United States v. Thornton ( 2008 )


Menu:
  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No. 06-50597
    Plaintiff-Appellee,
    v.                                 D.C. No.
    CR-02-00185-AHS
    DAVID FREDERICK THORNTON,
    OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Central District of California
    Alicemarie H. Stotler, District Judge, Presiding
    Argued and Submitted
    August 8, 2007—Pasadena, California
    Filed January 10, 2008
    Before: Stephen Reinhardt and Marsha S. Berzon,
    Circuit Judges, and James K. Singleton,*
    Chief District Judge.
    Opinion by Judge Berzon
    *The Honorable James K. Singleton, United States District Judge for
    the District of Alaska, sitting by designation.
    349
    352              UNITED STATES v. THORNTON
    COUNSEL
    W.C. Melcher and William Paul Melcher, Melcher, Melcher
    & Melcher, Woodland Hills, California, for the appellant.
    George S. Cardona, Acting United States Attorney, Thomas
    P. O’Brien, Chief, Criminal Division, & Curtis A. Kin, Chief,
    Domestic Security and Immigration Crimes Section, U.S.
    Department of Justice, Los Angeles, California, for the appel-
    lee.
    OPINION
    BERZON, Circuit Judge:
    David Thornton appeals from the district court’s decision
    to not re-sentence him after a limited remand pursuant to
    United States v. Ameline, 
    409 F.3d 1073
    (9th Cir. 2005) (en
    banc). He challenges both the ruling on remand and certain
    issues with respect to the original sentencing.
    UNITED STATES v. THORNTON                       353
    I.
    Over the course of several years, Thornton successfully
    defrauded friends, family members, and complete strangers
    out of hundreds of thousands of dollars. He used two
    schemes: The first involved a charitable foundation he estab-
    lished purportedly to raise funds for kidney research for the
    University of Southern California (“USC”). In return for the
    funds raised, USC paid Thornton a salary and covered the
    administrative costs of the fundraising. Although Thornton
    turned over to USC some of the funds raised, he kept about
    $150,000 for his own purposes. He also charged more than
    $25,000 to credit cards taken out on behalf of his foundation
    and USC, although USC never authorized any joint credit
    cards. For about a year after USC terminated its relationship
    with Thornton and his foundation, Thornton continued fraud-
    ulently to solicit funds.
    In the second scheme, Thornton purported to be working
    for the United States government on various top secret mis-
    sions, mostly involving channeling Nigerian money into the
    United States. Thornton explained to his victims that these
    transactions required heavy financing but would result in huge
    returns. Many friends and family members believed the tale,
    and Thornton bilked them out of hundreds of thousands of
    dollars. He also unsuccessfully attempted to cash a counterfeit
    check for $25 million, purportedly from the Nigerian govern-
    ment.
    Thornton was indicted and pleaded guilty to two counts of
    mail fraud, two counts of wire fraud, and one count of imper-
    sonating a federal officer. The district court sentenced him to
    96 months, around the mid-point of the Sentencing Guidelines
    range. The Guidelines calculation included a 16-level
    enhancement for amount of loss, USSG § 2F1.1(b)(1)(Q),1
    1
    USSG § 2F1.1 was repealed in 2001. Because of ex post facto concerns
    with applying higher loss adjustments enacted in the 2001 revisions, the
    parties agreed that the 2000 Guidelines should apply. All citations to the
    Guidelines herein are to the 2000 Guidelines.
    354               UNITED STATES v. THORNTON
    which included the unsuccessful attempt to cash the $25 mil-
    lion check as intended loss. The calculation also included a
    two-level enhancement because the offense involved a mis-
    representation that Thornton was acting on behalf of a charity,
    USSG § 2F1.1(b)(4)(A), and a two-level enhancement for
    abuse of trust, USSG § 3B1.3.
