th Wachowiak, 744, 496 F.3d 748 Cir. disparity between the that there can be 2007)). law that we question This is a coconspira and the defendant’s sentence Curby, F.3d at de novo. See 595 review latter does not sentence when the tor’s 796. Accordingly, we affirm even exist. court, finding prop that the court analysis by questioning, begin our We

erly admittedly language refused to consider broad even under 3553(a), non-sentencing prosecutor’s whether non-conviction (a)(6). prosecuting decision for unexplained subparagraph 406 456, 464, 1480, coconspirator judge’s is relevant to the U.S. 116 S.Ct. 134 L.Ed.2d just 687 In

determination of sentence for the order to ensure that prose know, cutorial discretion prosecu- defendant. For all we remains intact and firm ly province Executive, within the of the may charge tor have decided not to judicial prosecutorial review over discre coconspirator cooperating because she is e.g., tion is limited. See United States v. still witness or because she is under inves- Woods, (7th Cir.2009) 400, 576 F.3d tigation, neither of which would be a rea- “[tjhere (explaining that nothing is son to reduce the defendant’s sentence. this court either could or should do about expressed See id. at 562 n. 13. We have prosecutorial discretion that is exer eases, noting same concern other state”); cised at charging United prosecutorial charg- decisions at the Moore, 891, States v. 543 F.3d 899-900 ing stage particularly judi- are ill-suited to (7th Cir.2008); States, In re United cial review because factors such as “the (7th 638, Cir.2007); F.3d United States case, strength prosecution’s gen- of the Roberson, (7th 474 F.3d Cir. value, eral deterrence the Government’s 2007); Armstrong, 517 U.S. at priorities, enforcement and the case’s rela- 1480; Rodriguez, S.Ct. 63 F.3d at 562 n. tionship to the Government’s overall en- 13. The Supreme United States Court plan readily forcement are not susceptible described the interplay judicial between analysis to the kind of the courts are com- review and prosecutorial discretion in petent Rodriguez undertake.” v. Pe- Wayte v. United States: ters, (7th Cir.1995) 63 F.3d n. justice our criminal system, the Gov- (citing Wayte, 470 U.S. at 105 S.Ct. ernment retains “broad discretion” as to 1524). case, In this the motivations behind prosecute. whom to United States v. prosecutor’s charging the decisions are un- Goodwin, 368, 380, 457 U.S. n. known, undiscoverable, and thus favorable 2485, 2492, S.Ct. n. 73 L.Ed.2d 74 neither to the defendant’s prose- nor to the (1982); accord, Jerrico, Marshall v. cutor’s case. We therefore say cannot that Inc., 238, 248, U.S. 100 S.Ct. prosecutor’s the decision to refrain from (1980). 64 L.Ed.2d long “[S]o charging the coeonspirator was relevant prosecutor as the probable has cause to during the defendant’s hearing, believe that the accused an committed even under the language broad of statute, by offense defined the decision whether or not prosecute, and what Putting our concerns with rele charge to bring file or grand before a aside, however, vance reject we the notion jury, generally entirely in rests his dis- may that a court coconspira consider the cretion.” Hayes, Bordenkircher v. 3553(a) tor’s lack of conviction under 357, 364, 663, 668, U.S. 98 S.Ct. holding because deprive otherwise would L.Ed.2d 604 This broad discre- prosecutors of the opportunity to exercise tion largely rests on recognition the that any meaningful prosecutorial in discretion prosecute the decision to particularly is coconspirator cases. system Under our of judicial ill-suited to review. Such fac- separation powers, prosecutors of retain case, tors strength as the of the the broad discretion to enforce criminal laws prosecution’s general value, deterrence they because required are to help the the Government’s priori- enforcement President ties, “take Care that the Laws be and the relationship case’s to the faithfully Const., II, executed.” U.S. Art. Government’s overall plan enforcement 3;§ see United Armstrong, States v. readily susceptible are not to the kind of using prosecutor’s to un- vent the court from competent the courts are

