UNITED STATES of America, Plaintiff-Appellee, v. Paul M. SEDORE, Defendant-Appellant.
No. 06-2259.
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 23, 2007. Decided and Filed: Jan. 16, 2008.
512 F.3d 819
UNITED STATES of America, Plaintiff-Appellee, v. Paul M. SEDORE, Defendant-Appellant.
No. 06-2259.
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 23, 2007.
Decided and Filed: Jan. 16, 2008.
Before: MERRITT and CLAY, Circuit Judges; COX, District Judge.*
COX, D. J., delivered the opinion of the court. CLAY, J. (p. 828), delivered a separate concurring opinion. MERRITT, J. (pp. 828-33), delivered a separate dissenting opinion.
OPINION
SEAN F. COX, District Judge.
This matter is before the Court on Defendant Paul M. Sedore‘s second appeal of his criminal sentence. Defendant challenges the application of sentencing enhancements based on (1) his abuse of a position of trust and (2) the number of victims. Defendant also alleges his sentence is substantively unreasonable. We find that Defendant did abuse a position of trust and waived his argument regarding the number of victims. Further, his sentence is not substantively unreasonable. Accordingly, we AFFIRM the decision of the district court.
BACKGROUND
This action arises out of the sentencing of Defendant for one count of conspiracy to defraud the Internal Revenue Service (“IRS“) in violation of
Defendant was incarcerated for most of the conspiracy. Defendant, along with his aunt, claimed approximately $155,869.39 in refunds, and received $51,950.33 from the IRS.
A federal grand jury returned an indictment on December 18, 2003 charging Defendant with: (1) conspiring to defraud the IRS in violation of
Defendant filed four objections to the initial pre-sentence report. He objected to: (1) an enhancement for abuse of trust pursuant to
Defendant appealed his sentence, arguing that the district court erred when it: (1) found he has a special skill for purposes of the abuse of trust enhancement; (2) found he obstructed justice; (3) enhanced his base offense level on facts found by a preponderance of the evidence contrary to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and (4) departed upward based on his past criminal history. On April 13, 2006, this Court vacated the sentence and remanded the case for re-sentencing pursuant to Booker. In addition, we stated that, for guidance, the district court should consider the Tenth Circuit case United States v. Guidry, 199 F.3d 1150, 1160 (10th Cir.1999), with respect to whether Defendant occupied a position of trust. United States v. Sedore, 175 Fed.Appx. 714 (6th Cir.2006)
Defendant‘s re-sentencing hearing was held on September 5, 2006. In his sentencing memorandum for re-sentencing, Defendant argued, in addition to his previous arguments, that the district court erred when it found at his first sentencing that there were more than ten victims. At the re-sentencing hearing, the district court addressed the abuse of trust enhancement and stated that the enhancement was applied with respect to the identity theft charge, based on Defendant‘s use of Taylor‘s children‘s information. [J.A. at 205]. The district court also reaffirmed its finding with respect to the obstruction of justice enhancement. However, the number of victims argument was not addressed at the hearing and Defendant did not raise it. The district court found that Defendant‘s offense level was 21, including a two point upward departure, and extrapolated a criminal history category of VIII. The advisory sentencing guideline range was 77-96. The district court sentenced Defendant to a term of 84 months.
Defendant filed the instant appeal on September 11, 2006. Defendant argues that the district court misapplied
Finally, Defendant asks the Court to order that on remand the re-sentencing range is limited to 51 to 63 months, assuming the Court finds for Defendant on his arguments. In the alternative, Defendant asks that if this Court declines to issue a limited remand, that it require the district court to explain in detail its reasons for the sentence it imposes. Specifically, Defendant is concerned that the district court will choose to further increase the offense level, above the two points added under the previous re-sentencing, out of vindictiveness.
