United States v. Bergman , 238 F. App'x 347 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 21, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-1493
v. (D. Colorado)
M ICHA EL G . B ER GM A N , (D.C. No. 02-CR-466)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
M ichael Bergman pleaded guilty in the United States District Court for the
District of Colorado to one count of wire fraud in violation of 18 U.S.C. § 1343.
He was sentenced to 15 months’ imprisonment follow ed by three years’
supervised release. He was also ordered to pay $165,000 in restitution. His
counsel has filed an Anders brief, see Anders v. California, 386 U.S. 738 (1967),
and a motion to w ithdraw as counsel. Because w e agree with counsel that there
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
are no meritorious issues for appeal, we grant the motion to w ithdraw and dismiss
the appeal.
A grand jury indicted M r. Bergman on 84 counts stemming from his alleged
misappropriation of funds entrusted to him by Vernon M oody. The foreperson
signed the indictment, but did not print his name. After M r. Bergman pleaded not
guilty, the district court dismissed without prejudice 79 of the charges as
multiplicitous. The government and M r. Bergman then reached an agreement
under which he would plead guilty to one count of wire fraud and the government
would dismiss the remaining charges. In addition, the government agreed that if
he paid $90,000 in restitution to the victim before he was sentenced, it would
recommend that he be sentenced to time served with no term of supervised
release. But the parties agreed that if this restitution was not paid before
sentencing, he would be sentenced under the 1998 United States Sentencing
Guidelines and the government would recommend a sentence at the low end of the
applicable guidelines range. At his change-of-plea hearing on M ay 20, 2005,
M r. Bergman stated that he had read and understood the terms of his plea
agreement and had signed it freely and voluntarily.
M r. Bergman’s sentencing was originally scheduled for July 29, 2005, but
then continued to September 22. The day before the hearing M r. Bergman moved
to continue the sentencing a second time. At the September hearing the
prosecutor explained that the $90,000 had not yet been delivered because the
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government was in the process of verifying the legitimacy of the source of the
money and it would take an additional 30 days for it to arrive in the United States
from its overseas location. The court agreed to continue the sentencing to
October 26th. But the money had still not arrived when the October hearing was
held. Although M r. Bergman said that he expected it to be available by
November 11, the court denied his request for another continuance, dismissed the
remaining counts in the indictment, sentenced him to 15 months’ imprisonment,
and ordered that he pay $165,000 in restitution.
M r. Bergman appealed on November 4, 2005. On November 21 he filed in
district court (1) a pro se motion requesting the list of grand jurors in 2002 and
2003 and (2) a motion asking the district court to set aside his plea agreement and
judgment because the grand juror who signed the indictment in his case was a
fictitious person. He alleged that no “D avid R. Haus” existed. R. Vol. II
Doc. 138 at 2. The government responded that David R. Hansen had served as
the grand jury foreperson and produced an affidavit stating that the signature on
M r. Bergman’s indictment was that of David R. Hansen. The district court
granted the motion for production of the grand jury list but denied the motion for
relief, ruling that M r. Bergman had failed to raise a factual dispute about the
identity of the foreperson.
Counsel for M r. Bergman filed in this court an Anders brief reciting the
issues that could possibly be raised on appeal and stating that they have no merit.
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See Anders, 386 U.S. 738. As required by Anders, counsel provided M r. Bergman
with a copy of her brief and the clerk of this court notified him of his right to file
a response. M r. Bergman has filed no response.
Counsel’s Anders brief explained that M r. Bergman could appeal his
sentence only if it was imposed “‘in violation of the law’” or if it resulted from
“‘an incorrect application of the sentencing guidelines.’” Aplt. Br. at 8 (quoting
18 U.S.C. § 3742(a)(1)-(2)). Neither M r. Bergman nor the government had
objected to the guidelines calculation in the presentence report, and he had been
sentenced at the bottom of the applicable guidelines range. There was therefore
no error in sentencing. The brief identified only two other potential claims on
appeal: (1) whether the district court abused its discretion in denying a further
continuance of the sentencing hearing and (2) whether M r. Bergman had been
indicted by a grand jury with a fictitious foreperson. As to the continuance, the
brief recognized that because a district court has broad discretion over sentencing
procedures, see United States v. Garcia, 78 F.3d 1457, 1467 (10th Cir. 1996), the
court did not abuse its discretion in denying a continuance. Finally, the brief
stated that counsel had found no support in the record for M r. Bergman’s
contention that the grand jury foreperson did not exist.
After reviewing the record, we agree with the Anders brief. W e GR AN T
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counsel’s motion to withdraw and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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