United States v. Evan Foreman , 560 F. App'x 219 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4022
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EVAN FOREMAN,
Defendant – Appellant.
No. 13-4028
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL FOREMAN,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. James K. Bredar, District Judge.
(1:11-cr-00398-JKB-3; 1:11-cr-00398-JKB-1)
Argued: January 29, 2014 Decided: March 12, 2014
Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Motz and Judge King joined.
ARGUED: Amy Lee Copeland, ROUSE & COPELAND, LLC, Savannah,
Georgia; Michael Scotland Morris, SIMMS SHOWERS, LLP, Baltimore,
Maryland, for Appellants. Benjamin M. Block, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Michael C.
Hanlon, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
Evan and Michael Foreman pleaded guilty to conspiracy to
commit Hobbs Act robbery. Evan also pleaded guilty to
possession of a firearm in furtherance of a crime of violence.
The district court sentenced Evan to 294 months’ imprisonment
and Michael to 144 months’ imprisonment. On appeal, they argue
that the district court erred in failing to compel the
government to move for an additional one-level reduction in
their respective offense levels in recognition of their
acceptance of responsibility under U.S. Sentencing Guideline
§ 3E1.1(b). Michael contends separately that the district court
erred in sentencing him as a career offender under U.S.S.G.
§ 4B1.1. For the reasons that follow, we affirm.
I.
On August 3, 2011, a grand jury returned a fifteen-count
indictment against Evan and Michael, charging them with multiple
Hobbs Act robberies, conspiracy to commit Hobbs Act robbery, and
bank larceny. 1 The indictment also charged Evan with possessing
and brandishing a firearm in furtherance of a crime of violence.
The district court set a trial date of October 17, 2011.
1
Evan was originally charged by criminal complaint on June
20, 2011, and he made his initial appearance the same day.
3
The Foremans’ initial plea negotiations with the government
proved unfruitful. Over the course of the next year, a grand
jury returned second and third superseding indictments against
them, adding seven new counts and charging them with numerous
additional robberies. In the meantime, the trial date was
pushed back to September 10, 2012. On May 15, 2012, the
district court conducted a pretrial hearing on the Foremans’
numerous evidentiary and procedural motions. Trial was delayed
a third time and set for November 26, 2012.
On May 30, 2012, Michael signed a written plea agreement
with the government, wherein he agreed to plead guilty to
conspiracy to commit Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a). Evan signed a written plea agreement on
August 24, 2012, agreeing to plead guilty to conspiracy to
commit Hobbs Act robbery and to possessing a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c). Their respective plea hearings were held on July 2,
2012, and September 12, 2012.
A presentence investigation report (“PSR”) was subsequently
prepared for each defendant. The PSRs noted that each defendant
had an adjusted offense level of 30, reflecting, among other
things, a two-level reduction for acceptance of responsibility
4
under U.S.S.G. § 3E1.1(a) (2012). 2 According to the PSRs, the
Foremans were also both career offenders, so they each had
criminal history categories of VI. The resultant advisory
Guidelines range for both Michael and Evan was 168 to 210
months’ imprisonment. Evan faced an additional mandatory,
consecutive 84-month sentence for his firearm offense under 18
U.S.C. § 924(c).
The district court conducted a joint sentencing hearing.
Both Michael and Evan objected to not receiving an additional
one-point reduction for their acceptance of responsibility under
U.S.S.G. § 3E1.1(b). They also both objected to being sentenced
as career offenders. The court overruled both objections as to
each defendant.
The district court adopted the PSR’s findings and
recommendations with respect to Evan with only minor
modification. After considering each of the 18 U.S.C. § 3553(a)
factors, the court sentenced Evan at the top of the Guidelines
range, to 210 months for his conspiracy conviction and 84 months
2
We apply the 2012 version of the Guidelines, which was in
effect at the time of the Foremans’ sentencing. See United
States v. Lewis, 606 F.3d 193, 198-99 (4th Cir. 2010); see also
U.S.S.G. § 1B1.11(a) (“The court shall use the Guidelines Manual
in effect on the date that the defendant is sentenced.”). The
2013 version of the Guidelines Manual amends the commentary
associated with U.S.S.G. § 3E1.1 but does not alter the text of
that provision.
5
for the firearm offense, for a total of 294 months’
imprisonment. The court noted that “even if the guidelines were
to compute in such a way as to cause [Evan] to not be considered
a career offender, and therefore the guideline range to be
substantially lower . . . I would nonetheless impose . . . a
total sentence[] of 294 months” under the § 3553(a) factors.
J.A. 451.
With respect to Michael, the court accepted the PSR’s
findings, but determined that Michael’s criminal history
category overstated his criminal history. It therefore adjusted
Michael’s criminal history category to V, resulting in a revised
Guidelines range of 151 to 188 months. It then sentenced
Michael to the below-Guidelines sentence of 144 months’
imprisonment. After thoroughly addressing the § 3553(a)
factors, the court noted that it would sentence Michael to 144
months’ imprisonment even if he were not a career offender.