- STANDARD OF REVIEW
We review a district court‘s sentencing determination for reasonableness. United States v. Wilms, 495 F.3d 277, 280 (6th Cir.2007). Reasonableness has both substantive and procedural components. United States v. Liou, 491 F.3d 334, 337 (6th Cir.2007). “As to procedural reasonableness, we have held that ‘a sentence may be procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consid
- ANALYSIS
On appeal, Defendant raises three arguments: (1) the district court erred by enhancing Defendant‘s sentence pursuant to
- Sentencing Enhancement Under
U.S.S.G. § 3B1.3
Defendant contends that the district court erred by applying a two level enhancement to his offense level pursuant to
The district court applied the position of trust enhancement specifically with respect to Thaddeus Taylor:
I overrule the objection under
3B1.3 . Based on the testimony, Thaddeus Taylor was a victim. He gave the names and Social Security numbers of his children based on his trust that Mr. Sedore would be, if not a certified tax preparer, certainly a trusted tax preparer to file tax returns for his children. And Mr. Sedore violated that trust by using the names and Social Security numbers of his children for his own purposes. And, as I said, therefore, the objection is overruled.
[J.A. at 184]. In the initial appeal, we remanded for re-sentencing in light of Booker, and did not address whether the enhancement under
[I]n determining whether Sedore abused a position of trust under
U.S.S.G. § 3B1.3 , the district court may reevaluate whether Sedore occupied a position of trust, reassessing who qualifies as a victim within the meaning ofU.S.S.G. § 2B1.1 cmt n. 1—the IRS and/or the individuals whose personal information Sedore used for his scheme. See United States v. Guidry, 199 F.3d 1150, 1160 (10th Cir.1999) (holding that a “position of trust must be found in relation to the victim of the offense” and concluding that, although the government was the victim of the defendant‘s false tax-return filings, the defendant did not occupy a position of trust with the government).
Sedore, 175 Fed.Appx. at 714.
At the re-sentencing, the parties debated the intent of this Court in directing the district court to consider Guidry and the
I reconsidered it, and I‘m going to rule the same way for the same reasons. And that is, if you take a look at Count 4, the theft is of the identity of one or more persons who he used without lawful authority with the intent to commit and aid and abet a violation of federal law. Forget all of the people whose names were in the newspapers where he got the information. Focus simply on Thaddeus Taylor and his family. That was an abuse of a position of trust for Thaddeus Taylor and his family, where he got the information by preparing income tax returns for Taylor at Mr. Taylor‘s request and then utilized the information using the names of the children in the Taylor family to line his own pockets. And in my judgment, that‘s exactly what identity theft is. It might not be a pecuniary loss, but
3B1.1 , as pointed out by the government, doesn‘t require it for that particular enhancement. So that‘s the ruling.
[J.A. at 210-211].
The district court held that the requirement of pecuniary loss in
In the instant appeal, Defendant contends the enhancement should not apply because he did not hold a position of trust with Taylor‘s children, and they are the only victims of the charged offense. The plain language of
It is on Moored, supra, and its progeny, that Defendant relies for his argument that the enhancement should not apply. In Moored, the defendant used his position as a trustee at a local college to bolster his credibility with lenders and fraudulently obtain a loan. The defendant pled guilty to fraud charges. The district court applied a two-level enhancement for abuse of a position of trust pursuant to
This Court agreed that in the commission of the offense, the defendant abused his position of trust with the college. However, this Court disagreed that the abuse was sufficient to warrant application of the enhancement for abuse of a position of trust. The defendant argued that his position was “no different from any other loan applicant‘s” and that finding his crime worthy of the abuse of trust enhancement “would permit an enhancement for any defrauding borrower who, in the course of loan negotiations, discloses a position of trust, even if that position had nothing to do with the loan decision.” Id. at 144. The Moored court noted that the situation in which a defendant abused a position of trust with someone other than the victim of the charged conduct was novel. The Moored court found that the district court‘s approach was “overly broad.” Id. at 145. The court held:
Applying the standard that the lower court applied, a sentencing court would enhance the sentence of virtually every defendant who occupied any position of trust with anyone, victim or otherwise. An argument could be made in virtually every case that the position of trust, though not directly a part of the offense conduct, had some remote connection with the defendant‘s crime.
In order for the abuse of a position of trust enhancement to be applied to a defendant, the evidence must show that the defendant‘s position with the victim of the offense significantly facilitated the commission of the offense. In this case, the Defendant held no position of trust with the intended victims of his offense. Accordingly, we find that the district court incorrectly enhanced Defendant‘s offense level.
