                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-14-2006

USA v. O'Keefe
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4737




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                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                    ___________

                    No. 05-4737
                    ___________


          UNITED STATES OF AMERICA

                          vs.

             SEAN PATRICK O'KEEFE,

                      Appellant

                     __________

    On Appeal from the United States District Court
        for the Western District of Pennsylvania
           (D.C. Criminal No. 03-cr-00278-1)
    District Judge: The Honorable David S. Cercone
                     ___________

      Submitted Under Third Circuit LAR 34.1(a)
                  October 27, 2006



BEFORE: SMITH, WEIS, and NYGAARD, Circuit Judges.




              (Filed: December 14, 2006)




                    ___________
                               OPINION OF THE COURT
                                    ___________

NYGAARD, Circuit Judge.

                                            I.

      On December 1, 2003, Sean O’Keefe pleaded guilty to violating 18 U.S.C. §§371

and 1343 as a collections agent for a fraudulent telemarketing scheme run from Canada.

The District Court sentenced O’Keefe to five months in prison, five months of home

detention, and 3 years of supervised release. The District Court also ordered him to pay

$90,000 in restitution, a $3,000 fine and a $100 assessment. O’Keefe appealed his

sentence. Following Booker, this Court vacated and remanded O’Keefe’s cause. The

District Court held a second sentencing hearing and imposed the same sentence. O’Keefe

timely appealed. We will affirm.

                                            II.

                                            A.

      First, O’Keefe argues that, during his second sentencing hearing, the Government

breached his plea agreement by arguing he should be held accountable for the full harm

done by the telemarketing scheme, despite the parties’ stipulation that he only knowingly

took part in defrauding an individual named Doris Gilbert of $90,000.

      We review the question of whether the Government breached a plea agreement de

novo. United States v. Rivera, 357 F.3d 290, 293-94 (3d Cir. 2004). We analyze plea

agreements according to contract principles and attempt to discern whether the


                                             2
Government’s conduct was inconsistent with the defendant’s reasonable understanding

when entering his plea. Rivera, 357 F.3d at 294-95.

      O’Keefe’s plea agreement states, in relevant part:

                    [O’Keefe] will acknowledge his responsibility
                    for the full scheme to defraud by wire during
                    the period November 2001 through January
                    2002, as described in the information, and
                    stipulate (subject to the limitations of paragraph
                    C 4, below) that such conduct may be
                    considered by the Probation Office and by the
                    District Court in imposing sentence (emphasis
                    added).

      Paragraph C-4 states:

                    In this regard, the parties agree that the
                    maximum amount of loss from the scheme to
                    defraud for which Mr. O’Keefe has
                    responsibility pursuant to Sentencing Guidelines
                    §1.B1.1.3, Relevant Conduct, is a sum not more
                    than $90,000, based on Mr. O’Keefe’s lack of
                    knowledge of the nature of the scheme prior to
                    December 5, 2001. However, the parties’
                    stipulation is not intended to limit any inquiry
                    by the District Court, and has no bearing on any
                    fact not expressly set forth in the stipulation.

      Supplemental Appendix at 180, 184.

      At the plea colloquy, O’Keefe’s counsel sought to clarify the meaning of

paragraph A-4, and explained to the District Court that it was nothing more than a venue

waiver. The U.S. Attorney agreed, stating:

                     That is basically correct, your Honor. It is
                    unquestionably the intent of this agreement that
                    the Defendant’s relevant conduct for purposes

                                             3
                     of the Guidelines is based on the 90 thousand
                     dollar figure, and that is provided both in
                     Paragraph C-4, and then the factual basis for
                     that is explained in the stipulation. And it is
                     correct that the issue of venue is underneath the
                     terms of Paragraph A-4.

       Supplemental Appendix at 117-118.

       O’Keefe contends paragraph C-4 prohibited the Government from advocating a

sentence based upon harm caused to senior citizens before he knew the scheme was

fraudulent. We disagree. Paragraph C-4 plainly refers to the maximum loss for which

O’Keefe’s offense level would be calculated pursuant to Sentencing Guidelines

§2B1.1(b). Under that provision, the $90,000 loss for which O’Keefe would be

responsible results in an eight-level increase in his offense level. U.S. SENTENCING

GUIDELINES MANUAL §2B1.1(b)(E) (2006). This reading of paragraph C-4 is consistent

with the rest of the plea agreement and the parties’ statements before the District Court.

For instance, under paragraph B-3, the Government expressly reserved the right to

allocution on “the full extent and nature of” O’Keefe’s involvement in the fraud.

Although the Government conceded O’Keefe did not knowingly defraud senior citizens,

no provision of the plea agreement prevented the Government from explaining the overall

impact of his actions and his failure to alert authorities when he did become aware of the

nature of the scheme. We cannot reasonably infer such a specific prohibition from

paragraph C-4.

                                            B.


                                             4
       District judges must follow a three-step analysis in sentencing criminal defendants.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). The district court must 1)

continue to calculate a defendant’s Guidelines sentence precisely as it would have before

United States v. Booker; 2) formally rule on the parties’ motions, stating on the record

whether it is granting a departure and how that departure affects the Guidelines

calculation; and 3) exercise its discretion by considering the relevant §3553(a) factors.

Gunter, 462 F.3d at 247. At step three, the sentencing record should demonstrate the court

considered the §3553(a) factors and any sentencing grounds properly raised by the parties

which have recognized legal merit and factual support in the record. Id.

