U.S. v. Herula

• Citation: 464 F.3d 1132
• Decision Date: 21 September 2006
• Docket Number: No. 05-1109.,No. 05-1091.,05-1091.,05-1109.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis S. HERULA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

464 F.3d 1132

UNITED STATES of America, Plaintiff-Appellee, v. Dennis S. HERULA, Defendant-Appellant.

No. 05-1091.

No. 05-1109.

United States Court of Appeals, Tenth Circuit.

September 21, 2006.

H. Michael Steinberg, Englewood, CO, for Defendant-Appellant.

Jerry N. Jones, Assistant United States Attorney (William J. Leone, United States Attorney, and Andrew A. Vogt, Assistant United States Attorney, on the briefs), Denver, CO, for Plaintiff-Appellee.

Before HARTZ, HOLLOWAY and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Dennis S. Herula pled guilty pursuant to a plea agreement to seven counts of wire fraud in the United States District Court for the District of Colorado, as well as two counts of fraud (wire fraud and bankruptcy fraud) and one count of money laundering arising out of a federal case in the District of Rhode Island, which had been transferred to the District of Colorado. The district court conducted a consolidated sentencing and sentenced Herula to 188 months imprisonment in both cases, to be served concurrently. Herula appeals from his sentence, arguing it is unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and AFFIRM.

I. Background

On August 25, 2004, Herula was indicted in the District of Colorado for, inter alia, seven counts of wire fraud in violation of 18 U.S.C. § 1343 (Case No. 02-CR-485). On October 22, 2004, charges in a separate District of Rhode Island information were transferred to the District of Colorado for plea and sentencing pursuant to Rule 20(a) of Federal Rules Criminal Procedure.¹ The Rhode Island case involved two counts of fraud — wire fraud and bankruptcy fraud — and one count of money laundering, in violation of 18 U.S.C. §§ 1343, 152(1) and 1956(a)(1)(B)(I), respectively. The case was assigned to the same district judge and docketed as Case No. 04-CR-449. The cases were never formally consolidated.

On October 26, 2004, Herula pled guilty pursuant to a plea agreement to the seven counts of wire fraud in the Colorado indictment. In the plea agreement, the government and Herula "agree[d] and stipulate[d] that the guidelines calculation set forth below [is] applicable in this case, that the parties will recommend that [the guidelines] be applied as set forth below, and that neither party will seek a departure." (05-1091 R. Vol. I, Doc. 172 at 2.) The calculation in the plea agreement set Herula's total offense level at 31 and his criminal history category at III, resulting in an estimated guideline range of 135 to 168 months imprisonment. The government also agreed to recommend that Herula be "sentenced . . . at the bottom of the applicable guideline range as determined by the Court," dismiss the remaining Colorado counts, and not oppose Herula's request to be sentenced concurrently with any sentence he received in the Rhode Island case. (Id. at 2.) The plea agreement specifically noted, however, that "the Court may impose any sentence, up to the statutory maximum, regardless of any guideline range computed, and that the Court is not bound by any position or recommendation of the parties." (Id. at 14.) See FED.R.CRIM.P. 11(c)(1)(B) (plea agreement provision recommending "that a particular sentence or sentencing range is appropriate[,] . . . does not bind the court").

On November 4, 2004, Herula pled guilty pursuant to a plea agreement to all three counts of the Rhode Island information. The Rhode Island plea agreement was substantially the same as the Colorado agreement. It calculated Herula's combined total offense level for all counts as 31, but his criminal history category as only a II. Based on the "estimated offense level(s)" and the "(tentative) criminal history category," the resulting guideline range was 121 to 151 months imprisonment. (05-1109 R. Vol. I, Doc. 3 at 20.) The plea agreement also committed the government to recommend a sentence of 121 months and not to oppose a request by Herula that his sentence run concurrently with the sentence he received in the Colorado case. Both sentences were set to be entered the same day.

A presentence investigation report (PSR) was prepared addressing both cases.² It grouped Herula's three Rhode Island counts with the seven Colorado counts as "multiple counts" pursuant to Application Note 1 of USSG § 5G1.2 and the grouping rules in Chapter 3, Part D. This resulted in a total offense level of 35 after a three point reduction for acceptance of responsibility, compared with an offensive level of 31 under the separate plea agreements.³ In light of Herula's criminal history category of II, the PSR recommended a guideline range of 188 to 235 months imprisonment. Herula objected to the grouping of counts from both cases, arguing the cases were not consolidated for sentencing purposes thus rendering § 5G1.2 inapplicable. He also argued application of § 5G1.2 was unfair because neither party anticipated it.

