United States v. Bolden

2003 WL 22994903 (8th Cir.)

For opinion see 368 F.3d 1032

Briefs and Other Related Documents

United States Court of Appeals, Eighth Circuit.

UNITED STATES OF AMERICA, Appellee,

Stephen Rydale BOLDEN, Appellant.

No. 03-3094.

2003.

CRIMINAL

Appeal from the United States District Court Eastern District of Arkansas Western Division

The Honorable United States District Judge Wm. R. Wilson, Jr.

Brief of Appellee

H. E. (BUD) Cummins, United States Attorney, Eastern District of Arkansas, Angela S. Jegley, Assistant U.S. Attorney, P. O. Box 1229, Little Rock AR 72203, 501-340-2600, Attorneys for Appellee

*ii SUMMARY OF THE CASE

On August 15, 2002, pursuant to a written plea agreement with the United States, Stephen Rydale Bolden waived indictment and pled guilty to a superseding felony information charging him with misprision of a felony, structuring monetary transactions to avoid reporting requirements, in violation of Title 18, United States Code, Section 4. Pursuant to the plea agreement and in exchange for the court's acceptance of the guilty plea, the United States moved to dismiss the Superseding Indictment pending against Bolden.

Bolden was charged in Count One of the multi-count superseding indictment with having conspired with Gerald Ghant and Gregory Nichols to distribute cocaine, and in the remaining counts, Bolden was charged alone with structuring monetary transactions to avoid reporting requirements. Bolden's trial was severed from that of Ghant and Nichols who went to trial in February, 2002 preceding Bolden's guilty plea. Ghant and Nichols were convicted and were subject to a mandatory ten year minimum sentence. Bolden's maximum statutory exposure for the misprision conviction was thirty-six months imprisonment.

The district court gave notice of its intention to consider an upward departure at Bolden's sentencing on the grounds that the guidelines range did not adequately reflect Bolden's culpability in the offense and there were aggravating circumstances justifying an upward departure. The United States did not advocate the departure

*iii because the plea agreement provided that neither party would seek a role enhancement or reduction. The district court upwardly departed on March 19, 2003 and Bolden took a timely appeal on March 20, 2003.

On appeal, Bolden cited controlling precedent and argued that the district court did not have authority to upwardly depart because the departure was based upon conduct in counts dismissed by agreement in exchange for the guilty plea. The United States filed a motion with this Court to remand for re-sentencing. which was granted.

The district court again gave notice of its intention to consider an upward departure citing Fifth Circuit precedent. On August 8, 2003, at sentencing, the district court departed upward from the applicable guidelines range of 0-6 months to thirty six months. Bolden appeals from the upward departure.

