United States v. Anthony Van , 541 F. App'x 592 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0878n.06
No. 12-2322
FILED
Oct 08, 2013
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
ANTHONY VAN, ) OPINION
)
Defendant-Appellant. )
BEFORE: COLE, KETHLEDGE, and STRANCH, Circuit Judges.
COLE, Circuit Judge. Defendant-Appellant Anthony Van was charged in a two-count
information with making a false statement in a passport application, in violation of 18 U.S.C. § 1542,
and falsely using a social security number, in violation of 42 U.S.C. § 408(a)(7)(B). He pleaded
guilty to both pursuant to a plea agreement, in which the government recommended that he receive
a sentence at the low point of his zero-to-six month guidelines range. The district court imposed a
nine-month sentence, apparently in part because of its suspicion that Van was involved in an
undisclosed criminal scheme. Van now appeals his sentence. Because we find the sentence
substantively unreasonable, we vacate the sentence and remand for resentencing.
I. BACKGROUND
For almost thirty years, Van has gone by the name Anthony A’Ve, taken when he converted
to the Baha’i faith. Although he never legally changed his name, his five children and wife also
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adopted the A’Ve surname. In 1993, Van used the surname A’Ve, as well as a fraudulent social
security number ending in 5667, to obtain employment as a corrections officer for the Michigan
Department of Corrections. In 2009, Van again used the surname A’Ve, this time corroborated by
a fake birth certificate and a fake driver’s license, as well as a fraudulent social security number
ending in 3337, to apply for a passport in Detroit, Michigan.
The Social Security Administration detected the fraud because the 3337 number did not
belong to anyone named Anthony A’Ve. U.S. State Department agents eventually discovered that
Van’s birth certificate was fake and that he was receiving income under the fraudulent 5667 number.
When interviewed, Van initially lied to the agents about his name and birthplace, but he eventually
admitted that he was born as Anthony Van in Mississippi and that his social security number ends
in 2447.
Van pleaded guilty, under a Rule 11 plea agreement, to making a false statement in a passport
application, in violation of 18 U.S.C. § 1542, and falsely using a social security number, in violation
of 42 U.S.C. § 408(a)(7)(B). In return, the government dismissed a four-count indictment that had
been returned against him with respect to his fraudulent passport application. The plea agreement
calculated Van’s guideline range to be zero to six months, and the government recommended that
he be sentenced at the low point of the range.
After accepting his guilty plea, the district court held a sentencing hearing. The court
expressed concern that Van’s behavior was “under-explained.” Though the information provided
by Van “suggest[ed] that [he] led a pristine life, unaffected by crime,” his “manipulation” of various
social security numbers led the court to suspect that he must have been part of a greater “scheme.”
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Because the court was “very, very uncertain about the underlying facts,” it continued Van’s
sentencing to allow him to supplement the record in case “there was something more benign or
understandable, some kind of gross confusion . . . that would let [the court] . . . mitigate the Court’s
serious concern about his behavior.” Van declined to provide additional information. Instead, Van
filed a pro se motion to dismiss for lack of subject matter jurisdiction, which was stricken because
only counsel may file pleadings. The court took the motion as evidence that Van did not fully accept
responsibility for his actions.
At the second sentencing hearing, the district court acknowledged that Van’s guidelines range
was zero to six months, but because Van had declined to supplement the record and had filed a
motion to dismiss, the court was “considerably more strongly inclined now than [at Van’s first
sentencing hearing] to think that some kind of scheme [ ] was afoot in Mr. Van’s behavior.” The
court acknowledged that it was not sure what that “scheme” involved, other than “something more
going on here than a mere misuse of a phony identification.” Again the court asked if Van wanted
to supplement the record, and again Van declined.
The court sentenced Van to nine months of imprisonment three months above the
maximum of the guidelines range and two years of supervised release. Rather than alter Van’s
guidelines calculation, the court found under § 3553(a)(1) that “the characteristics of the defendant
[were] less than fully accepting of the seriousness of the situation.” The court then explained:
Judges feel uncomfortable often, I think, when they are left in the dark.
Sometimes that happens as a matter of design, sometimes it’s accidental. It’s almost
always the case in a criminal prosecution that the Government and the investigators
know more about the case than the judge does, things that have not been revealed and
so forth.
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I don’t find that to be the case here. I’m left in the dark based upon
circumstances. This, this is a mysterious set of circumstances that remains a mystery.
It remains unexplained. The mystery is amplified by the defendant’s attempted
file pro se filing of a motion to dismiss. The language used in the final paragraph
of that filing is essentially aggressive. The defendant, as he has a right to do, declines
to provide any additional comment or explanation or further mention of those acts.
All of these things taken together lead me to think the guideline range is
insufficient to address the circumstances of this defendant’s behavior.
