United States v. Sullivan

costs, the case is remanded amending fied future and and further restitution statutes that full restitution “require resentencing the statutes to and proceedings for further the victims of all covered be ordered to opinion. consistent with this there is an identifiable in which offenses

victim”). from arrest to sentenc- The time unusually short.

ing in this case is counseling Certainly, the few months of during pe- this time this victim underwent “restore the victim to his or riod cannot id., well-being,” after prior her state of and severe sexual abuse long-term regular conclude that exploitation. We America, UNITED STATES authorized under district court was Plaintiff-Appellee, pay for his victim’s to order defendant counseling future costs. SULLIVAN, Johnnie C. Defendant- evidentiary hearing

B. Remand for Appellant. specific findings. concedes, howev government The 00-8012. No. er, specific that a restitution order must Appeals, United States Court of supported

in a dollar amount that is Tenth Circuit. evidence the record. In United States Watchman, 749 F.2d 616 Cir. March 1984), per we held that restitution orders taining to costs associated with medical specific

and related services must be generali contain “details as dollars not ties,” sup and that the district court must

port findings its restitution order with 618-19;

fact in the record. Id. at see also Smith, (10th Cir.1998) (“The government proving bears the burden of the amount A seeking loss when restitution. restitu proof tion order entered without of loss is (citation omitted)); clearly La erroneous.” (“Of course, ney, 189 F.3d 967 & n. 14 district courts must estimate the amounts spend that victims will on future counsel certainty, with reasonable in accor procedures dance with the set forth in 18 3664.”). presentence report U.S.C. The regarding contained no evidence the vic counseling tim’s need for future or the counseling. estimated cost of that We hearing therefore remand for a on these issues. This remand renders moot defen third claim of error.

dant’s judgment of the United States Dis- trict Court for the Northern District of only vacated to that part

Oklahoma is requiring unspeci- the order restitution for Wichlens, M. Federal Pub-

Jill Assistant (Michael Defender, Katz, lic Federal G. briefs), Public Defender with her on the Denver, CO, appearing appellant. (Alan Hechtkopf Meghan S. Skelton Division, briefs), with her on the Tax De- Justice, DC, partment Washington, ap- pearing appellee. KELLY, ANDERSON,

Before

BRISCOE, Judges. Circuit ANDERSON, H.

