*1 UNITED America, STATES of
Plaintiff-Appellee, SUDEEN,
Motillal L. also known Sudeen,
as Moti Defendant-
Appellant.
No. 04-30067.
United States of Appeals, Court
Fifth Circuit.
Dec. 3. The real question at issue here is explained whether supra, that the offense continued Freeman’s sentence under the 2002 Guide- past the effective date of the 2002 version of lines violates the Ex Post Facto clause of the Guidelines, the Ex Post Facto clause of Constitution. The Sixth Amendment is the Constitution is not violated by applica- question, incidental to that implicated only if tion 2002 Guidelines to Freeman’s sen- we determine that the sentence violates the tence. Ex Post Facto find, clause. Because I would *2 Dept, U.S. (argued), R. Meltzer
Ellen Section, Washing- Div.-App. Justice, Crim. DC, ton, for U.S. Covington, (argued), Fawer S.
Michael LA, for Sudeen.
tion, MS (“Carbamate”), Carbamate acquired land on which to build plant. He contends that he was “financing” the *3 plant using variety of investment devices. JOLLY, Before DeMOSS, SMITH and plant built, was never because of Circuit Judges. alleged regulatory result, difficulties. aAs SMITH, JERRY E. Judge: Circuit Sudeen breached contracts with investors. Motilall Sudeen was convicted of wire The investment programs Sudeen al- fraud, fraud, travel money laundering and leged he was using to plant finance the conspiracy offenses and sentenced to 220 were, in actuality, constituent frauds ain months’ imprisonment. appeals, He con- fairly elaborate Ponzi scheme. Sudeen tending that the district court committed his co-conspirators and represented to po- (1) reversible еrror in severing his trial tential investors that their money would be (2) from that co-defendant; of his in'admit- placed in “high yield investment pro- ting evidence of an uncharged investment grams” that generate would profits for scheme and statements he alleges to be at greater-than-market them rates of re- (3) hearsay; in application of the sen- turn.2 tencing guidelines; (4) and by finding cer- tain facts in contravention of United States Sudeen told investors that their princi- U.S. 125 S.Ct. 160 pal would remain safely in banks and (2005). L.Ed.2d 621 We find Booker error would be exposed to risk; little or no with respect to the district court’s use high yield programs involved marquee rather than the guidelines. banks, including the World Bank and the As to аll other pertaining claims to convic- IMF; and that the trading programs were tion or punishment, we find no reversible monitored by the government. federal Su- error. We therefore affirm the conviction deen periodically mollified investors re- and vacate the sentence and remand for turning “dividends” from the programs;3 resentencing. by encouraging investors to roll over their investments instead of seeking immediate
I. returns; and reassuring investors that sought Sudeen to build a large money their urea had safely been invested and processing in plant Poplarville, Mississippi, they would be paid soon.4 Sudeen where he ultimately consolidated all his his and co-conspirators usеd the funds to business dealings.1 He formed a corpora- make “lulling” payments to encourage fur- 1. Sudeen characterizes his acquire efforts to their principal expiration on the of the invest- necessary plant funds for the as "legiti- ment terms. arrangement[s] mate sophisticated made with investors.” He signed states that he agree- 3. Sudeen also lied about composition ments with investors to use money their in taking banks part in financing. Su- "projects” that centered on plant. deen and accomplice, Freeman, Jerry sought to make the trading programs appear sought Sudeen to finance Carbamate with legitimate and safe. high-yield program investment and what he described to investors as a "private place-
ment trading programs.” secured 4. More fifty people Sudeen than participated in the told investors that programs yield high-yield these trading program, and victims per 20-50% month he spent would return more $ than 17 million. the defen- granted several trict court “programs” in the investment ther for continuance. motions dants’ expenses.5 and business personal cardiologist 2002, Sudeen’s In December to main- continued and Freeman Sudeen that Sudeen informed the issuing safety appearance tain January. trial go to healthy enough Agree- Placement “Private bogus investors Freeman January 2003 Agreements.” Vеnture “Joint ments” continuance because moved again per- that Sudeen’s investors also told They with a had a conflict attorney Freeman’s investment. their guaranteed wealth sonal trial scheduled previously case Certifi- purchase told Investors *4 opposed government The Carolina. North to banks various from Deposit of cates trials the to sever moved and the motion loans, for credit to use allow Sudeen The district Sudeen’s. proceed with and invest- be would also of which proceeds