U.S. v. McBride

• Decision Date: 17 January 2006
• Docket Number: No. 04-4347.,04-4347.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Thomas MCBRIDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

434 F.3d 470

UNITED STATES of America, Plaintiff-Appellee, v. James Thomas MCBRIDE, Defendant-Appellant.

No. 04-4347.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2005.

Decided and Filed: January 17, 2006.

ARGUED:

Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Daniel Allen Brown, United States Attorney, Columbus, Ohio, for Appellee.

ON BRIEF:

Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Daniel Allen Brown, United States Attorney, Columbus, Ohio, for Appellee.

Before: MARTIN, COLE, and GILMAN, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Defendant-Appellant James T. McBride is before us for the second time. In his first appeal, McBride appealed his conviction and sentence for presenting false claims to the Internal Revenue Service, obstruction of justice, and bankruptcy fraud. We reversed his conviction on one count, but affirmed the remaining convictions. We also vacated McBride's sentence and remanded his case for resentencing so that the district court could determine whether, under the relevant application note and provision of the United States Sentencing Guidelines ("Guidelines"), a downward departure may be warranted because of the possibility that the court's loss determination overstates the severity of the offense. At resentencing, the district court announced two identical sentences: one under the Guidelines, and one that treated the Guidelines as advisory. McBride appeals his sentence, arguing that the district court violated his Sixth Amendment rights in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that the alternative sentence is unreasonable. For the reasons that follow, we AFFIRM the sentence imposed by the district court.

I.

Defendant James T. McBride's girlfriend, Katina Kefalos, was convicted by a jury of evading federal income taxes in proceedings before District Judge Algenon L. Marbley. See United States v. McBride, 362 F.3d 360, 363 (6th Cir.2004). Also a tax protestor, McBride sent a check for $12,990.67 to IRS agent Margarent Nypaver during the course of the trial, in purported satisfaction of Kefalos's tax obligations. The check was drawn from an account he had closed one year earlier. McBride then submitted checks from the same closed account to the Franklin County Treasurer's Office, purportedly to pay the real estate taxes for the first half of 2001 on the residences of Judge Marbley, Kefalos's attorneys David Axelrod and Terry Sherman, and Nypaver, and immediately received statements from the Treasurer's Office confirming that he had paid these real estate taxes. McBride presented these statements as evidence of his creditor status when he filed involuntary bankruptcy petitions against Judge Marbley, Axelrod, Sherman, and Nypaver. He paid the $200 filing fee for each involuntary bankruptcy petition with dishonored checks drawn on the closed account.

McBride was indicted by a federal grand jury on six counts: presenting a false claim against the government in violation of 18 U.S.C. § 287, obstruction of justice in violation of 18 U.S.C. § 1503, obstructing the due administration of the internal revenue laws in violation of 26 U.S.C. § 7212(a), and three counts of bankruptcy fraud in violation of 18 U.S.C. § 157. A jury convicted McBride of all six counts on May 23, 2002. The district court thereafter determined that McBride should be sentenced under offense level 22, Criminal History Category IV. The court then sentenced McBride to 78 months of imprisonment on Count 2; 60 months on Counts 1, 4, 5, and 6; and 36 months on Count 3, all to be served concurrently. One of the factors in determining McBride's sentence was the amount of the intended loss of the aforementioned victims. The presentence report indicated that the intended loss of McBride's actions, including the bad checks and the total value of the residences of Judge Marbley, Axelrod, Sherman, and Nypaver, was $1,139,760.67, which required an increase in the base offense level of 16. Out of an abundance of caution, the district court estimated the value of the intended loss at $970,865.17, thus increasing McBride's offense level by only 14. The actual loss was limited to $800, which was the sum of the checks McBride wrote to the bankruptcy court to satisfy the $200 filing fee for each of the four involuntary bankruptcy petitions.

