United States v. Stephen Hunter , 809 F.3d 677 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2015 Decided January 12, 2016
No. 14-3046
UNITED STATES OF AMERICA,
APPELLEE
v.
STEPHEN C. HUNTER,
APPELLANT
Consolidated with 14-3047, 14-3048
Appeals from the United States District Court
for the District of Columbia
(No. 1:08-cr-00271-2)
(No. 1:08-cr-00271-5)
(No. 1:08-cr-00271-3)
Mary E. Davis, appointed by the court, argued the cause
for the appellant. Paul S. Rosenzweig and Edward C.
Sussman, appointed by the court, were with her on brief.
Mark S. Determan, Attorney, United States Department
of Justice, argued the cause for the appellee. Vincent H.
Cohen, Jr., Acting United States Attorney, Frank P. Cihlar,
Chief, and Gregory Victor Davis, Attorney, were with him on
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brief. Elizabeth Trosman, Assistant United States Attorney,
entered an appearance.
Before: HENDERSON, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Stephen
Hunter, Allan Tanguay and Danny True (appellants) were
convicted of mail fraud and conspiracy to defraud the United
States in violation of 18 U.S.C. §§ 371, 1341, 1342. They all
received sentences below the applicable range of the United
States Sentencing Guidelines (Guidelines). In an earlier
appeal, we held that the district court improperly applied a
three-level upward adjustment computed under the Guidelines
and remanded for resentencing. United States v. Hunter, 554
F. App’x 5, 11 (D.C. Cir. 2014). On remand the district court
imposed the same sentences. The appellants now argue that
the district court exceeded its authority on remand and that the
sentences were procedurally infirm. We disagree and affirm.
I.
The appellants, along with Eddie Ray Kahn, operated an
organization known as American Rights Litigators that
promoted and sold tax defiance schemes. Kahn was the
ringleader and the three appellants were his employees. The
three appellants were sentenced to 120 months’ imprisonment
on the mail fraud charges and 60 months’ imprisonment for
conspiracy, to run concurrently. Kahn received concurrent
terms of 240 and 60 months, respectively.
Kahn’s total offense level was 42. His base offense level
was 7, U.S.S.G. § 2B1.1(a) (2010), and he received a 22-point
enhancement for an intended loss amount over $20 million.
Id. § 2B1.1(b)(1)(L). In addition, he received a 3-point
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official victim enhancement, id. § 3A1.2, a 4-point
enhancement as the leader of a criminal activity involving
five or more participants, id. § 3B1.1(a), and a 2-point
enhancement for each of: (1) misrepresentation of a religious
organization in violation of an injunction, id. § 2B1.1(b)(8),
(2) commission of a crime through mass marketing, id.
§ 2B1.1(b)(2), and (3) use of sophisticated means, id.
§ 2B1.1(b)(9). Finally, Kahn’s criminal history category of 2
combined with the 42 point offense level produced an
advisory sentencing range of 360 months to life
imprisonment. See id. ch. 5 pt. A (table). Because the
statutory maximum for mail fraud is 20 years, 18 U.S.C.
§ 1341, he was sentenced to the shorter 240-month term of
imprisonment. The conspiracy count, 18 U.S.C. § 371,
carried a maximum of five years, which the court ordered to
run concurrently.
The Guidelines range was similar for the appellants. The
base offense level (7), intended loss enhancement (22), mass
marketing (2), misrepresentation (2), sophistication (2) and
official victim (3) enhancements were the same as for Kahn.
The appellants were all given a 3-point enhancement as
“manager(s) or supervisor(s)” of a criminal enterprise,
U.S.S.G. § 3B1.1(b) (2010), and a 2-point enhancement that
Kahn did not receive for obstruction of justice, id. § 3C1.1.
All three appellants had a criminal history category of 1,
which, together with their 43-point offense level, resulted in a
Guidelines range of life imprisonment. See id. ch. 5 pt. A
(table).