*iv TABLE OF CONTENTS

SUMMARY OF THE CASE ... ii

TABLE OF CONTENTS ... iv

TABLE OF AUTHORITIES ... v

JURISDICTIONAL STATEMENT ... 1

STATEMENT OF THE ISSUE ... 2

STATEMENT OF THE CASE ... 3

STATEMENT OF THE FACTS ... 5

SUMMARY OF THE ARGUMENT ... 8

ARGUMENT ... 11

CONCLUSION ... 20

CERTIFICATION OF WORK PROCESSING PROGRAM ... 21

CERTIFICATION OF COMPUTER DISKETTES ... 22

CERTIFICATE OF SERVICE ... 23

*v TABLE OF AUTHORITIES

FEDERAL CASES

Burns v. United States, 501 U.S. 129, 133-36 (1991) ... 13

United States v. Abdullah, 947 F.2d 306, 308-09 (8th Cir. 1991) ... 16

United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995) ... 13

United States v.Beatty, 9 F.3d 686, 690 (8th Cir. 1993) ... 18

United States v. Flores, 336 F.3d 760, 763 (8th Cir. 2003) ... 2, 11, 17, 19

United States v. Fortier, 242 F.3d 1224, 1231 (10th Cir. 2001) ... 13

United States v. Godbolt, 54 F.3d 232 (5th Cir. 1995) ... 2, 13, 14

United States v. Harris, 70 F.3d 1001 (8th Cir. 1995) ... 11, 12, 16, 18

United States v. Karam, 37 F.3d 1280, 1284 (8th Cir. 1994) ... 18

United States v. Marks, 38 F.3d 1009, 1012 (8th Cir. 1994) ... 15

United States v. Pigno, 922 F.2d 1162 (5th Cir. 1991) ... 2, 13

United States v. Prestemon, 953 F.2d 1089 (8th Cir.) ... 13

United States v. Smith, 116 F.3d 857, 859 (10th Cir. 1997) ... 13

United States v. Warters, 885 F.2d 1226 (5th Cir. 1989) ... 2, 13, 14

FEDERAL STATUTES

Title 18, United States Code, Section 3231 ... 1

*vi Title 18, United States Code, Section 3553(b) ... 13

Title 18, United States Code, Section 4 ... ii, 3, 8

Title 21, United States Code, Section 846 ... 3

Title 28, United States Code, Section 1291 ... 1

Title 31, United States Code, Section 5324 ... 3, 19

FEDERAL RULES

U.S.S.G. 2X.4 ... 2, 8, 12

U.S.S.G. Section 1 ... 9, 14, 15, 17, 18

U.S.S.G. Section 2X.4 ... 8

U.S.S.G. Section 5 ... 6

U.S.S.G. Section 1 ... 10

U.S.S.G. Section 5K.2 ... 10

RULES

Eighth Circuit Rules of Appellate Procedure, Rule 28A(d), I ... 22

Eighth Circuit Rules of Appellate Procedure, Rule 28A(c), I ... 21

*1 JURISDICTIONAL STATEMENT

Subject matter jurisdiction in the United States District Court was based upon Title 18, United States Code, Section 3231. Bolden filed a timely notice of appeal from the final judgment and commitment order of August 14, 2003 as required be Fed. R. App. P. 4(b). This Court has appellate jurisdiction pursuant to Title 28, United States Code, Section 1291.

*2 STATEMENT OF THE ISSUES

Whether a Misprision Defendant's Personal Guilt of the Underlying Offense Is A

Circumstance Not Taken Into Account in U.S.S.G. 2X.4 Thereby Allowing the

District Court to Upwardly Depart?

United States v. Warters, 885 F.2d 1226 (5th Cir. 1989)

United States v. Pigno, 922 F.2d 1162 (5th Cir. 1991)

United States v. Godbolt, 54 F.3d 232 (5th Cir. 1995).

II.

Whether the District Court's Upward Departure of an Additional Three Months

Contravenes the Holding in United States v. Harris, of the Ex Post Facto

Clause?

United States v. Flores, 336 F.3d 760, 763 (8th Cir. 2003)

*3 STATEMENT OF THE CASE

On February 8, 2000, Bolden was indicted by the Grand Jury in the Eastern District of Arkansas in a multi-count Indictment. He was charged with conspiring with Gerald Ghant and Gregory Nichols to distribute cocaine in violation of Title 21, United States Code, Section 846. Bolden was charged in other counts of the Indictment with having structured monetary transactions to avoid reporting requirements in violation of Title 31, United States Code, Section 5324.

Bolden's trial was severed from that of Ghant and Nichols who went to trial and were convicted in February 2002. On August 15, 2003, pursuant to a written plea agreement between the parties, Bolden pled guilty to a Superseding Information charging him with misprision of a felony in violation of Title 18, United States Code, Section 4. The United States moved in exchange for the acceptance of the guilty plea to dismiss the Superseding Indictment pending against Bolden. After the district corut gave notice of its intent to upwardly depart, the district court postponed sentencing and originally sentenced Bolden on March 19, 2003 to a term of imprisonment of 36 months. Bolden appealed whereupon the United States moved to remand for re-sentencing. The 8th Circuit remanded the matter for sentencing whereupon the court gave notice of its intent to upwardly depart. The parties were allowed to respond. On August 8, 2003, the district court upwardly departed to a term of imprisonment of 36 *4 months. The Judgment and Commitment and a Memorandum and Order were filed on August 14, 2003 from which Bolden appeals.