    Thornton appealed the sentence, challenging, inter alia, the
    loss calculation and the enhancement for abuse of trust. While
    his appeal was pending, the Supreme Court held the manda-
    tory Guidelines unconstitutional and directed that the Guide-
    lines are to be advisory only. United States v. Booker, 
    543 U.S. 220
    (2005). In an unpublished memorandum disposition,
    this Court remanded Thornton’s appeal to the district court for
    proceedings consistent with United States v. Ameline, 
    409 F.3d 1073
    (9th Cir. 2005) (en banc). See United States v.
    Thornton, 176 Fed. Appx. 765 (9th Cir. 2006). Although the
    memorandum disposition also disposed of one issue raised by
    Thornton regarding restitution, it did not mention or address
    his challenges to two sentencing issues affecting the length of
    incarceration, the loss calculation, and the abuse of trust
    enhancement.
    On remand, the parties submitted position papers. Thornton
    raised the same issues he had raised on appeal, and also
    claimed that a pre-existing kidney condition had deteriorated
    to the point that he needed medical care — a kidney trans-
    plant and possible liver transplant — that the Bureau of Pris-
    ons (“BOP”) could not provide. The district court’s decision
    set forth the contentions of the parties and concluded that the
    sentence would not have been materially different had the
    Guidelines been advisory at the time of sentencing.
    In the current appeal, Thornton argues certain issues raised
    but not decided on his first appeal, namely, that the district
    court erred by (1) including the $25 million check in the
    amount of loss calculation and (2) applying the abuse of trust
    enhancement. He also argues that the district court did not
    UNITED STATES v. THORNTON                             355
    adequately obtain the views of counsel on remand and that its
    consideration of the sentencing goals and purposes set forth
    in 18 U.S.C. § 3553(a) was inadequate.
    II.
    A.
    Thornton raises two issues argued but not decided on his
    first appeal. The government suggests that it is unclear
    whether these issues are properly before us or whether,
    instead, they were implicitly rejected on the first appeal. We
    hold that they are properly here.
    Ameline directs that where Booker issued after a defendant
    was sentenced but while his appeal was pending and where he
    raised no challenge to the mandatory Guidelines below, this
    Court should remand to the district court to determine
    whether, had the Guidelines been advisory at the time of sen-
    tencing, the sentence would have been materially different.
    
    Ameline, 409 F.3d at 1079
    . The purpose of the remand is to
    assist this Court’s review of the defendant’s Booker claim. In
    these cases, because the defendant did not raise a Booker-type
    claim below, review on appeal is for plain error.2 See 
    id. at 1078.
    After Booker, there is error that is plain if a defendant
    was sentenced under mandatory Guidelines and had her sen-
    tence enhanced on the basis of judge-found facts. The
    Ameline remand helps this Court ascertain whether the error
    affected substantial rights, by determining whether the sen-
    tence would have been different under advisory Guidelines.
    See 
    Ameline, 409 F.3d at 1078-81
    . Moreover, if the sentence
    2
    Plain error is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] sub-
    stantial rights.’ ” Johnson v. United States, 
    520 U.S. 461
    , 467 (1997)
    (alterations in original) (quoting United States v. Olano, 
    507 U.S. 725
    , 732
    (1993)). If these conditions are met, an appellate court may exercise its
    discretion to correct the error “only if (4) the error ‘seriously affect[s] the
    fairness, integrity, or public reputation of judicial proceedings.’ ” 
    Id. 356 UNITED
    STATES v. THORNTON
    would have been materially different had the district court
    known the Guidelines were advisory, the integrity, fairness,
    and public reputation of the proceeding — the fourth plain
    error prong — will have been seriously affected. 
    Id. at 1081.
    For purposes of judicial efficiency, Ameline directs that when
    a district court determines that the defendant’s sentence would
    have been materially different under an advisory Guidelines
    system, the court can simply vacate the sentence and resen-
    tence the defendant on remand treating the Guidelines as
    advisory. 
    Id. at 1080.