In this case, the district court stated that it applied the
We agree with the government‘s argument under these particular circumstances. It is undisputed for purposes of this appeal, that Defendant held a position of trust with Taylor. Defendant, in the course of preparing legitimate tax returns for Taylor, obtained Taylor‘s children‘s personal information and used that information to file false tax returns. Where a parent provides the personal information of his children for the purpose of tax preparation, it is reasonable that any trust
In his Reply, Defendant also appears to argue that Taylor‘s children cannot be considered victims for purposes of
In this case, Defendant does not offer any basis for imposing a requirement that the victim for purposes of a
Accordingly, application of the two point enhancement pursuant to
- Sentencing Enhancement Under
U.S.S.G. § 2B1.1(b)(2)(A)
Defendant contends the district court erred by applying a two level enhancement under
Following this Court‘s ruling in Defendant‘s first appeal, as outlined above, the case was remanded for re-sentencing. In his re-sentencing memorandum, filed June 30, 2006, Defendant asserted that this Court suggested that the IRS was the victim, rather than the individual taxpayers. Based on Defendant‘s interpretation of this Court‘s “suggestion,” Defendant contends that the number of victims is one. However, Defendant did not raise the issue at the re-sentencing hearing and it was not addressed by the district court.
The government argues that Defendant waived any argument that the IRS was the only victim because he did not raise the issue in his first appeal to this Court and because Defendant is bound by
We agree that Defendant is bound by his admission. It would be unreasonable to allow a defendant to admit to a particular fact during sentencing, and then argue against the existence of that fact on appeal. Further, Defendant did not present any evidence to this Court that he argued in his initial appeal that the enhancement pursuant to
Accordingly, because Defendant admitted at his initial sentencing on August 3, 2004 that the number of victims was 31, and does not offer evidence that an argument to the contrary was raised on his appeal of that sentence, Defendant is bound by his admission and any argument to the contrary is waived.
- Substantive Reasonableness
Defendant argues that his sentence is substantively unreasonable because Defendant‘s “conduct does not warrant a sentence of this length ...” [Brief, p. 9]. However, Defendant‘s brief was submitted before the Supreme Court decided Rita, supra, and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In Rita and Gall, the Supreme Court upheld the application of a presumption of reasonableness to sentences that fall within the applicable Sentencing Guidelines range. Liou, 491 F.3d at 338 (citing Rita, 127 S.Ct. at 2459). Defendant does not convince us that this presumption of reasonableness does not apply to his case simply by stating that his sentence was too long. See United States v. Crowell, 493 F.3d 744, 751 (6th Cir. 2007) (“[The defendant] contends the sentence is longer than it need be, but the ‘mere allegation that the sentence imposed is greater than necessary to achieve the goals of punishment in
- CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.
CLAY, Circuit Judge, concurring.
I agree with the analysis presented and the conclusion reached by Judge Cox in his opinion for the panel, which I join in full. However, I write separately to respond to Judge Merritt‘s criticism of the result reached in this case.
In his dissent, Judge Merritt suggests that this case is an example of what he calls “the problem of guidelineism or ‘guidelinitis.‘” Merritt, J., dissenting at 829. While I fully appreciate Judge Merritt‘s concern about the failure of many sentencing judges to engage an “individualized assessment based the facts presented,” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), I do not find that the sentencing judge in this case was derelict in his duty to tailor Defendant‘s sentence based upon all of the sentencing considerations found in
I also find Judge Merritt‘s explanation of the ideal sentencing procedure to be inconsistent with the Supreme Court‘s most recent sentencing pronouncements. Contrary to what Judge Merritt suggests, the Supreme Court in Gall did not direct district court judges to start only with the Guidelines base offense level and then make adjustments to that level based upon his or her own sentencing discretion. See Merritt, J., dissenting at 833. Rather, the Supreme Court directed district judges to “begin all sentencing proceedings by correctly calculating the applicable Guidelines range” which would then serve as the “starting point and the initial benchmark” for sentencing. Gall, 128 S.Ct. at 596. This “applicable Guidelines range” includes not only the base offense level recommended by the Guidelines, but also any applicable adjustments to that level which the Sentencing Commission has recommended in the Guidelines. Thus, contrary to what Judge Merritt claims, post-Booker, sentencing judges must begin their sentencing deliberations by properly calculating the entire recommended Guidelines sentencing range, including any sentencing enhancements, not just the Guidelines-recommended base offense level. However, Judge Merritt is correct in emphasizing that after judges have determined this advisory Guidelines range, they must “then consider all of [the other]
Inasmuch as the judge in this case engaged in such an “individualized assessment” after properly calculating the advisory Guidelines range, including the applicable sentencing enhancements under the Guidelines, I am not persuaded that he committed a reversible sentencing error and, accordingly, I join Judge Cox in affirming Defendant‘s sentence.
