United States v. Claude Louis Duboc , 166 F. App'x 441 ( 2006 )


Menu:
  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 05-10715                FEBRUARY 10, 2006
    Non-Argument Calendar            THOMAS K. KAHN
    CLERK
    ________________________
    D. C. Docket No. 98-00046-CR-4-RH-WCS
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CLAUDE LOUIS DUBOC,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (February 10, 2006)
    Before DUBINA, CARNES and PRYOR, Circuit Judges.
    PER CURIAM:
    Appellant Claude Louis Duboc, proceeding pro se, appeals his 60-month
    consecutive sentence imposed after remand for conspiracy to tamper with a
    witness, in violation of 
    18 U.S.C. §§ 1512
    (b)(1) and 371, and also challenges the
    imposition of an above-guidelines fine of $ 250,000, arguing that the district court
    erred in re-sentencing him. He also alleges that his prior counsel was ineffective.
    A jury convicted Duboc of conspiracy to tamper with a witness, in violation
    of 
    18 U.S.C. § 371
     (count 1(b)); conspiracy to commit money laundering, in
    violation of 
    18 U.S.C. § 1956
    (h) (count 2); and money laundering, in violation of
    
    18 U.S.C. § 1956
    (a)(2)(B) (counts 3-7). Duboc committed these offenses while
    awaiting sentencing after pleading guilty in 1994 to conspiracy to import drugs and
    conspiracy to launder the proceeds from the sale of drugs (the 1994 case is referred
    to herein as Duboc I). Duboc received a 236 month sentence in the instant case,
    (Duboc II), which included concurrent sentences of 60 months on count 1(b) and
    236 months on the remaining counts. Duboc appealed and we reversed his
    convictions for conspiracy to commit money laundering and various counts of
    money laundering because of a lack of sufficient evidence to support the
    convictions. We also reversed a district court order granting forfeiture but affirmed
    Duboc’s conviction for conspiracy to tamper with a witness. On remand, the
    district court sentenced Duboc to 60 months imprisonment to run consecutively to
    the life sentence he was serving as a result of Duboc I, three years of supervised
    2
    release, and imposed a $ 250,000 fine.
    Duboc asserts that the district court sentenced him under the wrong criminal
    statute when it sentenced him under 
    18 U.S.C. § 371
    , instead of 
    18 U.S.C. § 1512
    (b)(1). He asserts that the statutory maximum for his offense was 10 years
    and his 60 month sentence is almost half of what the law demands. He notes that
    his offense level should have been calculated under U.S.S.G. § 2J1.2, which cross-
    references § 2X3.1, and his base offense level should have been 30. He asserts that
    the guidelines in effect at the time of his re-sentencing should have been applied,
    and, under U.S.S.G. § 1B1.3(a)(1)(A), the instant offense was conduct relevant to
    the offenses he committed in Duboc I because he committed the instant offense in
    an effort to avoid responsibility for those offenses. He asserts that the probation
    officer’s determination of the base offense level and sentence was correct, but the
    district court erred by not following the PSI’s recommendation and reasoning. He
    argues that 
    18 U.S.C. § 1512
    (b)(1) and U.S.S.G. § 5G1.3(b) required the district
    court to determine his sentence in the instant offense based on the conduct in
    Duboc I that resulted in the greatest sentence, and because the conduct in Duboc I
    is used in the instant case, that conduct is “fully considered” in this case, which
    means the sentences from both cases should run concurrently.
    In reviewing a sentence, we review a district court’s factual findings for
    3
    clear error and review the court’s application of the guidelines to those facts de
    novo. United States v. Bradford, 
    277 F.3d 1311
    , 1316 (11th Cir. 2002). “Multiple
    terms of imprisonment imposed at different times run consecutively unless the
    court orders that the terms are to run concurrently.” 
    18 U.S.C. § 3584
    (a). The
    court must consider the factors set forth in 
    18 U.S.C. § 3553
    (a) in determining
    whether to order the sentences to run concurrently or consecutively. 
    18 U.S.C. § 3584
    (b). The factors in § 3553(a) include: 1) the nature and circumstances of the
    offense; 2) the history and characteristics of the defendant; 3) the need for the
    sentence imposed to reflect the seriousness of the offense, promote respect for the
    law, and provide just punishment for the offense; 4) the need for the sentence to
    protect the public from further crimes of the defendant; and 5) the Sentencing
    Guidelines. 
    18 U.S.C. § 3553
    (a).
    “Section 5G1.3 is the relevant Guidelines provision in determining whether
    to impose a consecutive sentence on a defendant subject to an undischarged term
    of imprisonment.” Bradford, 
    277 F.3d at 1317
    . At the time of his original
    sentencing, § 5G1.3 provided that:
    (a) If the instant offense was committed while the defendant was
    serving a term of imprisonment . . . or after sentencing for, but before
    commencing service of, such term of imprisonment, the sentence for
    the instant offense shall be imposed to run consecutively to the
    undischarged term of imprisonment.