continuance, de- a Freeman granted pro- demanded given a investor When ed. Sudeen, granted and to a continuance nied claim ceeds, Freeman and Sudeen sever, thus motion to government’s he because ineligible was the investor that on Janu- trial proceed to to Sudeen forcing require- fictitious comply to failed had ary 13. up” “tied were profits ments, thirty- re- on guilty Sudeen government, jury found federal The over- 2002 from Applying liquidated not be the counts. could of eight turns calculated the court guidelines, sentencing assets. seas 37, a produced of level an offense in another principal awas 1. Sudeen im- months’ 210-262 range of guidelines (the insulin involving scheme Ponzi Sudeen sentenced The court prisonment. and scheme”), which he “insulin 220 months. to Sudeen indicted. not were Freeman two involved funds co-mingled II. lulling рayments schemes, making the other. and one to his because of using argues resources Sudeen cites de- their prepared had this issue counsel On Freeman’s extensively, whereas a prejudiced was jointly, the record Sudeen fenses ad- than nothing more disagree. does Sudeen We severance. speculation. vance Freeman February 2002 Sudeen of or denial grant review We conspiracy one count on indicted See discretion. abuse severance 371, counts fourteen § U.S.C. under Ramirez, F.2d v. States 1343, two United § 18 U.S.C. under fraud wire Cir.1992). severance (5th A 1037-38 18 U.S.C. fraud travel counts specific showing of only on reversible money counts twenty-one States See Unitеd prejudice. compelling Trial § 1957. 18 U.S.C. laundering under Cir.1999).6 (5th 138, 144 Barnett, F.3d dis- May The originally set caselaw, to demonstrate our funds, Under to mak- in addition used the
5. Sudeen severance, it relates of discretion abuse salary, pay Freeman's lulling payments, ing compelling "specific show must Sudeen house, support Sudeen’s remodel Mitchell, prejudice.” children, property includ- purchase wife and Mitchell 1985). (5th card credit and to make luxury goods, ing abuse of we determine requires standard payments. sever- to whether by reference discretion B. tracts. He does not deny that the funds from those investing in the insulin con- Although it is generally true that tracts were used as lulling payments to “defendants who are indicted together investors in the plant fertilizer and vice should together,” be tried see United versa.8 The district court therefore found Piaget, States v. that the funds from the two ventures were Cir.1990), that generalization says nothing commingled and that the regard- evidence legal circumstances that justify devi ing the insulin venture was “intrinsic.” ating from it. Sudeen cites no authority for the standard he advances as the crite argues that the insulin evidence “[Wjhether ria for such deviation: the was extrinsic and should have been exclud- Government articulated a specific risk that ed under Federal Rules of Evidence 403 could be averted through severance, 404(b). First, we must decide wheth- and it must further quеry whether alterna er the district court reversibly erred in tive means prejudicial less to Sudeen exist finding the insulin evidence intrinsic. Sec- remedy ed to that risk.” Sudeen ond, seems if we that the extrinsic, evidence was *5 be fabricating that entirely. standard we must determine whether the court erred failing to exclude the evidence primary argument attempting under other evidence rules. We terminate to show prejudice such involves the short inquiry our at the stage by first finding period in attorney which his had pre- to that the court did not abuse its discretion pare for trial after the severance. Sudeen in treating the evidence as intrinsic. allege does not prejudice with any spеcific- ity. His counsel ready any- trial
way, because Sudeen would have been deemed the principal had the two defen- We review admission of evidence
dants been tried jointly, and Sudeen’s and for abuse of discretion. See United States attorneys Freeman’s had been working on Hicks, Cir.2004). F.3d joint many defense for months. More- That Sudeen commingled funds between over, was, Sudeen’s attorney by all ac- the two sub-schemes is not a contested counts, prepared well for trial.7 fact. Intrinsic evidence generally is ad missible to allow the jury to “evaluate all