    These are the narrow parameters of an
    Ameline remand; it is not an occasion to begin the sentencing
    proceedings entirely anew. See 
    id. at 1084-85;
    see also United
    States v. Combs, 
    470 F.3d 1294
    , 1297 (9th Cir. 2006) (“The
    limited [Ameline] remand procedure left no room for the dis-
    trict judge to consider new objections to the original sentence
    — objections defendant could have raised the first time
    around, but failed to do so.”).
    [1] Ameline does not directly address the fate of sentencing
    issues raised but not decided in the first appeal. Post-Ameline
    cases have treated non-Booker sentencing issues raised on
    appeal in different ways: In some instances, we ruled on these
    issues before remanding to the district court under Ameline on
    the Booker plain error question. See, e.g., United States v.
    Fifield, 
    432 F.3d 1056
    (9th Cir. 2005). In others, as here, we
    simply remanded under Ameline without ruling on the non-
    Booker issues that had been raised initially.
    The latter approach recognized that if the defendant is re-
    sentenced on remand, other sentencing issues may become
    moot or change complexion. For example, here, the district
    judge could have concluded on the Ameline remand that, had
    she known that the Guidelines were not mandatory, she would
    have sentenced Thornton more than two levels below the
    Guidelines. If that had happened, then Thornton would have
    had little reason to continue to pursue his argument about the
    two-level abuse of trust enhancement. Indeed, as the Supreme
    Court has recently explained, in some circumstances district
    UNITED STATES v. THORNTON                        357
    courts have authority under Booker to disavow a Guidelines
    enhancement on policy grounds and refuse to apply it. United
    States v. Kimbrough, ___ U.S. ___, 
    2007 WL 4292040
    , at *14
    (Dec. 10, 2007). Had the district court properly done so with
    respect to a Guidelines enhancement on Thornton’s Ameline
    remand, the Guidelines challenge on that ground would have
    become moot.
    [2] The failure to address on appeal Thornton’s sentencing
    issues raised before remanding under Ameline was therefore
    in no way indicative of a rejection of his challenges in the first
    appeal to the Guidelines calculations. See United States v.
    Thrasher, 
    483 F.3d 977
    , 981 (9th Cir. 2007) (“For the [law of
    the case] doctrine to apply [and preclude reconsideration of an
    issue], the issue in question must have been decided explicitly
    or by necessary implication in the previous disposition.”)
    (quoting Herrington v. County of Sonoma, 
    12 F.3d 901
    , 904
    (9th Cir. 1993)). Instead, the original panel was evidently of
    the view, as were many other panels of this court ordering
    Ameline remands, that the sentencing challenges were best
    considered as a whole after the Ameline remand, as they
    might alter after the remand. We therefore do not construe a
    failure to address these issues on the first appeal as an implied
    ruling on their merits.
    [3] Although Ameline is not explicit on the matter, it gives
    no indication that this procedure is inconsistent with its direc-
    tives. Further, a subsequent case discussing the implications
    of Ameline appears to contemplate this procedure. In Combs,
    we held that our review for “reasonableness” after an Ameline
    remand is confined to determining whether “the district judge
    properly understood the full scope of his discretion in a post-
    Booker 
    world.” 470 F.3d at 1297
    . This holding was expressly
    limited, however, to the particulars of Combs’ situation, in
    which “[a]t no time during his first appeal did defendant chal-
    lenge the reasonableness of his sentence.”3 
    Id. at 1295.
    This
    3
    Determination that the district court properly calculated the Guidelines
    range is part of Booker’s reasonableness review. See Gall v. United States,
    ___ U.S. ___, 
    2007 WL 4292116
    , at *7 (Dec. 10, 2007).
    358                  UNITED STATES v. THORNTON
    limitation suggests that if a sentencing challenge was raised
    but not decided on the first appeal, it is preserved for full
    review after an Ameline remand. See also United States v.
