242 F.3d 1224 (10th Cir. 2001), 99-6381, US v. Fortier

Docket Nº:99-6381
Citation:242 F.3d 1224
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL J. FORTIER, Defendant - Appellant.
Case Date:March 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1224

242 F.3d 1224 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MICHAEL J. FORTIER, Defendant - Appellant.

No. 99-6381

United States Court of Appeals, Tenth Circuit

March 16, 2001

        Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 95-CR-111-VB)

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        Michael G. McGuire, Tulsa, Oklahoma for the Defendant-Appellant.

        Sean Connelly, Special Attorney to the United States Attorney General, Denver, Colorado for the Plaintiff-Appellee.

        Before EBEL, PORFILIO, and LUCERO, Circuit Judges.

        JOHN C. LUCERO, Circuit Judge.

        Defendant-appellant Michael Fortier pleaded guilty to several offenses stemming from his involvement with Timothy McVeigh and Terry Nichols prior to their bombing of the Murrah Federal Building in Oklahoma City in 1995. Fortier appealed his original sentence, and this Court vacated and remanded for resentencing. See United States v. Fortier, 180 F.3d 1217, 1232 (10th Cir. 1999). On remand, Fortier was resentenced to an identical prison term and a reduced fine. Fortier appeals his second sentence claiming the district judge was vindictive and erred in applying an upward departure.1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

        I

        Our prior opinion, see Fortier, 180 F.3d at 1219-23, discusses the facts culminating in Fortier's guilty plea and original sentencing; we reiterate relevant facts for context. Fortier knew McVeigh and Nichols from their service together in the Army. McVeigh informed Fortier of the plan to bomb the Murrah building and provided him with many details of the operation months before the bombing. Although Fortier refused to take part in the conspiracy and has not been charged as a co-conspirator, he did sell some firearms Nichols had stolen from a gun collector and gave McVeigh $2000 of the proceeds. The government has stipulated that it cannot trace any of that money to specific expenditures made in furtherance of the bombing.

        After the bombing, Fortier pleaded guilty to conspiring to transport stolen firearms in violation of 18 U.S.C. § 371, transporting stolen firearms in violation of 18 U.S.C. §§ 922(i), 924(a)(2), making a false statement to the FBI in violation of 18 U.S.C. § 1001, and misprision of a felony in violation of 18 U.S.C. § 4. Fortier also assisted the government in prosecuting McVeigh and Nichols and testified against them at their trials.

        At his original sentencing, the district judge sentenced Fortier to 144 months in prison and a $200,000 fine, applying the cross reference in § 2K2.1(c)(1) of the 19942 United States Sentencing Guidelines Manual to calculate Fortier's offense level. Section 2K2.1(c)(1) states that if a defendant used or possessed a firearm in connection

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with another crime that resulted in death, the court must apply the most analogous homicide guideline from U.S.S.G. Chapter 2A1. The district court applied § 2A1.1, the first-degree murder guideline.

        On appeal, this Court held that the district court erred in applying the first-degree murder guideline and concluded that the involuntary manslaughter guideline, "although not a perfect fit," was most analogous to Fortier's situation. Fortier, 180 F.3d at 1230. Because Fortier's base offense level without the involuntary manslaughter cross reference was higher, the cross reference did not apply. See id. ("The cross reference provides that the most analogous offense guideline under Chapter 2A1 must be applied only if 'the resulting offense level is greater than that determined' under the base offense level and specific offense characteristics found in section 2K2.1." (quoting U.S.S.G. § 2K2.1(c)(1)(B))). In remanding for resentencing we stated: "Our decision today . . . requires the [district] court to begin with a significantly lower [offense level] number. We expect our holding to dramatically affect Mr. Fortier's total offense level." Id. at 1232.

        Prior to Fortier's resentencing, the district judge held three telephone conferences with counsel to schedule and set the parameters of the resentencing hearing. During the first two conferences, the hearing was rescheduled at the request of Fortier's counsel. At the third conference, held on September 24, 1999, Fortier's counsel inquired whether he would have the option of calling witnesses at the resentencing. In response, the district judge stated he "would not anticipate that we would have any evidence," (IV ROA at 43), or further allocution by either Fortier or the victims of the Oklahoma City bombing at the resentencing hearing.