*5 STATEMENT OF THE FACTS

Stephen Rydale Bolden was indicted with Gerald Ghant and Gregory Nichols on February 8, 2000 in a multi-count indictment. Docket 1. Bolden alone was charged with structuring monetary transactions to avoid reporting requirements. Bolden, Ghant and Nichols were charged together in one count of the indictment with having conspired to distribute cocaine. Over government objections, the district court severed Bolden's trial from that of his two co-defendants. Docket 83-85. On February 16, 2002, Ghant and Nichols were convicted at the conclusion of a jury trial. Docket 168-180.

On August 15, 2002, pursuant to a written plea agreement with the government, Bolden pled guilty to a superseding information charging him with misprision of a felony, in that he knew that monetary transactions had been structured to avoid reporting requirements, a felony, and that he concealed and failed to make the felony known to appropriate authorities. In exchange for his guilty plea, the United States agreed to dismiss the superseding indictment then pending against him which included a count charging him with conspiring to distribute cocaine, the charge upon which Ghant and Nichols had been previously convicted. At the conclusion of the Rule 11 plea colloquy, the court accepted Bolden's guilty plea and granted the government's motion to dismiss the superseding indictment.

*6 On August 15, 2003, Ghant and Nichols, later in the day after Bolden's guilty plea was accepted, Ghant and Nichols were sentenced. The district court departed downward from their respective applicable guidelines range to a term of imprisonment of and sentenced Ghant to 126 months and Nichols to 120 months. Ghant Tr. 8-15-2002. Vol. 2, p. 63; Nichols Tr. 8-15-03, pp. 12-14.

On November 22, 2002, the district court gave notice of its intention to depart upward to the statutory maximum of three years. Sentencing was postponed to allow the parties to respond Docket 276. The defendant was provided with the trial transcripts from the Ghant/ Nichols trial. On March 19, 2003, the district court upwardly departed from the guideline range of 0-6 months outlined in the presentence report to the statutory maximum of 36 months on the grounds that Bolden's culpability was not adequately reflected in the guidelines range and because aggravating circumstances existed which justified an upward departure pursuant to U.S.S.G. Section 5K2.0. Bolden filed a timely notice of appeal to this Court on March 20, 2003. Bolden contended in his opening appellate brief that the district court had erred when it departed upward based upon conduct alleged in counts dismissed in exchange for the guilty plea, citing controlling precedent. Based upon that precedent, the United States moved for remand for re-sentencing on May 29, 2003, and on June 11, 2003, the government's motion was granted.

*7 On June 30, 2003, the district court gave written notice to the parties that it intended to consider an upward departure. Docket 303. On August 1, 2003, the district court supplied the parties with precedent from the Fifth Circuit suggesting that the misprision sentencing guideline failed to take into account the misprision defendant's personal guilt of the underlying felony offense. Docket 305. Bolden filed a motion in opposition to an upward departure. Docket 303. On August 8, 2003, the district court upwardly departed to the statutory maximum of thirty six months. The district court entered the judgment and commitment and a memorandum opinion and order on August 14, 2003 from which Bolden appeals.

*8 SUMMARY OF THE ARGUMENT

Whether a Misprision Defendant's Personal Guilt of the Underlying Offense is a

Circumstance Not Taken Into Account in U.S.S.G. 2X.4 Thereby Allowing the

District Court to Upwardly Depart?