Although the statutory cap for mail fraud reduced the
maximum sentence to 20 years, the district judge varied
further downward and imposed 120-month sentences, with 60
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months for conspiracy to run concurrently.1 The judge
viewed the appellants more favorably than he did Kahn
because, “despite their professions of continuing to adhere to
whether or not their contact [sic] was lawful, they have no
question suffered, and their families have suffered.”
Sentencing Tr. 115. He also observed that the downward
variance was warranted because they “were good family men,
religious men who lived good lives.” Id. at 116.
In their first appeal, the appellants challenged, inter alia,
the 3-point managerial enhancement and we vacated it
because “the government . . . failed to carry its burden of
showing that the three-level enhancement . . . applie[d].”
Hunter, 554 F. App’x. at 11. With the three-point managerial
enhancement excised, the adjusted offense level of 40—
coupled with a criminal history category of 1—resulted in a
Guidelines range of 292–365 months’ imprisonment. See
U.S.S.G. ch. 5 pt. A (table) (2010). Notwithstanding the
appellants’ 120-month sentences remained below this range,
we “remanded to the district court for resentencing,” Hunter,
554 F. App’x at 6, in part because the government had not
pursued a timely harmless-error argument. Id. at 11–12.
On remand, the district court requested briefing on
whether the managerial enhancement could still apply, and
the government conceded that it did not based on law of the
case. See Mem. Regarding Scope of Resentencing; United
States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995)
(government ordinarily “should [not] get a second bite at the
apple”). It nonetheless sought reimposition of the 120-month
sentences based on (1) a Guidelines range that still exceeded
1
The judge also ordered each appellant to pay a $25,000
fine—the statutory minimum. He entered stays on the collection
thereof from all three appellants.
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10 years, (2) the court’s previous consideration of their good
character that had already resulted in a downward variance
and (3) subsequent criminal convictions of the appellants’
former clients—the “legacy of the seeds that the [appellants]
planted.” Resentencing Tr. 9. In particular, the government
alleged that the appellants’ scheme resulted in thirteen
subsequent tax-related convictions of their former clients,
eight of which required jury trials.
All three appellants argued that they had been
rehabilitated since their original sentencing. Although the
judge “recognize[d] . . . how much [the appellants] ha[d]
strived to do the right thing during [their] period of
incarceration . . . that’s what [he] expected of all three” from
the beginning. Id. at 32–33. He also noted that he had not
“valued sufficiently the serious nature of the
offense . . . committed” and that “the consequence to the tax
system and to all the people that relied on the information that
[the appellants] were providing [wa]s such that [he could not]
go down further and really justify . . . the sentencing role of
the Court.” Id. at 33.
Before concluding the sentencing hearing, the judge
asked whether there were “any additional questions from any
of the [appellants],” in response to which inquiry Tanguay’s
lawyer requested a continued stay on the collection of fines,
see supra n.1, and an expedition of paperwork for the
appellants to “go back to the institution.” Resentencing Tr.
36. After granting both requests, the judge again asked: “Any
other matters the defense wants to raise” to which there was
no response. Id. at 37.
The appellants now appeal, contending that the district
court exceeded its authority on remand by reconsidering facts
known at the original sentencing and insufficiently factoring
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in the vacated managerial enhancement. They also challenge
their sentences as procedurally unreasonable, claiming the
district court failed to address their rehabilitation arguments
and inadequately explained the sentences.2
II.
Barring our “express instructions” to the contrary, the
district court has limited authority at resentencing and may
take into account only a narrow range of circumstances. See
United States v. Blackson, 709 F.3d 36, 40 (D.C. Cir. 2013).
In short, the district court “generally does not have authority
to resentence a defendant de novo.” Id.3 Rather, on remand,
2
In addition, they contend that their sentences were
substantively unreasonable because “the district court gave no
consideration to any . . . factor[s] raised by appellants.”