    Williams, 
    475 F.3d 468
    , 476 (2d Cir. 2007) (“[W]hen we have
    reached the Guidelines issues — or other sentencing issues —
    raised by defendants in their initial appeal, further challenges
    to our resolution of these issues after a district court has
    declined to resentence pursuant to Crosby will be foreclosed
    by the law of the case.”) (emphasis added).
    [4] Thus, we now expressly hold that where sentencing
    issues are raised but not decided in an appeal prior to an Ame-
    line remand, those issues are properly before the Court on any
    subsequent appeal from the Ameline remand, along with any
    challenges to the results of the Ameline remand itself.
    B.
    [5] Thornton challenges the inclusion of the $25 million
    counterfeit check in the amount of loss enhancement. As he
    signed a plea agreement expressly agreeing that the total loss
    was close to $26 million, he affirmatively waived this issue.
    See United States v. Olano, 
    507 U.S. 725
    , 732-33 (1993). We
    therefore do not reach it.
    C.
    Thornton also challenges the two-level enhancement for
    abuse of trust. Thornton did challenge this enhancement at the
    original sentencing and we review its application.4
    [6] The abuse of trust enhancement applies where the abuse
    4
    Before Booker, we reviewed the application of the abuse of trust
    enhancement — a mixed question of law and fact — de novo. See United
    States v. Brickey, 
    289 F.3d 1144
    , 1153 (9th Cir. 2002). Although the same
    standard of review may well apply after Booker, we need not decide the
    issue. Under any standard of review, the enhancement was not error.
    UNITED STATES v. THORNTON                 359
    of a position of trust “facilitate[s] significantly the commis-
    sion or concealment of a crime.” USSG § 3B1.3, cmt. back-
    ground. A position of trust is “characterized by professional
    or managerial discretion . . . . Persons holding such positions
    ordinarily are subject to significantly less supervision than
    employees whose responsibilities are primarily non-
    discretionary in nature.” 
    Id., cmt. n.1
    (comparing, i.e., a bank
    executive to a bank teller). The position need not be that of
    a fiduciary. See United States v. Velez, 
    185 F.3d 1048
    , 1051
    (9th Cir. 1999) (citing United States v. Garrison, 
    133 F.3d 831
    , 839 n.18 (11th Cir. 1998)).
    [7] Thornton does not contest that he held a position of
    trust with respect to USC by virtue of his position as president
    of a charitable foundation paid by USC to raise funds for it.
    Nor does he deny that his abuse of this position of trust
    allowed him more easily to commit the offenses. For exam-
    ple, he deposited donations made to the foundation directly
    into his checking accounts, then used some of those funds for
    his personal use, a diversion of funds that could not have
    occurred had his financial transactions or those of the founda-
    tion been closely supervised.
    [8] Thornton does argue that when he solicited funds after
    USC terminated its relationship with his foundation he was no
    longer in a position of trust. But most of the fraudulent con-
    duct relating to the purportedly charitable foundation took
    place before USC terminated its relationship with Thornton.
    The enhancement is thus entirely appropriate.
    Thornton also contends that the application of both the
    abuse of trust enhancement and the enhancement for an
    offense involving a misrepresentation that he was acting on
    behalf of a charitable organization, USSG § 2F1.1(b)(4), was
    impermissible double counting. Impermissible double count-
    ing “occurs where one part of the Guidelines is applied to
    increase a defendant’s punishment on account of a kind of
    harm that has already been fully accounted for by the applica-
    360               UNITED STATES v. THORNTON
    tion of another part of the Guidelines.” United States v. Speel-
    man, 
    431 F.3d 1226
    , 1233 (9th Cir. 2005) (quoting United
    States v. Reese, 
    2 F.3d 870
    , 895 (9th Cir. 1993)). There is
    “nothing wrong with ‘double counting’ when it is necessary
    to make the defendant’s sentence reflect the full extent of the
    wrongfulness of his conduct.” 
    Reese, 2 F.3d at 895
    .