The district court determined that Bolden admitted to having structured monetary transactions to evade reporting requirements and that he was therefore, guilty of the offense underlying the misprision. See Title 18, United States Code, Section 4. The district court upwardly departed to a term of imprisonment from a guidelines range of 0-6 months to 30 months on the grounds that the applicable misprision guideline, U.S.S.G. Section 2X.4 presumed that the misprision defendant did not commit the underlying felony offense and did not therefore take the defendant's culpability into account. Bolden contends on appeal that the district court's decision contravenes Eighth Circuit and other Circuit precedent because the district court was motivated to depart based upon conduct alleged in dismissed counts by agreement of the parties. However, this Court's precedent does not appear to have the broad sweep attributed to it by Bolden. The United States does not understand Eighth Circuit precedent to say that a plea agreement which provides for the dismissal of counts in exchange for a guilty plea means that the district court is divested of its discretion to upwardly depart sua sponte where legitimate grounds exist for a departure. This is not to say that the United States advocates the action taken by the *9 district court. Furthermore, Bolden claims that the district court's motivation to achieve sentencing equity between Bolden and his co-defendants somehow invalidates the district court's application of Fifth Circuit precedent to the facts in issue here. Again, the United States does not believe that that is the law. It is for this Court to determine whether the district court adequately explained its legal and factual justification to upwardly depart or whether it committed clear error or otherwise abused its discretion

Whether the District Court's Upward Departure of an Additional Three Months

Contravenes the holding in United States v. Harris or the Ex PostFacto Clause?

After finding that the Fifth Circuit precedent supported an upward departure to a sentence of thirty months, the district court upwardly departed an additional three months. The bases for the additional departure included: one, the court's finding that Bolden participated in the drug conspiracy in the dismissed counts; two, Bolden did not object to the presentence report which stated that under U.S.S.G. Section 1B1.3(a) the Defendant should be held responsible for all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused, including dismissed counts; and three, Bolden was guilty of "structuring transactions to evade reporting requirements" in the amount of $459,162.50, an aggravated case of structuring.

*10 The district court believed that it was acting within its discretion when it ruled that it had the authority to impose an additional three months sentence based upon 8th Circuit precedent cited by the Appellant. The district court was also of the view that it had the authority to upwardly depart by three months on the grounds that Bolden did not object to the presentence report's reliance upon U.S.S.G. § 1B1.3(a) which provides that a defendant should be held responsible for relevant conduct, including dismissed counts. Furthermore, the district court may have been entitled to rely upon aggravated circumstances pursuant to the law forbidding the structuring of monetary transactions to avoid reporting requirements and U.S.S.G. § 5K.2. It is for this court to determine whether the district court committed clear error or otherwise abused its discretion.

*11 ARGUMENT

Standard of Review.

A district court's departure from the sentencing guidelines is reviewed de novo to determine both whether the district court based a departure on a permissible factor and whether the district court provided the required written statement of its reasons. United States v. Flores, 336 F.3d 760, 762 (8th Cir. 2003). The sentencing court's factual findings are reviewed for clear error and the reasonableness of a permissible departure for abuse of discretion. Id.

Introduction.

Bolden asserts three primary assignments of error on appeal. He breaks the first primary argument into two subparts: one, the district court's decision to upwardly depart by three months of the thirty-six month sentence violates this Court's decision in United States v. Harris, 70 F.3d 1001 (8th Cir. 1995) because the departure was based upon conduct in counts dismissed pursuant to the parties' plea agreement; and two, the departure violates the ex post facto clause. Second, Bolden argues that the district court clearly erred when it relied upon Fifth Circuit precedent which Bolden contends is contrary to Eighth Circuit and other Circuit precedent. Third, Bolden insists that the district court clearly erred when it departed upward based on its unhappiness with the fact that Bolden's severed former co-defendants rejected plea *12 agreements, elected to go to trial, were convicted, and received longer guidelines sentences than Bolden.

The United States respectfully asserts that there are two primary issues before this Court on appeal. The first is whether a misprision defendant's personal guilt of the underlying offense is a circumstance not taken into account in formulating the misprision guidelines under Section 2X4.1 of the Sentencing Guidelines, such that, with the application of other enhancements, the district court here was entitled to upwardly depart from a guideline range of zero to six months to a thirty-three month sentence. The second issue is whether the district court's upward departure of an additional three months can be distinguished from the facts in United States v. Harris, supra, such that the departure does not contravene that decision or the ex post facto clause of the United States Constitution.