The Foremans timely appealed their sentences. 3
3
The government has chosen not to enforce the Foremans’
respective appellate waivers. Accordingly, we have no reason to
reconsider our earlier denial of the government’s motion to
dismiss the appeal.
6
II.
We review criminal sentences for reasonableness. Gall v.
United States, 552 U.S. 38, 46 (2007). Reasonableness review
requires us to ensure that the district court “committed no
significant procedural error,” such as improperly calculating
the Guidelines range. Id. at 51. “In assessing a challenge to
a sentencing court’s application of the Guidelines, we review
the court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Alvarado Perez, 609 F.3d
609, 612 (4th Cir. 2010) (internal quotation marks omitted).
A.
Section 3E1.1 of the Sentencing Guidelines authorizes
certain offense-level reductions if a defendant accepts
responsibility for his criminal conduct. Section 3E1.1(a)
authorizes a two-level reduction “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense.” As
noted above, both Foremans received this reduction. They take
issue with the government’s refusal to move for an additional
one-level reduction under § 3E1.1(b), which provides:
If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior to
the operation of subsection (a) is level 16 or
greater, and upon motion of the government stating
that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by
timely notifying authorities of his intention to enter
a plea of guilty, thereby permitting the government to
avoid preparing for trial and permitting the
7
government and the court to allocate their resources
efficiently, decrease the offense level by 1
additional level.
The § 3E1.1(b) reduction should only be granted by the
district court upon motion of the government, but a court may
compel the government to file such a motion if it is withheld on
improper grounds. See United States v. Divens, 650 F.3d 343,
350 (4th Cir. 2011). Here the district court declined to order
the government to move for the reduction, finding that the
purposes of § 3E1.1(b) were not fulfilled because “lots of
resources had to be marshaled” with respect to the Foremans’
case. J.A. 250.
We begin our analysis with the commentary accompanying
§ 3E1.1(b). See Stinson v. United States, 508 U.S. 36, 38
(1993) (“[C]ommentary in the Guidelines Manual that interprets
or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.”). The commentary
states that “the conduct qualifying for a decrease in offense
level under subsection (b) will occur particularly early in the
case.” U.S.S.G. § 3E1.1 cmt. n.6. We hardly think the
Foremans’ acceptance of responsibility came early in this case,
as Michael pleaded guilty eleven months after he was indicted
and four months before the scheduled trial date. Evan waited
8
fourteen months after he was first charged to plead guilty, just
two months before trial. 4
Despite this delay, the Foremans argue that they are
nonetheless entitled to the reduction because they entered early
plea negotiations and “would have pleaded guilty immediately”
had they been able to reach an agreement with the government.
Appellants’ Br. at 16. But a mere willingness to engage in
negotiations does not definitively signal a defendant’s
readiness to accept responsibility in the manner contemplated by
the Guideline. Cf. Divens, 650 F.3d at 348 (noting that
§ 3E1.1(b) is concerned with the “timely entry” of a “plea of
guilty,” which “entails . . . an unqualified confession of guilt
in open court” (internal quotation marks omitted)). 5
The facts of this case make the distinction clear. As
became evident at the sentencing hearing, the Foremans’ plea
negotiations with the government broke down because they were
4
Even if we were to use the dates the Foremans signed their
written plea agreements, rather than the dates of their formal
plea hearings, we would still consider the delay too long.
5
The government does not, of course, have unlimited
discretion to withhold the motion. See Divens, 650 F.3d at 345-
46. If a defendant were to clearly demonstrate a willingness to
plead guilty to the government’s satisfaction but, through no
fault of the defendant’s, was unable to plead guilty for some
time, the government could not properly withhold a motion for
the reduction simply because the defendant had not yet had a
formal plea hearing.
9
unwilling to admit to the “full scope of the conspiracy as [the
government] understood it.” J.A. 251. The § 3E1.1(b) reduction
is only appropriate when “a defendant has accepted
responsibility in a way that ensures the certainty of his just
punishment in a timely manner.” U.S.S.G. § 3E1.1 cmt.
background. The Foremans’ willingness to enter plea
negotiations may have signaled some readiness to accept
responsibility, but we agree with the district court that the
resulting guilty pleas were not sufficiently “timely” so as to
warrant the additional one-level reduction under § 3E1.1(b).
In that regard, the Foremans’ delay in entering their
guilty pleas failed to save the government time or expense. The
government filed successive motions to exclude time under the
Speedy Trial Act in this case, in part because it needed more
time to prepare motions, interview witnesses, review newly
produced discovery, and otherwise prepare for trial. See J.A.
107, 123-24. We take the government at its word that, during
the interim between the Foremans’ indictment and their pleas, it
was preparing for what it expected to be a complex, multi-week
trial. See U.S.S.G. § 3E1.1 cmt. n.6 (“[T]he Government is in
the best position to determine whether the defendant has
assisted authorities in a manner that avoids preparing for trial
. . . .”); see also Divens, 650 F.3d at 346 (“[T]he Government
retains discretion to determine whether the defendant’s
10
assistance has relieved it of preparing for trial.”). Nor did
the Foremans’ negotiations permit the district court to conserve
resources, as it held a full motions hearing in anticipation of
their trial. If nothing else, the hearing demonstrates that
significant resources needed to be marshaled in this case in
contravention of the policy goals of § 3E1.1(b).
