U.S. v. Anderson

• Decision Date: 14 November 2008
• Docket Number: No. 07-3045.,No. 07-3053.,07-3045.,07-3053.
• Citation: 545 F.3d 1072
• Parties: UNITED STATES of America, Appellee v. Walter ANDERSON, Appellant United States of America, Appellant v. Walter Anderson, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

545 F.3d 1072

UNITED STATES of America, Appellee v. Walter ANDERSON, Appellant United States of America, Appellant v. Walter Anderson, Appellee.

No. 07-3045.

No. 07-3053.

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 2008.

Decided November 14, 2008.

Appeals from the United States District Court for the District of Columbia (No. 05cr00066-01).

Tony Axam Jr., Assistant Federal Public Defender, argued the cause for the appellant/cross-appellee. A.J. Kramer, Federal Public Defender, was on brief. Neil H. Jaffee and Michelle M. Peterson, Assistant Federal Public Defenders, entered appearances.

Elissa R. Hart-Mahan, Attorney, United States Department of Justice, argued the cause for the appellee/cross-appellant. Nathan J. Hochman, Assistant Attorney General, Jeffrey A. Taylor, United States Attorney, and Alan Hechtkopf, Attorney, were on brief.

Before: GINSBURG, HENDERSON and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

Walter Anderson pleaded guilty to two counts of federal income tax evasion, 26 U.S.C. § 7201, and one count of first degree fraud in violation of the Code of the District of Columbia. D.C.Code § 22-3221(a). The district court sentenced Anderson to 108 months' imprisonment on the federal counts and four years' imprisonment (concurrent) on the fraud count and ordered him, on the fraud count, to pay restitution in the amount of $22,809,032 to the District of Columbia (District). The district court utilized the 2001 version of the United States Sentencing Guidelines (2001 Guidelines) but also made clear that the same sentence was appropriate under the 2000 version thereof (2000 Guidelines). Anderson appeals his sentence, arguing that the district court's use of the 2001 Guidelines violated the Ex Post Facto Clause of Article I, Section 9 of the United States Constitution and in the alternative that the sentence of imprisonment is unreasonable. The government cross-appeals the district court's denial of restitution to the United States as part of Anderson's sentence on the two federal counts. We affirm the sentence of imprisonment but remand the federal restitution issue to the district court for further proceedings consistent with this opinion.

I.

On September 30, 2005, a federal grand jury returned a superseding indictment charging Anderson with one count of corruptly obstructing, impeding and impairing the due administration of the Internal Revenue laws, 26 U.S.C. § 7212(a), five counts of federal tax evasion, 26 U.S.C. § 7201, and six counts of fraud in the first degree in violation of section 3221(a) of Title 22 of the D.C.Code. The 29-page indictment charged Anderson with using a complex scheme involving several foreign corporations to conceal approximately $450 million in earnings between 1995 and 1999. Anderson was charged with not reporting the earnings to the United States or to the District and evading payment of more than $200 million in federal income taxes and District use taxes.

On September 8, 2006, Anderson and the government entered into a plea agreement. Anderson agreed to plead guilty to two counts of federal income tax evasion covering the 1998 and 1999 tax years and one count of fraud in the first degree based on conduct occurring from January 1999 through approximately October 23, 2000. Anderson and the government agreed to a maximum term of imprisonment of ten years. They agreed that the district court "is obligated to calculate and consider, but is not bound by, the United States Sentencing Guidelines (2001)." Plea Agreement at 1, United States v. Anderson, Cr. No. 05-0066, 2006 WL 6051415 (D.D.C. filed Sept. 8, 2006) (Plea Agreement) (emphasis added). They also agreed that the federal tax loss exceeded $100 million for the purpose of calculating a sentence under the Guidelines. And finally, Anderson "agree[d] that the court may order restitution pursuant to 18 U.S.C. § 3572 and 16 D.C.Code § 711." Id. at 2 (emphasis added). On September 8, 2006, Anderson pleaded guilty to the three counts pursuant to the plea agreement.

In its sentencing memorandum, the government requested a ten-year term of imprisonment and full restitution to the United States and to the District on the counts to which Anderson pleaded guilty. The government also asserted that the plea agreement obligated the district court to calculate and consider the 2001 Guidelines. In his reply to the government's sentencing memorandum, Anderson argued for the first time that the 2000 version of the Guidelines should apply because the 2001 Guidelines were not in effect at the time the federal offenses were committed. The district court decided to use the 2001 Guidelines as specified in the plea agreement.