Appellants’ Br. 21. This argument simply recycles their procedural
claims. They also urge that application of the loss enhancement
was improper. We upheld the enhancement on the first appeal, see
Hunter, 554 F. App’x. at 10 (“[A]ppellants challenge the district
court’s finding at sentencing that they are responsible for an
intended loss of $42.7 million . . . that corresponds to a 22-level
increase in their total offense level . . . . [Their] arguments are
meritless.”), and law of the case bars its reconsideration. See, e.g.,
United States v. Thomas, 572 F.3d 945, 948 (D.C. Cir. 2009).
3
We note vacatur of the appellants’ sentences, Hunter, 554 F.
App’x at 6, does not constitute “express instructions” to conduct de
novo resentencing. Blackson, 709 F.3d at 40. It is plain from our
Hunter opinion that only the managerial enhancement required
remand. Hunter, 554 F. App’x at 11 (“The joint appellants’ most
meritorious argument—and the only one that requires us to
remand—is that the district court improperly applied a three-level
[managerial enhancement].”). Vacatur is one way a district court,
on remand, can reconfigure a sentencing plan, Blackson, 709 F.3d
at 41, but does not, by itself, “permit[] [the court] to reconsider
issues that were not in any way related to this court’s vacatur of
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it considers whether the vacated count (or here, enhancement)
“affected the overall sentence and, if so, [whether it] should
reconsider the original sentence imposed,” it may hear “new
arguments or new facts as are made newly relevant by [our]
decision—whether by the reasoning or by the result” and it
may consider “facts that did not exist at the time of the
original sentencing,” including “rehabilitation efforts that the
defendant ha[s] undertaken since receiving [the] original
sentence.” Id.4 Whether the district court followed these
instructions is a legal question we review de novo. See id. at
42–44; United States v. Day, 524 F.3d 1361, 1367 (D.C. Cir.
2008) (de novo review of sentencing decision involving
“[p]urely legal questions”). In contrast, we review procedural
reasonableness for “abuse of discretion.” United States v.
Wilson, 605 F.3d 985, 1034 (D.C. Cir. 2010). And “where a
defendant fails to raise a claim at his sentencing hearing,” we
review for plain error only. United States v. Locke, 664 F.3d
353, 357 (D.C. Cir. 2011); see also FED. R. CRIM. P. 52(a).
the” count or enhancement. Id. (internal quotation marks omitted).
Thus, there is no reason to “rely now upon the technical distinction
between vacatur and remand—to which we attached no apparent
significance at the time [of the first appeal].” United States v.
Whren, 111 F.3d 956, 959 (D.C. Cir. 1997).
4
We have also recognized two other narrow resentencing
circumstances not relevant here. First, under FED. R. CRIM. P.
52(b), “ ‘the resentencing court may consider even an issue raised
belatedly’ if it constitutes plain error.” Blackson, 709 F.3d at 40 n.2
(quoting Whren, 111 F.3d at 960). Second, “the resentencing court
may consider arguments not raised at the original sentencing when
the argument's relevance to the sentence was contingent on a
circumstance that did not materialize at the original sentencing but
that did come to pass by the time resentencing occurred, and where
the defendant establishes good cause for not having raised the
argument sooner.” Id.
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A. PLAIN ERROR
Although this appeal does not depend on the application
of plain error review, we nonetheless believe it helpful to
clarify Circuit law on this issue. As we explained in Locke,
the “more demanding plain error standard of review applies
where a defendant fails to raise a claim at his sentencing
hearing,” unless the defendant was given no opportunity to
object. 664 F.3d at 357; see also FED R. CRIM. P. 51(b) (“If a
party does not have an opportunity to object to a ruling or
order, the absence of an objection does not later prejudice that
party.”). In Locke, after imposing sentence, the judge asked
the parties if they “know of any reason other than reasons
already stated and argued why the sentence should not be
imposed as I have just indicated” and counsel responded
“[n]othing else, [y]our Honor.” Locke, 664 F.3d at 357
(alteration in original). Based on this exchange, we
concluded in Locke that it was “not a case in which the
defendant was given no opportunity to object” and
consequently applied plain error review. Id.