Contrary to the Foremans’ assertions, Divens is not
inconsistent with our conclusion that the defendants are not
entitled to the § 3E1.1(b) reduction. The question in Divens
was whether the government could withhold a § 3E1.1(b) motion
because the defendant refused to sign a plea agreement
containing an appellate waiver, even though he pleaded guilty to
the charged offense without a plea agreement and signed a
statement accepting responsibility. See 650 F.3d at 344. We
held that the government could not withhold the reduction in
that instance, because § 3E1.1(b) is concerned only with the
preservation of trial resources--not the “‘expense and
uncertainty’ attendant to an appeal.” Id. at 348. We noted,
however, that the government would be within its rights to
withhold the reduction if there were a significant delay between
the defendant’s indictment and plea, thereby requiring the
government to prepare for trial. See id. at 347 n.2; see also
United States v. Brown, 26 F. App’x 151, 153 (4th Cir. 2001)
(finding that a defendant who entered plea negotiations but did
11
not plead guilty until after jury selection was not entitled to
the § 3E1.1(b) reduction).
Here, the government prepared for trial during the delay
between the Foremans’ indictment and the entry of their plea
agreements. The fact that the defendants entered unsuccessful
plea negotiations with the government throughout this period did
not relieve the government of this burden. Accordingly, we hold
that the district court correctly declined to compel the
government to move for a one-level reduction for either Foreman
under § 3E1.1(b).
B.
Michael Foreman argues separately that the district court
erred when it sentenced him as a career offender pursuant to
U.S.S.G. § 4B1.1. Under that provision, a defendant’s criminal
history category is automatically VI if, among other things,
“the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a).
Michael argues that the predicate convictions the district
court relied upon to sentence him as a career offender were not
valid because he was not represented by counsel when he pleaded
guilty to those offenses. To support his contention, Michael
submitted the state court records associated with his
convictions. He contends that the records are sufficient to
12
raise an inference that his convictions were constitutionally
infirm, and that such a showing is sufficient to shift the
burden of proof to the government to demonstrate that the
convictions were, in fact, valid. The government responds that
a defendant collaterally challenging a prior state conviction
bears both the burden of production and persuasion, and that
Michael has not carried his burden of persuasion.
This court has not clearly delineated the burden of proof a
defendant bears when collaterally challenging a prior conviction
for the purpose of contesting a career-offender classification.
However, we do not believe this is the appropriate instance to
do so, as it would require us to wade unnecessarily into
constitutional waters. See Ashwander v. Tenn. Valley Auth., 297
U.S. 288, 341 (1936) (Brandeis, J., concurring); see also United
States v. Martinez-Cruz, 736 F.3d 999, 1001-02 (D.C. Cir. 2013)
(recognizing that the question of who bears the burden of proof
when a defendant collaterally challenges a prior state
conviction raises due process concerns). Rather, we summarily
reject Michael’s contention, as we are entitled to do, “because,
even if we ‘assume that an error occurred[, it] is harmless.’”
United States v. Rivera-Santana, 668 F.3d 95, 102 (4th Cir.
2012) (quoting United States v. Savillon-Matute, 636 F.3d 119,
123 (4th Cir. 2011)).
13
Although the district court found that Michael was a career
offender, it reduced his criminal history category from VI to V,
lowering his advisory Guidelines range from 168 to 210 months’
imprisonment to 151 to 188 months. It then sentenced him below
the Guidelines range, to 144 months’ imprisonment. Although
that sentence was higher than what Michael argued was
appropriate, 6 we cannot say that the district court abused its
discretion in imposing it.
The district court carefully went through the 18 U.S.C.
§ 3553(a) factors, identifying the reasons it would impose a
144-month sentence even if Michael was not properly classified
as a career offender. Among those considerations, it noted that
Michael had a prior conviction for armed robbery and had
demonstrated a “pattern of criminality over a number of years.”
J.A. 478. It described the seriousness of Michael’s present
offense, including the “horrible harm” it inflicted on the
victims. Id. The court also discussed the need for a sentence
that would deter the defendant and protect the public. In light
of this careful analysis, we are “entitled to affirm the
6
Michael argues for the first time on appeal that his
Guidelines range would be 51 to 63 months’ imprisonment, which
is even lower than what he suggested was appropriate at
sentencing--77 to 96 months’ imprisonment. Even if correct,
that fact does not alter our assessment of the reasonableness of
Michael’s sentence.
14
sentence imposed . . . because any procedural error that may
have been made . . . would necessarily be harmless.” Rivera-
Santana, 668 F.3d at 103; see also Savillon-Matute, 636 F.3d at
123 (“[I]t would make no sense to set aside [a] reasonable
sentence and send the case back to the district court since it
has already told us that it would impose exactly the same
sentence, a sentence we would be compelled to affirm.” (internal
quotation marks omitted)).
III.
For the reasons given, we affirm the district court’s
judgments.
AFFIRMED
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