               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 07a0568n.06
                          Filed: August 8, 2007

                                       No. 06-2247

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                    )
                                             )
       Plaintiff-Appellee,                   )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
DANIEL M. KORSON,                            )   WESTERN DISTRICT OF MICHIGAN
                                             )
       Defendant-Appellant.                  )



       Before: RYAN, DAUGHTREY, and ROGERS, Circuit Judges.


       PER CURIAM. In this sentencing appeal, defendant Daniel Korson contends that

the district court relied upon impermissible factors in departing upward from the guidelines

range calculated in the defendant’s presentence report, improperly relied on victim-impact

statements made at his sentencing hearing, and violated Federal Rule of Criminal

Procedure 32(h) by failing to give the defendant notice of the specific grounds upon which

the upward adjustment would be based. For the reasons set out in this opinion, we find no

reversible error in connection with the sentencing procedure, and we therefore affirm the

sentence imposed by the district court.


                    FACTUAL AND PROCEDURAL BACKGROUND
No. 06-2247
United States v. Korson

       Korson was a CPA with his own accounting firm in Muskegon, Michigan, and,

through his business, he became employed as financial director or manager of several

local non-profit organizations, including Muskegon Family Care, a community health center

serving mostly poor and under-served patients; Greater Muskegon Catholic Schools, an

organization of four Catholic schools located within the Muskegon area; and Catholic

Social Services of Muskegon, a Catholic Charities organization providing various charitable

services.   In his capacity as financial director of these organizations, Korson was

responsible for all the financial functions of each organization, including budget

preparation, auditing procedures and preparing operating and cash-flow reports.


       Over a five year period, the defendant embezzled $2,265,417.50 in connection with

his position as financial director of Muskegon Family Care, Greater Muskegon Catholic

Schools, and Catholic Social Services of Muskegon. According to the pre-sentence report,

most of this amount, $1,394,910.00, was taken from Muskegon Family Care; $170,000.00

was taken from Catholic Social Services; and $655,653.91 consisted of withholding tax

payments owed but not turned over        to the IRS and $44,853.60 represented state

withholding tax payments. Because these tax payments belonged to the IRS and the State

of Michigan, the victims who suffered monetary loss with regard to those amounts were the

government entities themselves rather than Greater Muskegon Catholic Schools, from

whose accounts the money was stolen.




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No. 06-2247
United States v. Korson

       Of the funds embezzled, Korson used $553,906.00 to shore up the finances of two

restaurants that he owned and used the remainder to pay the bills and other financial

obligations of Greater Muskegon Catholic Schools. Korson, who grew up in Muskegon and

was closely connected to the Muskegon Catholic community personally and through his

family, explained that he felt responsible for the financial success or failure of the Greater

Muskegon Catholic Schools and decided to help the school system by taking money from

Muskegon Family Care, viewing the embezzlement as moving money from a financially-

sound institution to a financially-unsound institution. He claimed that he intended to return

the money to Muskegon Family Care after he implemented a plan that would create

financial stability in the school system, and he purportedly kept an account of how much

money he took and where it went in order to repay the amounts accurately. With regard

to the money he diverted to support his restaurants, he said that he hoped to make the

businesses successful, allowing him to repay the money taken with interest. However, the

restaurants ultimately failed and went into bankruptcy.


       Korson funneled all of the embezzled funds through a Greater Muskegon Catholic

Schools bank account known as the “50/50 account” (because the money from 50/50 fund-

raising raffles was held in that account). To effect the embezzlement and to cover it up,

he falsified numerous documents over the five-year period, including altering letters from

the State of Michigan, generating fake letters, altering journal entries, and creating false

monthly, quarterly and annual reports for several of the organizations.



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No. 06-2247
United States v. Korson

       During the time Korson was siphoning funds from Muskegon Family Care to the

50/50 account, the medical center began facing budget shortfalls. As a result, Korson

wrote a letter to the finance committee identifying their financial shortfalls and advising

committee members that they needed to generate an operational surplus of $170,000

within the next six months.     In the letter Korson also addressed ways in which to

accomplish this and suggested increasing patient visits to generate income, freezing all the

management and provider salary increases planned for the rest of the fiscal year, and

restructuring certain management positions so that the time commitment (and therefore

pay) would be less.