        Two of the victims of the Oklahoma City bombing, appearing through counsel, filed a brief prior to Fortier's resentencing asking the court to impose an upward departure. Over objection, the district judge permitted the victims' brief to be filed as an amicus brief. Victims' counsel also filed a motion seeking to participate in oral argument.

        At the resentencing hearing, the district judge permitted victims' counsel to participate and argue the proper interpretation of the Sentencing Guidelines. Victims' counsel urged a substantial upward departure, but asked the court to impose the same sentence as it had before to avoid additional litigation concerning the appearance of vindictiveness that might arise if the court ordered a longer sentence.

        Reversing its prior statement, the court allowed defense counsel to present witnesses, whereupon counsel stated that because the court had previously indicated that no evidence would be taken at the resentencing, one of his witnesses was out of town. The district judge asked for a proffer, but defense counsel never made one. Defense counsel did not call his other potential witness, Fortier's wife, although she was present in the courtroom.

        Fortier was resentenced to 144 months and a $75,000 fine. In so doing, the court stated it was again applying the U.S.S.G. § 2K2.1(c)(1) cross reference, although when calculating Fortier's offense level the court began with the offense level of twenty-four applicable to the firearms offenses and then departed upward by thirteen levels. The upward departures were based on several Sentencing Guidelines sections: § 5K2.1 (multiple deaths); § 5K2.2 (significant physical injury); § 5K2.3 (extreme psychological injury); § 5K2.5 (property damage); § 5K2.7 (disruption of governmental functions); and § 5K2.14 (endangerment of public health or safety). Another factor taking the case out of the 1994 Guidelines' heartland was the absence of the current terrorism guideline, § 3A1.4, from the 1994 version of the Guidelines applicable to Fortier's case. (See V ROA at 142 ("In 1994, the Sentencing Commission had not envisioned a terrorist act in the United States encompassing the magnitude of death, destruction and devistation [sic] that was experienced in the Oklahoma

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City bombing.").) Fortier's offense level was then reduced by three levels for timely acceptance of responsibility, see U.S.S.G. § 3E1.1, and two levels for substantial assistance, see id. § 5K1.1. As a result of these departures and adjustments, Fortier's final offense level was thirty-two, a one-level decrease as compared to his initial sentencing.

        II

        Constitutional due process guarantees prohibit judges from vindictively imposing harsher sentences following a successful appeal. See North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969); see also United States v. Sullivan, 967 F.2d 370, 374 (10th Cir. 1992). As this Court has explained,

        [t]he Constitution limits, but does not absolutely prohibit, a judge's power to impose a harsher sentence upon remand from an appellate court. In [Pearce], the Supreme Court emphasized that due process "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial . . . [and] that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge." For this reason, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear" to overcome a presumption of vindictiveness.

        Sullivan, 967 F.2d at 374 (quoting Pearce, 395 U.S. at 725, 726).3 The Pearce presumption of vindictiveness does not arise when a sentence after appeal is less than or equal to the original sentence. See United States v. Flinn, 18 F.3d 826, 830 (10th Cir. 1994). Rather, in such a case, the defendant must present "evidence of actual vindictiveness" to demonstrate a violation of due process. Id.

        Claiming that the resentencing process was plagued "with subtle but discernable forms of vindictiveness," Fortier argues that his current sentence is constitutionally defective. (Appellant's Br. at 21.) Having failed to raise this claim below,4 our review is for plain error. See Flinn, 18 F.3d at 830 ("Because Defendant did not alert the sentencing judge to his vindictiveness claim, we review only for plain error." (citation omitted)); Sullivan, 967 F.2d at 374 (stating that when a defendant does not alert the trial judge to a vindictiveness claim, "appellate review is limited to correcting plain errors that affect substantial rights and threaten a miscarriage of justice." (citation omitted)). Under the plain error standard of review,

        there must be (1) "error," (2) that is "plain," and (3) that "affect[s] substantial rights." If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error "seriously affect[s]...

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