    4
    (b) If subsection (a) does not apply, and the undischarged term of
    imprisonment resulted from offense(s) that have been fully taken into
    account in the determination of the offense level for the instant
    offense, the sentence for the instant offense shall be imposed to run
    concurrently to the undischarged term of imprisonment.
    (c) (Policy Statement) In any other case, the sentence for the instant
    offense may be imposed to run concurrently, partially concurrently, or
    consecutively to the prior undischarged term of imprisonment to
    achieve a reasonable punishment for the instant offense.
    U.S.S.G. § 5G1.3 (1998); see also United States v. Bordon, 
    421 F.3d 1202
    , 1206-
    1207 (11th Cir. 2005) (holding that pursuant to the Feeney Amendment, guidelines
    applicable on date of original sentencing are applied on re-sentencing). Under
    subsection (b) of § 5G1.3, to determine what conduct must be “fully taken into
    account,” we must decide what criminal activity U.S.S.G. § 1B1.3 treats as
    “relevant conduct.” United States v. Blanc, 
    146 F.3d 847
    , 851 (11th Cir. 1998).
    “Activity that meets the definition of ‘relevant conduct’ under section 1B1.3 must
    be ‘fully taken into account’ when determining whether section 5G1.3(b) applies,
    regardless of whether the district court actually considered the activity when it
    calculated the base level.” 
    Id.
    Section 1B1.3(a)(1) provides that a defendant’s base offense level shall be
    determined based on:
    (A) all acts and omissions committed, aided, abetted, counseled,
    commanded, induced, procured, or willfully caused by the defendant;
    and
    5
    (B) in the case of a jointly undertaken criminal activity . . ., all
    reasonably foreseeable acts and omissions of others in furtherance of
    the jointly undertaken criminal activity,
    that occurred during the commission of the offense of conviction, in
    preparation for that offense, or in the course of attempting to avoid
    detection or responsibility for that offense;
    U.S.S.G. § 1B1.3(a)(1).
    Section 371 of Title 18 prohibits a conspiracy by two or more people to
    commit an offense against the United States or to defraud the United States. 
    18 U.S.C. § 371
    . The maximum sentence under § 371 is five years imprisonment. Id.
    Section 1512(b) of Title 18 prohibits tampering with a witness, and carries a
    maximum sentence of ten years imprisonment. 
    18 U.S.C. § 1512
    (b) (Eff. 1996-
    2002).
    After reviewing the record, we conclude that the district court did not rely on
    the wrong statute in determining Duboc’s sentence. Because Duboc was convicted
    of conspiracy to tamper with a witness, as opposed to the substantive offense of
    tampering with a witness, the applicable statute for his offense was § 371, which
    provides for a maximum sentence of 60 months imprisonment. The court also did
    not improperly calculate the guideline range. Although Duboc asserts that the
    district court improperly calculated his base offense level and contends that his
    base offense level should have been 30, the presentence investigation report reveals
    6
    that his base offense level was 30 and was determined in the same manner Duboc
    asserts it should have been calculated. Finally, the district court did not err in
    imposing a consecutive sentence. First, § 5G1.3(a) does not apply in this case
    because Duboc committed the instant offense prior to being sentenced in Duboc I.
    Additionally, § 5G1.3(b) does not apply because the offenses involved in Duboc I
    were not “fully taken into account” in determining Duboc’s offense level in the
    instant offense. As a result, § 5G1.3(c) governed the district court’s decision and
    allowed the court to impose a sentence in a manner it deemed would “achieve a
    reasonable punishment for the instant offense.” Id. In making its decision, the
    court considered the guidelines and other factors listed in § 3553(a), as required by
    § 3584, and determined that a consecutive sentence was appropriate.
    Next, Duboc asserts that the district court failed to make specific findings
    when it imposed a fine above the guideline range and failed to give him prior
    notice of its contemplation of a fine above the guideline range. He contends that
    his fine is excessive because it is disproportionate to his offense, and the offense
    conduct was already considered in Duboc I.
    Because Duboc did not object to the court’s imposition of a fine above the
    guideline range, we will review his claim for plain error. United States v. Maurice,
    
    69 F.3d 1553
    , 1556 (11th Cir. 1995). Similarly, because Duboc did not object to
    7
    the court’s failure to give him prior notice as required under Burns v. United
    States, 
    501 U.S. 129
    , 
    111 S. Ct. 2182
    , 2186-2187, 
    115 L. Ed. 2d 123
     (1991), we
    review the Burns violation for plain error. United States v. Hunerlach, 
    258 F.3d 1282
    , 1287-1288 (11th Cir. 2001). Plain error occurs when there is (1) an error;
    (2) that is plain or obvious; (3) affects the defendant’s substantial rights; and (4)
    seriously affects the fairness, integrity, or public reputation of the judicial
    proceedings. United States v. Olano, 
    507 U.S. 725
    , 732, 
    113 S. Ct. 1770
    , 1776,
    
    123 L. Ed. 2d 508
     (1993).
