United States v. Spates , 162 F. App'x 592 ( 2006 )

File Name: 06a0068n.06
Filed: January 25, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
Case No. 04-4515
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
) OHIO
ALLAN L. SPATES, )
) OPINION
Defendant-Appellant. )
BEFORE: GUY, SUTTON, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Defendant Allan Spates challenges the sentence
he received for embezzling union funds and making a false statement. Specifically, he
argues that the district court violated his Sixth Amendment right by enhancing his
sentence under the United States Sentencing Guidelines (“U.S.S.G.”).1 He also claims
that the district court violated the Supreme Court’s dictates in United States v. Booker
that the U.S.S.G. system is advisory, not mandatory. Finally, he argues that the district
court violated a procedural rule we announced in United States v. Bostic. He asks that we
vacate his sentence and remand to the district court for resentencing. For the reasons set
forth below, we affirm his sentence.
1
The district court applied the 2003 version of the United States Sentencing Commission’s
Guidelines Manual, and we do the same.
No. 04-4515
United States v. Spates
I. BACKGROUND
The facts of this case are not in dispute. Spates was president of the Paper,
Allied-Industrial, Chemical, and Energy Workers, Local 5-1250 union. In 2001, Spates
embezzled funds from the union. He also purchased items for his personal use with a
union credit card. He did not disclose these purchases to the union, and subsequently
filed false union financial reports.
On December 22, 2003, a federal grand jury returned a six-count indictment
charging Spates with five counts of embezzlement, violating 29 U.S.C. § 501(c), and one
count of making false statements, violating 18 U.S.C. §§ 1001, 1002. The court set
Spates’s arraignment hearing for January 12, 2004.
A federal pretrial services officer personally delivered a notice of arraignment to
Spates’s residence in Cleveland Heights, Ohio. Spates answered the door, but told the
officer that he was not Allan Spates. The officer gave the notice to Spates and informed
him that “Allan Spates” was scheduled for an arraignment on January 12, 2004.
Spates did not attend his arraignment. As a result, the court issued an arrest
warrant. Before the warrant was executed, Spates left the state, moving his family to a
home owned by his mother-in-law in Alabama. A federal fugitive task force conducted
an extensive search and posted information in the media. Federal marshals subsequently
located Spates and arrested him in Alabama on February 8, 2004.
Spates pleaded guilty to three counts of embezzlement and one count of making a
false statement. The probation office prepared a presentence report (the “PSR”) for the
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court. The office calculated a base offense level of 6 and specific offense level of 4.
U.S.S.G. §§ 2B1.1(a), (b)(1)(C). The office recommended two 2-point upward
adjustments, one for an abuse of a position of trust under U.S.S.G. § 3B1.3, and one for
obstruction of justice under U.S.S.G. § 3C1.1. With a criminal history category of V and
total offense level of 14, the office recommended a sentence range of 33-41 months.
Spates objected to the PSR on several grounds. He argued that giving a false
name to the pretrial officer, missing his arraignment hearing, and moving out of the state
did not rise to the level of obstruction of justice. He also argued that application of either
of the two sentence enhancements would violate the Supreme Court’s then-recent
decision in Blakely v. Washington, 542 U.S. 296 (2004).2
The court addressed both objections during the sentencing hearing. On the
obstruction of justice issue, the court rejected Spates’s legal arguments and found the
enhancement appropriate. On the Blakely issue, the court imposed an alternative
sentence “in the event that the Sentencing Guidelines are declared unconstitutional.”
Based on the PSR calculations and the defendant’s subsequent acceptance of
responsibility, the court calculated a sentencing range between 27 to 33 months
imprisonment. It sentenced Spates at the bottom of the range to 27 months imprisonment
on each count to be served concurrently, three years supervised release, a $400 special
2
Spates also objected to the criminal history assessment in the PSR. He does not take issue
with the assessment on appeal, and we do not address it further.
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assessment, and restitution of $20,655.21. The alternative sentence was identical to the
primary sentence.3
Spates timely appealed his sentence.
II. ANALYSIS
A. Sentencing Enhancements Under U.S.S.G. §§ 3B1.3 and 3C1.1
The Sixth Amendment gives a criminal defendant the right to a “public trial, by
an impartial jury.” As a corollary, a defendant also has the right to require that a jury
find beyond a reasonable doubt the existence of any fact essential to his punishment. In
re Winship, 397 U.S. 358, 364 (1970).