       Following his arrest and indictment, Korson executed a plea agreement with the

government and pleaded guilty to two counts: embezzlement of federal program funds,

in violation of 18 U.S.C. § 666(a)(1)(A), and embezzlement of public funds, in violation of

18 U.S.C. § 641. The presentence report calculated the offense level to be 21, derived

from a base offense level of 6, a 16-level increase because the monetary loss was

between $1 million and $ 2.5 million, a three-level decrease for acceptance of

responsibility, and a two-level increase pursuant to U.S.S.G. § 3B1.3 for abuse of a

position of trust or use of special skill to commit the offense. Korson did not have a

criminal record, so a criminal history category of I was used to arrive at a recommended

guideline range of 37 to 46 months. The presentence report indicated that “[n]o factors

ha[d] been identified under 18 U.S.C. § 3553(a) that would warrant the Court sentencing

the defendant outside the advisory guideline range.” However, in an addendum, the

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No. 06-2247
United States v. Korson

probation officer who wrote the report noted that the government would argue that an

upward variance was warranted.


       The presentence report also included a “victim impact” section that listed Muskegon

Family Care, Muskegon Catholic Social Services, the IRS, and the State of Michigan as

victims. Over four pages of this section were dedicated to explaining that although Greater

Muskegon Catholic Schools did not suffer an actual monetary loss (and presumably

therefore was not listed as a “victim”), Korson’s embezzlement nonetheless had a

devastating effect on the school system, based on the probation officer’s interview with the

attorney for Greater Muskegon Catholic Schools, who in turn had spoken with Mary

O’Connor, the Executive Director of Greater Muskegon Catholic Schools Foundation, as

well as a statement directly from Mary O’Connor. The report explained that because the

true financial condition was masked for over five years, the school system was unable to

take appropriate remedial steps and was therefore facing an unexpected crisis. One

school had already closed, others were in danger of closing, tuition had been raised 10

percent, 11 employees had been laid off, staff wages were frozen, and the school board

was at that point contemplating the elimination of healthcare coverage for teachers’

families. The schools had traditionally been substantially supported by donations from a

small number of very generous individuals, but due to Korson’s criminal activities, one of

these donors had suspended a customary annual donation of $100,000, and others

became reluctant to contribute. Moreover, because the schools’ credit was damaged as



                                           -5-
No. 06-2247
United States v. Korson

a result of Korson’s actions, vendors had threatened to discontinue services and some

vendors had reverted to cash-only deliveries.


       The victim impact statement from Mary O’Connor was reproduced in full in the

presentence report. In addition to discussing the hardships the schools were then facing,

O’Connor discussed the significant personal stress that the financial crisis had caused her,

as well as the toll it had taken on her and her family from working nights and weekends in

order to “straighten out the mess [Korson] made.” She also explained that because Korson

was a long-standing and esteemed member of the community who had a long history with

the Muskegon Catholic schools, the schools put an inordinate amount of trust in Korson,

likening it to “the trust we Catholics give priests.” The overall theme of O’Connor’s letter

was that although Korson is now presenting himself as a Robin Hood figure, his actions

were extremely hurtful to the school and those associated with the schools.       She also

expressed her disbelief that he was truly trying to help the schools, calling his conduct

“blatant evil.”


       The presentence report also discussed victim impact on Catholic Social Services

and Muskegon Family Care, but in less detail. With regard to Muskegon Family Care, the

probation officer reported:


       Victim impact letters were also received from representatives and employees
       of Muskegon Family Care. The letters confirmed the amount of loss detailed
       in the presentence report. Letters explain the financial and social impact Mr.
       Korson’s conduct has had on the organization as well as its employees.