III. the under circumstances which the defen Sudeen actually orchestrated another dant acted.”9 Evidence is considered in fraudulent venture involving insulin con- if trinsic it is “inexorably intertwined” with ance caused Sudeen clear and compelling argument In oral appeal, on Sudeen's coun- prejudice, not whether expressly the district sel court ade- admitted to co-mingling the of quately funds between evidence in the two the schemes. record identified showing that Sudeen would have preju- been Navarro, United States v. 169 F.3d by joinder. diced (5th Cir.1999); see also United States v. Williams, (5th Cir.1990) fact, greatest 7.In the possibility for prejudice (stating that qualifies evidence as "intrinsic'' appears to have been that to the of detriment "when the of evidence act and other government, if the district court had al- evidence of the other crime charged are ‘inex lowed proceed defendants jointly. to tri- The tricably or part intertwined’ both are acts of a pushed al had been already, back four times 'single episode’ criminal or other acts were problems posed Sudeen's health signifi- 'necessary preliminaries' to the crime potential cant delay. further (internal charged”) omitted). citations prejudice, confu- of unfair danger by the charged. the crime prove to used evidence jury, issues, misleading or sion 233. Where Navarro, at See delay, waste of undue by considerations or without intrinsic, qualifies it is evidence оf cumu- time, presentation or needless 404(b), gen states rule to reference evidence The insulin evidence.”13 lative crimes, other that “evidence erally respect without rule 403 bar pass must prove to not admissible acts is wrongs, it as admitted court the district to whether show in order person aof the character evidence. intrinsic id.10 See conformity therewith.” in action referencing authority and superior that if it Citing noted consid- district The does, than Sudeen be far better insulin scheme the record ered evidence overwhelmingly estab that material intrinsic, not exclude it would for it necessary propositions prejudicial it is the two ground lishes on the (1) Funds argument: consistent holding this is on This prevail rule 403.14 commingled with rule stating that were circuit scheme our language the insulin scheme, ini ex- used to not be generally fertilizer funds from 403 should evidence, to make used intrinsic in each because intrinsic tial clude investments very in the othe its nature investors inculpatory evidence lulling payments proves funds evidence (2) insulin commingling r;11 such prejudicial.15 lulling payments intrinsic scheme the source insulin both qualifies des- investors Poplarville made evidence.12 those investors. paid funds tination *6 B. aof existence probative highly It is only to scheme, prejudicial it is “Although Ponzi states that: Rule 403 elements it establishes if its the extent relevant, may be excluded evidenсe the outweighed offense.16 substantially is value probative 403; Saltzburg also 1 see 13. al., et Saltzburg, Fed.R.Evid. 10. See M. Mar- Michael 1 Steven A. 403.02[16], (stating that at 403-37 supra, J. of Evi- Rules Federal Capra, & Daniel tin (LexisNexis 8th of otherwise exclusion § 404.02[11] "is one rule Manual dence ed.2002). evidence”). admissible specifically not each direction Even if 11. not "It's stated: the court Specifically, (i.e., specifically identified the state proven same, advancing if it's confusing if the it's money where particular transaction only a prejudicial one, misleading, not it’s it’s not another, and not one scheme from flowed indictment[,] charge or more than any obviously versa), co-mingling funds vice sense prejudicial in the something is [that] actually money justifies the’ inference the crime.” part of but it’s it’s offensive ways. both flowed ruled, alternatively district court 12. The Powers, 168 F.3d v. United States 15. See evidence hearing, that insulin in limine Cir.1999) ("all is probative evidence (5th 404(b), which rule admissible (internal cita prejudicial”) very by its nature other) wrongs are (or or acts prior states Leahy, omitted); States tions motive, opportunity, "proof of as admissible 1996) (stating (5th that rule Cir. identity, knowledge, intent, plan, preparation, where sparingly and be used should See Unit or accident.” of mistake or absence substantially outweighs prejudicial effect Dula, ed value). probative evidence’s ("Evidence unсharged 1993) offense of an or series transaction arising same out inappro- that the Sudeen contends charged is not offense as of transactions limiting instruction give a priately failed to meaning of within offense an 'extrinsic' First, evidence. of the insulin purposes to the barred 404(b) not is therefore [rule] an instruction why such no reason seewe issue. rule.”) not reach this We do this IV.
Sudeen further contends that the dis- We review for abuse of discretion the trict court abused its discretion in admit- admission of out-of-court statements under ting the out-of-court statements of Earl 801(d)(2)(D) (E).18 rule There was Gamble and Walter Lauren under Federal (evidence corroborating material other 801(d)(2)(D) Rule of Evidence and/or themselves) than the statements demon- 801(d)(2)(E). 801(d)(2)(D) Rule deems strating that Lauren’s and Gamble’s state- non-hearsay a statement against offered a ments were admissible under either sub- party made party’s “the agent or serv- section.
ant concerning a matter
scope
within the
agency
or employment, made during
B.
existence
the relationship.”