In United States v. Booker, the Supreme Court held that the Sixth Amendment
applies to a criminal defendant’s sentence, meaning that the defendant has the right to
have a jury find the existence of any sentence-enhancing fact (other than a prior
conviction) that increases the punishment beyond the prescribed statutory maximum
punishment. 125 S. Ct. 738, 756 (2005). While a defendant has the right to jury-found
facts, he can waive that right as to certain facts by admitting them. See id.; Blakely, 542
U.S. at 303-04; Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Spates argues that the enhancements for abuse of a position of trust and
obstruction of justice violated his Sixth Amendment right to jury-found facts because: (a)
3
There is a minor difference between the amount of restitution ordered under the primary
sentence ($20,655.21) and the amount ordered under the alternative sentence ($20,651.20).
The former amount is identical to the amount of restitution recommended in the PSR. Spates
has not raised this minor discrepancy as a ground for remanding his sentence, and we decline
to do so here.
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United States v. Spates
the indictment did not allege the applicability of such enhancements; and (b) Spates did
not admit to either enhancement. Because Spates raised these objections below citing
Blakely in support, we review the district court’s sentence for harmless error. Booker,
125 S. Ct. at 769; United States v. Hazelwood, 398 F.3d 792, 801-02 (6th Cir. 2005).
Spates’s first argument requires little discussion. In general, sentencing factors
do not need to be listed in a criminal indictment. “An indictment must set forth each
element of the crime that it charges. But it need not set forth factors relevant only to the
sentencing of an offender found guilty of the charged crime.” Almendarez-Torres v.
United States, 523 U.S. 224, 228 (1998) (citation omitted); see also United States v.
Perez-Olalde, 328 F.3d 222, 224 (6th Cir. 2003). There is nothing in the criminal
statutes that Spates violated which requires the Government also to charge in an
indictment facts to support sentencing factors. Moreover, Spates had ample notice of the
Government’s intent to seek the upward adjustments and had an opportunity to respond,
as he did in his written and oral objections to the PSR.
As to his second argument, Spates need not admit to a particular sentencing factor
for it to apply. In sentencing a defendant, a court can consider any facts found by a jury
or admitted by the defendant. Booker, 125 S. Ct. at 756 (“Any fact . . . which is necessary
to support a sentence exceeding the maximum authorized by the facts established by a
plea of guilty or to a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”) (emphasis added). A defendant can admit to facts in
different ways, including pleading guilty to criminal charges or failing to object to
asserted facts in a PSR. United States v. Burgin, 388 F.3d 177, 182 (6th Cir. 2004)
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(explaining that the defendant admitted facts contained in the indictment when the
defendant entered a guilty plea), cert denied, 125 S. Ct. 1692 (2005); United States v.
Stafford, 258 F.3d 465, 475-76 (6th Cir. 2001) (finding that the defendant was deemed to
have admitted facts contained in the PSR to which defendant failed to object). If the
admitted facts are sufficient to support a sentencing factor, a district court can apply that
factor in fashioning a defendant’s sentence.
Spates does not dispute that he admitted below to legally-sufficient facts for the
abuse of a position of trust enhancement. See Appellant Brief at 8 n.4. A review of the
record shows that ample factual support exists for the enhancement. The district court
did not err by enhancing his sentence under U.S.S.G. § 3B1.3.
As to the obstruction of justice factor, Spates argues that the facts to which he
admitted are legally insufficient to find he willfully obstructed justice. Where, as here,
there are no factual disputes, but only the legal one of whether the undisputed facts are
sufficient to establish the obstruction of justice enhancement, we review the enhancement
de novo. United States v. Roberts, 243 F.3d 235, 237 (6th Cir. 2001).
Under U.S.S.G. § 3C1.1, a district court can enhance a defendant’s base offense
level by 2 levels “[i]f (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive
conduct related to (i) the defendant’s offense of conviction and any relevant conduct . . .
.” In its commentary, the guidelines manual provides a non-exhaustive list of the types
of conduct to which the adjustment applies. One of the examples it gives is where a
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defendant willfully fails “to appear, as ordered, for a judicial proceeding.” U.S.S.G. §
3C1.1 cmt. n.4(e). Spates asserts that the notice of arraignment delivered to his residence
was not a “traditional court order” and thus his failure to appear for the arraignment was
not a willful obstruction of justice.
Spates’s argument misses the point. As noted above, the commentary does not
describe every type of conduct constituting obstruction of justice. Conduct which does
not squarely fall into one of the listed examples can still give rise to a valid obstruction of
justice enhancement.
