United States v. Paulus, Joseph F. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3092
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH F. PAULUS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 83—William C. Griesbach, Judge.
____________
ARGUED MAY 10, 2005—DECIDED AUGUST 22, 2005
____________
Before FLAUM, Chief Judge, and KANNE and WILLIAMS,
Circuit Judges.
KANNE, Circuit Judge. Joseph Paulus, the former District
Attorney for Winnebago County, Wisconsin, pled guilty to
one count of using the mail and interstate facilities to
promote bribery and one count of filing a false tax return.
At sentencing, the district judge departed from the Sentenc-
ing Guidelines to give Paulus a longer sentence than the
one contemplated by the parties in Paulus’s plea agreement.
Paulus appeals his sentence on the grounds that it was
imposed in violation of the Ex Post Facto Clause of the
Constitution and that it fails to comply with United States
v. Booker, 125 S. Ct. 738 (2005). We find that the district
2 No. 04-3092
court properly considered factors such a the number of
bribes Paulus accepted, the amount of money received, and
the resulting loss of public confidence in the justice system
when it sua sponte departed upward from the guideline
range agreed upon by the parties. The sentence also
complies with the Supreme Court’s Booker decision and
must be affirmed.
I. History
Paulus was the elected District Attorney for Winnebago
County, Wisconsin. As the chief law-enforcement officer
of the county, he had the authority to issue and negotiate
charges, decline prosecution, and make sentencing recom-
mendations for all criminal and traffic law offenses that
occurred within the jurisdiction. From June 1998 to June
2000, Paulus abused his official position by taking bribes
from a particular defense attorney. During the two-year
period, Paulus gave this attorney’s clients favorable treat-
ment (without their knowledge) in exchange for half the
legal fees paid in each case.1 In all, Paulus accepted bribes
relating to 22 cases: sixteen in connection with drunk-
driving and traffic violations, and six in connection with
criminal cases. Paulus received a total of $48,050 in bribe
money. He did not report these proceeds on his federal
income tax returns, causing a tax loss to the government of
$13,531.
1
Paulus provided benefits such as dismissal of cases, reduction
of charges, and return of seized property. Most of the bribes
were taken in return for reduced charges in drunk-driving
cases. In one instance, a defendant who had been arrested with a
blood-alcohol concentration of 0.18% and initially charged with
third-offense Operating While Intoxicated—which carries manda-
tory jail time—was charged only with reckless driving and avoided
jail in exchange for a $2,500 bribe to Paulus.
No. 04-3092 3
On April 26, 2004, Paulus pled guilty to one count of
using the mail and interstate facilities to promote bribery,
in violation of 18 U.S.C. § 1952, and one count of filing
a false tax return, in violation of 26 U.S.C. § 7206(1). He
signed a Factual Basis for Plea, stipulating to all of the
underlying facts recounted above. The plea agreement
between Paulus and the government set forth what the
parties believed to be the appropriate Sentencing Guide-
lines calculation: an offense level of 18, which corresponded
to a sentence of 27-33 months.2 The parties also agreed that
the offenses could not be grouped and that neither party
would seek an upward or downward departure.
Importantly, the agreement was not entered pursuant
to Federal Rule of Criminal Procedure 11(c)(1)(c) (binding
the court to the recommended sentence once it accepts the
plea agreement), and it specifically stated that “[t]he
defendant acknowledges and understands that the sentenc-
ing guidelines recommendations in this agreement do not
create any right to be sentenced within any particular
sentence range.” The agreement further stated:
The parties acknowledge, understand, and agree that
neither the sentencing court nor the United States
Probation Office is a party to or bound by this agree-
ment. . . . The sentencing court will make its own
determinations regarding any and all issues relating to
the application of the sentencing guidelines and
may impose any sentence authorized by law up to
the maximum penalties [authorized by law (five years
of incarceration for count one and three years of incar-
ceration for count two)]. The parties further understand
2
This offense level was calculated based on an offense level of
20 as to count one and 13 as to count two, resulting in a com-
bined level of 21. The government recommended a three-level
decrease for acceptance of responsibility.
4 No. 04-3092
that the sentencing court may, in certain circum-
stances, depart either upward or downward from the
otherwise applicable guideline range.
In his plea hearing, Paulus confirmed his understand-
ing that he was “not entitled to any particular sentence
other than one within the maximum provisions of the
law.” (Apr. 26, 2004, Tr. at 13.)