Although this Court affirmed McBride's conviction with regards to Counts 2-6, it reversed his conviction for Count 1, the conviction for presenting a false claim to the government. Furthermore, this Court vacated McBride's sentence, and remanded his case to the district court for resentencing because of the disparity between the intended loss and the actual loss. Based on the sentencing transcript, this Court determined that the district court believed that it could not consider the "economic reality principle," which allows for downward departures when the amount of an intended loss seriously overstates the severity of the offense. This Court determined that the district court's belief that the disparity between the actual and intended loss was not grounds for a downward departure was plain error, and remanded to the district court for resentencing.

A resentencing hearing was conducted in October, 2004. The Government prepared a sentencing memorandum, to which McBride objected based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court found that based on his offense level and his criminal history category, the applicable guideline range was 77 to 96 months on Count 2, 36 months on Count 3, and 60 months on Counts 4-6. Following the Sentencing Guidelines, the district court announced a sentence of 78 months: 78 months for Count 2, 36 months for Count 3, and 60 months for Counts 4-6, to run concurrently. Pursuant to this Court's instructions after McBride's initial appeal, the district court also explicitly considered and rejected granting a downward departure based on the economic reality principle. Additionally, the district court announced a sentence pursuant to 18 U.S.C. § 3553(a) that treated the Guidelines as advisory, which was identical to the sentence announced under the Guidelines. The district court entered its order sentencing McBride to 78 months on October 18, 2004 and McBride timely appealed.

II.

McBride argues that in applying the Guidelines, the district court violated his Sixth Amendment rights. He argues that the district court unconstitutionally made factual findings to enhance McBride's sentence under the Guidelines. McBride objected to his sentence prior to resentencing, based on the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). When a defendant preserves a potential Blakely error, this Court reviews for harmless error. United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.2005).

Although the court did make factual findings of the kind prohibited by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court also gave McBride an alternative sentence in anticipation of Booker. This Court has held that when a district court articulates an identical alternative sentence in addition to a sentence under the guidelines, the harmlessness of the Booker error is established. See United States v. Christopher, 415 F.3d 590, 593 (6th Cir.2005); United States v. Bailey, 152 Fed.Appx. 482, 484 (6th Cir.2005); United v. Strbac, 129 Fed.Appx. 235, 257 (6th Cir.2005). Because the district court articulated an identical alternative sentence, the Booker error is harmless.

III.

Even though a Booker violation is rendered harmless by a district court's articulation of an identical alternate sentence, this Court must still determine if that alternate sentence is reasonable. Booker, 125 S.Ct. at 766.

McBride argues that his sentence is unreasonable because the district court did not properly consider the sentencing factors articulated in 18 U.S.C. § 3553(a). Section 3553(a) sets forth the factors a judge must consider in sentencing a defendant. McBride argues that the district court's sentence is unreasonable because the district court considered some of the factors, referred to others, and simply ignored the remaining ones. McBride further argues that his sentence is unreasonable because the district court did not reasonably consider the economic reality principle.

This Court has held that although a sentence should reflect the considerations listed in § 3553(a), "there is no requirement that the district court engage in a ritualistic incantation of the § 3553(a) factors it considers." Chandler, 419 F.3d at 488 (quoting United States v. Washington, 147 F.3d 490, 491-92 (6th Cir.1998)) (internal citations omitted). However, the district court's opinion should be sufficiently detailed to reflect the considerations listed in § 3553(a). Id.

Before turning to the facts of this case, we pause to comment on the state of the law since Booker. Achieving agreement between the circuit courts and within each circuit on post-Booker issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow. The courts have particularly struggled to — and often failed at — properly applying the remedial portion of Booker along with the remedy. One murky area is what to do about the pre-Booker concept of "departures" under the Guidelines now that the Guidelines are merely advisory. This Circuit is not exempt from causing confusion in this area. One particular source of that confusion is the Court's recent opinion in United States v. Puckett, 422 F.3d 340 (6th Cir.2005); see also United States v. Melendez-Torres, 420 F.3d 45 (1st Cir.2005). Therefore, we take this opportunity to clarify the scope of our review of sentences in light of the potential ambiguities resultant from Puckett.

To start, ...