United States v. Eugene Dokes , 872 F.3d 886 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3796
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Eugene Dokesr.
llllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: June 5, 2017
Filed: October 5, 2017
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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
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LOKEN, Circuit Judge.
Eugene Dokes pleaded guilty to theft of United States property for knowingly
receiving four Social Security disability benefits to which he was not entitled in
December 2012 and January 2013. See 18 U.S.C. § 641. At sentencing, the district
court1 adopted the Presentencing Investigation Report (PSR) finding that Dokes’s on-
going theft of Social Security benefits resulted in actual loss to the government of
more than $40,000. This increased his total offense level by six levels. See U.S.S.G.
§ 2B1.1(b)(1)(D). Before making this finding, the court denied Dokes’s motion for
leave to file untimely objections to this PSR determination, concluding Dokes failed
to show good cause for not timely objecting to the PSR. See Fed. R. Crim. P. 32
(f)(1) (parties must object in writing within fourteen days after receiving PSR);
32(i)(1)(D) (court may for good cause allow party to make a new objection before
sentence is imposed). The court sentenced Dokes to five years probation including
six months home confinement and ordered him to pay $45,835.60 in restitution to the
Social Security Administration (SSA). Dokes appeals, arguing the district court erred
in declining to consider his untimely objections. Concluding the court did not abuse
its discretion, we affirm. See United States v. Almazan, 414 F. App’x 902, 904 (8th
Cir. 2011) (standard of review).
SSA granted Dokes disability benefits in October 2006. In April 2010,
responding to SSA’s continuing disability review, Dokes reported he had not worked
since his last medical decision, his condition had worsened, and he did not believe he
could currently work. His wife later reported that Dokes had trouble concentrating,
“did not engage in any social activities, had lost any interest in family and friends,
and limited his hobbies and interests to playing video games and watching
television.” SSA determined Dokes was no longer disabled but then upheld his
appeal in October 2010 and continued paying disability benefits.
In March 2013, prompted by Dokes’s report of self-employment income on his
2011 tax return, SSA initiated a criminal investigation into whether he had
substantially understated his ability to work. The investigation revealed that Dokes:
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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- Maintained Missouri realtor and broker licenses between April 2005 and July
2014 and started an investment company in 2008 as a licensed broker.
- Earned a bachelor’s degree in business administration in 2008, a master’s
degree in 2009, and a Ph.D. in organization and management in 2013.
- Registered six profit and nonprofit companies and three fictitious names
related to political campaigns between January 2006 and March 2013.
- Campaigned for the Missouri House of Representatives after July
2010, served on the Missouri Advisory Board for the United States
Commission on Civil Rights, and served as Vice-Chair of a Republican
county committee in July 2011.
- Earned $34,568 from the St. Louis County Missouri Housing Authority
between June 2011 and April 2012 and reported self-employment income
on his 2012 joint tax return.
SSA concluded Dokes was not disabled after July 2010 and received $45,835.60 in
overpayments between October 2010 and January 2013. This prosecution followed.
The Sentencing Guidelines section of Dokes’s plea agreement recited that the
government believed six offense levels should be added because the government’s
loss exceeded $40,000; Dokes contended only four levels should be added because
the loss calculation should begin in July 2011. See U.S.S.G. § 2B1.1(b)(1)(C)-(D).
Dokes reiterated his disagreement with the government’s loss contention at his
Change of Plea Hearing. After accepting Dokes’s guilty plea, the district court issued
a Scheduling Order stating:
IT IS FURTHER ORDERED that the deadline for filing objections to
the Presentence Report is August 29, 2016. . . . No objections will be
accepted after the deadline, except for good cause shown. . . .
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IT IS FURTHER ORDERED that sentencing memoranda, if any, must
be not less than ten (10) days prior to the sentencing date. Objections
to the presentence report are not to be included in the sentencing
memoranda; objections must be filed as a separate document.
The Probation Office submitted an initial PSR on August 15, noting the parties’
disagreement regarding the amount of actual loss and adopting SSA’s determination
that benefit overpayments began October 2010 and ended January 2013, resulting in
total overpayments of $45,835.60. Based on this calculation, the PSR recommended
adding six levels for a total offense level of ten. On August 29, consistent with the
Scheduling Order deadline, Dokes filed an Acceptance to Presentence Report stating
he had reviewed the PSR with his attorney and “all objections have been resolved.”
On September 12, the Supervising Probation Officer approved a final PSR
recommending the same loss figure and stating, “[t]he defendant has no objections.”