STEPHEN Judge. following

Johnnie was convicted Sullivan jury a trial on three counts of willful fail- return, in ure to file tax violation of 26 He on all U .S.C. was sentenced three to the pursuant counts at effect the time of sentenc- although ing, applicable tax offense guidelines had been amended after Mr. Sullivan had committed two of the three argues counts of willful failure to file. He appeal application post- of the amendment to all three counts violates the ex clause because it in a higher guideline range resulted application pre-amend- would the ment guidelines to three counts or the pre- to the pre-amendment guidelines post-amend- amendment counts and the ment to the 2Tl.l(b)(2), Mr. Sullivan’s pursuant dis- argues also count. Mr. 20%-of-gross- 19. This resulted using total offense level was trict court erred calculate the loss figure thirty thirty-seven sentencing range income argues supple- Finally, he this case. him at the The court sentenced months. ar- just prior to oral briefing filed mental months— range thirty end of the low Supreme of this case gument on each count of amounting to ten months Apprendi decision recent Court’s conviction, consecutively. Mr. Sulli- to run 466, 120 Jersey, 530 U.S. New object the time of sentenc- at van did (2000)invalidates his sen- the 1998 sentenc- the court’s use of ing to factors tence because certain ing guidelines. jury. Because to the were not submitted conclude that DISCUSSION pre-amend- to guidelines that, be Mr. concedes Sullivan post the ex ment conduct violates facto object trial did not to cause his counsel clause, in the method we find no error but 1, 1998, November application of the loss, tax calculate the relevant used to sentence, we review his guidelines to his in and remand in and reverse part affirm only for guidelines under sentence reject Apprendi Mr. We Sullivan’s part. Gilkey, v. error. See United States plain argument. (10th Cir.1997); 702, Fed. 704 118 F.3d 52(b). standard plain The error R.Crim.P. BACKGROUND claim post an ex is not applies when facto opera- Mr. the owner and Sullivan was v. sentencing. See United States raised at Drilling, a sole Rat Hole tor of Sullivan’s (10th 1560, Massey, F.3d 1568 Cir. holes for oil ex- that drilled proprietorship 1995). error, the er plain “To constitute stipulated Sul- cavation. Mr. Sullivan and sub have been both ‘obvious ror must re- Drilling gross Rat Hole earned livan’s if it .... An error is substantial stantial 1991, $564,765 $606,000 ceipts of fairness, integrity, seriously affect[s] 1992, $517,253 in He failed to and 1993. judicial proceed public reputation or 1991, years tax returns for file ” Gerber, 93, v. ings.’ him jury convicted and 1993. The Cir.1994) (10th (quoting United States pay. of willful failure to three counts (10th 1049, Brown, Cir. 996 F.2d 1, court used the November The district 1993)). aof An ex facto 1998, sentencing guidelines of the edition disadvantages which sentencing guideline Pur- calculate Mr. Sullivan’s sentence. error. plain can amount to the defendant 3D1.2(d), § the three to U.S.S.G. suant Orr, United States and the initial base grouped were counts Cir.1995). (10th ques review de novo “We by reference level was calculated offense regarding application law tions of of loss.1 aggregate amount to the total for clear and review sentencing guidelines, that Mr. Sullivan’s The court determined findings.” court’s factual error the district year peri- three income for the gross total Spencer, $1,688,017 pursuant od was Cir.1999). 2Tl.l(a)(2) 2Tl.l(c)(2), the §§ U.S.S.G. figure, or was 20% of that tax loss Argument I. Ex Post Facto $337,603. a base gave This Mr. Sullivan applicable to sentencing guidelines The en- After a two-level level of 17. offense No- concealment, effective offenses were amended sophisticated hancement counts where (a) stantially harm” are the same provides for the Section 3D1.1 1. largely on the level is determined specified the "offense "Closely Related Counts” 1.2, turn, harm or loss.” the total amount of provides that basis of § 3D1.2. Section 3D 2T1.1, by § willful fail- encompassed substantially involving the same Offenses “[a]ll counts returns, specifically are includ- single to file tax grouped together ure be into harm shall grouped. which must be "involving sub- ed as counts Group.” Among counts such before, offenses, in- two the first committed 1993. The amendment vember after, edition of base offense level for failure and the second a revised creased the effective, was convict- file convictions. Manual became Guidelines failing April to file tax returns on Manu- ed edition of the Guidelines the revised 15, 1993, April April to both offenses.” applied al is to be Thus, to conduct lBl.ll(b)(3), two of the counts related The commen- p.s. U.S.S.G. amend- occurring before that the re- tary provision to that states ment and one count related to conduct “even if the applied vised edition is to be His total occurring after the amendment. pen- edition results an increased revised pre-amendment under offense level alty for the first offense.” U.S.S.G. post-amend- was 15. Under lBl.ll(b)(3), (backg’d.).2 comment. guidelines, ment it was 19. commentary explains why the That also perceives no ex Commission con lBl.ll(b)(3): problem with tain the “one-book rule”: “The Guidelines completed the Because the defendant particular Manual in on a date shall effect offense after the amendment to second entirety. The court shall applied its effect, took guideline sec apply, example, not one determin- prevent clause does tion from one edition the sentence for that count based on guideline from Manual and another section example, guidelines. the amended For a edition of the Manu different single pleads guilty if a defendant to a lBl.ll(b)(2), We, § p.s. al.” like U.S.S.G. count of embezzlement that occurred af- circuit, ap have virtually every other most recent edition of the Guide- ter the use of the one-book rule. See proved effective, lines Manual became the Nelson, 1001, United States v. 36 F.3d guideline applicable sentencing range Cir.1994). (10th The Guidelines also any conduct encompass will relevant that, general, sentencing a court state offenses that (e.g., related embezzlement must the in effect at the apply may prior to have occurred the effective sentencing, see time of U.S.S.G. amendments) for guideline date of the 1B1.11(a), application § p.s., unless such The same the offense of conviction. post would violate the ex clause. See facto lBl.U(b)(l), § would be true for a defendant convicted p.s.; see also U.S.S.G. Svacina, embezzlement, 1179, v. 137 F.3d of two counts of one com- (10th Cir.1998). Ex “The Post Facto en- mitted before the amendments were if applies acted, is violated the court a Clause and the second after. In this guideline occurring to an event before its post the ex clause would example, facto enactment, and of that application the of the amended application not bar guideline disadvantages ‘by the defendant conviction; guideline the first a con- altering the definition of criminal conduct trary would mean that such conclusion increasing punishment the or subject guide- defendant was to a lower ” Mathis, (quoting Lynce crime.’ Id. v. if range only line convicted 441, 433, 891, 137 L.Ed.2d U.S. second offense. (1997)). argues application Id. Mr. Sullivan that the 1, 1998, guidelines to all of the November