    “Burns requires the district court to give ‘reasonable notice’ that it is
    contemplating an upward departure in the sentencing range established by the
    Sentencing Guidelines.” Hunerlach, 258 F.3d at 1287. “This notice must
    specifically identify the ground on which the district court is contemplating an
    upward departure.” Id. (internal quotations omitted). The maximum fine for the
    instant offense was $ 250,000. 
    18 U.S.C. § 3571
    (b)(3). At the time of Duboc’s
    original sentencing, § 5E1.2 established the guideline fine range as $ 17,500 to
    $ 175,000 for the instant offense. U.S.S.G. § 5E1.2(c)(3) (1998). Section 5E1.2(d)
    further provided that in determining the amount of the fine, the court should
    consider, among other things, the need for the combined sentence to reflect the
    seriousness of the offense, promote respect for the law, provide just punishment,
    8
    and afford adequate deterrence. U.S.S.G. § 5E1.2(d). Additionally, the guidelines
    instructed that the amount of the fine should “ensure that the fine, taken together
    with other sanctions imposed, is punitive.” Id.
    In its brief, the government concedes that the district court violated Burns by
    failing to give Duboc prior notice. Nevertheless, the court’s failure to give prior
    notice was not plainly erroneous because it is unclear whether Burns, which
    addressed an upward departure under a mandatory guideline scheme, still applies
    after the Supreme Court’s decision in United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
    , 
    160 L. Ed. 2d 621
     (2005). Additionally, Duboc failed to establish that
    his substantial rights were affected since he offered no indication as to how he was
    prejudiced by the court’s failure to give him notice and does not indicate that he
    would have been able to present any evidence or arguments in opposition to the
    fine had he been given prior notice. Furthermore, the district court did not plainly
    err by failing to make specific findings concerning each of the § 5E1.2(d) factors
    because the record in this case provides sufficient evidence to support a conclusion
    that the factors were considered in imposing the fine. Finally, the court did not
    plainly err in setting Duboc’s fine at $ 250,000. Considering the factors listed in
    § 3553(a) and § 5E1.2(d), the court concluded that a fine above the guideline range
    was justified based on the nature and circumstances of the instant offense and
    9
    related conduct. As a result of the large sums of money involved in the instant
    case, the court did not plainly err in concluding that a fine of $ 250,000 was
    appropriate. Furthermore, in light of Duboc’s history of hiding assets from the
    government, the court did not plainly err in determining that Duboc had the ability
    to pay the fine.
    Last, Duboc argues that his attorney was ineffective because he failed to
    object or argue the issues Duboc is presenting on appeal. He asserts that the record
    is adequate for review of this issue on direct appeal, and maintains that he was
    prejudiced by counsel’s performance.
    We generally do not consider claims of ineffective assistance of counsel on
    direct appeal when the district court did not entertain the claim or develop a factual
    record. United States v. Bender, 
    290 F.3d 1279
    , 1284 (11th Cir. 2002). We may,
    however, consider an ineffective assistance claim when the record is sufficiently
    developed. Id.; see also Massaro v. United States, 
    538 U.S. 500
    , 508, 
    123 S. Ct. 1690
    , 1696, 
    155 L. Ed. 2d 714
     (2003) (recognizing that ineffective assistance
    claims do not have to be reserved for collateral review). “Whether a criminal
    defendant’s trial counsel was ineffective is a mixed question of law and fact,
    subject to de novo review.” Bender, 
    290 F.3d at 1284
    . To establish ineffective
    assistance of counsel, a defendant must show that: (1) counsel’s performance was
    10
    deficient, which is defined as representation that fell below an objective
    reasonableness standard; and (2) the deficient performance prejudiced the defense
    by showing that there is a reasonable probability that but for counsel’s
    unprofessional error, the result of the proceeding would have been different.
    United States v. Verbitskaya, 
    406 F.3d 1324
    , 1337-1338 (11th Cir. 2005), cert.
    denied, No. 05-698 (Jan 9, 2006).
    Here, the record is not sufficiently developed to consider Duboc’s
    ineffective assistance claim related to counsel’s failure to object to the district
    court’s Burns violation and upward departure from the guideline fine range. We
    will, however, consider Duboc’s ineffective assistance of counsel claim related to
    his counsel’s failure to object or argue that the court sentenced him under the
    wrong criminal statute, calculated his sentence incorrectly, and should have
    imposed a concurrent sentence because the record is sufficiently developed with
    regard to these issues. As indicated above, the district court sentenced Duboc
    under the correct statute, correctly calculated his sentence, and was not required to
    impose a concurrent sentence. As a result, Duboc cannot show that the alleged
    deficient performance of his counsel prejudiced him.
    For the foregoing reasons, we affirm Duboc’s sentence.
    AFFIRMED.
    11