Here the judge used a similar prompt after imposing the
sentences. See Resentencing Tr. 36 (“Are there any
additional questions from any of the [appellants]?”); id. at 37
(“Any other matters the defense wants to raise?”). The
appellants nonetheless contend that they had no opportunity to
object because “[f]rom the timing and context of the
proceedings it is clear that the court’s questions dealt with
matters other than the sentence.” Appellants’ Reply Br. 5.
The “timing and context of the proceedings,” however, were
the same in Locke—each judge had just imposed the
sentences and explained his rationale. See Locke, 664 F.3d at
357; Resentencing Tr. 32–36. The appellants nonetheless
argue that “[t]he question in Locke was specific to the
sentence.” Appellants’ Reply Br. 4. If the appellants mean to
9
claim that the judge must explicitly refer to the “sentence” in
his inquiry, see Locke, 664 F.3d at 357, we emphasize that
“[s]entencing . . . is not a game of Simon Says.” See United
States v. Brinson-Scott, 714 F.3d 616, 626 (D.C. Cir. 2013).
Once the court makes clear by timing (here, post-imposition)
or by express reference (as in Locke) that the defendant’s
opportunity to object is nigh, that is all that is required. See,
e.g., United States v. Steele, 603 F.3d 803, 807 (10th Cir.
2010). Granted, the Locke inquiry differed in that the judge
asked whether the parties “kn[e]w of any reason other than
reasons already stated and argued” for a different sentence,
but that question is materially similar to the inquiry here—
albeit more formal. See Resentencing Tr. 36–37 (soliciting
“any additional questions” and “[a]ny other matters”)
(emphasis added).
Some of our sister circuits disagree and impose an
affirmative burden on the sentencing judge to elicit
objections. See United States v. Bostic, 371 F.3d 865, 872
(6th Cir. 2004) (district court must “after pronouncing the
defendant’s sentence . . . ask the parties whether they have
any objections to the sentence just pronounced that have not
previously been raised”); United States v. Jones, 899 F.2d
1097, 1102 (11th Cir. 1990) (“[D]istrict courts [must] elicit
fully articulated objections, following imposition of sentence,
to the court’s ultimate findings of fact and conclusions of
law.”); see also United States v. Campbell, 473 F.3d 1345,
1348 (11th Cir. 2007) (merely inquiring “anything further?”
or “anything else?” does not satisfy court’s duty). But see
United States v. Flores-Mejia, 759 F.3d 253, 258 n.8 (3d Cir.
2014) (en banc) (“[W]e encourage district courts at sentencing
to inquire of counsel whether there are any objections to
procedural matters. However . . . we will not make this a
requirement that district judges must follow. We believe that
the burden of objecting to errors remains with the parties.”
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(internal citations omitted)); United States v.
Vanderwerfhorst, 576 F.3d 929, 934 (9th Cir. 2009) (“We
have never adopted such a requirement and reject it here.”).
Other courts have concluded that FED. R. CRIM. P. 51 “does
not require a litigant to complain about a judicial choice after
it has been made,” United States v. Lynn, 592 F.3d 572, 578
(4th Cir. 2010) (internal quotation marks omitted), and have
declined to apply plain error review if the objections were
apparent to the court before imposing sentence. Id. at 578–
79.5
Other courts have concluded these purposes can be met
only by seeking affirmative objections through careful
prompts, see United States v. Batti, 631 F.3d 371, 379 n.2 (6th
Cir. 2011) (asking “anything else concerning sentence?”
insufficient). We believe that “[c]ompetent professionals do
not require such gratuitous superintendence . . . .” Steele, 603
F.3d at 807. Put simply, “as long as there is a fair opportunity
to register an objection,” but the defendant does not do so,
plain error review ordinarily applies. Id. “[C]ounsel must
take the initiative” to ensure that “silence is not mistaken for
acceptance.” Id.
Although not required for a district court to provide an
opportunity to object, we believe Locke describes the best
procedure for district judges to follow—after sentencing the
judge should ask if there are any objections to the sentence
imposed not already on the record. See 664 F.3d at 357. It
allows “the [sentencing] judge to immediately remedy
omissions or clarify and supplement inadequate
explanations.” Flores-Mejia, 759 F.3d at 258. The burden on
5
See also id. at 578 (argument is preserved for appeal if
raised in sentencing brief even if party fails to object when judge
issues sentence without reference to argument).