    The enhancement for representing falsely that a defendant
    is working on behalf of a government agency or charitable
    organization recognizes that “defendants who exploit victims’
    charitable impulses or trust in government create particular
    social harm.” United States v. Romero, 
    293 F.3d 1120
    , 1126
    (9th Cir. 2002) (quoting USSG § 2B1.1, cmt. background).
    The abuse of trust enhancement, in contrast, recognizes that
    “persons who abuse their positions of trust or their special
    skills to facilitate significantly the commission or conceal-
    ment of a crime . . . generally are viewed as more culpable.”
    USSG § 3B1.3 cmt. background.
    [9] Here, Thornton not only represented that he was work-
    ing on behalf of a charitable foundation and thereby encour-
    aged contribution from members of the public, he also abused
    the authority USC entrusted in him as the president of the
    foundation to facilitate the commission and concealment of
    his fraud. The false representation that he worked for a charity
    harmed members of the public; the abuse of his position as
    the foundation’s president harmed USC. As “[t]he two
    enhancements stemmed from separate concerns,” the abuse of
    trust enhancement was not impermissible double counting.
    See United States v. Christiansen, 
    958 F.2d 285
    , 288 (9th Cir.
    1992) (enhancements for abuse of trust and more than mini-
    mal planning did not constitute impermissible double count-
    ing).
    III.
    Thornton also challenges the district court’s ruling on the
    Ameline remand. We narrowly review a district court’s deter-
    UNITED STATES v. THORNTON                  361
    mination, pursuant to an Ameline remand, that the sentence
    would not have been materially different had the Guidelines
    been advisory at the time of sentencing. Our review asks only
    “[w]hether the district judge properly understood the full
    scope of his discretion in a post-Booker world.” 
    Combs, 470 F.3d at 1297
    .
    Thornton argues that the district court did not properly con-
    sider his medical condition and the lack of appropriate care
    available through the BOP. By failing to grant Thornton’s
    request for an independent medical evaluation, Thornton
    maintains, the district court did not fully obtain the views of
    counsel as required by Ameline.
    [10] We disagree. The district court did both obtain and
    recognize the views of counsel regarding the medical issues.
    Ameline does not require district courts on remand to appoint
    or consider the evaluation of medical experts when requested
    by counsel; it simply states that the “views of counsel, at least
    in writing, should be 
    obtained.” 409 F.3d at 1085
    (quotation
    marks omitted). Further, Thornton requested an independent
    medical examiner only in the event that the district court
    decide to re-sentence him, not to assist the district court in
    making the threshold determination to re-sentence.
    [11] Nor is any other matter relating to Thornton’s health
    properly before us in the present appeal. Thornton did argue
    at the original sentencing that his physical health was a factor
    warranting leniency, but did not raise the issue on the first
    appeal, either in his original brief or in his supplemental brief
    filed after Booker. As noted, an appeal from an Ameline
    remand which does not result in resentencing is limited to the
    question whether the district judge properly understood the
    full scope of his post-Booker discretion. 
    Combs, 470 F.3d at 1296-97
    . As a consequence, although issues raised but not
    decided on appeal prior to an Ameline remand are preserved,
    claims that are unrelated to the Ameline remand and that were
    362                  UNITED STATES v. THORNTON
    available but not raised on the first appeal cannot be raised for
    the first time on the second appeal.5
    IV.
    For the foregoing reasons, we AFFIRM.
    5
    Although the district court’s failure to respond to Thornton’s allegation
    that the BOP is unable to treat a serious medical condition is troubling, we
    note that a current BOP policy statement, of which we take judicial notice,
    indicates the BOP is able to approve and pay for organ transplants at
    approved transplant centers. Bureau of Prisons, Program Statement
    P6031.01: Patient Care, at 47 (2005). Moreover, an inmate whose serious
    medical needs are not being met can sue prison officials for Eighth
    Amendment violations. See Estelle v. Gamble, 
    429 U.S. 97
    , 104-05
    (1976); see also Carlson v. Green, 
    446 U.S. 14
    (1980).