United States v. Katekaru , 361 F. App'x 918 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 20, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-3193
v. (D. Kansas)
PAUL D. KATEKARU, (D.C. No. 87-CR-20063-1-KHV)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Defendant and appellant Paul D. Katekaru, proceeding pro se, appeals the
denial of his motion under a prior version of Fed. R. Crim. P. 35(a) (1986) to
*
This order and judgment is not binding precedent except under the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 with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
correct his allegedly illegal sentence, as well as the denial of his motion to
reconsider. We affirm the denial of both motions.
On June 23, 1987, Mr. Katekaru was charged by information with one
count of filing a false claim against the United States, in violation of 18 U.S.C.
§ 287, and with one count of fraudulent use of a Social Security number, in
violation of 42 U.S.C. § 408(g)(2) (1993). Mr. Katekaru pled guilty pursuant to a
plea agreement on June 26, 1987. The terms of the plea agreement required the
following: (a) that Mr. Katekaru enter pleas of guilty to the two alleged counts;
(b) that Mr. Katekaru cooperate with the investigating authorities; (c) that the
government would not make recommendations concerning, nor would it take a
position at, sentencing; and (d) that the government would file no further counts
against Mr. Katekaru. Pet. to Enter Plea of Guilty at 4, R. Vol. 1 at 18.
The district court sentenced Mr. Katekaru on August 10, 1987, to
consecutive terms of five years on each count, but committed him for a study
under 18 U.S.C. § 4205(d), so that the sentences imposed could later be modified
under 18 U.S.C. § 4205(c). 1 On November 25, 1987, after the study was
1
Both 18 U.S.C. §§ 4205(d) and (c) have been repealed, but they still apply
to offenses committed before November 1, 1987. Prior to its repeal, § 4205(c)
stated that a district court “may order a study” of a defendant when the court
“desires more information” prior to sentencing. Prior to its repeal, § 4205(d)
stated: “Upon commitment of a prisoner sentenced to imprisonment . . . the
Director . . . shall cause a complete study to be made of the prisoner and shall
furnish to the Commission a summary report together with any recommendations
which in his opinion would be helpful in determining the suitability of the
(continued...)
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completed, the district court reduced Mr. Katekaru’s sentence on count one (false
claim) to a term of a year and one day, and it placed Mr. Katekaru on five years’
probation for count two (fraudulent use of a Social Security number). The district
court also ordered Mr. Katekura to make restitution to the Internal Revenue
Service in the amount of $13,124.56. See United States v. Katekaru, 7 F.3rd
1045, 1993 WL 415271 (10th Cir. Oct. 20, 1993) (unpublished).
The Bureau of Prisons released Mr. Katekaru from confinement on June 10,
1988, and at that time he commenced his five-year probation period. On
October 2, 1992, Mr. Katekaru’s probation officer filed a petition to revoke
probation, alleging several violations of the terms and conditions of his probation.
After a hearing, the district court revoked Mr. Katekaru’s probation and sentenced
him to imprisonment for a year and a day on count two. The court
contemporaneously ordered Mr. Katekaru to pay the balance then due on the
earlier restitution order, which the court determined to be $2,987.11. Our court
affirmed. See id.As of now, Mr. Katekaru has completed his sentence and supervision more
than a decade ago. On December 9, 2008, Mr. Katekura filed a “Motion to
Correct An Illegal Sentence Pursuant to Rule 35(a), Fed. R. Cr. P.” He appears to
have alleged that his sentence was, in some way, illegal because it breached the
1
(...continued)
prisoner for parole. . . .”
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plea agreement. The district court characterized Mr. Katekaru’s claim as alleging
that “the Court improperly relied on the sentencing recommendation of the United
States Attorney.” Mem. and Order at 1, R. Vol. 1 at 34. 2
The district court denied Mr. Katekaru’s motion, concluding that it appears
“moot because the Court sentenced defendant in 1987 and he completed his
sentence a decade ago.” Id. (citing State Farm Mut. Auto. Ins. Co. v. Narvaez,
149 F.3d 1269, 1270-71 (10th Cir. 1998) (holding that at every stage of a
proceeding, a federal court must sua sponte satisfy itself that it has the power to
adjudicate a case)). We agree with the district court’s analysis, for substantially
the reasons stated in its memorandum and order dated 3/19/2009. Mr. Katekaru
then filed a motion to reconsider, which the district court again denied. We also
affirm that denial, for substantially the reasons stated in its memorandum and
order dated 7/2/2009. Furthermore, despite his myriad arguments, Mr. Katekaru
fails to convince us that there was anything illegal about his sentence.
For the foregoing reasons, we AFFIRM the district court’s decisions.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
2
Inasmuch as the plea agreement did state that the government would make
no recommendations concerning sentencing, Mr. Katekaru presumably intends to
argue that any reliance on the sentencing recommendation of the United States
Attorney would be a violation of the plea agreement.
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