Additionally, in the Sentenc counts, three consistent with issued a statement policy Commission 1B1.11(b)(3), § post violates the ex making explicit ap that the one-book rule facto that involving multiple parties agree applica- clause. Both plies to situations the defendant is convicted of tion of the amended Sul- “[i]f counts: of, plainly reading guide- "[C]ommentary in the Guidelines Manual erroneous that States, interprets explains guideline au- or is 508 U.S. line.” Stinson United (1993). thoritative unless violates Constitution statute, with, or a federal or is inconsistent or (the of guideline), conduct first amendment pre-amendment livan’s conviction), or to all three was grouped occurring two counts of count with conduct counts, disadvantaged Mr. Sullivan sub- (post-amendment), application in 1992 of jecting higher sentencing range. him to a the amended did not violate the post ex clause. The Third Circuit parties acknowledge, As both facto various disagreed: “The fact that counts of the question addressed courts which have indictment grouped are cannot override whether consistent with sentences Bertoli, post ex facto concerns.” 40 F.3d lBl.ll(b)(3) post the ex violate facto not, however, that, at 1404. court did re- clause divided. Several have held are ject application rule. consistent of the one-book Rath- with Commis view, er, imposed sion’s sentences accor ex court held when facto lBl.ll(b)(3) dance do not violate arise, with concerns can See clause. United rule without violating one-book (4th Lewis, States by applying clause Cir.2000) (“We that the guideline conclude pre-amendment guidelines to counts. provision complains, which [defendant] The Ninth reached a similar con- lBl.ll(b)(3), does not violate U.S.S.G. clusion, though slightly with a different Clause.”); Ex Post Facto problem, solution United States v. Cir.) (7th Vivit, Cir.1997). Ortland, 109 F.3d 539 In “provide (holding notice Ortland, the defendant was convicted on engaging ongoing to criminals that fraud, five counts of mail four which involving the same fraudulent behavior occurring involved conduct before No- convictions, type of harm risks 1, 1989, changing vember amendment rule, which because of the one-book will all way loss is in a fraud case. The calculated according to the be sentenced Ninth Circuit held occurred.”), latest effect when the conduct lBl.ll(b)(3) the to sentence defendant denied, -, U. 121 t. cer S . the on all five counts under amended (2000); S.Ct. United guideline post the ex clause. violated facto (5th Kimler, v. 167 States F.3d 893 pre-amend- But rather the applying Cir.1999) (same); Bailey, United States v. counts, the ment to all Ninth (11th Cir.1997) 123 1404-05 F.3d apply held court must Circuit the district (same); Cooper, v. States 35 United pre-amendment to the the (8th Cir.) vacated, (same), 1248 514 U.S. occurring prior to involving counts conduct 131 L.Ed.2d amendment, the (1995), reinstated, 68 F.3d Cir. occurring after the guidelines to conduct 1158, 116 1995), denied, 517 U.S. cert. court ex- amendment. As the Ortland (1996); 1548, 134 L.Ed.2d 650 United plained: (1st 44, 48 Regan, v. 989 F.2d Cir. States statement 1993) Application policy (same); Tucker, v. United States lBl.l.ll(b)(3) (same). (N.D.Ill.1997) case would this vio- F.Supp. [§ ] Constitution; application its late the however, circuits, Two and one district on would cause sentence [defendant’s] court, such vio have held that sentences earlier, counts to be increased completed late the clause. In ex facto Moreover, by a later Guideline. (3d Bertoli, 40 F.3d 1384 States v. Cir. entirely is not explanation Commission’s 1994), was two the defendant convicted on by logical. The harm caused earlier justice, counts of obstruction one occur sentencing counted in offenses can be in 1992. ring and one The district not mean that the later one. That does grouped the counts the earlier offenses punishment for purposes and a 1991 amendment applied increased, simply themselves be- can be defendant’s which increased the sentence. cause the for the later one punishment count although It held one involved fact, In the later count to (prior can be. were occurring conduct sentencing, all his first two discrete tax offenses that the fall at some time after would that would remain would be the earlier Guidelines then effect sentences, long. simply which would too his sentence. He was determine notice that his sentence for those not on Accord, Id. at 547. John two offenses would be calculated