On July 20, 2004, the district court did, in fact, issue a
notice of possible departure from the Guidelines for the
number and amount of bribes accepted and the “disruption
of government function” that occurred as a result of
Paulus’s conduct. Paulus filed his opposition to the proposed
departure based on Blakely v. Washington, 542 U.S. 296(2004), and this court’s decision in United States v. Booker,
375 F.3d 508 (7th Cir. 2004), aff’d, 125 S. Ct. 738 (2005).
The district court rejected Paulus’s arguments, and, on
August 2, 2004, sentenced Paulus to 58 months
of incarceration—longer than the 33-month sentence con-
templated by the parties in the plea agreement.
In a thorough and thoughtful sentencing order, the court
first opined that an upward departure would not violate
Blakely because Paulus had “admitted the essential facts
upon which the court suggested that a departure [was]
warranted” and had acknowledged in both his plea agree-
ment and plea colloquy that the court could depart upward.
United States v. Paulus, 331 F. Supp. 2d 727, 732 (E.D. Wis.
2004). The court also indicated that under this court’s
decision in Booker, the Guidelines could be considered “as
a guide, as opposed to a mandate[.]” Id. at 733 (discussing
Booker). The court ultimately found that a six-level upward
Guidelines departure was appropriate considering the
number of bribes, the period of time over which the bribes
were taken, the amount of money received, and Paulus’s
status as the elected District Attorney. See U.S.S.G. §§
2C1.1(b)(1), 2C1.1(b)(2), 5K2.7. To support that fourth
No. 04-3092 5
factor, the court discussed information supplied by the State
of Wisconsin’s special prosecutor investigating Paulus’s
criminal conduct and a newspaper article calling into
question the integrity of Paulus’s work on cases other than
those for which he admitted taking bribes. The court stated
that it cited these sources not as proof that Paulus commit-
ted crimes in addition to those he admitted, but
to demonstrate “the fact that the public confidence in
Wisconsin’s system of justice ha[d] been seriously under-
mined.” Paulus, 331 F. Supp. 2d at 736.
II. Analysis
Paulus filed his notice of appeal on August 10, 2004. He
argues that his plea agreement foreclosed an upward
departure, and that the district court improperly sentenced
him to longer than the 33 months proposed in the plea
agreement. He further argues that the Ex Post Facto Clause
of the Constitution was violated because of changes in
federal sentencing—namely, the Supreme Court’s Booker
decision—that took place between his plea agreement and
his sentencing. Finally, Paulus argues that even if Booker
can constitutionally be applied to his case, the district
court’s methodology did not comport with Booker, and he is
thus entitled to resentencing.
To provide context for Paulus’s arguments, we will
roughly sketch the changes to the criminal sentencing
landscape that have occurred since his plea agreement
was entered. The federal Sentencing Guidelines were
promulgated in the late 1980s. Under the Guidelines
regime, it was mandatory for the district courts to im-
pose sentences based on the Guidelines, and they had
limited discretion to depart from the sentences set forth
by Congress for particular crimes and aggravating fac-
tors. See Mistretta v. United States, 488 U.S. 361, 367-68
(1989). The courts could, however, depart from the guide-
6 No. 04-3092
lines based on certain mitigating or aggravating factors
found by the judge by a preponderance of the evidence. See
id. at 367. In June 2000, the Supreme Court ruled that, in
the context of state sentencing guidelines, “any fact [increas-
ing] the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). The standard for factors increasing a sentence
beyond the statutory maximum was raised from “prepon-
derance of the evidence” to “beyond a reasonable doubt,”
and such facts had to be admitted by a defendant or found
by a jury. See Ring v. Arizona, 536 U.S. 584, 602 (2002);
Harris v. United States, 536 U.S. 545, 563 (2002). This was
the state of the law at the time Paulus entered his guilty
plea in April 2004.
In June 2004, the Supreme Court clarified that the
“prescribed statutory maximum” that must not be exceeded
without satisfaction of the criminal burden of proof is
actually the presumptive maximum under the guidelines,
“not the maximum sentence a judge may impose after
finding additional facts[.]” Blakely v. Washington, 124 S. Ct.
2531, 2537 (2004). Paulus’s sentence was imposed in August
2004, after Blakely and before the Supreme Court’s 2005
decision in United States v. Booker, 125 S. Ct. 738 (2005),
which overthrew the federal mandatory-guidelines regime.