Whether a Misprision Defendant's Personal Guilt of the Underlying Offense Is A

Circumstance Not Taken Into Account in U.S.S.G. 2X.4 Thereby Allowing the

District Court to Upwardly Depart?

Turning to the first issue, after Bolden filed his opening brief and on motion of the United States, without including any other explicit or implicit instructions, this Court remanded this matter to the district court for re-sentencing. Therefore, contrary to Bolden's argument on appeal, neither the mandate nor the law of the case *13 constrained the district court from sua sponte considering other bases for departure from the Sentencing Guidelines provided that the parties received adequate notice of the court's intention and grounds upon which to do so. See, e.g., United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995); United States v. Prestemon, 953 F.2d 1089(8th Cir. l992);United States v. Fortier, 242 F.3d 1224, 1231 (10th Cir. 2001); United States v. Smith, 116 F.3d 857, 859 (10th Cir. 1997); Burns v. United States, 501 U.S. 129, 133-36 (1991). The district court gave the parties written notice of its intention to consider an upward departure and the precedent on which it might rely, United States v. Warters, 885 F.2d 1226 (5th Cir. 1989), United States v. Pigno, 922 F.2d 1162 (5th cir. 1991), and United States v. Godbolt, 54 F.3d 232 (5th Cir. 1995).

There being no Eighth Circuit caselaw construing whether Section 2X4.1 took into account the defendant's personal guilt of the underlying offense, the district court turned to Fifth Circuit precedent. In United States v. Warters, 885 F.2d 1226 (5th Cir. 1989) and United States v. Pigno, 922 F.2d 1162 (5th Cir. 1991), the Fifth Circuit reviewed and approved upward departures from the sentencing guideline for misprision of a felony, Section 2X4.1, where the defendants were guilty of the underlying felony offense. Title 18, United States Code, Section 3553(b) provides that, before a district court departs from the sentencing guidelines, it must find "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not *14 adequately taken into consideration by the Sentencing commission in formulating the guidelines that should result in a sentence different from that prescribed." See Commentary to U.S.S.G. Section 1B 1.3 and Section 1B 1.4. Thus, in Warters, supra, the relevant inquiry was whether Section 2X4.1 contemplated or assumed the defendant's personal guilt in the underlying offense as an aggravating circumstance taken into account in the sentencing range prescribed by the guideline.

Observing that misprision is not normally committed by one of the perpetrators of the underlying offense, the Fifth Circuit reasoned that the guideline's incorporation of an adjustment for reduced culpability in the base offense level was evidence that 2X4.1 assumed the misprision defendant was not guilty of the underlying offense. See United States v. Warters, supra, 885 F.2d at 1275. Considering that and other factors, the court concluded that the defendant's personal guilt of the underlying offense was "a circumstance not taken into account in formulating the misprision guidelines under section 2X4.1." Id. See also United States v. Godbolt, 54 F.3d 232, 234 (5th Cir. 1995)(2X4.1 presupposes a defendant's lack of involvement in the underlying offense; the district court did not err in refusing a downward departure for mitigating role in the underlying offense where the adjustment was incorporated in the guideline).

*15 Bolden argues that the misprision guideline, 2X4.1, has been amended twice in 1991 and 1993 since the Warters decision was rendered in 1989, to clarify in the application notes that the "underlying offense" means the offense as to which the defendant is convicted of committing the misprision. If Bolden were correct, there would be no grounds for departure on this basis by the district court because Bolden's personal guilt in the underlying structuring offense would have already been taken into account under Section 2X4.1 of the guidelines. Bolden's argument here, however, fails to acknowledge the Fifth Circuit remained of the view in its 1995 Godbolt decision that 2X4.1 presupposes the defendant is not a participant in or perpetrator of the underlying offense. See also U.S.S.G. Section 1B 1.3 and commentary; Section 1B 1.4.