Under the circumstances here, we find that Spates’s actions legally constitute
obstruction of justice. Spates knew that he had committed a crime by embezzling funds
from the union.4 After the grand jury handed down its indictment, the court scheduled
Spates for arraignment. A pretrial services officer informed him of the arraignment and
tried to interview him, but he lied to her, telling her that he was not Allan Spates. Spates
clearly had knowledge that criminal charges were pending against him, but rather than
cooperate with authorities, he misled them.
Spates’s criminal history further shows that he was no stranger to the criminal
system. Although his prior convictions were in state court, Spates was well aware that he
could be held over after arraignment in federal court. The fear of incarceration was one
of the reasons he gave for skipping the arraignment. His failure to attend his arraignment
4
In fact, the Government asserted during the sentencing hearing that Spates’s predecessor as
local president had also been prosecuted for embezzling funds, and that Spates was aware
of this when he took over as president. Defense counsel did not object to the Government’s
factual assertion.
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was not simply an innocent mistake, but rather the intentional, knowing interference with
the disposition of criminal charges. United States v. Teta, 918 F.2d 1329, 1333-34 (7th
Cir. 1990); see also United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990) (“[Defendant]
was no stranger to the criminal justice system, and he can doubtless be presumed to have
known that he was not free to decamp after his conviction. It is enough, in any event,
that he disobeyed an instruction to report to the probation officer.”).
Moreover, Spates did more than intentionally lie to authorities and skip his
arraignment – he moved his entire family from Ohio to Alabama. He did so several
weeks after he received notice of his arraignment. There is nothing in the record to
suggest he tried to contact the court or pretrial services before or after his scheduled
arraignment. In fact, the authorities engaged in an extensive search for him, finally
finding and arresting him in Alabama. Thus, his actions evidence a deliberate, calculated
plan by an indicted defendant desiring to avoid criminal prosecution and possible
conviction, and not the spontaneous instincts of a fleeing suspect. Compare United States
v. Porter, 145 F.3d 897, 902-04 (7th Cir. 1998) (affirming obstruction of justice
enhancement where defendant sold his vehicles, moved out of state, and created an alias
to evade impending grand jury indictment), with United States v. Draves, 103 F.3d 1328,
1338 (7th Cir. 1997) (holding that defendant did not obstruct justice by fleeing from
arrest because he did so spontaneously and without deliberation); see also United States
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v. Hill, 79 F.3d 1477, 1486 (6th Cir. 1996) (affirming obstruction of justice enhancement
where defendant missed a court appearance and tried to hide from arresting officers).5
For these reasons, we conclude that the district court had sufficient, undisputed
facts for it to enhance Spates’s sentence under U.S.S.G. § 3C1.1. While any one of
Spates’s acts – in isolation – might not have been sufficient, when considered
cumulatively, his actions certainly establish a willful obstruction of, or attempt to
obstruct, the administration of justice. United States v. Walcott, 61 F.3d 635, 639 (8th
Cir. 1995) (“While individual components of [defendant’s] conduct alone may not
constitute obstruction of justice, when viewed cumulatively, we conclude the totality of
[his] conduct warranted an enhancement under section 3C1.1.”). Accordingly, Spates’s
sentence did not violate the Sixth Amendment as a result of the enhancement.
B. The District Court’s Alternative Sentence
While the district court did not err in enhancing Spates’s sentence, it did err by
treating the U.S.S.G. as mandatory, rather than advisory. United States v. Webb, 403 F.3d
5The present case is distinguishable from cases like United States v. Alpert, 28 F.3d 1104(11th Cir. 1994), and United States v. Sanchez, 928 F.2d 1450 (6th Cir. 1991), where
obstruction of justice enhancements were not warranted. In both of those cases, the
defendant fled after learning of a criminal investigation or arrest of a co-conspirator. In
neither case was the defendant under arrest or subject to charges, nor had any arraignment
hearing been scheduled. Alpert, 28 F.3d at 1107; Sanchez, 928 F.2d at 1459. In contrast, this
is not an instance in which a criminal investigation is underway, but no charges have been
filed. Here, Spates did not move out of the state until after being indicted and receiving
notice of the indictment. Thus, the Government had already formally initiated criminal
charges against him, and these charges could not proceed until Spates was arrested and
returned to the district. See Teta, 918 F.2d at 1335 (“When the disposition of the charges
cannot proceed until the defendant’s presence is secured, and when he must be brought to
court under arrest, as transpired in this case, there is obstruction of justice.”).
