570 F.3d 1025 (8th Cir. 2009), 08-3402, United States v. Anderson

Docket Nº:08-3402, 08-3436.
Citation:570 F.3d 1025
Opinion Judge:GRUENDER, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Shane Jowell ANDERSON, Appellant.
Attorney:Alexander F. Reichert, Grand Folks, ND, for appellant. Jennifer Klemetsrud Puhl, AUSA, Fargo, ND, for appellee.
Judge Panel:Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.
Case Date:July 06, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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570 F.3d 1025 (8th Cir. 2009)

UNITED STATES of America, Appellee,

v.

Shane Jowell ANDERSON, Appellant.

Nos. 08-3402, 08-3436.

United States Court of Appeals, Eighth Circuit.

July 6, 2009

Submitted: June 10, 2009.

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[Copyrighted Material Omitted]

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Alexander F. Reichert, Grand Folks, ND, for appellant.

Jennifer Klemetsrud Puhl, AUSA, Fargo, ND, for appellee.

Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

After a jury found Shane Jowell Anderson guilty of six counts of wire fraud in violation of 18 U.S.C. § 1343, one count of making false statements in violation of 18 U.S.C. § 1014, and one count of failure to appear in violation of 18 U.S.C. § 3146, the district court 1 sentenced him to 49 months' imprisonment. Anderson appeals his conviction and sentence, arguing that the evidence presented at trial was insufficient to support the jury's verdict, that the district court abused its discretion by not appointing new counsel, that the district

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court erred by applying the November 2007 United States Sentencing Guidelines ("U.S.S.G.") manual, and that the district court erred by denying his motion for a downward departure. For the reasons discussed below, we affirm.

I. BACKGROUND

In August 2001, Anderson approached AgCountry Farm Credit Services ("AgCountry") to obtain a loan to expand his harvesting business. AgCountry granted Anderson a loan based on its analysis of copies of federal income tax returns that he claimed to have filed for 1998, 1999 and 2000. However, Anderson had not actually filed those tax returns. AgCountry wired the loan proceeds from its branch in Minnesota to Anderson's North Dakota bank account. Using similarly fraudulent copies of federal income tax returns for 2001 and 2002, Anderson also obtained loans from AgCountry in March 2002 and March 2003. He eventually defaulted on the loans.

In September 2006, a federal grand jury indicted Anderson on six counts of wire fraud and one count of making false statements to a farm credit bank. Anderson was eventually located and arrested on May 31, 2007. At Anderson's arraignment, the district court released him from custody pending trial subject to certain conditions, including that he " appear at all proceedings as required" and that he " telephone his [court-appointed] attorney at least twice a week and ... his pretrial services officer at least once a week." After granting Anderson's continuance motion, the district court issued an order scheduling his trial date for September 4, 2007.

On August 28, 2007, the district court held a status conference to determine Anderson's whereabouts because he had not been in contact with either his pretrial services officer or his attorney. During the conference, Anderson's attorney refused to answer the court's questions regarding Anderson's location, claiming attorney-client privilege. The court then issued an arrest warrant for Anderson, stating that if he was not arrested or otherwise located by August 31, 2007, the court would dismiss the jury but " leave the trial date so if he shows up we'll figure out where we go at that point." Anderson was not located by August 31, and, therefore, the district court issued an order dismissing the jury and continuing the trial on a day-to-day basis. Anderson did not appear on September 4, 2007, the date that the trial had been scheduled to begin.

Anderson was eventually arrested in Arizona on October 29, 2007. A grand jury returned a second indictment charging with him with failure to appear. On December 17, 2007, Anderson filed a motion to dismiss the second indictment, arguing that he could not have failed to appear for his trial because there was no trial date scheduled after the district court dismissed the jury. The district court denied that motion.

On January 2, 2008, Anderson entered into a written plea agreement with the Government, whereby he pled guilty to one count of wire fraud and one count of making false statements in exchange for the dismissal of the remaining counts of wire fraud and the indictment containing the failure to appear charge. After his change of plea hearing but before his sentencing hearing, Anderson wrote a letter to the district court complaining about his court-appointed counsel, Richard Henderson, and the plea agreement. At a February 1, 2008 hearing to discuss the issues Anderson raised in the letter, Anderson stated that he did not want a new attorney. Accordingly, the district court did not appoint new counsel.

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Anderson then sent two additional letters to the district court, again complaining about Henderson but this time proclaiming his innocence as well. The district court held a hearing on the two letters on February 26, 2008. At this hearing, Anderson claimed that he was " backed into" the plea agreement, though he did not blame Henderson. The district court then withdrew Anderson's guilty plea. Anderson did not express any further dissatisfaction with Henderson, and Henderson stated that he and Anderson had resolved the concerns Anderson mentioned in his letters. Accordingly, the district court again did not appoint new counsel.

On March 11, 2008, Henderson filed an ex parte motion to withdraw as counsel, claiming that Anderson refused to communicate with him. After conducting another hearing, the district court denied that motion. The court concluded that Anderson was responsible for the lack of communication with Henderson and that Anderson was trying to manipulate the judicial system.

The district court joined Anderson's wire fraud and false statements case with his failure to appear case and scheduled the trial for April 28, 2008. After the conclusion of the trial, the jury returned a guilty verdict on all counts.

Before the sentencing hearing, Anderson filed another motion for appointment of new counsel. The district court granted this motion, stating that although " [t]he Court is convinced that [Anderson's] current request for a new attorney is still nothing more than an attempt to manipulate the system[,]" there had been a " complete breakdown of all communication[,] ... [so] appointment of new counsel is appropriate."

At the sentencing hearing, the district court adopted the Presentence Investigation Report ("PSR") with minor factual changes. The PSR calculated an advisory sentencing guidelines range of 46 to 57 months' imprisonment based on a total offense level of 21 and a criminal history category of III. The district court then sentenced Anderson to 49 months' imprisonment...

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