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the sentencing court to ensure that the parties, especially the
defendant, have been heard and that the record is complete for
purposes of appeal “pales in comparison to the time and
resources required to correct errors through a lengthy appeal
and resentencing.” Id. And objecting to the sentence after
imposition is neither pointless nor “formulaic,” see Lynn, 592
F.3d at 578; “rather, a clear objection can enable a trial court
to correct possible error in short order and without the need
for an appeal.” United States v. Bennett, 698 F.3d 194, 199
(4th Cir. 2012); see also 9B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2472 (3d ed. 2014)
(similar).
Application of these principles here is simple; the
appellants were given a fair opportunity to object,
Resentencing Tr. 36 (“Are there any additional questions
from any of the [appellants]?”), and they failed to do so.
Thus, their claims may be properly reviewed for plain error.
B. AUTHORITY ON REMAND
As noted earlier, on remand for resentencing the
sentencing judge may ordinarily consider only limited factors.
In Blackson, we explained that the factors include assessment
of the vacatur’s effect on the vacated sentence, “new
arguments or new facts as are made newly relevant by the
court of appeals’ decision . . . [and] facts that did not exist at
the time of the original sentencing.” 709 F.3d at 40. The
appellants contend that the sentencing judge failed to consider
the effect the vacated enhancement had on the original
sentence and that he erred by reconsidering the seriousness of
the offense. “[U]nder either standard of review,” United
States v. Stanfield, 360 F.3d 1346, 1362 n.4 (D.C. Cir. 2004),
whether plain error or de novo, Day, 524 F.3d at 1367, their
arguments fail.
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First, it is plain that the sentencing judge properly
considered the effect of the vacated managerial enhancement.
He requested briefing on whether the enhancement could
apply on remand notwithstanding the vacatur and the
government conceded that it could not. In fact, the
government affirmatively noted at resentencing that the
appellants faced an “advisory guideline[s] range at a level 40”
with a sentencing range of “292 to 365 months.”
Resentencing Tr. 5. Although the district judge did not
expressly state that the vacated enhancement carried “no
independent weight,” cf. Blackson, 709 F.3d at 42
(“Unfortunately for Blackson, the court concluded that it
‘really was just an additional Count’ that ‘carried no
independent weight.’ ” (quoting resentencing transcript)), we
do not require needless recitation, especially where—as
here—the sentencing judge’s conclusion is plain from the
record. The appellants’ original Guidelines range produced
an advisory sentence of life imprisonment but they received
only 120-month prison terms. We find it obvious—and
eminently reasonable—that the judge concluded that a
Guidelines range that, even on the low end, nevertheless
exceeded the appellants’ sentences by nearly 250%, meant
that the managerial enhancement “carried no independent
weight.” Id. at 42.
Indeed, we noted the potential irrelevance of the vacated
enhancement in the first appeal but remanded in part because
the government failed to raise a timely harmless error
argument. Hunter, 554 F. App’x at 11 (“where, as here, the
government has not timely presented a harmless-error
argument, we are reluctant to raise and resolve the issue sua
sponte”). What was not plain then is ineluctable now. Even
the appellants recognized that the Guidelines did not drive
their sentences. See Resentencing Tr. 21 (“[R]ealistically
from a guidelines point of view, nothing has changed that
13
much in terms of the ultimate [sentence], but this was never
really a guideline case.”).
The appellants also contend that the sentencing judge
erroneously reconsidered the facts of the offense when he
stated: “[A]s I look back on the case four years later, I’m not
sure that I valued sufficiently the serious nature of the offense
you committed.” Sentencing Tr. 33. Applying Blackson, 709
F.3d at 40 (district court “authorized to consider facts that did
not exist at the time of the original sentencing”), we read the
statement as a response to the government’s reliance on the
thirteen ARL client convictions obtained after the appellants’
incarceration. See Sentencing Tr. 33 (“[T]he consequence to
the tax system and to all the people that relied on the
information that you all were providing is such that I can’t go
down further.” (emphasis added)). This was plainly a reason
to reevaluate the seriousness of the offense and was a “fact[]
that did not exist at the time of the original sentencing.”
