                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-2-2004

USA v. Carey
Precedential or Non-Precedential: Precedential

Docket No. 03-3780




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"USA v. Carey" (2004). 2004 Decisions. Paper 289.
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                      PRECEDENTIAL        Thomas Livingston, Esquire (ARGUED)
                                          Assistant Federal Public Defender
   UNITED STATES COURT OF
                                          Shelley Start, Esquire
APPEALS FOR THE THIRD CIRCUIT
                                          Federal Public Defender
                                          Lisa B. Freeland
                                          Acting Federal Public Defender
            No. 03-3780
                                          1450 Liberty Center
                                          1001 Liberty Avenue
                                          Pittsburgh, PA 15222

 UNITED STATES OF AMERICA,                Attorneys for Appellant Jean M arie
                                          Carey

                 v.
                                          Christine A. Sanner, Esquire (ARGUED)
      JEAN MARIE CAREY,
                                          Assistant United States Attorney
             Appellant                    Mary Beth Buchanan, Esquire
                                          Bonnie R. Schlueter, Esquire
           ____________
                                          United States Attorney
                                          700 Grant Street, Suite 400
                                          Pittsburgh, PA 15219
  APPEAL FROM THE UNITED
   STATES DISTRICT COURT
                                          Attorneys for Appellee United States of
FOR THE W ESTERN DISTRICT OF              America
       PENNSYLVANIA
  (D.C. Crim. No. 02-cr-00089-1)                     _______________
  District Judge: Honorable Gary L.
              Lancaster
                                                         OPINION
           ____________
       Argued May 11, 2004
 Before: NYGAARD, McKEE and
                                          WEIS, Circuit Judge.
       WEIS, Circuit Judges.
                                                       Defendant complains that a
     (Filed: September 2, 2004)
                                          downward departure for cooperation
           ____________                   with the government was improperly
                                          limited because she was given no notice
                                          in advance that the sentencing judge had


                                      1
doubts about her credibility. Because she        of her plea agreement and § 5K1.1. . ..”
failed to present any reason that the
                                                                 The Guideline calculation
result would have been different had she
                                                 yielded a range of 30-37 months’
challenged the judge’s impression, we
                                                 incarceration. After counsel’s argument
will affirm the judgment.
                                                 at the sentencing hearing, Judge
               Defendant pleaded guilty          Lancaster commented on the defendant’s
to one count of bank fraud in violation of       extensive criminal history, filled as it was
18 U.S.C. § 1344(1) and was sentenced            “with theft and fraud offenses so great
to 24-months incarceration. Following            that she is in the same category as career
the denial of her motion to reopen the           offenders for sentencing purposes.” He
sentencing record, defendant appealed.           noted that he had intended “to give the
She contends that she was denied due             maximum penalty of 37 months.”
process and advance notice of the
                                                                 The judge did, however,
sentencing judge’s intention to determine
                                                 agree to consider the government’s
a fact adverse to her entitlement to a
                                                 motion for a sentence reduction for the
downward departure. See U.S.S.G. §
                                                 defendant’s assistance during the Ogden
6A1.3.1
                                                 trial. In determining the downward
                As part of her plea              departure, the judge noted that he was
agreement, the defendant agreed to               taking the accuracy of her testimony in
provide assistance to the government in          the Ogden case into account. “In all
the prosecution of her co-defendant, Jack        candor in my view I do not believe she
Ogden. She testified against him at his          was truthful during the testimony. I
trial, but the jury acquitted. Judge             believe she embellished the criminality
Lancaster presided over the two-day trial,       of her co-defendant in order to get this
as well as the defendant’s sentencing            downward departure. She attributed
which occurred two weeks later.                  conduct to him even the government
Following the Ogden trial, the                   didn’t . . ..” After allowing a 10-month
government filed a § 5K1.1 motion for a          credit for pretrial incarceration, the judge
downward departure stating that “[Carey]         granted an additional three month
gave truthful responses to all questions         reduction pursuant to the § 5K1.1
put to her and has otherwise cooperated          motion.
fully and completely within the meaning
                                                                Defense counsel then asked
                                                 the court to reconsider the sentence based
                                                 on the defendant’s good behavior during
1. This case is not governed by Blakely          the preceding year. The judge
v. Washington, 542 U.S. ____ (2004),             responded, “I have given thought to the
because it does not involve an upward            sentence. I don’t do this lightly. I
departure affected by criminal conduct to        understand what I am doing. I
which the right of jury trial applies.