analysis in this supervision against prosecu- Judicial discretion in one case dertake. area, moreover, of systemic entails costs in essentially tor another case. This Examining concern. the ba- particular prosecutor penal- forces the hand of the or delays the criminal prosecution sis of a exercising him discretion in izes for his to chill law en- threatens proceeding, chose, leaving prosecu- manner that he subjecting prosecutor’s forcement meaningful tor discretion at all. decisionmaking to outside motives and theory thus allows not The defendant’s for may prosecuto- undermine inquiry, exercise of two different harmonious by revealing the Gov- rial effectiveness only one: the court’s. discretions We All policy. enforcement these ernment’s court, holding therefore affirm the district concerns that make the are substantial coconspirator’s that consideration of hesitant to examine properly courts non-conviction, non-charging, and non-sen- prosecute. whether to decision tencing improperly would 607, 105 Reflecting S.Ct. 1524. 470 U.S. prosecutorial hinder exercise discre- framework, law our case embodies tion. safeguard long-settled principle we by shielding it discretion

prosecutorial The Reasonableness of the Defen- C. that either forces the judicial from review dant’s Sentence manner prescribed to act in a prosecutor acting Alternatively, argues for penalizes prosecutor or (1) resentencing manner. he entitled preferred his is because inadequately explained the district court with our quarrel The defendant does not sentence, his the district court discretion. understanding prosecutorial ruled on whether the never Instead, judicial that in this case argues he lack conviction could be considered un- may prosecutorial discretion discretion 3553(a), der which constitutes a failure harmony: while the has prosecutor exist argument. on a non-frivolous to rule charging to refrain from the discretion arguments two are related in that These coconspirator, the court has the discretion that the court they suggest both a non-charging to consider the as relevant (or findings made too little indeed none at 3553(a). According to the factor under all) fashioning proper sentence for when therefore, defendant, judi- the exercise Although the defendant the defendant. sentencing phase may at the cial discretion legal theory never articulated into actually encompass an examination him arguments entitle to re- which these charging decisions at prosecutorial he sentencing, presume we intended to disagree. adopt If we were to stage. We unreasonable, argue that his sentence is argument, prosecutor the defendant’s review for abuse of discretion.1 which we effectively required always to would be States, 338, 351, Rita v. United 551 U.S. coconspirators regardless of charge all — 2456, 127 168 L.Ed.2d 203 simply pre- of that to S.Ct. wisdom choice— fendant-Appellant at 2-6. See Rita v. United intended to 1. We assume that the defendant States, 338, 351, 2456, challenge his sentence as unreasonable both 127 S.Ct. 551 U.S. 168 only States, deal- (2007); because his briefs cite those cases v. United Gall L.Ed.2d ing with the reasonableness of sentences 38, 46, L.Ed.2d 445 U.S. 128 S.Ct. argument proceeds typical as a because his (2007); Cunningham, United States challenge. Brief of Defen- reasonableness (7th Cir.2005). 675-79 F.3d 18-23; Reply De- dant-Appellant at Brief of Explanation By articulating S.Ct. 2456. 1. The District Court’s reasons for the sentence, the sentencing court assures it of the Defendant’s Sentence self, public, reviewing courts that reviewing a sentence When for rea sentencing process is a pro reasoned sonableness, we must first ensure that the 358, 127 cess. Id. S.Ct. 2456. sentencing judge any “sig did not commit error, procedural failing nificant such as to Contrary to the defendant’s character- (or improperly calculating) calculate ization of the sentencing hearing, even a range, treating Guidelines the Guidelines cursory glance at the record reveals that failing to mandatory, consider judge proffered many reasons for the 3553(a) factors, selecting a sentence defendant’s sentence: facts, clearly based on or failing erroneous In determining adequately explain the sentence to im- chosen sen court, Jackson, pose, course, tence.” United States v. must take into (7th Cir.2008) (quoting F.3d account the sentencing Gall factors.... I States, 38, 51, v. United 552 U.S. 128 S.Ct. have to take into account the seriousness (2007)). 169 L.Ed.2d 445 offense, Once we of the promote respect for the procedurally find the sentence is law, and the sentence provide just must sound, we then determine whether the de punishment. The sentence must also substantively fendant’s sentence was rea provide crimes, a deterrent only case, sonable. Id. at 792. this to Mr. Scott but also to others. The challenge defendant does not the substan public protected has to be from future sentence, tive reasonableness of his and we defendant, crimes hopefully only will therefore address whether the the appropriate sentence will deter him proper district court followed in the future.... procedures. Taking account, that into I have sat argues defendant that the dis here and looked at the innumerable trict court procedural committed error letters, course, number of that have (1) during the sentencing hearing when it behalf, come in also, on his I have refused to consider his lack the court has also received letters from of conviction under subparagraph victims, some of the and those victims’ generally, and failed to lives have been affected tremendous- adequately explain his sentence. Because ly.... we have already rejected the argu first The letters that I’ve received from the B), ment (supra Part directly we turn family and friends and the certificates of the argument. defendant’s second completion the of courses that de- [the] At the sentencing, time of judge the is fendant has taken while he’s in- [been] required to in open “state court the rea- carcerated indicate to this court that Mr. sons for imposition its of particular taken, Scott has fortunately, some mean- 3553(c); Rita, § sentence.” 18 U.S.C. 551 ingful steps towards realizing what he 356, U.S. at 127 brevity S.Ct. 2456. The did was wrong, hopefully and that has length or of judge’s explanation de- begun to aid his rehabilitation so that