Van now appeals, arguing that his sentence was both procedurally and substantively deficient.
We address each of these concerns in turn.
II. ANALYSIS
A. Procedural Unreasonableness
A district court commits an unreasonable procedural error by, for example, “failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence including an explanation for any deviation from
the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). Though we generally review
sentences for procedural reasonableness under an abuse of discretion standard, id., we review for
plain error where a defendant did not object at sentencing despite an opportunity to do so, as here,
United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). Plain error is “(1) error
(2) that was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings.” Id. (internal quotation marks
omitted). We find such error “only in exceptional circumstances” and “only where the error is so
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plain that the trial judge . . . [was] derelict in countenancing it.” United States v. Gardiner, 463 F.3d
445, 459 (6th Cir. 2006) (internal quotation marks and citations omitted).
Van argues that the court’s sentence was procedurally unreasonable because it was based on
a clearly erroneous fact the court’s suspicion that he was involved in a undisclosed scheme and
on his failure to explain the facts surrounding his conduct. We cannot say, however, that any
potential procedural error committed by the court was “obvious or clear.”
The court did appear to draw an inappropriate conclusion that Van was involved in a more
serious criminal “scheme,” but it is not obvious or clear that the court actually based Van’s sentence
on this suspicion. In its explanation of facts justifying the above-guideline sentence, the court wrote
that Van’s attempt “to acquire international travel documents in the form of a passport in a false
name for ‘religious reasons,’ as the defendant has asserted, implies some sort of scheme[,] the details
[of] which are beyond the knowledge of the Court.” The court further noted that Van’s criminal
behavior “is mysterious and remains so” and that Van “has presented a mysterious set of
circumstances that remains a mystery and is unexplained.” After a lengthy discussion that included
these comments, but also included the court’s views that Van did not fully accept responsibility and
that Van’s criminal conduct could have resulted in a mandatory two-year sentence if charged under
another crime, the court stated that “all of these things taken together lead me to think the guideline
range is insufficient to address the circumstances of this defendant’s behavior.” This general
statement, however, is not enough for us to find it obvious or clear that the court selected Van’s
sentence based on a clearly erroneous fact.
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Similarly, and contrary to Van’s arguments, the court provided enough information to explain
adequately its upward variance. The court explained, albeit in a slightly disorganized manner, that
it was imposing a harsher sentence in part because (1) the offense was serious, and in the court’s
view Van’s conduct was “essentially identical” to conduct that would receive a two-year mandatory
minimum sentence under another offense; and (2) Van did not fully accept the seriousness of his
conduct, as evidenced by his pro se motion to dismiss.
Finally, it was not obvious or clear that the court based Van’s sentence on his failure to
provide additional information. It is undisputed that the Fifth Amendment gives defendants the right
to remain silent at sentencing without fear that their silence will be used against them. Mitchell v.
United States, 526 U.S. 314, 326 29 (1999). Nevertheless, the court explicitly and repeatedly noted
that Van had the right to refuse to speak and that it would not consider Van’s refusal in its sentencing
analysis. Again, any potential error involving Van’s Fifth Amendment rights was not obvious or
clear.
Based on the record before us, we cannot say that this case presents one of the “exceptional
circumstances” in which plain error, a demanding standard, occurred. We thus do not find Van’s
sentence procedurally unreasonable.
B. Substantive Unreasonableness
A sentence may be substantively unreasonable “when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors,
or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514
F.3d 508, 520 (6th Cir. 2008). Even if a district court relies on a large number of relevant factors,
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we must vacate and remand for resentencing if the court considers an impermissible factor in
calculating a defendant’s sentence. United States v. Recla, 560 F.3d 539, 545 (6th Cir. 2009); United
States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008). Moreover, the court must “adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the perception of fair
sentencing.” Gall, 552 U.S. at 50 (citation omitted).
Because substantive reasonableness claims do not need to be preserved in the district court,
we review this issue under the typical abuse-of-discretion standard. United States v. Freeman, 640
F.3d 180, 185 (6th Cir. 2011). “An abuse of discretion occurs when the reviewing court is left with
the ‘definite and firm conviction that the trial court committed a clear error of judgment.’” Hunt,
521 F.3d at 648 (internal citations omitted). We note that an appellate court should not overturn a
sentence just because it “might reasonably have concluded that a different sentence was appropriate.”
Gall, 552 U.S. at 51. Indeed, we “must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. Nevertheless, if the abuse of
discretion standard “is to have any teeth, it has to require at least a remand where the district court
appears to have relied upon factors that cannot be legitimately relied upon.” Hunt, 521 F.3d at 650.