Lauren received significant com
801(d)(2)(E)
Similarly, rule
provides that
missions for recruiting investors. At least
a statement
is not hearsay if it is offered
one investor described him as an “associ
against a party and is “a
statement
ate” of Sudeen’s. Lauren
reports
received
co-conspirator оf party
during the course
from investors who were recruiting other
and in furtherance of the conspiracy. The
investors in
high-yield
trading pro
contents of the statement shall be consid-
gram. An employee of MS Carbamate
ered but are not alone sufficient to estab-
testified that Lauren worked for Sudeen.
lish the
authority!/]”
declarant’s
light
of this corroborating testimony,
Sudeen contends that the district court’s
the district court did not abuse its discre
finding that Gamble and Lauren were
tion in admitting Lauren’s statements.
agents or co-conspirators was not sup-
Some of the investors
they
testified that
ported by substantial evidence.17 He cor-
thought
Gamble
Sudeen were business
rectly notes that
the statements
them-
partners. Gamble
several po-
introduced
selves are not sufficient evidence of the
tential
investors
the high-yield trading
*7
relationship to render
them admissible.
program to Sudeen. Another investor de-
He then asserts that
of-
scribed Gamble as an “associate” of Su-
fered no
proof
additional
of Gamble’s and
deen’s.
Lauren’s
co-conspirators
roles as
or agents
of Sudeen. He characterizes them as own-
Sudeen
potential
one
told
investor that
ers of investment companies who dealt at Gamble
be her “agent”
would
if she decid-
length
arm’s
with
potential
Sudeen and the
ed to participate in the high-yield рrogram.
investors.
That same investor wrote a check to Gam-
necessary if we deem the evidence
agency
however,
intrinsic.
of
co-conspiracy,
or
need
Second, the record
jury
indicates that
not be
decided
us to rule on this issue.
quite candidly
instructions
addressed the lim-
general
For a
agent
discussion of
versus co-
ited character of "similar acts.”'
admissions,
conspirator
Saltzburg
see 4
al.,
et
supra, § 801.02[6][f]-[g].
17. There
discrepancy
is some
between the
briefs as to which of the two subsections
Solis,
See United States v.
299 F.3d
applies to Gamble and
which
Lauren. The
(5th Cir.2002)
(stating standard with re
government asserts that Gamble's statements
spect
801(d)(2)(E));
to Fed.R.Evid
United
agency exception
admitted under the
of
Lines, Inc.,
States v. Cent.
(d)(2)(D)
that check a Even after we review in- accounts. Sudeen business interpretation applica district court’s investor Gamble formed novo. guidelines tion of the de See United percent one of her receive a commission Villegas, v. 404 F.3d States in- curiam). investors principal. Cir.2005) When investment (per proceed We thus receiving they were not why application guideline quired as to rеview returns, ex- to the dis provided here without deference Gamble 3B1.3 promised interpretation.19 trict court’s delays and reassurances for the planations safe. The district money was that their B. its discretion admit- not abuse court did relies on States v. Eche- Sudeen United testimony. ting Gamble’ (2d Cir.1994), varria, F.3d 175 may court en- that the district proposition V. §to 3B1.3 pursuant hance a sentence occupied legitimately the defendant where improperly contends no ar- of trust. Sudeen makes position a posi- a for abuse of his sentence enhanced beyond analogy to that case. guments trust, that he was arguing private tion of trader or investment bro- legitimate а not case, subsequent A Second Circuit States 3B1.3 of the United ker. Section 428, 433 Hussey, 254 F.3d States United for a two- provides Sentencing Guidelines (2d Cir.2001), reasoning of repudiates the level if “the defen- (but increase in offense level overruling) Echevarria. stops short public private or position a dant abused noted that two other courts That court significantly Echev trust, rejected ... in a manner have or criticized appeals arria;20 that, by adding explains concealment it also commission or facilitated the note,21 the application of the offense.” victim, and is a perspective of the from the government cites United States v. 19.The law, (5th Cir.2001), de novo. Reeves, question we review 255 F.3d Wright, See United States panel proposition "review[s] that the (2d 1998). Whether a defendant guideline the facts for application of the position of trust in manner reasoning abused should be distin- error.” This clear "significantly the commission holding facilitated in Vil- guished from our more recent question of is a concealment of the offense” discrepancy nonethe- legas. apparent *8 fact, address, clear error. See which we review for compelled something we feel less 221, Hirsch, 227 239 F.3d States v. issue United though standard-of-review even Cir.2001). (2d out- in the ultimate makes little difference 428, (2d here, Hussey, F.3d 431 States v. 254 challenge would United Sudeen's cоme because Cir.2001). We this distinction. scrutiny. endorse even under our de novo fail as did the Sec- this issue much We assess see, 3; e.g., Hussey, at 432 n. 254 F.3d 20. See Circuit: ond 484, (1st