In the instant case, the district court determined that Bolden conceded his personal guilt to the offense underlying the misprision, that is, structuring transactions to avoid reporting requirements. See United States v. Bolden, - F. Supp.2d - (E.D.Ark. August 14, 2003). The district court reached that determination based upon facts gathered from the prosecutor's summarization of the facts the government stated that it expected it could prove if the matter were to go to trial and admissions made by Bolden at his change of plea along with other representations of his counsel. See United States v. Marks, supra, 38 F.3d 1009, 1012 (8th Cir. 1994)(for purposes of *16 Rule 11 (f) Fed. R. Crim. P., a factual basis for a plea of guilty is established when the court determines there is sufficient evidence at the time of the plea upon may reasonably determine that the defendant likely committed the offense); United States v. Abdullah, 947 F.2d 306, 308-09 (8th Cir. 1991)(facts gathered from the prosecutor's summarization of the plea agreement and the language of the agreement itself may be considered by the court).

Bolden argues that the district court's reliance upon Warters and its Fifth Circuit progeny violates this Court's precedent in United States v. Harris, supra and cases from two other circuits. The United States does not understand the Harris decision or cases from the other circuits to mean that, where the parties agree the defendant will plead guilty in exchange for dismissed counts or uncharged conduct, the district court could not sua sponte exercise its discretion to depart upward or downward at sentencing where there are other valid grounds for departure.

Bolden also complains that the district court's personal expression of distaste for the Sentencing Guidelines and the result of their application to Bolden and to his two co-defendants is unseemly and mandates reversal of the district court's upward departure. If the district court's grounds for upward departure are otherwise factually and legally defensible as suggested by Fifth Circuit precedent, the United States fails to see how the district court's pronouncements of its view of the guidelines would *17 somehow invalidate its legal analysis of 2X4.1 and application of that Section to the facts in this matter. It is for this Court to determine de novo whether the district court departed upward on a permissible factor, to review for clear error its factual findings, and to find whether the departure was reasonable or constituted an abuse of discretion. See United States v. Flores, 336 F.3d 760, 763 (8th Cir. 2003).

II.

Whether the District Court's Upward Departure of an Additional Three Months

Contravenes the Holding In United States v. Harris, Supra, or the Ex Post

Facto Clause?

*18 The district court found that its order did not violate the ex post facto clause. It distinguished this case from the facts in United States v. Harris, 70 F.3d 1001 (8th Cir. 1995) in part, finding that the plea agreement here specifically noted that the district court was not bound by its terms, and that Bolden was given the option of withdrawing not only his guilty plea, but also of withdrawing from the plea agreement altogether.

In its written order, the district court announced two additional grounds for the three month departure. The district court noted that Bolden failed to object to Paragraph 12 of the presentence report which provided that pursuant to U.S.S.G., Section lB1.3(a), the defendant was to be held responsible for all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused, including dismissed counts. To the extent that these statements may be considered factual statements, the district court may have been entitled to rely upon them to depart because they were not contested. See United States v. Beatty, 9 F.3d 686, 690 (8th Cir. 1993). See also United States v. Karam, 37 F.3d 1280, 1284 (8th Cir. 1994).

The second additional reason given by the district court for the three month departure had to do with the fact that Bolden admitted his guilt to structuring transactions to evade reporting requirements. The district court footnoted the penalty *19 sections that it relied upon, including Title 31, United States Code, Section 5324. Section 5324(d)(2) doubles the imprisonment range from a less serious case to ten years imprisonment for aggravated cases of structuring where other laws of the United States are also violated or the structuring is conducted as part of a pattern of any illegal activity involving more than $100,000 in a 12-month period. The district court assumed that the aggravating circumstances of this case involving in excess of $100,000 was sufficiently egregious and therefore outside of the heartland to allow it to depart upward. It is for this Court to determine de novo whether the court departed on an appropriate basis, to review for clear error the factual findings supporting the departure and to determine whether the departure was an appropriate exercise of the court's discretion. See United States v. Flores, supra.

*20 CONCLUSION

For the foregoing reasons and citations to authority, Appellant's appeal should be denied and dismissed.