under son, 97-CR-206, 98-CR-160, Nos. he com- (June amended enacted after 4, 1999), aff'd, United WL 395381 contrast, it fair (2d pleted By those crimes. is Johnson, 221 F.3d 83 Cir. 2000).3 that he was notice when he to conclude his third discrete tax offense committed consideration, we elect to After careful guideline applicable to such an reasoning of Third and follow the punish- offense had been amended and the appli- and conclude that the Ninth Circuits with the Third agree ment increased. We guidelines policy cation of statement “cannot rules lBl.ll(b)(3) Mr. to the first two of Sulli- Bertoli, ex post override facto concerns.” willful failure to file tax vio- van’s counts Congress at 1404. While plain lates the ex clause and is and/or post facto can for an en- provide the Commission requiring us to vacate his sentence. error prior hancement of a sentence because of charged was for and con Sullivan violations, that is not what Mr. Sullivan separate victed of three and discreet Rather, experienced punish- here. the three offenses Although offenses. ment for his first two tax violations was related, indisputably they were nonethe actually retroactively increased. We continuing less did not constitute offense. therefore conclude Thus, it have held is irrelevant we lBl.ll(b)(3) to sentence Mr. continuing that “when a crime involves a all counts under the amended violation, application of a law enacted after violates the ex clause. begins implicate the crime does not Boyd, post facto clause.” United States However, prefer the resolution (10th Cir.1998). 1062, 1068 endorsed the Ninth Circuit Orland to that of the Third Circuit Bertoli. We above, As indicated the central therefore remand this case for resentenc concern of clause is fair we direct ing, and the district court to punishment notice to a defendant that the to Mr. pre-amendment guideline for a crime has been increased from what two failure pre-amendment Sullivan’s was when crime was committed: file convictions and the Ex function of the Post Facto “[o]ne Mr. guideline post-amend to Sullivan’s which, by Clause is to bar enactments Although ment conviction. such resolu operation, punish retroactive increase the requires tion that the one-book rule not crime ment for a after its commission.” this, Jones, in 244, apply a case such as it more nar Gamer v. 529 U.S. 1362, (2000). rowly probl Mr. addresses the ex facto when committed Sullivan was on notice he em.4 Nelson, Although the Second Circuit affirmed the 4. Our decision in United States v. Johnson, (10th Cir.1994), imposed sentence in it declined to in which we government's "join[ed] adopting cross-appeal entertain the other circuits in the ‘One rule,” explicitly compel the Second Circuit did not address Book’ does not a different re- Nelson, analysis. pled guilty the court’s ex In the defendant district The sult. to has, case, recog conspiracy Second Circuit in another and was sentenced under the 1992 possibility that nized "the the one-book rule which were in effect at the lime of might fully applicable sentencing. argued not be to sentences He the of multiple guidelines, guide- based on counts.” United States those rather than the 1988 (2d 1999).. Santopietro, 166 F.3d Cir. lines in effect when the offense conduct was committed, Santopietro disagree the The court examined violated clause. should, validity argued of ment between circuits on the The defendant also in ef- fect, 1.11(b)(3), § IB but declined to address the both the 1992 and 1988 rejected issue in the case before it. to calculate his sentence. We such § commentary 2T1.1 states that the of Loss II. Calculation 2T1.1(c)(2) § is “to be “presumption” of the district argues also Mr. Sullivan defense government used unless the or way the tax in the it calculated court erred more information for a provides sufficient to file. While we by loss his failure caused of tax loss.” accurate assessment the this determined that case already have (n.l). 2T1.1, § comment. That U.S.S.G. resentencing, we must be remanded recognizes that there commentary further because, presumably, this issue address may “may where loss be situations the tax again will arise the issue of loss calculation reasonably ascertainable.” not Id. on remand. “[AJlthough bur- government the bears the the 1993 amendments Prior to of at the amount proving den 2T1.2(a) case, § at in this U.S.S.G. issue flowing tax loss from the ille- defendant’s (1992) the of tax loss calculation governed acts, government the nor the gal neither failure file a tax return. for the willful has the tax obligation calculate It loss as “the total amount of defined tax certainty precision.” Spencer, with or loss and did taxpayer tax the owed not that (citations omitted). 