Gill, 489 99 F.3d States United Sentencing Guide- of the Section 3B1.3 Barnes, 1996); F.3d 125 United States v. Cir. provides a two-level enhancement lines 1287, 1997). (9th position pub- a of skill, defendant "abused if the trust, special a private or used lic or § U.S.S.G. 3B1.3 Application note 21. significantly facilitated a manner provides: now offense.” or concealment of the commission applies in a case (1998). adjustment ... also Th[e] a defen- Whether U.S.S.G. 3B1.3 provides sufficient the defendant "position within in which occupies a of trust” dant le- defendant to the victim that the indicia meaning provision is viewed of this Sentencing rejected Commission Echevar- ria’s, reasoning in November 1998. See id. Reeves, at 433 n. 3. Most importantly, 212, at F.3d affirmed an abuse-of-trust First, briefly we dispose of Su- enhancement where the defendants had deen’s involving Booker claims amount of posed planners as financial and advised loss, victims, number of specific and use of their clients to in company invest owned means. He concedes that pre he did not by a co-defendant. There no meaningful serve objection Sixth Amendment
way to distinguish the facts in that ease these issues at sentencing, and we review from the Therefore, ones here. the dis- unpreserved Boоker arguments plain trict court did not err in application its error. Mares, See United States v. § 3B1.3. — (5th 511, Cir.), denied, cert. —,
U.S.
43,
126 S.Ct.
with,
Freeman,
United States v.
Sudeen attempts
carry
his burden by
04-30037,
No.
to
contends, the
Therefore, Sudeen
months.
that,
to do
the
under
of its discretion
court,
had known
Sudeen asserts
if it
constitutionally have
a lesser
imposed
cannot
so,
district court
likely would have
the
regarding
determinations
made factual
sentence.
nei-
Sudeen
conspiracy.
the
end-date
A sentence
unpersuasive.
logic is
This
end-date,
it
nor
that
admitted
ther
not show
does
range
the
end of
the
at
low
a reasonable
beyond
jury
found
a
the
have affected
“must
the error
that
plainly
Nevertheless,
finding
that
doubt.
proceedings.”
court
the district
outcome
range.
sеntencing
his
increased
Olano, 507 U.S.
(1993).
1770,
Moreover, Sudeen’s denying guidelines the minimum him to sentence that argues Su- government The sentence, court indicated district error under his preserve did not deen very to be offenses Sudeen’s it considered however, sentencing, At Booker. a reason- show cannot Sudeen serious.22 following remarks: attorney made have would the court probability able like that where suggest And we would adviso- under an a lower sentence imposed [sic], I have guidelines Apprendi prevail cannot so he regime, ry guidelines effect, clearly but say legal to don’t want review. standard of error plain a increasing the effect practiсal continuing maximum for statutory B. a offense having that drive By offense. the district asserts than greater that are of numbers set 2002 edition used the improperly [sic] to it sentenced you can be what edition.23 instead of guidelines apply and which offense under that part of issue as this we discuss Although to be- case, appropriate it[’]s the whole objection analysis, the error” our “Booker jury an issue looking at is that gin inqui- distinct two actually into subdivides has to decide. technically Booker ries, of which one case, companion in the held we have the 2002 As (1) the use of whether controls: for us to enough Freeman, is language this Booker independent edition constitutes purposes preserved 2002 find mistake (2) the use of whether error you wrong anything do victims didn't court stated: Specifically, the district just abused them. people ... stories countless I’ve heard savings future. or their whole life lost their actu- posits that the court 23. The They gave you. they it entrusted And version, was in ally used savings. you life their sentencing. differ- date of given you on many effect of them It wasn't irrelevant, 2S1.1 is given you to invest because plant, it was ence the urea version, as you told scheme that Use of the high interest same in both. in the pro- substantially such low- there was no yielded And about. have urged, them money, used just used their gram ... You range. er these ... And money pay Paul Peter’s *10 chоosing plain between and harmless error In its brief appeal, on government, analysis.24 in an effort avoid use of the guide-
lines, points proof of several acts occur- b. ring 1, on or after November 2001.25 The government also accurately points to the dispute There is no that if the fact that sentencing, at the district court conspiracy proven was to extend to a date made a finding that conspiracy contin- 1, on 2001, or after November a set of 1, ued past November 2001. The flaw in guidelines later than the 2000 version government’s however, position, is that (in would apply advisory an capacity, of procedure it correctly recounts is the сourse, Booker). in the wake of The in very essence of a Booker violation. dictment states that “[b]eginning in or was jury charged in relevant part 1997, about March and continuing to the follows: present 28, 2002], [meaning February ...