MERRITT, Circuit Judge, dissenting.
Except for those judges and lawyers who prefer to continue routine conformity
By ratcheting up the sentence, as is typical under the guidelines, piling aggravator on aggravator, the District Court (as though Booker had never been decided), went from a base offense level of 6 with criminal history Category VI (corresponding to defendant‘s guilty plea)—carrying a penalty of 12-18 months—to offense level 22. It then sentenced him to 7 years—5 times more than the base offense level corresponding to the facts of the guilty plea.
Such harsh sentences are par for the course under the guidelines. The sentencing court imposed a harsh sentence without seriously considering mitigating family and personal factors or rehabilitation possibilities—all in line with the U.S. Sentencing Commission rules against the consideration of such individual factors in Chapters 5H and 5K of the Guidelines.1 This refusal to seriously consider individual factors, including rehabilitation, has been the most important characteristic of the work of the Sentencing Commission. From the beginning, the guidelines have emphasized collectives, not individuals; and individualized sentencing by federal judges, the weighing of aggravators and mitigators through a process of dialectic reflection and reconciliation, has become a relic of the past. The creation of these guidelines involved the breakdown of behavior into smaller and smaller parts and categories of aggravators or enhancements without consideration of other important individual factors.
The ratcheting-up process in the instant case was all based upon judicial findings of fact.2 It is obvious to anyone who has
[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.
Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (emphasis added). What is clear is that the district courts and the courts of appeals, as the majority in this case expressly acknowledges, are not applying this rule and do not believe the Supreme Court actually intends to enforce it. The view seems to be that the remedial opinion in Booker is inconsistent with this rule, and so the rule may be simply disregarded in practice.3 Justice Scalia predicted such a result in Booker, noting that the Court‘s remedial scheme risked preserving “de facto mandatory guidelines by discouraging district courts from sentencing outside Guidelines ranges.” United States v. Booker, 543 U.S. 220, 313, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Scalia, J., dissenting). Indeed, this de facto, mandatory application of the guidelines runs afoul of the Supreme Court‘s admonition that “Booker‘s remedy for the Federal Guidelines ... is not a recipe for rendering our Sixth Amendment case law toothless.” Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 870, 166 L.Ed.2d 856 (2007).
The Supreme Court did not say in Gall or Rita that the sentencing judge should “start” the sentencing process by enhancing the sentence aggravator by aggravator, as happened in the instant case. The Court said that the sentencing judge should begin with the “applicable Guidelines range” which in Gall was the initial base offense level corresponding to facts admitted by the guilty plea, which carried a range of 30 to 37 months. There is no language in Gall or Rita that requires appellate or district judges to “begin” with the enhancement process. That process is directly contrary to the language quoted below in Blakely that a “judge exceeds his proper authority” by basing a higher sentence on judicial findings outside the jury verdict.
The only way to begin to return the process to something consistent with the Sixth Amendment and with the concept of individualized sentencing is to recognize and insist that we adhere to two overriding principles: First, that judicial fact finding and the length of a sentence be limited somewhere within the base-offense-level, guideline range corresponding to the jury verdict or the plea, unless the sentencing judge explains why the concepts of general and individual deterrence should require a longer sentence for the particular individual and outweigh the mitigating circumstances of the case (including factors like age, addiction, and family responsibility deemed irrelevant by the Sentencing Commission in Chapters 5H and 5K), as well as the likelihood of successful rehabilitation. Second, that the sentencing judge explain the weighing process outlined above (taking into account moral culpability, general and special deterrence, mitigating circumstances and rehabilitation) so that the sentence and its explanation comply with the “overarching provision instructing district courts to ‘impose a sentence ... not greater than necessary’ to accomplish the goals of sentencing,” Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007) (quoting
In other words, the sentencing judge should start with the base offense level corresponding to the facts found by the jury verdict or admitted by the guilty plea. The sentencing judge should not go up or down from that point unless in his or her own mind the weighing process of the two overriding principles stated above requires it. The judge should not engage in guidelineism, adjusting the sentence up or down just because the guidelines say so, as occurred in the instant case, but rather because the judge‘s own sense of justice, upon reflection, leads to a different result than the beginning, base-offense level. This allows the guidelines to play a pivotal role to begin with but requires the judge to use his or her own mental faculties and best judgment, just as judges did in the days of indeterminate sentencing before the mandatory federal sentencing guideline era.