pends on the case, circumstances of the once he is released from incarceration but “when a judge simply decides apply to he will engage not again. this conduct case, Guidelines to a particular doing so will necessarily require lengthy however, ex- simply, The court cannot im- Rita, planation.” 356, 551 U.S. at pose you, Scott, 127 a sentence on Mr. based

409 required, that the record as a whole thoughts all the favorable indicates solely on judge in all those letters.... heard all were contained that the and considered Id.; arguments. Transcript Sentencing everything I’ve heard listening to (The Hearing, judge at 46-60 stated that morning reading all of sub- this Cutler, all.”); “heard it missions, the offense is she had 259 Fed. it’s clear Scott, you Mr. affirm extremely Appx. serious. at 888. We therefore issue, hundreds of thousands dollars finding pro- bilked district court on this who trusted from innocent investors cedural error. money in you. They entrusted their Rulings 2. The District Court’s on Unfortunately, your fraud was not you. Arguments Non-Frivolous act, simple you but had

just single, one schemes.... two aWhen defendant makes a non- interesting thing ... The about this argument imposing frivolous for a sen thing about this whole situa- and the sad range, tence below the Guideline the sen very tion is that scheme was usually explain why court will tencing it thoughtfully put together and carried Rita, rejected argument. has it, As I understand letters were out. U.S. S.Ct. 2456. See also in- upon to thousands thousands of sent Kilgore, United States v. 591 F.3d soliciting investments in these dividuals (7th Cir.2010) (stating that determin “[i]n repre- two fraudulent schemes. False sentence, ing a reasonable the district made, prom- were and false sentations comprehensively court need not all discuss made. ises were 3553(a) factors, of the 18 U.S.C. 46-47, Transcript Sentencing Hearing, explain its decision and non- must address Scott, (No. v. 09 CR United States sentencing arguments”) frivolous (citing 548). explicitly acknowledged judge Villegas-Miranda, v. United States repen of the defendant’s importance (7th Cir.2009)); F.3d United tance, family support, and scholastic (7th F.3d, Cunningham, v. States achievements, explained why but she then Cir.2005). defendant, According to the he schemes were the defendant’s fraudulent resentencing is entitled to because the dis from departure too serious to warrant to trict court failed rule on non-frivolous advisory range. Guideline See United it to rule on argument when refused (7th Williams, v. 425 F.3d 478 Cir. States coconspira whether it could consider the 2005). explanation adequate find this We tor’s lack of conviction under why explained because it disagree. We range, was sentenced within Guideline best, transcript At of the To the possible albeit at the lowest end. merely hearing reveals that Scott alluded defendant faults the dis extent that 3553(a), bouncing spe- often between every failing trict court for to rule on 3553(a) factor, subparagraph cific it references required was not do Cutler, §to with no general 259 Fed. references so. See United States (7th Cir.2008). Instead, apparent response distinction.2 In to the Appx. interpretation following exchange: my That’s of it. example the The Court: 2. Take for event, any any are others? there going around and Prosecutor: We're around, say just again Counsel: I will it's not manda- and I'll offer the observa- Defense tory count sub- [Brown] [under tion that doesn't Your Honor count her under the that (a)(6)] paragraph 3553(a) not a defen- where she’s factors, you certainly should charged dant who's been in this case. arguments, the prosecutor’s defendant’s cluttered dis court to use the exercise of judge trict assured counsel that she court coconspirator’s discretion case all,” explicit had “heard it made some hold against