Van argues that the district court unreasonably based his sentence in part on speculation that
he was involved in an unknown criminal “scheme.” We agree. The case of United States v. Hughes,
283 F. App’x 345 (6th Cir. 2008), is instructive. There, we remanded for resentencing because the
district court speculated during sentencing about the victim’s wishes (“I feel that [restitution is] all
the bank really wants anyway”) and about the government’s reasons for prosecuting the defendant
(“[W]hat looks to me happened here is that . . . only when [the bank] decided [the defendant] simply
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wasn’t paying according to his schedule that [ ] they trotted over to the U.S. Attorney’s Office and
got [the defendant] indicted”). Id. at 353 54. We found that because “the district court’s statements
imply that it considered what sentence the bank might prefer,” and the record contained no support
that the bank would prefer a particular type of sentence, the court engaged in unreasonable
speculation. Id. We also determined that because “the record implies that the district court may
have considered the circumstances surrounding the government’s decision to prosecute [the
defendant] when fashioning his sentence,” and there was no indication that such prosecution was
brought in violation of the Constitution, the court engaged in unreasonable speculation. Id.
Here, the district court thought Van was involved in an undisclosed “scheme.” Though we
could not find it obvious or clear, the court does appear to have relied upon this speculation when
fashioning Van’s sentence. For example, at Van’s first sentencing hearing, the court commented on
Van’s explanation of his conduct:
It is a notably under-explained, almost unexplained set of circumstances. . . .
And it just leaves me very, very uncertain about the underlying facts. It is an
under-explained set of behaviors. And I need to be reasonably sure that I know what
was going on before I can pass an appropriate sentence.
To give Van the opportunity to explain himself, the court continued the sentencing hearing. At the
continued hearing, the court stated:
I am considerably more strongly inclined now than I was [at Van’s first
sentencing hearing] to think that some kind of scheme [ ] was afoot in Mr. Van’s
behavior. And I think it’s even more important for some sort of clearing of the air,
opportunity at least to be offered if I am to be, shall we say, disabused of that
inclination.
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Again, I am here in the same position as I was [at Van’s first hearing] not
quite knowing what to think about this, other than that there’s something more going
on here than a mere misuse of a phony identification.
At the end of that hearing, the court stated, “Judges feel uncomfortable often, I think, when they are
left in the dark. . . . I’m left in the dark based upon circumstances. This, this is a mysterious set of
circumstances that remains a mystery. It remains unexplained.” In its explanation of the facts
justifying the above-guidelines sentence, the court wrote that Van’s conduct “implies some sort of
scheme[,] the details [of] which are beyond the knowledge of the Court,” and it again mentioned “a
scheme to serve unknown purposes.” The court’s final paragraph began, “This defendant has
presented a mysterious set of circumstances that remains a mystery that is unexplained.” The court
concluded, after discussing other relevant factors, “All of these things taken together lead me to think
the guideline range is insufficient to address the circumstances of this defendant’s behavior.”
These statements imply that the district court considered that Van was involved in an
undisclosed “scheme” when fashioning his sentence, but the record contains no support for this
speculation. Indeed, the court explicitly stated that Van’s circumstances were “unexplained,” that
the court was “left in the dark,” and that the facts of this alleged scheme were “beyond the
knowledge” of the court. This is unreasonable speculation, and the court’s statements imply that it
considered this speculation when imposing a sentence. In such a situation, we must vacate and
remand for resentencing. See Hughes, 283 F. App’x at 353 54.
The government cites United States v. Sims, 512 F. App’x 540, 542 43 (6th Cir. 2013) (per
curiam), to justify the court’s consideration of speculation, but this case is inapposite. That court’s
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comment, “I don’t like the conduct here,” reflected “consideration of the nature of the offense under
§ 3553(a)(1),” but it was not unfounded speculation, as here. Id.
We cannot say, however, that the court abused its discretion by considering the other factors
of which Van complains. We are not left with the “definite and firm conviction that the trial court
committed a clear error of judgment” by considering the similarity of Van’s offense to aggravated
identity theft, and Van’s decision to assume an alias rather than legally change his name, or Van’s
motion to dismiss as indicative that he did not fully accept responsibility for his conduct. See Hunt,
521 F.3d at 648. Moreover, we afford deference to the court’s statement that it did not consider
Van’s refusal to provide additional information in its sentencing analysis.
In short, we conclude that the district court unreasonably based Van’s sentence in part on
speculation that he was involved in an unknown criminal “scheme.” Van’s sentence, therefore, was
substantively unreasonable.
III. CONCLUSION
Finally, Van requests that we assign his case to a different judge for resentencing “to avoid
the appearance of impropriety.” We do not find this judge’s fairness, or the appearance of his
fairness, seriously in doubt, so we decline the request. See, e.g., United States v. O’Georgia, 569
F.3d 281, 297 (6th Cir. 2009).
For the foregoing reasons, we vacate the sentence and remand for resentencing consistent
with this opinion.
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