                                             2
understand two years in the federal               States v. Khalil, 132 F.3d 897 (3d Cir.
penitentiary is rough. I think she needs          1997) (no jurisdiction where there has
to be in a structured environment for a           been some exercise of the court’s
while.”                                           discretion in departing downward);
                                                  United States v. Denardi, 892 F.2d 269
               Following the sentencing
                                                  (3d Cir. 1989)(same). 2 However, in this
hearing, the defendant moved to reopen
                                                  case, the defendant alleges a violation of
the record, asserting that the court’s
                                                  the Constitution, a rule of criminal
failure to put her on notice that the
                                                  procedure, as well as an incorrect
truthfulness of her testimony was a
                                                  application of a Guideline. 18 U.S.C. §§
disputed sentencing factor foreclosed her
                                                  3742(a)(1) and (2) permit appeal of a
opportunity to respond. The District
                                                  sentence if it was imposed in violation of
Court denied the motion, noting that it
                                                  law [or] was imposed as a result of an
had granted a departure that took “into
                                                  incorrect application of the Sentencing
consideration, among other things, the
                                                  Guidelines. See United States v. Ruiz,
defendant’s own testimony. Defendant
                                                  536 U.S. 622 (2002).
should not be surprised or feel ambushed
because the court undertook the                                  Whether a sentencing
evaluation required by § 5K1.1.”                  factor is a permissible basis for departure
                                                  is a question of law. Accordingly, we
               On appeal, defendant cites
                                                  have jurisdiction to entertain this appeal.
Sentencing Guideline § 6A1.3, which
                                                  We exercise plenary review over the
states that a court should not rely on a
                                                  District Court’s interpretation and
factor important to a sentencing
                                                  application of the Guidelines. United
determination without first alerting the
                                                  States v. Figueroa, 105 F.3d 874, 875-6
parties that the factor is in dispute and
                                                  (3d Cir. 1997). Under the PROTECT
granting the right to challenge any
                                                  ACT’s amendments to 18 U.S.C.
adverse finding. She also claims that this
                                                  3742(e), which are applicable to this
lack of notice denied her Due Process
                                                  case, see United States v. Dickerson, ___
under the Fifth Amendment.
                                                  F.3d ___ (3d Cir. 2004), we are required
                     I.                           to “give due regard to the opportunity of
                                                  the district court to judge the credibility
              Generally speaking, we do
                                                  of the witnesses.”
not have jurisdiction to hear a
defendant’s claim that a downward
departure was inadequate. United States
v. Minutoli, ____ F.3d ____ (3d Cir.                            2
                                                                But see United States v.
2004) (no jurisdiction “where a District
                                                  Dickerson, ___ F.3d ___ (3d Cir. 2004)
Court allegedly made a mistake of fact
                                                  (government may appeal a downward
when, in the exercise of its discretion, it
                                                  departure under 18 U.S.C. 3742(b)(1) -
refused” to depart downward); United
                                                  (4))