After listening to argument, the district court adopted the recommendation of the PSR and sentenced Herula to 188 months imprisonment in each case, to run concurrently. The district court stated its "sentence would be the same, if not greater, under its independent analysis under 18 U.S.C. [§] 3553(a)." (05-1091 R. Vol. III at 29.) On February 11, 2005, judgment was entered in both cases and Herula filed a notice of appeal in both cases on February 17. On July 6, 2005, we ordered the appeals consolidated on Herula's motion.

II. Discussion

Herula challenges the reasonableness of his sentence, arguing the district court erred by computing a consolidated sentencing guideline range and the sentence imposed was unreasonable because it was in excess of the range contemplated in the plea agreements. He also argues the advisory application of the guidelines after Booker, in a case premised on guilty pleas entered before Booker, violates the Ex Post Facto Clause of the United States Constitution.

A. Reasonableness of Sentence

After Booker, "district courts are still required to consider Guideline ranges, which are determined through application of the preponderance standard, just as they were before. The only difference is that the court has latitude . . . to depart from the resulting Guideline ranges." United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.) (citation omitted), cert. denied, ___ U.S. ___, 126 S.Ct. 468, 163 L.Ed.2d 356 (2005). See United States v Resendiz-Patino, 420 F.3d 1177, 1184 n. 6 (10th Cir.2005) ("Relieved of the mandatory application of the guidelines by Booker, district courts are now permitted to give more sway in sentencing to the factors enumerated in 18 U.S.C. § 3553(a)."), cert. denied, ___ U.S. ___, 126 S.Ct. 1098, 163 L.Ed.2d 911 (2006). Thus, "notwithstanding Booker's invalidation of the mandatory nature of the sentencing guidelines, `district courts must still consult the Guidelines and take them into account when sentencing.'" United States v. Clark, 415 F.3d 1234, 1246 (10th Cir.2005) (O'Brien, J., dissenting) (citation omitted, quoting United States v. Doe, 398 F.3d 1254, 1257 n. 5 (10th Cir.2005)). In United States v. Kristl, we fashioned a two-step approach for post-Booker appellate review of sentences imposed within the applicable guideline range. 437 F.3d 1050, 1055 (10th Cir.2006). First, we determine whether the district court correctly calculated the applicable guideline range. Id. at 1054-55. If so, the sentence "is presumptively reasonable" subject to rebuttal by the defendant "in light of the other sentencing factors laid out in § 3553(a)." Id. at 1055. We still review legal questions de novo, factual findings for clear error, and give due deference to the district court's application of the guidelines to the facts. United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir.2006).

Herula challenges the district court's calculation of the applicable guideline range. Specifically, he challenges whether the Colorado and Rhode Island counts constitute "multiple counts" for purposes of USSG § 5G1.2. His main argument is that the Colorado and Rhode Island cases were never consolidated and thus the Colorado and Rhode Island cases should have been treated separately for sentencing purposes.

Application Note 1 to USSG § 5G1.2 states in relevant part:

This section applies to multiple counts of conviction (1) contained in the same indictment or information, or (2) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.

In this case, the district court found Herula's Colorado and Rhode Island counts met the terms of Application Note 1, and grouped all counts under Chapter 3, Part D's grouping rules.

Application Note 1 to § 5G1.2 is seldom applied and, unsurprisingly, there is a dearth of case law interpreting it. Relying on the second clause of Application Note 1, Herula argues a consolidation order must be entered by the district court prior to counts in separate indictments being treated as "multiple counts" under § 5G1.2. However, this argument overlooks the entire clause which also treats counts "contained in different indictments or informations for which sentences are to be imposed at the same time" as "multiple counts" for purposes of § 5G1.2. The presence of the disjunctive "or" precludes a reading of Application Note 1 that would require a consolidated proceeding to qualify counts in separate indictments or informations as "multiple counts."

This conclusion, however, does not end the analysis. Our next question is whether the provisions of § 5G1.2 should even be considered when calculating Herula's offense level under Chapter 3, Part D's grouping rules. We have not previously addressed this question, which requires our entry into the labyrinth that is the sentence guidelines' grouping rules. See United States v. Hernandez Coplin, 24 F.3d 312, 320 (1st Cir.1994)...