In Booker, the Court reaffirmed Apprendi and extended it
to the federal Guidelines, stating that “[a]ny fact (other
than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Id. at 756. To answer the question of
remedy, the Court excised the provision of the federal
sentencing statute that made the Guidelines mandatory,
effectively making the Guidelines advisory. Id. at 756-57.
No. 04-3092 7
With this background in mind, we address Paulus’s
attacks on the legality of his sentence. Paulus’s argument
that the plea agreement itself foreclosed any sentence
longer than 33 months is without merit. Paulus was never
entitled to a sentence capped at 33 months; he acknowl-
edged numerous times in his plea agreement and plea
colloquy that the district court would make its own determi-
nations as to an appropriate sentence and that it was not
prohibited from making an upward departure.
We also disagree with Paulus’s contention that the court’s
imposition of a 58-month sentence violates the Ex Post
Facto Clause. The Constitution prohibits application of laws
inflicting greater punishment than the law prescribed when
the crime was committed. See, e.g., Miller v. Florida, 482
U.S. 423, 429 (1987); Weaver v. Graham, 450 U.S. 24, 28
(1981); Calder v. Bull, 3 U.S. (Dall.) 386, 390 (1798). The
Supreme Court has held that this principle is to be incorpo-
rated into the Due Process Clause of the Fifth and Four-
teenth Amendments, barring “courts from applying a novel
construction of a criminal statute to conduct that neither
the statute nor any prior judicial decision has fairly dis-
closed to be within its scope.” See United States v. Lanier,
520 U.S. 259, 266 (1997) (citations omitted). This has been
done with the goal of giving people “fair warning” of the
legal consequences that their actions will have. Id. at 266;
Miller, 482 U.S. at 430. Thus, the relevant question here is
whether Paulus had fair warning at the time he engaged in
the bribery scheme that the court could sentence him to 58
months for that conduct. See Lanier, 520 U.S. at 267 (“[T]he
touchstone is whether the statute . . . made it reasonably
clear at the relevant time that the defendant’s conduct
was criminal.”).
From 1998 to 2000, the time period in which Paulus
engaged in the criminal conduct at issue, there was
little doubt about the constitutionality of the mandatory
guideline sentencing regime. See Edwards v. United States,
8 No. 04-3092
523 U.S. 511, 516 (1998); Mistretta, 488 U.S. at 412. So the
question as to whether Paulus’s sentence violated principles
of due process boils down to whether he could have been
sentenced to 58 months under that regime.
The answer, of course, is yes. Indeed, the district court
painstakingly calculated the 58-month sentence pursuant
to the Guidelines, even as it noted that, should Blakely
preclude mandatory application of the Guidelines, the court
“would still be free to look to them as guidance in fashion-
ing a fair and just sentence[.]” Paulus, 331 F. Supp. 2d at
733. The court’s sentence was based on provisions of the
Guidelines authorizing upward departures for the number
of bribes accepted, the amount of money received, and a
significant disruption of a governmental function. U.S.S.G.
§§ 2C1.1(b)(1), 2C1.1(b)(2), 5K2.7. Concerning the latter,
under the mandatory guideline regime, the court was
allowed to take judicial notice of the fact that public
confidence in Wisconsin’s justice system had been under-
mined. See United States v. Shenberg, 89 F.3d 1461, 1477
(11th Cir. 1996). The facts underlying the former two
grounds for departure—22 bribes in all, and $48,050 in total
bribe money—were admitted in Paulus’s Factual Basis for
Plea.3 This undercuts Paulus’s argument that Blakely
capped his sentence at 33 months under the Guidelines, but
that argument fails for an even more obvious reason:
decided in 2004, Blakely is simply irrelevant to this due
process analysis. As we have said, the question of whether
Paulus had “fair notice” of the punishment his conduct
would merit must necessarily be focused on the state of
sentencing law from 1998-2000, the time Paulus’s crimes
were committed. At that time, the departure could have
3
Paulus asserts that he did not “admit” the facts to which he
stipulated in his Factual Basis for Plea. We disagree, as discussed
more thoroughly infra.
No. 04-3092 9
been made based on judge-found facts under the preponder-
ance of the evidence standard.