That same day, Dokes filed a Sentencing Memorandum asserting that the PSR
“inaccurately overstate[s] the amount of money lost, resulting in a greater total
offense level in the guidelines calculations” because Dokes “did not begin
successfully functioning in any sort of ‘employment’ activity until he was selected as
the Chairman of the St. Charles County Republican Party in July of 2011.”
The district court scheduled Dokes’s sentencing hearing for Monday,
September 19. On Friday, September 16, Dokes filed a motion for leave to file
untimely objections to paragraphs 4, 29, 36, and 83 of the PSR and requesting that his
Sentencing Memorandum be treated as an objection to the recommendation of a six-
level increase because the government’s loss exceeded $40,000. The motion
explained that Dokes had voiced this objection in the Plea Agreement, that his
objection was noted in the PSR, and that “counsel mistakenly believed that this was
sufficient as notification to demonstrate his objections to the loss calculation.”
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At the start of the sentencing hearing, counsel for Dokes explained, “I
mistakenly believed that [the reference to the loss dispute in the plea agreement and
the PSR] was sufficient to preserve that as an issue.” The district court responded:
Well, here’s the thing. There was an acceptance to the presentence
report that you filed, and after the guilty plea, an order was issued that
set a deadline for filing objections, and I made it clear in that order that
no objections would be received after the deadline except for good
cause. I don’t believe you have shown good cause for filing these
objections out of time. I also made it clear in that order that objections
are to be filed separately from any sentencing memorandum. The
difficulty is that here on the Friday before the sentencing, you are asking
the Court and the Probation Office to respond to objections that you
have, and that’s not possible to do with such short notice. Also, the
deadlines that are put in place become meaningless if people don’t
adhere to them and don’t have good reasons for not adhering to them.
So I’m going to deny your motion.
On appeal, Dokes argues the district court abused its discretion in denying his
motion for leave to file untimely objections to the PSR’s loss determination. Dokes
argues he demonstrated good cause because he stated his contrary loss contention in
the plea agreement and at the change of plea hearing, the disagreement was noted in
the PSR, and counsel “sincerely but incorrectly believed those efforts were
sufficient.” But this belief, however “sincere,” was inconsistent with the filing of an
unequivocal Acceptance to Presentence Report reciting Dokes’s personal
involvement in a determination that “all objections have been resolved.” Cf. United
States v. White, 447 F.3d 1029, 1032 (8th Cir. 2006) (written objection withdrawn
when defendant acknowledged at sentencing that PSR facts were accurate). And
Dokes’s later attempt to revive a loss dispute in his Sentencing Memorandum was
directly contrary to the district court’s unambiguous order, in boldface, that
“[o]bjections to the presentence report are not to be included in the sentencing
memoranda [but] must be filed as a separate document.” As in Almazan, the district
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court was “well within its discretion” to conclude that Dokes’s last-minute motion to
challenge the PSR’s resolution of a fact-intensive sentencing issue that he had
previously conceded “was not supported by good cause for purposes of Rule 32.”
414 F. App’x at 905.
We further note that Dokes’s motion for leave to file untimely objections was
no doubt futile. First, he only objected to PSR paragraphs recommending a six-level
increase based on amount of loss, not the paragraphs stating facts supporting that
recommendation (the SSA determination that overpayments began in October 2010
when the agency sustained Dokes’s appeal and the payment of continued benefits,
based on misrepresentations as to his lifestyle and work capabilities). Unless a party
objects “with specificity and clarity” to fact statements in the PSR, the district court
may accept those facts as true at sentencing. See United States v. Razo-Guerra, 534
F.3d 970, 976 (8th Cir. 2008), cert. denied, 555 U.S. 1193 (2009). Second, Dokes
argued in the Sentencing Memorandum that overpayments did not start until July
2011 because that was when he first successfully functioned in employment activity.
But overpayments began when he became capable of substantial gainful activity,
regardless of when he began earning income. Third, for purposes of the increase in
§ 2B1.1(b)(1), “loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1,
comment. (n.3(A)). Had the district court allowed Dokes to raise an untimely
objection to the amount of loss, the government could have presented evidence
addressing when Dokes was able to engage in substantial gainful activity, see 42
U.S.C. § 1382c(a)(3)(A), when he intended to begin receiving benefits he did not
deserve, and how long he intended those benefit thefts to continue. See United States
v. Lemons, 792 F.3d 941, 950 (8th Cir. 2015).
The judgment of the district court is affirmed.
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