178 F.3d at 1368 but, failure to file pay, in the event of a trial, At Mr. government Sulli- of the any year, percent not less than 10 stipulation that van entered into Sulli- gross in- taxpayer’s which amount following Drilling van’s Rat had the $20,000.” Hole year exceeded come for $606,000 (1992). receipts: 2T1.2(a)(2) gross business § The com- U.S.S.G. $564,765 $517,253 in 1993. in 1992 and “An alterna- mentary explained follows: loss, They paid also stipulated the business percent tive of the tax measure $20,000, $424,200 in expenses: following has gross income excess of been $362,007 $395,336 difficulty in 1993. See provided potential because in 1992 tax the determining pro- the amount of tax- 47. The stipulation R. Vol. at Doc. It is that this alter- payer expected owed. crimi- purposes vided that it “is for generally native measure will understate either only, nal trial and does not bind tax the amount of owed.” U.S.S.G. any trial or civil party any post matters comment, 2T1.2, (backg’d.). proceeding.” Id. report, probation In amendments, presentence Following the 1993 2Tl.l(e)(2) tax loss was officer determined governs the calcula U.S.S.G. $337,603: It to U.S.S.G. provides “[p]ursuant tion loss such -cases. of tax 2Tl.l(c)(2), years part: loss for is 20% of Sulli- through [Mr. (2) If the offense involved failure to file $1,688,017.20 income or gross van's] return, tax loss is the a tax $337,603.44.” at PSR R. Vol. 8. taxpayer amount tax that use of the objected to PSR’s and did pay. owed include figure 20% “failed to If the involved failure to Note: offense allowable trade and business deductions.” return, a tax the tax loss shall be file i, (Objections) R. at Addendum to PSR equal gross to 20% of treated probation responded 8. The officer Vol. any ... less tax withheld or income figure that the tax loss should PSR’s a more paid, otherwise unless accu- failed to used “the defendant has tax because of the loss can rate determination loss information demonstrate be made. "may the 1992 rather application, noting he not “the court's use of dual disadvan- piecemeal than the Guidelines did not select from the 1988 tage up received [defendant] to come with the most advanta- he punishment geous under version of provisions from the two same either combination Thus, books, implicitly we ac- Guidelines.” Id. have but must instead be sentenced under may not knowledged that the one-book rule one Guidelines Manual.” Id. But also problem: "trump” the ex clause. explicitly found no Report the Presentence is inaccurate.” income “unless a more accurate determi Id. at ii. nation of the tax loss can be made.” 2Tl.l(c)(2) added).5 (emphasis U.S.S.G. At sentencing, government intro- After listening arguments to reviewing gross duced as an exhibit the fig- income proposed exhibits and exhibits on the mat ure to parties stipulated which the at trial. ter, the court found that it could not deter objected that it only “shows mine a more accurate figure. tax loss gross income.” Tr. of Sentencing at R. Bearing in mind that we review the court’s government’s Vol. 7. The response was as error, findings factual for clear and that follows: “ give we must ‘due deference’ to the dis deductions, As far again as the I will trict court’s application state that the say very clearly facts,” Spencer, (quot 178 F.3d at 1367 you take 20 percent gross v. Henry, you’ve got figures. income unless better (10th Cir.), denied, cert. destroyed defendant his records. U.S. The defendant provide would not infor- L.Ed.2d 784 (1999)), mation as far we perceive as his deductions. And no clear error although the Government has district computation records of court’s of tax loss. Of course, what expenses remand, were and those records the district court will defense, were turned over to the there’s have to calculate tax loss under both the attempt been no in the last four pre- months guidelines. We to sit down everything was inter- simply hold in the absence of addi and — mingled personal expenses, business tional evidence from may which the court expenses how, paid to what was determine the relevant tax loss with more —as what was paid for in cash. There’s sim- accuracy, we perceive no error in its use of ply way no of determining any that with presumptive figures.