the defendants ... knowingly did and will It is not essential that the Government fully ... conspire ....” proved The indictment that the conspiracy started and the overt charges acts under the conspira ended on specific [i.e., those dates cy specificity; with charged latest such 2002], March through February promise act pay particular is Sudeen’s Indeed you it sufficient if find that in investor money, additional an alleged act fact a conspiracy was formed and that it to have occurred or August “[i]n about existed for some time within period 2001.” set in forth the Indictment and that at only 24. language does Not this Switzerland, resemble that met with Sudeen in and Su- which we preserving found sufficient for promised error deen that he would remit all over- Freeman, in profits but it is more due specific than that within two weeks. Moreover, satisfy we preserva- held to Alice error Celestin testified at trial requirements sentencing and every days tion in United Akpan, and she (5th Cir.2005) her "rolled ("Although principal husband over” their [the purported payments and interest explicitly never defendant] into new mentioned the Amendment, contract. When she met Apprendi, on Blakely Sixth Freeman until 1, 2001, July contract, signed letter, a fifth 28(j) his Rule we are satisfied that his she going advised him that she was objection need adequately apprised the district $54,000 back in November. When she raising he was a Sixth Amendment money, didn't receive the telephoned she ....''). objection frequently. Freeman In December Freeman called her and said that had he brief, According government's 25. to the good both news and bad news: she biweekly Freeman continued to receive sal- getting money, $10,000. but it was $1,450 ary payments through January They day gave met the next and he her 17, 2002, $9,000 was wired to co-con- separate $10,000. three totaling checks spirator Walter Lauren at account She testifiеd that at that time she be- still Switzerland February as late as lieved she had funds invested insu- Mortgage payments Poplarville prop- on the calling lin. She continued Freeman and erty using funds from investors were made during their last February conversation in addition, January until lulling 2002. In 2002 he said that her funds had "two more $10,000, payments $2,500 $2,000, banks misrepresenta- to clear.” Freeman’s Gunn, were made to investors Frank Ken- plainly tions lulled Mrs. Celestin into Frickey, neth Breaux and respec- Sheran continued belief that safely her funds were tively, on December In Novem- promises and that invested at the made promised ber he time of her initial investment would be ful- give guarantee a bank to investor Mattias filled. (Recоrd February Baumeler. 2002 Baumeler omitted.) citations footnote
395
i.e.,
occurred,
any
that
acts indeed
to
such
act was committed
one overt
least
asked,
jury, if
have found
that the
period
within that
conspiracy
further
beyond
them
reasonable doubt.27
of time.
does not
the fact of conviction
Accordingly,
c.
jury found
that
necessarily establish
acts on or after
any
overt
the existence
sentence was infected
Because Sudeen’s
1,
only the district
2001. It was
November
error,
properly pre
and he
with Booker
court,
found that the
jury,
and not
objection,
served his
we must vacate the
trigger
beyond
conspiracy continued
un
resentencing
sentence and remand for
guidelines.26 This
post-2000
for the
date
less
determine that
the error was
we
The
prohibits:
Booker
specifically what
Rule of Civil Pro
harmless
Federal
52(a).
Mares,
...
than
cific acts after
beyond
doubt that the court
guilty
a reasonable
it could find defendants
was told
same sentence
imposed
would have
any overt acts on or after
finding
without
regime.
advisory guidelines
under an
See
1,
no basis on
2001. There is
November
We reach Sudeen’s ex facto Akpan,
claim. Under id. at 360 n. we authority
have the leave the district
court the discretion to argu- consider this long
ment as already as we have deter-
mined there was a Booker reversible viola-
tion. summary, judgment of conviction judgment AFFIRMED. The of sen-
tence is VACATED and REMANDED for
resentencing. JOLLY,
E. GRADY Judge, Circuit
dissenting in part:
For the my reasons stated in dissent in case, companion United States v. Free-
man, respectfully I from the dissent ma-
jority’s finding of Booker error based on application
the district court’s of the 2002
version of the Guidelines. America,
UNITED STATES
Plaintiff-Appellee,
Joseph ARNOLD, Defendant-Appellant.
No. 04-5384. Appeals, States Court of
Sixth Circuit.
Submitted: March
Decided and Filed: Nov. Granted;
Rehearing En Banc Judgment
Vacated 2006.* March
* Judge Gibbons has recused herself in this case.