                                              3
                    II.                          assistance departures listed in § 5K1.1
                                                 are not meant to be exhaustive, they are
              It may be helpful to review
                                                 instructive.” Casiano, 113 F.3d at 429.
the procedures applicable to a downward
                                                 According to the Guideline, “(a) the
departure based upon the defendant’s
                                                 appropriate reduction shall be determined
cooperation with the government. First,
                                                 by the court for reasons stated that may
the sentencing court may lower the
                                                 include, but are not limited to,
period of incarceration only after a
                                                 consideration of the following:
motion by the prosecutor under 18
U.S.C. § 3553(e). See United States v.                          (1) the Court’s evaluation
Bruno, 897 F.2d 691 (3d Cir. 1990).              of the significance and usefulness of a
                                                 defendant’s assistance taking into
                Once the government has
                                                 consideration the government’s
filed an appropriate motion, the authority
                                                 evaluation of the assistance rendered;
returns to the district court. “It is the
District Court’s decision, not the                            (2) the truthfulness,
prosecutor’s, whether to depart and to           competent completeness and reliability
what extent . . . [T]he government’s             of any information or testimony provided
filing of a § 5K1.1 motion ‘does not bind        by the defendant.”
a sentencing court to abdicate its
                                                 U.S.S.G. § 5K1.1(a). As we said in
responsibility [or] stifle its independent
                                                 United States v. King, 53 F.3d 589, 591
judgment.’” United States v. Casiano,
                                                 (3d Cir. 1995), a proper exercise of the
113 F.3d 420 (3d Cir. 1997) (citing
                                                 District Court’s discretion under 5K1.1
United States v. Mariano, 983 F.2d 1150,
                                                 “involves an individualized qualitative
1155 (1 st Cir. 1993)). As one court
                                                 examination of the incidents of the
phrased it, “[t]he District Court is not
                                                 defendant’s cooperation . . ..”
obligated to depart downward simply
because a grateful prosecutor prefers a                         On occasion, and despite
lighter sentence.” Mariano, 983 F.2d at          the terms of a government
1155. A prosecutor’s opinion of the              recommendation, factors other than those
defendant’s truthfulness stated in a §           listed in 5K1.1 have been considered in
5K1.1 motion is understandably affected          deciding the extent of a departure.
by an advocate’s bias and does not               Casiano, 113 F.3d at 430 (nature and
foreclose a contrary appraisal by a              circumstances of the offense may be
neutral, impartial judge.                        taken into account in limiting the extent
                                                 of a § 5K1.1 reduction); United States v.
               Nevertheless, once the
                                                 Webster, 54 F.3d 1, 4 (1st Cir. 1995)
district court decides to grant a § 5K1.1
                                                 (limiting extent of §5K1.1 departure so
motion, “there are some parameters to
                                                 as not to "offset" the impact of a
the exercise of the court’s discretion.”
                                                 mandatory 60-day month consecutive
Although “the bases for substantial
                                                 sentence); United States v. Alvarez, 51

                                             4
F.3d 36, 39-40, 41 n.5 (5th Cir. 1995)                          Fed. R. Crim. P. 32(h) was
(limiting departure to avoid disparity in        amended in 2002 to read somewhat more
sentences with less culpable co-                 expansively than the holding in Burns.
conspirators); United States v. Carnes,          The Rule currently reads, “[b]efore the
945 F.2d 1013, 1014 (8th Cir. 1991)              Court may depart from the applicable
(limiting departure in light of                  sentencing range on a ground not
prosecutor’s failure to press weapon             identified for departure either in the pre-
charges).                                        sentence report or in a party’s pre-
                                                 hearing submission, the court must give
               The court’s reservations
                                                 the parties reasonable notice that it is
here as to the extent of the defendant’s
                                                 contemplating such a departure. The
truthfulness were within the factors cited
                                                 notice must specify any ground on which
in the Guidelines and are not subject to
                                                 the court is contemplating a departure.”
attack as being an impermissible
                                                 Taken together, the Guidelines, Rules of
criterion. In sum, a District Court has
                                                 Criminal Procedure and case law provide
authority to refuse or grant a downward
                                                 that, in general, when there are factors
departure under § 5K1.1 and is granted
                                                 that may have a measurable effect on the
broad discretion in determining the
                                                 applicable punishment, notice must be
extent of the reduction.
                                                 given to the defendant to allow an
                    III.                         opportunity to comment on their
                                                 accuracy.
               We now turn to the
defendant’s objection that she was                              Failure to give notice
entitled to notice that the departure            which realistically prevents a defendant
would be affected by the court’s doubts          from presenting evidence on a disputed
as to the truthfulness of her testimony at       point may, in some circumstances, affect
the Ogden trial.                                 substantial rights and require re-
                                                 sentencing. See United States v. Himler,
                The Sentencing Guidelines
                                                 355 F.3d 735 (3d Cir. 2004). However,
require the court to provide the parties
                                                 in United States v. Reynoso, 254 F.3d
with an adequate opportunity to present
                                                 467, 475 (3d Cir. 2001), the court
information when a sentencing factor is
                                                 concluded that although Fed. R. Crim. P.
reasonably in dispute. See U.S.S.G. §
                                                 32 had been violated, the error was
6A1.3(a). In United States v. Burns, 501
                                                 harmless because even if notice had been
U.S. 129 (1991), the Supreme Court held
                                                 given there was nothing that defense
that Fed. R. Crim P. 32 requires
                                                 counsel would have done differently at
“reasonable notice” to parties before a
                                                 the sentencing hearing.
district court considers an upward
departure on a ground not identified in                       Similarly, United States v.
the pre-sentence report or in a pre-             Nappi, 243 F.2d 758, 770 (3d Cir. 2001),
hearing submission.                              determined that failure to provide notice