Turning from the Ex Post Facto issue, Paulus also attacks
his sentence under Blakely/Booker. First, he asks us to
decide whether the facts to which he stipulated in
his Factual Basis for Plea constitute “admissions” sufficient
to increase his sentence beyond what the Guidelines dictate
for the offenses of using the mail and interstate facilities to
promote bribery and filing a false tax return. Paulus says
that he “did not intend to admit any facts for purposes of
sentence enhancement under Blakely/ Booker.” As Paulus
no doubt knows from his extensive experience negotiating
plea agreements from the prosecution’s side, such agree-
ments are contractual in nature. See, e.g., United States v.
Bownes, 405 F.3d 634, 636 (7th Cir. 2005). He may not have
foreseen Booker, “but that does not alter the effect of the
plea bargain.” See United States v. Roche, 415 F.3d 614 (7th
Cir. 2005). Paulus admitted having taken 22 bribes and
$48,050 for purposes of a conviction and certain benefits
from the government. He is stuck with the consequences of
admitting those facts for purposes of sentencing as well.
This leaves us with Paulus’s final argument: that his
sentence did not meet the Booker standard because
the district court, citing United States v. Croxford, 324
F. Supp. 2d 1230 (D. Utah 2004), sentenced him under pre-
guideline law. See Paulus, 331 F. Supp. 2d at 732-33.
Booker requires not that courts revert to sentencing law
as it existed prior to enactment of the Guidelines, but
that they “take account of the Guidelines together with
other sentencing goals[,]” including equality between
similarly situated defendants, restitution to victims,
congruity with respect to the seriousness of the crime,
promotion of respect for the law, just punishment, deter-
rence, and public protection. See Booker, 125 S. Ct. at 764-
65. Because Paulus submitted a Blakely objection to the
10 No. 04-3092
district court’s proposed upward departure prior to sentenc-
ing, we review any prejudice he might have suffered “in the
ordinary way[.]” United States v. Paladino, 401 F.3d 471,
481 (7th Cir. 2005). In other words, we review his sentence
for harmless error. See United States v. Schlifer, 403 F.3d
849, 854 (7th Cir. 2005).
We find Paulus’s argument to be misleading because
the court clearly did not ignore the Guidelines. As we
have already recounted, it undertook the calculation of
Paulus’s sentence under the Guidelines, and then explicitly
stated that, where Blakely precludes application of
the Guidelines, they may nevertheless be considered as “a
guide, as opposed to a mandate[.]” See Paulus, 331 F. Supp.
2d at 733, 734-39. Although Paulus’s sentence was imposed
prior to the Supreme Court’s Booker decision, the court
anticipated Booker’s framework and took the Guidelines
into account. The court did not cite Croxford as support for
sentencing Paulus as it would have in 1987, as Paulus
claims, but rather for the proposition that even if “the court
is not bound by the Guidelines, [it] may determine an
appropriate sentence considering the sentencing factors set
forth in 18 U.S.C. § 3553(a) based on the credible evidence
before it.” Id. at 733 (citing Croxford, 324 F. Supp. 2d at
1247).
The court did not commit error in the methodology
it employed to sentence Paulus. We note that even if it had,
this error would have been harmless. The court indicated
that it would have arrived at the same 58-month sentence
regardless of whether it followed mandatory or merely
advisory Guidelines. Thus, Paulus would have no claim to
a limited Paladino remand. See United States v. Lee, 399
F.3d 864, 866-67 (7th Cir. 2005) (affirming sentence
imposed pre-Booker because sentencing judge clearly
demonstrated unwillingness to use discretion to give a
lower sentence); Paladino, 401 F.3d at 484. Moreover,
Paulus’s sentence is presumptively reasonable
No. 04-3092 11
under Booker, as it was properly calculated within the
Guidelines framework. See United States v. Mykytiuk, 415
F.3d 606 (7th Cir. 2005).
III. Conclusion
In this case, the district court accomplished the rare feat
of imposing a sentence that is beyond reproach even in
the thorny period of time when federal sentencing law was
anything but settled. The court considered the Guidelines,
and in fact determined a sentence that would be upheld
under a mandatory guideline regime, while acknowledging
that it was not bound by them. It also made clear that it
was using only admitted facts—for the facts stipulated by
Paulus in his factual basis for plea document were indeed
admissions—to depart from the Guidelines range for using
the mail and interstate facilities to promote bribery and for
filing a false tax return. The court covered all the bases; we
thus AFFIRM Paulus’s 58-month sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-05