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No. 06-2247
United States v. Korson

       Many employees reference staff cuts as well as extensive expense and
       productivity scrutiny as a result of his crime. Others reference the impact his
       crime has had on community relations and funding for Muskegon Family
       Care. Some employees were forced to find new employment based on lack
       of funding in their departments. All letters referenced a request that the
       Court sentence Mr. Korson to the full extent the law allows.


       At the ensuing sentencing hearing, three representatives from Muskegon Family

Care made victim impact statements.         They described the financial strain that the

organization had been under at the time Korson had embezzled the funds because of

capital outlays for a new building. The severe budget shortfalls that followed were caused

in large part by Korson’s embezzlement and resulted in pay freezes, discontinuation of

training programs, damage to morale in general, and a feeling of betrayal the staff felt

when they realized what Korson had done. Moreover, all three witnesses stressed that

Korson’s crime was all the more heinous because Korson was well aware that the center’s

mission was to serve the poor and neglected in society. One witness said that with the

funds that Korson stole, at least 2,500 more patients could have been treated. All three

witnesses voiced the hope that the court would punish Korson to the greatest extent

allowed. As one witness put it, “I ask this court to send a message to our patients . . . that

their struggles are not unheard and they are not unseen. Send a message that this state

and this country will not tolerate opportunists who take advantage of the poor for their own

personal gain.”




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No. 06-2247
United States v. Korson

       In its sentencing memorandum filed in advance of the sentencing hearing and at the

hearing, the government conceded that the sentencing range had been accurately

calculated by the probation officer but requested either an upward departure pursuant to

U.S.S.G. § 5K2.0 or, in the alternative, an above-the-guidelines variance pursuant to 18

U.S.C. § 3553(a). The government contended that because the guidelines calculation

addressed monetary harm only, the damage Korson’s crime had caused to Greater

Muskegon Catholic Schools, which was all non-monetary in nature, had not been taken

into account and, therefore, that a departure or variance was necessary in order to punish

the defendant adequately for his crimes. At the hearing, the government reiterated this

argument and also referred to the monetary and non-monetary harm to Muskegon Family

Care, emphasizing the victim impact statements that had just been presented and

suggesting a four-level increase, based on the “yardstick” of the four-level enhancement

provided for in U.S.S.G. § 2B1.1(b)(13)(B)(ii) and (iii) for harm endangering the financial

security of a publicly traded organization or an organization with over 1,000 employees,

and harm endangering the solvency of more than 100 victims, respectively. It is clear,

however, that the government was citing § 2B1.1(b)(13)(B) only as an example of an

appropriate increase for similar conduct and not as mandatory in the defendant’s case.


       In his sentencing memorandum, as well as at the hearing, the defendant objected

to an upward adjustment, arguing that the non-monetary harm to Greater Muskegon

Catholic Schools had already been taken into account.             He argued that every



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No. 06-2247
United States v. Korson

embezzlement necessarily affects people “down the line” in non-monetary ways and,

therefore, that the guidelines already take these effects into account when they set the

base offense levels. The defendant also argued that the two-level enhancement he had

received for abuse of a position of trust or use of special skill, pursuant to U.S.S.G.§ 3B1.3,

specifically took non-monetary harm into account. Therefore, he contended, a sentence

above the guidelines would, in effect, count the non-monetary factors twice and create a

sentencing disparity in relation to other embezzlement cases. The defendant also insisted

that the description of the non-monetary harm to Greater Muskegon Catholic Schools was

based on mere “anecdotal reports” of school representatives and was not the result of

investigation. Korson also argued that although the Catholic school system was trying to

blame him for its financial problems, it was experiencing financial problems unrelated to

his criminal activities and similar to financial problems that Catholic schools across the

country were experiencing. At no time did the defendant object to the victim-impact

statements given by the Muskegon Family Care representatives.