       First, O’Keefe contends he was entitled to a four-level decrease in his offense level

as a “minimal participant” in the fraud. U.S. Sentencing Guidelines §3B1.2 provides for a

four-level decrease in the offense level of a “minimal participant” in any criminal activity

and a two-level decrease in the offense level of a “minor participant.” A “minimal

participant” is one who plays a minimal role in concerted activity and is “plainly among

the least culpable of those involved.” U.S. SENTENCING GUIDELINES MANUAL §3B1.2

cmt. n.4 (2006). This adjustment is to be applied infrequently. Id. A “minor participant” is

one who is less culpable than most other participants, but whose role cannot be described

as minimal. U.S. SENTENCING GUIDELINES MANUAL §3B1.2 cmt. n.5 (2006). The

District Court concluded he was a “minor participant” entitled only to a two-level

decrease.

       In applying §3B1.2, the district court must weigh the totality of the particular

                                             5
circumstances in a defendant’s case, and is not required to grant an adjustment based

solely upon the defendant’s assertions. U.S. SENTENCING GUIDELINES MANUAL §3B1.2

cmt. n.3(C) (2006). The district court’s inquiry involves weighing factors such the

defendant’s relationship to other participants, his knowledge of others’ activities, the

importance of his actions to the success of the venture, his economic interest in the

scheme and his physical participation. District courts exercise broad discretion in

applying §3B1.2 and their rulings are left largely undisturbed on appeal. United States v.

Haut, 107 F.3d 213, 217 (3d Cir. 1997); United States v. Isaza-Zapata, 148 F.3d 236,

238-39 (3d Cir. 1998).

       Following the first sentencing hearing, the District Court noted O’Keefe

discovered the scheme was fraudulent and nonetheless failed to notify authorities and

collected $90,000 from Doris Gilbert. In addition, O’Keefe enjoyed an economic interest

in the scheme by retaining between five and ten percent of his collections for himself. The

District Court did not err by concluding O’Keefe was a minor, not minimal, participant in

the fraud.

       Next, O’Keefe argues the District Court violated the Ex Post Facto clause when it

applied the 2003 Sentencing Guidelines Manual to reduce his offense level for his role in

the offense before it reduced his offense level for acceptance of responsibility. Because

O’Keefe did not present this argument to the District Court, we review it for plain error.

United States v. Dyer, 325 F.3d 464, 467 (3d Cir. 2003).

       When O’Keefe committed his offense in 2001, the Sentencing Guidelines Manual

                                              6
Application Instructions simply listed the steps to be taken in calculating a sentence

sequentially, (a) through (i). U.S. SENTENCING GUIDELINES MANUAL §1B1.1 (2001). In

2003, the Sentencing Commission added text specifically directing district courts to make

adjustments sequentially, such that a district court adjusts an offense level for role in the

offense before it adjusts for the defendant’s acceptance of responsibility. See U.S.

SENTENCING GUIDELINES MANUAL §1B1.1 (2003).

       The District Court properly calculated the adjustments applicable to O’Keefe’s

offense. Generally, a district court should apply the Guidelines in effect at the time of

sentencing, unless doing so would expose the defendant to greater punishment than if he

were punished under the Guidelines in effect at the time he committed his crime. The

2003 amendment merely clarified the formulaic application of the Guidelines we directed

district courts to employ in previous cases. It did not alter “the definition of criminal

conduct or increase the penalty by which a crime is punishable.” California Dep’t of

Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995).

       O’Keefe also challenges the District Court’s application of §2B1.1(b)(9)(B), which

requires a two-level enhancement where “a substantial part of a fraudulent scheme was

committed from outside the United States.” U.S. SENTENCING GUIDELINES MANUAL

§2B1.1(b)(9)(B) (2006). O’Keefe argues the enhancement is inapplicable to his offense

because he was a resident of Canada at the time of his offense and did not know he was

involved in extracting money from persons in the United States. O’Keefe’s position lacks

merit. First, O’Keefe’s Canadian residence does not except him from the §2B1.1(b)(9)(B)

                                               7
enhancement’s coverage. Second, O’Keefe stipulated he “understood that Gerlach and

others acting with him expected to receive money sent by wire transfer from Americans”

and stated at his sentencing hearing that he “knew the money was coming from the United

States.” The District Court did not err when it applied the §2B1.1(b)(9)(B) enhancement.

                                            C.

       Next, O’Keefe argues the District Court failed to make findings regarding his

sentence objections as required by Federal Rule of Criminal Procedure 32(i)(3)(B).

       The District Court made the requisite Rule 32 findings during the first sentencing

proceedings, and reaffirmed those findings at the second sentencing hearing. At the

second hearing, the District Court stated, “[N]othing in my view has fundamentally

changed.” The District Court was under no obligation to reconsider and re-issue its initial

findings following our Booker remand.

                                            D.

       Finally, O’Keefe contends the District Court misapplied Booker when it accorded

the Sentencing Guidelines “great weight” and imposed an unreasonable sentence.

       The Guidelines continue to carry considerable weight in the sentencing process.

See United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). Here, the District Court

properly recognized the “highly advisory” quality of the Guidelines, and gave meaningful

consideration to the relevant statutory factors and O’Keefe’s particular circumstances.

United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). The Guidelines range

applicable to O’Keefe was 10-16 months. O’Keefe’s sentence – five months in prison and

                                             8
five months of home detention – was entirely reasonable.

                                          III.

      We conclude the Government did not breach O’Keefe’s plea agreement and that

the District Court imposed a proper and reasonable sentence. We will affirm.




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