degree accuracy. Apprendi III. Effect of therefore,

And the Court is forced to fall back on the percent figure, flat 20 In Apprendi, Supreme probably which is perfect not a number Court held that “[o]ther than the fact of a but it is the best we can indo this case conviction, prior any fact that increases and that’s because of the defendant’s the penalty for a beyond pre crime lack cooperation. scribed statutory maximum must be sub Id. at 40. hearing argument After mitted jury, from to a and proved beyond a issue, both sides on the the court held reasonable Apprendi, doubt.” 120 S.Ct. at would follow presumptive 20% figure, 2362-63. We yet have not ruled on wheth using stipulated gross figures: income er Apprendi extends sentencing guide point I “[A]t this don’t believe the Court line factors. Mr. Sullivan concedes that has before it information that assures the the law in this circuit currently states that Court that a more accurate determination sentencing guideline factors need not be of the tax loss can be made ... in this alleged in the indictment or found matter. I Certainly don’t have the materi- jury. Frederick, See United States v. als before me that would lead to that nor is (10th Cir.1990). 491-93 Other there any present ability to arrive at that circuits have held that Apprendi does not kind of calculation.” Id. at 50. factors that increase a

We affirm the defendant’s range district court’s use do in but of the presumptive statutory 20% crease the figure. The maximum. See Lew is, guidelines state 217; that the tax loss in a fail 235 F.3d at United States v. Her ure to file nandez-Guardado, (9th offense is gross 20% of the 228 F.3d 1017 Cir. pre-amendment determining over, acknowl- the amount of tax owed. More- edge necessity providing presumptive the they expect figure that the use of such a figure "potential difficulty” taxpayer’s will be in the favor.

1257 Corrado, 2000); prohibition is a concern United States (6th Cir.2000); v. Mesh governmen- 528 for the “lack of fair notice and (5th Cir.2000), ack, petition 556 legislature tal restraint when the increases 2000) (No. (U.S. 26, 00- filed, cert. Nov. punishment beyond prescribed what was ’” 7246); Aguayo-Delgado, United when the crime was consummated.” Id. (8th Cir.2000), cert. de 220 926 F.3d Florida, (quoting at 1250 Miller v. 482 600, nied; -, 121 148 U.S. S.Ct. 423, 430, 96 L.Ed.2d U.S. S.Ct. (2000). agree with those L.Ed.2d 513 We (1987) Graham, (quoting Weaver calculation and circuits. Since the loss 67 L.Ed.2d U.S. sophisticated two-level increase for con (1981))). The court then concluded that not increase Mr. Sullivan’s cealment did requisite provided by notice was beyond statutory maximum of sentence 1991 amendments: file, of failure to 12 months for each count At [defendant] the time elected to com- the rule his sentence does not run afoul of mit the third firearms violation he was in Apprendi. clearly on notice of the 1991 amend- Sentencing ments to the and