       At the hearing, the court went through the factual assertions as stated in the

presentence report, and each time the non-monetary harm to Greater Muskegon Catholic

Schools was raised, the judge acknowledged Korson’s position that it was overstated and

based on anecdotal evidence. After a thorough discussion of the presentence report,

argument by counsel, and a statement from the defendant himself, the court went over the

§ 3553(a) factors in detail. The district judge was particularly cognizant of the fact that



                                             -9-
No. 06-2247
United States v. Korson

because of his history with the community and his social skills, Korson was “able to lead

people to a level of trust which they may not otherwise have had.” The judge also noted

that Korson was a “key person in the community” and that the trust people placed in him

was beyond that that would be given to “just somebody who was any accountant.” After

acknowledging that factors had been taken into account to some extent in the guidelines

calculation in the § 3B1.3 enhancement, the district judge concluded that the defendant’s

situation was “bigger than that.” Moreover, the district judge found, Korson’s conduct was

not spontaneous but, instead, involved careful planning over a five-year period and

repeated acts of deceit involving innocent people who “[didn’t] really understand what [wa]s

going on,” presumably because the organizations had placed such an inordinate amount

of trust in Korson and, as a result, had not thought to audit his accounting. The judge

described the total amount of the monetary loss as “egregious” and also accepted the

government’s argument that there was substantial non-monetary harm that was not taken

into account under the guidelines, including the fact that much of the money embezzled

was earmarked for the medical needs of the poor. In addition, the judge was clearly

dubious about the defendant’s “Robin Hood” motivations, based on the evidence in the

record.


       As a result, the district judge concluded that a four-level enhancement was required

in order to “take into account the factors that our guidelines simply don’t recognize that are

real in this case.” That increase took the offense level to 25, resulting in a guideline range



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No. 06-2247
United States v. Korson

of 57 to 71 months. Ultimately, the district judge imposed a sentence of 60 months, finding

that “a five-year sentence . . . [is] a long time” but “[not] too long for this offense” and

concluding that it was both “reasonable” and “adequate.” The judgment entered by the

district court adopted the recommendation in the presentence report, with the following

notation:


       Defendant substantially endangered the solvency and financial security of
       several organizations. Moreover, the harm done to the Greater Muskegon
       Catholic Schools cannot be measured by the guidelines because the
       applicable guideline measures only economic harm. The Court gave a 4-level
       enhancement to the base offense level calculations pursuant to 5K2.0;
       similarly to U.S.S.G. § 2B1.[1](b)(13)(B)(ii) and U.S.C. § 3553(a)(2)(A).


The judgment also provides that the sentence outside the guideline was necessary “to

reflect the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense (18 U.S.C. § 3553(a)(2)(A)).” The defendant now appeals the

sentencing order as reflected in the district court’s judgment.


                                      II. DISCUSSION


A. Standard of Review


       In the wake of the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), sentencing courts must consider not only the applicable sentencing guideline

range but also the statutory factors set out in 18 U.S.C. § 3553(a), in arriving at a sentence

that is sufficient but not greater than necessary to meet the goals set out in section 3553(a).


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No. 06-2247
United States v. Korson

Those factors include “the nature and circumstances of the offense;” “the history of the

defendant;” “the need for the sentence imposed . . . to reflect the seriousness of the

offense[,] . . . to afford adequate deterrence to criminal conduct[,] . . . to protect the public

from further crimes of the defendant[, and] . . . to provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment in the most

effective manner;” “the need to avoid unwarranted sentence disparities. . . ; and the need

to provide restitution . . . .” 18 U.S.C. § 3553(a). If a sentence falls within the advisory

guidelines range, then we accord it “a rebuttable presumption of reasonableness.” United

States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006) (internal quotation marks and

citation omitted); see also Rita v. United States, 127 S.Ct. 2456, 2462-63 (2007) (federal

appellate court may apply a non-binding presumption of reasonableness to district court

sentence that falls within properly calculated guidelines range).


       We review the district court’s sentencing orders for procedural and substantive

“reasonableness.” See United States v. Collington, 461 F.3d 805, 807-08 (6th Cir. 2006).