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373, 382 (6th Cir. 2005), cert. denied, 2006 U.S. LEXIS 505 (Jan. 9, 2006); United States
v. Barnett, 398 F.3d 516, 527-28 (6th Cir.), cert. dismissed, 126 S. Ct. 33 (2005). The
district court did not have the benefit of the Supreme Court’s decision in Booker at the
time of sentencing. In trying to anticipate the Supreme Court’s ruling in that case, the
district court prudently issued an alternative sentence, but it did so in light of the
possibility that the Supreme Court would find the U.S.S.G. “unconstitutional,” not
advisory. As such, the district court still erred under Booker. United States v.
Christopher, 415 F.3d 590, 593 (6th Cir. 2005).
Yet, we find the error harmless.6 “[W]hen a district court imposes alternative,
identical sentences, one under a regime in which [U.S.S.G.] enhancements are not
mandatory, the harmlessness of any Booker error is established.” Christopher, 415 F.3d
at 593 (citing United States v. Strbac, 129 F. App’x 235, 237 (6th Cir. 2005), and
collecting cases). Under the district court’s anticipation of the Booker decision, an
“unconstitutional” U.S.S.G. regime certainly meets the requirement that the U.S.S.G. not
be mandatory. As we explained in Christopher, “the district court would have more
discretion to depart downward in the absence of the [U.S.S.G.] than it would in the
context of an advisory [U.S.S.G.] system; the refusal to give a lower sentence in the one
precludes any fair inference that it would give a lower sentence in the other.” Id. at 594(emphasis in original). As the district court clearly issued an identical, alternative
sentence under a non-mandatory sentencing guideline scheme, its error was harmless.
6
Because Spates raised objections to his sentence based in part on Blakely, we also review
this claim under the harmless error standard. Christopher, 415 F.3d at 593.
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Although the court did not expressly consider non-guideline sentencing factors,
such as those found in 18 U.S.C. §§ 3553(a), 3582(a), and 3661, we further find that the
district court imposed a reasonable sentence. See id. (reviewing sentence for
reasonableness under Booker when harmless error found). Spates received a prison term
at the bottom of the U.S.S.G. range. See Webb, 403 F.3d at 386 (Kennedy, J., concurring
in part and dissenting in part) (questioning “whether a sentence within the [U.S.S.G.]
range can ever be anything other than reasonable.”). Spates could have addressed the
sentencing factors with the district court during the hearing, but chose not to do so. He
has not made any proffer on appeal as to what factors the district court should have
considered under these statutes, or explained how these factors would have affected the
alternative sentence he received. Accordingly, we find no cause for remand under
Booker. See Christopher, 415 F.3d at 594 (affirming sentence as reasonable even though
district court did not explicitly consider sentencing factors listed in 18 U.S.C. § 3553(a)).
C. Opportunity to Object to the Alternative Sentence
As his final argument on appeal, Spates asserts that the district court violated a
procedural rule by failing to ask whether either party had any objections after it handed
down its alternative sentence. After announcing its primary sentence, the court stated
that it had two final matters. First, it asked whether there were any further objections
from either party, and both declined. It then imposed the alternative sentence. The court
did not again ask the parties whether they had any objections before adjourning the
hearing. Under the procedural rule set forth in United States v. Bostic, district courts,
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“after pronouncing the defendant’s sentence but before adjourning the sentencing
hearing,” must “ask the parties whether they have any objections to the sentence just
pronounced that have not previously been raised.” 371 F.3d 865, 872 (6th Cir. 2004).
Failure to follow the rule will permit a party to raise an objection on appeal without first
demonstrating plain error. Id.We have not yet addressed whether the procedural rule announced in Bostic
applies to alternative sentences. Given that the district court did, in fact, err in issuing its
alternative sentence (albeit harmlessly), arguably one of the policies underlying the rule –
“permitting the district court to correct on the spot any error it may have made” – might
have been furthered had the district court asked for any objections after issuing that
sentence. Id. at 873 (quoting United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.
1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir.
1993)).
We decline to answer the open question because even if we apply the rule here,
remand to the district court is not justified. Spates states that had the district court given
him an opportunity to object to the alternative sentence, he would have been able to
address the statutory factors governing sentencing concerns. Again, though, he offers no
specific arguments he would have made had the district court asked for objections after
announcing its alternative sentence. He could have addressed the factors with respect to
the primary sentence, which was identical to the alternative sentence, but declined to do
so. For the same reasons we find his sentence reasonable, supra § II.B, we conclude that
remand is not warranted on his final claim.
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III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s sentence.
13