                                             5
was not plain error unless the defendant          by the defendant’s conduct, and did so
would have done something by way of               sua sponte and without any notice to the
argument or proof that probably would             parties. On appeal, Himler asserted that
have affected the outcome. See also               if a warning had been given, he would
United States v. Rivera, 192 F.3d 81 (2d          have subpoenaed certain financial
Cir. 1999).                                       records bearing on the financial security
                                                  of the victims, investigated factors
                There is a paucity of cases
                                                  underlying the sale of property which
citing a lack of notice to challenge a
                                                  had a connection with the charged fraud,
limited downward adjustment; in most
                                                  as well as invoked Guidelines provisions
cases citing lack of notice, the issue was
                                                  that disfavored enhancement in the
a “surprise” upward adjustment or failure
                                                  circumstances. Based on the assertion
to grant any downward departure
                                                  that such specific measures would have
whatsoever. In United States v. Patrick,
                                                  been employed had notice been given,
988 F.2d 641, 648 (6 th Cir. 1993), the
                                                  we concluded that re-sentencing was
sentencing judge relied on the testimony
                                                  required. Himler, 355 F.3d at 743. It is
and bearing of a co-defendant at his plea
                                                  worth noting that the specific avenues of
hearing to justify a sentence
                                                  defense foreclosed by lack of notice in
enhancement for defendant Patrick
                                                  that case were quite different from the
because of his leadership role. The
                                                  circumstances in Patrick.
Court of Appeals concluded that advance
comment on the co-defendant’s                                        IV.
testimony would not have provided
                                                                 Fed. R. Crim. P. 32(h)
Patrick with any additional incentive or
                                                  speaks to a “departure from the
ability to challenge its accuracy. “To the
                                                  applicable sentencing range” when no
extent that the sentencing judge relied on
                                                  notice was given either in the pre-
a comparison of the demeanors of the
                                                  sentence report or a submission by a
two defendants, that evidence was
                                                  party. In this case notice was given
essentially irrebuttable.” Had the
                                                  through the government’s motion under
sentencing judge earlier notified Patrick
                                                  5K1.1 for a reduction of sentence and
that his “bearing, as compared to that of
                                                  therefore, by its terms, the Rule does not
his co-defendant, was that of a leader, it
                                                  apply.
is difficult to see what evidence or
arguments such a disclosure would have                           Moreover, Rule 32(h) does
prompted Patrick to offer.” Patrick, 988          not limit a court’s discretion as to the
F.2d at 648.                                      extent of a downward departure it may
                                                  apply. See United States v. King, 53 F.3d
             By comparison, in United
                                                  at 591 (noting that the extent of a
States v. Himler, the sentencing court
                                                  departure is a “non-mechanical process,”
based an upward departure on the
                                                  by which a sentencing court must give
economic impact on the victims caused