CONCLUSION they the fact that increased the offense reasons, AFFIRM foregoing For the for the firearm question levels crimes in REMAND for part and REVERSE and required aggregation and of fire- proceedings further consistent with this I, II and In our arms Counts IV. opinion. view, had fair that warning [defendant] BRISCOE, Judge, concurring Circuit 23,1992, January fire- commission of dissenting: governed by arm crime was the 1991 provided amendments that for increased respectfully part I concur and dissent majority’s I in the resolu- offense levels and new rules part. concur Apprendi tion of the calculation of loss and aggregate amount of considered issues, from and dissent the conclusion harm. post-

that the district court’s “it Id. The court thus concluded that was pre-amendment amendment to to the not the amendments conduct violates the ex facto clause. [defendant], disadvantaged expressly upheld circuits have either Six it was his election to continue his criminal lBl.ll(b)(3) validity against be- activity after the 1991 amendments challenges approved or have Further, came effective.” Id. the court concept underlying the basic applied it is well established that observed Cooper, section. In States v. of a determines completion conspiracy date (8th vacated, Cir.), 514 U.S. guidelines applies, which version L.Ed.2d 742 common by “a or plan scheme (1995), reinstated, 63 F.3d 761 Cir. and the same course of conduct individual 1995), defendant was convicted of various .equiva- an individual are the unilateral violations, occurring prior firearms some continuing group offense of lents to the increasing appli- to 1991 amendments (internal quota- conspiracy.” Id. at 1251 levels, and occur- cable base offense some omitted). tion ring after those amendments.1 The dis- The court therefore held that him under trict sentenced guidelines applied amended version all of con- amended counts counts, including relating those viction, affirmed. Eighth and the “ occurring prior to the amend- The court first observed that ‘central conduct 1.11(b)(3) expressly which did date of IB was No- one of the cases 1. The effective 1, 1993, 1.11(b)(3), Cooper defendant in after the defendant in IB but sentenced vember completely with that sec- Eighth Circuit a manner consistent was sentenced but before the Thus, opinion appeal. Cooper issued its is tion. merits. “To hold otherwise could lead to ongoing fraudulent involving behavior particular the anomalous result that a de- type same of harm grouping risks of con subject victions, fendant could be to a lower sen- which because of the one-book rule, multiple tence if convicted of offenses will' all be sentenced according to the a spanning revision of the Sentencing Guidelines in effect when the latest con Guidelines, occurred”), denied, than if singu- convicted of the duct cert. U.S. ——, lar last offense after the revision of the