At the sentencing hearing, the government requested restitution as a condition of supervised release. The district court concluded that it could impose neither supervised release nor restitution as a condition of supervised release, an issue the government does not appeal.¹ The government then requested restitution to the United States, relying on the plea agreement and on 18 U.S.C. § 3663(a)(3). Nevertheless, the district court held that, because the plea agreement referenced 18 U.S.C. § 3572, which covers fines, and not 18 U.S.C. § 3663, which covers restitution, it could not order restitution on the federal counts.²

The district court sentenced Anderson to 60 months' imprisonment on the 1998 count and 48 months' imprisonment on the 1999 count, to be served consecutively. It also imposed a four-year concurrent sentence of imprisonment on the fraud count. The judge spelled out the factors that influenced his sentencing decision under 18 U.S.C. § 3553(a). Finally, Anderson was ordered to pay $22,809,032 in restitution to the District. In its Memorandum Opinion and Order filed the day after sentencing, the district court stated that it would have imposed the same sentence if it had used the 2000 Guidelines "after consideration of all factors under Section 3553(a)." Mem. Op. & Order at 2, United States v. Anderson, Cr. No. 05-0066 (D.D.C. filed Mar. 28, 2007) (Mem.Op.). Anderson timely appealed his sentence and the government timely cross-appealed.

II.

Anderson makes two challenges to his sentence to wit: (1) the district court violated the Ex Post Facto Clause by using the 2001 Guidelines and (2) the sentence of 108 months' imprisonment is unreasonable.³ The government cross-appeals the district court's failure to order restitution on the two federal counts.

A. Ex Post Facto Clause

Anderson first contends that the district court violated the Ex Post Facto Clause when it used the 2001 Guidelines in determining his sentence on the two federal counts. Our review of this question of law is de novo. United States v. Dorcely, 454 F.3d 366, 371 (D.C.Cir.2006); United States v. Alexander, 331 F.3d 116, 130 (D.C.Cir.2003).

Anderson was sentenced on March 27, 2007 and, at that time, the 2006 version of the Guidelines was in effect. It directed the court to "use the Guidelines Manual in effect on the date that the defendant is sentenced." U.S. Sentencing Guidelines Manual § 1B1.11(a) (2006) (U.S.S.G.). It also directed the court to apply the Guidelines Manual in effect when the "offense of conviction was committed" if applying a later version would violate the Ex Post Facto Clause. Id. at § 1B1.11(b); see also United States v. Bolla, 346 F.3d 1148, 1151 n. 1 (D.C.Cir.2003) ("[C]ourts must apply the Guidelines in effect on the date the offense was committed if using the Guidelines in effect at the time of sentencing would yield a longer sentence.").

Anderson's plea agreement recited that the district court "is obligated to calculate and consider, but is not bound by, the United States Sentencing Guidelines (2001)." Plea Agreement at 1. In his Reply to the Government's Memorandum in Aid of Sentencing filed before sentencing, however, Anderson asked the district court to consider the 2000 Guidelines because he committed the offenses in 1998 and 1999. At the sentencing hearing, the district court concluded that Anderson had waived any objection to its use of the 2001 Guidelines by entering into the plea agreement, which specified the 2001 version. The district court also indicated at the hearing that a 71-month sentence, the top of the sentencing range suggested under the 2000 Guidelines, would be insufficient. As noted earlier, the district court subsequently ruled in the alternative that it would have imposed the same sentence if it had consulted the 2000 version of the Guidelines. Because the district court determined Anderson's sentence using both the 2001 Guidelines and, in the alternative, the 2000 Guidelines, which alternative sentencing we affirm as set forth infra at II.B., we need not reach Anderson's Ex Post Facto Clause challenge.

B. Reasonableness of Sentence

Anderson next argues that his nine-year imprisonment sentence is unreasonable. In reviewing his sentence, we undertake a two-part inquiry of any legal error and of the "overall reasonableness" of the sentence in light of statutory sentencing factors. United States v. Olivares, 473 F.3d 1224, 1226 (D.C.Cir.2006); see United States v. Lawson, 494 F.3d 1046, 1056-57 (D.C.Cir.2007). We review substantive reasonableness under the abuse of discretion standard. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

Anderson first argues that the district court did not explain its upward departure from the recommended sentencing range under the 2000 Guidelines.⁴ The sentencing court commits procedural error if it "fail[s] to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Gall, 128 S.Ct. at 597; see also In re Sealed Case, 527 F.3d 188, 193 (D.C.Cir. 2008) (vacating sentence based on failure to explain upward deviation from advisory Guidelines range)....