 A sentence is considered procedurally “unreasonable when the district judge fails to

‘consider’ the applicable Guideline range or neglects to ‘consider’ the other factors listed in

18 U.S.C. § 3553(a) and instead simply selects what the judge deems an appropriate

sentence without such required considerations.” United States v. Webb, 403 F.3d 373, 383

(6th Cir. 2005) (footnote omitted).       In addition, “a sentence may be substantively

unreasonable where the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence



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No. 06-2247
United States v. Korson

on impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an

unreasonable amount of weight to any pertinent factor.” United States v. Ferguson, 456

F.3d 660, 664 (6th Cir. 2006) (quoting Webb, 403 F.3d at 385) (alterations in Ferguson).


B. Double-Counted or Otherwise Impermissible Factors


       The defendant first argues that his sentence was “improperly enhanced by four

levels” based on several factors that were either “double-counted” or impermissible,

specifically abuse of a position of trust, non-monetary harm to Greater Muskegon Catholic

Schools, and victim impact on Muskegon Family Care, including the fact that the patients

affected by the embezzlement were mostly poor and underserved. Our review of the

record, however, convinces us that none of these factors was double-counted or given

undue weight and that no impermissible factor was considered.


       Concerning the abuse-of-trust factor, the defendant argues that double-counting

resulted from the two-point enhancement under U.S.S.G. § 3B1.3 coupled with the fact that

embezzlement necessarily involves an abuse of trust. We have held, however, that abuse

of trust is not a necessary element of embezzlement, and therefore the defendant’s

sentence may be enhanced for such an abuse pursuant to § 3B1.3. See United States v.

Madison, No. 05-5622, 2007 WL 1120382, at * 12 (April 16, 2007) (unpublished) (citing

United States v. Brown, 66 F.3d 124, 129 (6th Cir. 1995)). Moreover, while the defendant

is correct in asserting that his sentence was enhanced even beyond the limits of section



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No. 06-2247
United States v. Korson

3B1.3, the guidelines specifically allow for upward departures when the circumstance that

forms the basis of the departure “is present in the offense to a degree substantially in

excess of . . . that which ordinarily is involved in that kind of offense.” See U.S.S.G. §

5K2.0(a)(3). There is ample evidence in the record that the defendant was given an

inordinate amount of trust by the organizations that hired him, especially the Catholic school

system, due to his long history and prominence in the Muskegon community, and the district

judge specifically held that Korson’s abuse of trust was more egregious than that taken into

account under § 3B1.3.


       The defendant’s contention that non-monetary harm to both Greater Muskegon

Catholic Schools and Muskegon Family Care was likewise impermissibly double-counted

is equally unpersuasive. He argues that under the guidelines, the dollar-amount of the loss

is an adequate measure of the harm caused and, therefore, that the guidelines implicitly

accounted for any non-monetary harm through the 16-level increase to his base offense

level for the total pecuniary loss he caused to his victims, citing commentary to the 2003

amendments to the loss table in U.S.S.G. § 2B1.1. But that table was amended in 2003 to

increase the penalties for offenses that cause “catastrophic losses of magnitudes previously

unforeseen, such as the serious scandals that gave rise to several portions of the Act [which

contained the amendment]”. See U.S.S.G. § 2B1.1, app. C (am. 647). Although the

amount of loss in this case was large, it did not constitute a “catastrophic loss of great

magnitude” as contemplated by the commentary, which speaks in terms of losses in excess



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No. 06-2247
United States v. Korson

of $200 million and $400 million but makes no mention of non-monetary losses. Moreover,

contrary to Korson’s contention that the § 2B1.1 chart accounts for non-monetary loss, the

Application Notes to § 2B1.1 specifically provide that any “caused or risked substantial non-

monetary harm” such as “psychological harm or severe emotional trauma” is a valid upward-

departure consideration. See U.S.S.G. § 2B1.1, cmt. n. In this case, there was ample

evidence that non-monetary harm was inflicted on both Greater Muskegon Catholic Schools

and Muskegon Family Care, including morale problems, negative community relations, and

an emotional toll on those left to clean up the mess that resulted from Korson’s long-running

deception, all of which the district judge found compelling.