The job of the Court of Appeals should be only to see that the federal sentencing judge (1) starts at the right place in the reasoning process (at the base offense level corresponding to the jury verdict or guilty plea), as required by the Sixth Amendment as interpreted by Blakely and Booker, and (2) engages in a general process of serious dialectical reflection and reconciliation, as evidenced by the reasons given for deviating from the starting point
This modified system based on these two principles is, more or less, what the system would have looked like in the beginning if the Guidelines were truly “guidelines” rather than mandatory rules. If the Commission, in the beginning, as many judges and lawyers recommended, had adopted guidelines to assist judges rather than to discipline and correct judges this modified system would have perhaps provided a workable system. I myself testified before the Commission advising it not to saddle the judiciary with mandatory rules that are constitutionally suspect because such rules would most likely eliminate individualized sentencing and full consideration of mitigating factors. The Commission, however, believed that federal judges could not be trusted to exercise discretion properly and that harsher sentencing rules must be imposed on judges in order to insure longer sentences and collective uniformity. The current Guidelines that ratchet up sentences without considering mitigating factors or rehabilitation are the result.
The modified system described above is a different process of sentencing from either pure indeterminate sentencing, as it operated before the guidelines, or the mandatory, rote guideline process that prevailed before the Sixth Amendment was recognized as a limitation on fact finding. Hopefully, such a modified system would begin to provide a balance between the collectivized, sentencing process of lockstep, upward adjustments heretofore required by the Commission, and the thoughtful individual sentencing by federal judges that was the ideal behind the federal sentencing system used so effectively (in my opinion) for 200 years since the first Congress enacted the first sentencing law, 1 Stat. 112, ch. 9 (1790).5 Further, a system that incorporates facets of indeterminate sentencing preserves the historical role of judges as sentencing experts and the jury as fact finder. Sentencing procedures based on these roles were never challenged as undermining the Sixth Amendment‘s right to a jury trial because judges did not function as objective fact finders and judge-found facts did not carry determinate consequences.
Such a modified system includes an element of democratic, legislative control over sentencing while keeping elements of individualized sentencing from the old system. Such a modified system may be strongly resisted by prosecutors and the Department of Justice officials who have now become accustomed to controlling sentencing through the charging process, the release of enhancement information to probation officers and plea bargaining. Back in my day as U.S. Attorney 40 years ago, prosecutors were viewed solely as parties
The modified scheme proposed above squares with the most recent Supreme Court decision, Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), in which the Court instructed district court judges to “make an individualized assessment based on the facts presented” with the Guidelines operating as the “initial benchmark” but “not the only consideration.” In Gall, the Supreme Court affirmed the district court‘s sentence of thirty-six months probation, a punishment based upon the district judge‘s individualized evaluation of the factors under
Unfortunately, the sentencing process in this case was just a repeat of guidelinitis, the system of rote sentencing in which the sentencing judge ratchets up the sentence instead of engaging in anything close to the deliberative or reflective process outlined by the two overriding principles stated above. Hence, I would reverse and remand the case for resentencing in compliance with the two overriding principles stated above. The sentencing court should start with the guideline sentence corresponding to the guilty plea, take a look at how the guidelines would operate from that point and then engage in the weighing and explanatory process outlined above without feeling an obligation to reach a result consistent with the Commission‘s guideline structure or policies. After finding the beginning guideline sentence, it is up to the judge to act like a common law judge of old engaged in the same process that prevailed in the federal system after 1790 but before the failed, 20-year experiment in mandatory guideline sentencing.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph SWAFFORD, Defendant-Appellant.
No. 06-5878.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 7, 2007.
Decided and Filed: Jan. 17, 2008.