Blackson, 709 F.3d at 40.
C. PROCEDURAL REASONABLENESS
Finally, the appellants maintain that their sentences were
procedurally unreasonable. In particular, they contend that
the district court failed to consider their post-sentencing
rehabilitation argument and did not adequately explain
reimposition of the original sentences.
The thrust of their argument is, and can only be, that the
sentencing judge failed to adequately explain why their post-
sentencing rehabilitation did not affect their sentences. This
was the only argument they expressly made at resentencing in
favor of a greater downward variance and it is one of the few
categories of inquiry that Blackson permits a district court to
consider at resentencing. 709 F.3d at 40 (post-sentencing
rehabilitation is fact “that d[oes] not exist at the time of the
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original sentencing”). If the sentencing judge adequately
explained why the rehabilitation argument did not persuade
him to impose lighter sentences, then—because they raise no
other argument supporting a greater variance—he a fortiori
adequately explained the reimposition of the 120-month
prison terms.
Although Blackson couched the resentencing court’s
authority to consider rehabilitation in permissive language, id.
“(authoriz[ation] to consider facts that did not exist at the time
of the original sentencing”), the district court’s exercise of
that authority was, in this instance, mandatory. We require
that a sentencing judge consider all non-frivolous reasons
asserted for an alternative sentence and post-sentencing
rehabilitation is, at least here, non-frivolous. See 18 U.S.C.
§ 3553(c); Locke, 664 F.3d at 357 (section 3553 “requires that
the court provide a reasoned basis for its decision and
consider all nonfrivolous reasons asserted for an alternative
sentence” (internal quotation marks omitted)); see also
Pepper v. United States, 562 U.S. 476, 491–92 (2011) (post-
sentencing rehabilitation is ordinarily non-frivolous).
The sentencing judge adequately addressed the
appellants’ post-sentencing rehabilitation argument. He gave
two reasons for rejecting their claim: first, he had already
credited likely rehabilitation during the original sentencing,
see Resentencing Tr. 32–33 (“I recognize the, [sic] how much
you all have strived to do the right thing during your period of
incarceration, and that’s what I expected of all three of you. I
recognized at the time of your original sentencing the
tremendous family support you’ve had.”); Sentencing Tr.
115–16 (observing appellants had suffered and they were
“good family men, religious men who lived good lives”);
and, second, the seriousness of the offense, Resentencing Tr.
33 (“But I have to say that as I look back on the case four
15
years later, I’m not sure that I valued sufficiently the serious
nature of the offense you committed.”).
As noted earlier, we interpret the sentencing judge’s
emphasis on the serious nature of the offense to refer to the
thirteen convictions that occurred after the three appellants
were incarcerated—the ripple effect of their crimes, so to
speak. Because Blackson permits the resentencing judge to
consider facts that occur after the original sentencing, 709
F.3d at 40, the judge’s consideration of the ripple effect is a
“reasoned basis” for reimposing the 120-month prison terms
even in light of post-sentencing rehabilitation. See Locke, 664
F.3d at 357. Our sister circuits are in accord. See United
States v. Perez, 564 F. App’x 504, 507–08 (11th Cir. 2014)
(upholding rejection of post-sentence rehabilitation given
“seriousness of [defendant’s] conduct”); United States v.
Johnson, 407 F. App’x 8, 12 (6th Cir. 2010) (post-sentencing
rehabilitation “inadequate to justify a lesser sentence” given
that defendant’s record “require[d] a significant period of
incarceration”); United States v. Rich, 577 F. App’x 234, 236
(4th Cir. 2014) (“nature and circumstances of [defendant’s]
offense” outweigh post-sentencing rehabilitation).
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.