       With regard to the § 5K2.0 “aggravating factor” that much of the money taken from

Muskegon Family Care was earmarked for the medical needs of the poor, the defendant

contends that it was an impermissible ground upon which to base the departure because

the medical center was not a “vulnerable victim” within the meaning of the guidelines. In

support of this proposition, the defendant cites out-of-circuit case law indicating that a

vulnerable-victim enhancement under U.S.S.G. § 3A1.1 may be used only if the defendant

targeted his victims because of their vulnerability, which the defendant denies doing.

However, it does not appear that the district court relied on § 3A1.1 in imposing sentence.

Moreover, under the framework for § 5K2.0 departures set out by the Supreme Court in

Koon v. United States, 518 U.S. 81 (1996), this circumstance is exactly the kind of

consideration that is ripe for a departure because this fact, perhaps more than any other,



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No. 06-2247
United States v. Korson

makes Korson’s case egregious in comparison to other embezzlement cases and,

therefore, takes the case “outside the Guidelines ‘heartland’ and make[s] . . . it a special,

or unusual, case.” Id. at 95.


C. Judicial Fact-Finding


       Despite his failure to object to the victim impact statements when they were made

at the sentencing hearing by witnesses appearing on behalf of Muskegon Family Care, the

defendant now argues that the district court’s consideration of them violated his Sixth

Amendment rights as interpreted in United States v. Booker, 543 U.S. 220 (2005), on the

ground that the statements included facts that had not been found by a jury or admitted by

the defendant. Because Korson did not raise this issue below, we review only for plain

error. See United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005).


       Pursuant to Federal Rule of Criminal Procedure 52(b), “a plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.” An appellate court must find “(1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Meeker, 411 F.3d 736, 741 (6th Cir. 2005) (citing

Johnson v. United States, 520 U.S. 461, 466-67 (1997)) (internal quotation marks omitted).

Generally, to show that substantial rights are adversely affected, the defendant “must

demonstrate prejudice as a result of the error.” Id. at 741-42 (citing United States v. Olano,

507 U.S. 725, 734-35 (1993)) (internal quotation marks omitted). Finally, even where all



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No. 06-2247
United States v. Korson

three conditions are met, “an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 741 (citing Johnson, 520 U.S. at 467) (internal

quotation marks omitted).


       There is no plain error in this case because there was no error. We have reiterated

in the wake of Booker that the holding in that case did not eliminate judicial fact-finding.

See, e.g., United States v. Mickens, 453 F.3d 668, 673 (6th Cir.) (no Sixth Amendment

violation when sentencing guidelines are considered merely advisory), cert. denied, 127

S.Ct. 540 (2006). On the contrary, at post-Booker sentencing a judge may enhance a

sentence based on judicially-found facts as long as those facts are found by a

preponderance of the evidence. See id. Moreover, there is no merit to the defendant’s

belated claim, raised only in his reply brief before this court, that facts culled by the district

court from the victim-impact statements did not meet the preponderance of the evidence

standard, both because Korson admitted the essential facts discussed in the statements

and because he has failed to show that any of the facts presented in the statements and

relied upon by the court were established by anything less than a preponderance of the

evidence.    His main complaint appears to concern the emotional tenor of some of the

testimony. But there is nothing in the record to indicate that the district judge was

influenced by the emotional nature of the victim-impact statements. Indeed, the court’s

explanation for the sentence appears to be appropriately well-reasoned and dispassionate,



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No. 06-2247
United States v. Korson

setting out the basis for the upward departure and an analysis of the relevant § 3553(a)

factors.


C. Federal Rule of Criminal Procedure 32(h)


       In another argument focusing on the victim-impact statements of the Muskegon

Family Care representatives, the defendant contends that the district court violated the

notice requirement of Federal Rule of Criminal Procedure 32(h) by basing its decision to

impose an enhancement at least in part on harm to Muskegon Family Care, as recounted

in the in-court statements, even though the presentence report and the government’s

prehearing submissions mentioned only non-economic harm to Greater Muskegon Catholic

Schools as the basis for a departure or variance. Because Korson failed to raise this

objection at the sentencing hearing, our review once again is for plain error only. In this

instance, we conclude that any error on the part of the district court was harmless, because

the defendant has failed to establish prejudice.