during him the sentencing phase of ings, explained the defendant’s sen the defendant’s case would essentially Transcript Sentencing Hearing, tence. prosecutor leave the with no discretion at 46-47, at 60. This was sufficient. The all. Finally, the defendant’s sentence is the court failed to make a extent which (1) reasonable because the district court 3553(a), § explicit holding more under as adequately explained the defendant’s sen- desired, apparently is a di tence, taking into account all relevant fac- rect result of defendant’s failure to (2) tors, and the defendant’s references to clearly argument his place more before the 3553(a) § during hearing district court. While the district court require did not the district court to issue a might required to issue a have been more more explicit ruling on the defendant’s explicit ruling on this issue had Scott more 3553(a) § argument. error, Finding no we it, expressly raised veiled Scott’s refer Affirm the defendant’s sentence. 3553(a) §to not obligate ences did district court to address issue more WILLIAMS, Judge, concurring. Circuit Gall, 54, 128 directly. 552 U.S. S.Ct. Cf. sentencing judge The argu- took Scott’s (explaining party that where a fails to ments adequately into account and ex- issue, judge raise an is under no obli plained the reasons for the sentence she gation to raise the issue itself and then imposed, judgment and the should be af- ruling). Accordingly, issue a we find that firmed for that reason. I separately write although argument the defendant’s was my to note disagreement with the unneces- frivolous, the district court sufficiently sary position majority takes that a argument. addressed the defendant’s We judge can never consider argu- court,

therefore affirm the district finding relating ments to an coconspira- unindicted adequately the court ruled on the tor under 18 par- U.S.C. The arguments defendant’s non-frivolous issue, ties did not even brief that and it is that the defendant’s sentence was reason unnecessary to the resolution ap- of this able. peal.

III. CONCLUSION straightforward This is a case: Scott argument claims he made an regarding The district court his properly refused to coconspirator unindicted eoconspirator consider the defendant’s was not tak- ar- 3553(a) en into gument judge account subparagraph because coconspirator his consideration it was never when should been. convicted or have Likewise, sentenced. The conclusion straightforward: district court is also (if properly fairly refused to consider the Scott did coconspir- inartfully) make an such 3553(a) ator’s lack of argument 3553(a), conviction under under the rubric of (1) frivolous, because argument non-convic- was not and the irrelevant, tion was allowing judge adequately addressed it. Having so determining count her in anticipate what is a fair and argu- Prosecutor: I their coming, reasonable ments are sentence in this case. and I'll wait and address regarding those. I think on this other issue Okay. any legal Court: Are there other subparagraph the Court indicated has you issues that would like to address? enough. that it's heard Id. at 30-31. ruled, go is no need to further and there courts can never take

posit con- regarding an unindieted argument

an under their broad into account

spirator discretion. I be- judgment

I concur because were ade- arguments that Scott’s

lieve by the considered and addressed

quately dispo- court under hinge any on of this case does

sition beyond that.

holding

Gary ALLORD, Plaintiff-Appellant, ASTRUE,

Michael J. Commissioner Security, Defendant- Social

Appellee.

No. 10-2006. Appeals,

United States Court

Seventh Circuit.

Argued Nov. 2010.

Decided Jan. 2011.

Case Details

Case Name: United States v. Scott

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 12, 2011

Citation: 631 F.3d 401

Docket Number: 10-1597

Court Abbreviation: 7th Cir.