                                              6
“appropriate weight to the government’s             Berzon, 941 F.2d 8 (1 st Cir. 1991). Here
assessment and recommendation, [but                 it was the testimony of the defendant
still] consider all other factors relevant to       herself that was under scrutiny.
this inquiry.”)                                     Defendant was fully aware of what she
                                                    had said as a witness. The same judge
              Accordingly, we conclude
                                                    who heard all of the testimony in the
that the defendant is not entitled to any
                                                    Ogden trial was in a unique position to
relief under Rule 32(h).
                                                    make a judgment on the defendant’s
              Finally, we consider the              truthfulness as required by § 5K1.1. In
defendant’s challenge to the lack of                such circumstances, the likelihood of
notice under Sentencing Guideline §                 effective rebuttal is extremely slim.
6A1.3.
                                                                   To some extent the judge’s
               Nothing in the Guideline             evaluation of her veracity is similar to the
purports to require the sentencing judge            impressions gathered by the sentencing
to disclose in advance such matters as his          judge in the Patrick case. We need not
appraisal of the undisputed material                term the appraisal here as “irrebuttable,”
contained in the pre-sentence report,               but we would expect defendant to point
impressions created by the defendant’s              to specific steps she could have taken to
conduct during a trial, or the nature of            change the judge’s conclusion on what
the violation. Indeed, such                         he had seen and heard in the Ogden trial.
announcement of the judge’s tentative               Only two weeks elapsed between the trial
feeling about factors bearing on                    and the sentencing so the facts were still
appropriate punishment might undermine              fresh in the minds of both defendant and
the efficacy of the sentencing hearing.             her counsel who had been in the
An unwillingness to change one’s                    courtroom during her testimony.
publicly declared opinion is not a
                                                                   Defendant did not
stranger to the judiciary.
                                                    immediately object to the sentencing
               Moreover, a remand for re-           judge’s reaction to her testimony, but did
sentencing should not be required unless            so in her motion to reconsider. However,
there is reason to believe that an injustice        neither in that motion nor in the briefs in
has occurred that can be corrected by               this appeal did she state what steps she
reconsideration. We are not persuaded               would have taken to alter the sentencing
that that has occurred in this case.                judge’s opinion. If the defendant does
                                                    not point to a deprivation that could
              This case is unlike those
                                                    affect the outcome, re-sentencing is not
where a sentencing judge relied on
                                                    required. Thus, this case fails the test set
testimony of a co-defendant in another
proceeding as the basis for a sua sponte
enhancement. See, e.g., United States v.


                                                7
out in Himler.3
                Moreover, the sentencing
decision was obviously influenced by the
defendant’s extensive criminal record
which began in 1980. As the judge
remarked, “short incarcerations have
done little to dissuade her from her
criminal life . . . I think she needs to be in
a confined environment . . . I think 24
months confined under strict supervision
is necessary for this woman.” These
comments further indicate that advance
notice of the judge’s skepticism about the
defendant’s truthfulness at the Ogden
trial would likely not have affected the
ultimate sentence imposed.
               Accordingly, the judgment
of the District Court will be affirmed.




               3
                 Our holding here
preserves notice to the defendants of
adverse sentencing factors as required by
U.S.S.G. §6A1.3 and Fed. R. Crim P.
Rule 32. Burns cautioned that “[w]ere
we to read [these provisions] to dispense
with notice, we would then have to
confront the serious question whether
notice in this setting is mandated by the
Due Process Clause.” 501 U.S. at 138.
We need not address defendant’s due
process claims here because the district
judge’s exercise of discretion here
comported with the requirements of
U.S.S.G. §6A1.3 and Fed. R. Crim P.
Rule 32 as interpreted by our binding
precedent. Id.

                                                 8