       Rule 32(h) provides that:


       Before the court may depart from the applicable sentencing range on a
       ground not identified for departure either in the presentence report or in a
       party’s prehearing submission, the court must give the parties reasonable
       notice that it is contemplating such a departure. The notice must specify any
       ground on which the court is contemplating a departure.




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United States v. Korson

This provision was added to Rule 32 by amendment in 1996 in order to codify the Supreme

Court’s holding in Burns v. United States, 501 U.S. 129, 135 (1991), that the guarantee in

Rule 32 of the defendant’s right “to comment upon . . . matters relating to the appropriate

sentence” necessarily included the right to notice of a court’s intent to depart upward and

the grounds for such a departure. But in this case, the subject of the defendant’s complaint

is the court’s consideration of the victim-impact statements, which came to light only at the

sentencing hearing. Given this circumstance, we do not see how it would be possible for

the district court to supply the prehearing notice referenced by Rule 32(h).


       Moreover, we reject the defendant’s contention that without such notice, the victim-

impact statements made by the Muskegon Family Care representatives at the hearing were

“not properly before the court.” The defendant relies on our decision in United States v.

Hayes, 171 F.3d 389 (6th Cir. 1999), to support his argument. The situation in that case,

however, is distinguishable from the situation we find here. In support of his decision to

sentence the defendant to the high-end of the applicable guidelines range, the sentencing

judge in Hayes relied extensively on victim-impact letters that were sent directly to the court

and were never made available to the defendant. Indeed, the defendant was not even

aware that the letters existed prior to imposition of the sentence. Reviewing for plain error,

we found that it was error for the judge to rely on the undisclosed, ex parte letters in making

his sentencing determination and that the error met the stringent standards of a plain error

analysis.



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United States v. Korson

       Here, by contrast, the defendant had notice that representatives of Muskegon Family

Care had sent letters to the probation officer during his presentence investigation describing

“the financial and social impact [the defendant]’s conduct has had on the organization as

well as its employees,” including strained finances requiring “staff cuts,” adverse effects on

“community relations,” and difficulties in fund-raising. Because the defendant was put on

notice that “[s]ome employees were forced to find new employment based on lack of

funding in their departments,” he could reasonably anticipate that the laid-off employees

and others from the medical center might appear at the sentencing hearing and ask to give

statements in open court, as was their right under the Crime Victim’s Rights Act. See 18

U.S.C. § 3771(a)(4). No legal authority of which we are aware would require that a

sentencing court simply ignore such statements.


       There was in this case no contemporaneous objection to testimony by the medical

center representatives at the sentencing hearing. Nor was there a motion to continue the

hearing in order to permit counsel to investigate the information presented on behalf of

Muskegon Family Care.        In view of the notice in the presentence report that the

organization’s officials were concerned about more than just the bottom-line loss of well

over $1 million due entirely to the defendant’s perfidy, we simply cannot conclude that plain

error occurred in this case. Significantly, the defendant has not alleged that any particular

factual assertion put forward in the victim-impact testimony was false, nor has he

demonstrated on appeal in what way he would have been able to rebut those assertions



                                           - 20 -
No. 06-2247
United States v. Korson

effectively, had he known that they would be offered. As a result, he has failed to establish

the prejudice necessary to prevail under Rule 32(h). See Meeker, 411 F.3d at 742-43, 746

(in challenging a sentence for lack of Rule 32(h) notice, a defendant must demonstrate on

appeal what advantage he would have gained from receiving prehearing notice, i.e., that

factual assertions were false or could have been effectively rebutted).


                                      CONCLUSION


       For the reasons set out above, we AFFIRM the district court’s judgment.




                                           - 21 -