Sentencing (2000); Guidelines.” Id. at 1252. v. Regan, 989 F.2d (1st Cir.1993) (in pre The Eleventh subsequently- Circuit lBl.ll(b)(3) case, holding that defendant Circuit, agreed Eighth with the following embezzlement, convicted of 55 counts of essentially reasoning: the same some occurring before and some after a rule, one together [T]he book with the guideline amendment increasing base of rules and relevant levels, fense properly was sentenced conduct, provide that related offenses guideline). counts under the amended committed in a series will be sentenced In a district court involving case virtual together under the Sentencing Guide- ly the identical tax violation as Manual in this case lines effect at the end of the (willful Thus, failure to file tax knows, series. returns for the defendant when 1994) years through crimes, he and the identical continues to commit related ex argument sentencing arising he risks for all from sen of his latest, tencing the offenses under the defendant under the amended Sen- amendments, tencing guideline Analogous Guidelines Manual. the court found no offense, to a problem. continuous criminal like United States v. Tucker, conspiracy, (N.D.Ill.1997). the one book rule provides F.Supp. 1309 notice that otherwise discrete After examining criminal the various circuit court acts will be together date, sentenced under decisions written to the Tucker court effect at the time of concluded: last those acts. The Court finds the reasoning of the First, Eighth, and Bailey, United States v. Eleventh 123 F.3d Circuits (11th Cir.1997). persuasive 1404-05 more that of the court con- Ninth cluded that Circuit. The respectfully had fair Court “[defendant] notice declines that continuing his to follow operating crimes his Ortland because it fails ad- subjected firearms business him dress the resulting anomaly to the recognized amended by Guidelines in effect clearly Commission so exhib- when he committed the last of the ited crimes facts of this if case: the tax for which he was convicted.” Id. at 1407. losses are divided into two groups as Accord, Lewis, United States v. 235 F.3d Defendant and the Ninth sug- Cir.2000) (“We gest, conclude that sentencing his range for all counts provision of which Lewis would be lower than the sentencing complains, U.S.S.G. does lBl.ll(b)(3), range that would be imposed had Defen- not violate Ex Clause.”); Post Facto only pled dant and been sentenced to Kimler, United States v. the last two counts. Under the OHland (5th Cir.1999) (“[W]here analysis, subject Defendant would be groups offenses committed before a a sentencing range of ten to sixteen change the sentencing guidelines with months for all five counts. Had Defen- amendment, offenses after the only and then dant pled and been sentenced to applies the counts, amended in determin- subject last two he would be sentence, a defendant’s appropriate to a sentencing range of eigh- twelve to Ex Post Facto Clause implicated.”); is not teen months because the 1990 through Vivit, United States v. 1992 losses would be considered relevant (7th Cir.) (holding “pro- conduct. This Court expect does not vide notice to criminals that engaging agree Seventh Circuit would analogous conduct” is The “same course of results less time analysis that with continuing conspiracy, a offense like more crime. appli- determines the ending date of which Id. at 1317.2 like sentencing guidelines. Finally, cable reasoning of the follow the I would courts, I persuaded by those am also Eleventh, Fourth, Fifth, Seventh Eighth, anomaly recognition of the Commission’s that the First Circuits and conclude pre-amendment guide- if the that results policy statement application of to all of applied lines were Sullivan’s lBl.ll(b)(3) of willful to all Sullivan’s subject counts of conviction: he “could be not violate failure to file tax counts does multiple if to a lower sentence convicted of facto clause. As indicated spanning offenses a revision of the Sen- above, concern of the ex the central Guidelines, if tencing convicted of the fair notice to a defendant facto clause is singular a crime has been last offense after the revision punishment when the crime Cooper, increased from what it was Guidelines.” was on notice was committed. Sullivan I conclude F.3d at 1252. therefore would 1B1.11(b)(3) first two tax even when he committed his would deter- offenses all counts under the sentence Sullivan for the total mine his base offense level from amended did violate the occurring years from all which tax loss I affirm dis- facto clause. would Moreover, pay he failed to taxes. in all ruling regards. trict court’s conduct grouping rules and the relevant him that his three

provisions gave notice to file would be consid- consecutive failures of conduct part ered of the same course his collectively and would determine sen- Brothers, FEERER; Martin Doris observed, tence.3 As the Seventh Circuit Heimann; Casper partnership; J. rules, pro- enacted “[t]he Smithson; Malcolm Christine Smith warning completing vide to criminals that son, Plaintiffs-Appellees, one another criminal offense similar to them in previously places peril committed sentencing under a revised version of COMPANY, in AMOCO PRODUCTION Vivit, 214 F.3d at 919. the Guidelines.” Corpora dividually; Amerada Hess committed his last failure to When Sullivan P, Inc.; tion; Exx E & Shell Western file, he was on notice post-amendment, individually Corporation, file that losses from his first two failures to representatives, Defendants-Ap class grouped would either be with his latest pellants. relevant con- offense or be considered as 99-2231, Nos. 99-2146. duct, penalty grouped and that the for his tax offenses had been increased. Appeals, States Court of agree Eighth with the I further Tenth Circuit. Eleventh Circuits while failure to file 20, 2001. March continuing a tax return is not offense years, if even committed successive of such failures to file is the “same

series guidelines. under the course of conduct” following example: "a correctly predicted defendant's 2. The cludes the district would not follow the Ort- the Seventh Circuit tax returns in three consecutive failure to file Vivit, analysis. F.3d at 919. land See years appropriately would be considered as part of the same course of conduct commentary In the to the relevant conduct yearly only required at inter- returns are such ' provisions guidelines, the Commission's 1B1.3, (n.9(B)). comment. vals.” U.S.S.G. in- discussion of “same course of conduct"

Case Details

Case Name: United States v. Sullivan

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Mar 20, 2001

Citation: 242 F.3d 1248

Docket Number: 00-8012

Court Abbreviation: 10th Cir.