U.S.A v. Anderson

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: FLAUM, Circuit
• Citation: United States v. Anderson, 604 F.3d 997 (7th Cir. 2010)
• Decision Date: 13 May 2010
• Docket Number: No. 09-1612.,09-1612.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Alan D. ANDERSON, Defendant-Appellant.

604 F.3d 997

UNITED STATES of America, Plaintiff-Appellee,v.Alan D. ANDERSON, Defendant-Appellant.

No. 09-1612.

United States Court of Appeals Seventh Circuit.

Argued Jan. 14, 2010.

Decided May 13, 2010.

Michelle L. Jacobs, Attorney (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Johanna M. Christiansen, Attorney (argued), Jonathan E. Hawley, Chief Assistant Federal Public Defender, Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge.

Defendant-appellant Anderson argues that the government breached a plea agreement when it failed to move for a reduction to defendant's offense level pursuant to United States Sentencing Guidelines § 3E1.1(b). In the absence of a formal motion by the United States, the district court could not apply the reduction. The government concedes breach, but because appellant did not object at sentencing, we review the judgment under a plain-error standard. Anderson does not demonstrate that he was prejudiced by the violation and we find no miscarriage of justice. Any procedural flaws in the sentencing hearing are harmless and we affirm.

I. Background

Anderson was indicted in the fall of 2005 as part of a large-scale racketeering case focusing on the Latin Kings street gang. On January 30 of that year, he shot Efrin Delgado with a sawed-off shotgun from close range after the two got into an argument over a woman while at a bar. Delgado survived but suffered permanent injuries. Anderson handed the shotgun off to an associate, Rogelio Guarnero. Authorities recovered the weapon at Guarnero's house the next day, pursuant to a valid search warrant. Anderson was charged with conspiracy to commit racketeering, conspiracy to possess with intent to distribute large quantities of crack and powder cocaine, possession of an unregistered shotgun with a barrel length of less than 18 inches (Count Twenty-Four), and conspiracy to distribute cocaine. On Nov. 5, 2008, after three years of pretrial proceedings, Anderson and co-defendant Martin Martinez proceeded to trial before a jury.

Two weeks before trial, the government offered Anderson a plea agreement that stipulated, inter alia:

The government agrees to recommend a two-level decrease for acceptance of responsibility as authorized by Sentencing Guidelines Manual § 3E1.1(a), but only if the defendant exhibits conduct consistent with the acceptance of responsibility. In addition, if the court determines at the time of sentencing that the defendant is entitled to the two-level reduction under § 3E1.1(a), the government agrees to make a motion recommending an additional one-level decrease as authorized by Sentencing Guidelines Manual § 3E1.1(b) because the defendant timely notified authorities of his intention to enter a plea of guilty.

Section 3E1.1 reads:

(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

Comment 6 to § 3E1.1 states, in relevant part:

The timeliness of the defendant's acceptance of responsibility is a consideration under both subsections, and is context specific. In general, the conduct qualifying for a decrease in offense level under sub-section (b) will occur particularly early in the case. For example, to qualify under subsection (b), the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficiently early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently.

On the theory that the government “is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial,” the Guidelines make the § 3E1.1(b) reduction available only upon a formal government motion.

After three days of trial, Anderson came to court with a signed copy of the plea agreement in which he pleaded guilty to Count 24 (possessing an unregistered, sawed-off shotgun). The PSR recommended that appellant receive a two-level § 3E1.1(a) reduction, but not the additional third point for prompt notification under § 3E1.1(b). Judge Randa began the hearing by remarking that he “has read the [Presentence Investigation Report's (“PSR”) ]” and was “prepared to proceed.” At that point, Anderson stated he and his lawyer “went over [the PSR] together” and that he had no objections to the PSR beyond a minor factual correction. Later, appellant's counsel contested his involvement in the shooting and objected to the PSR's recommendation of a cross-reference from the firearm guideline (§ 2K2.1) to the attempted murder guideline (§ 2A2.1(a)(2)), but said nothing about acceptance of responsibility credits. During a lengthy allocution, Anderson also left the topic of § 3E1.1 untouched. In fact, he stated “I understand that I went to trial and took a plea in the middle of trial.”

The PSR identified a base offense level of 27 under the attempted murder guidelines. Regarding the § 3E1.1(b) reduction, the report stated:

According to the plea agreement, the government intends to file a motion for an additional one level [sic] reduction. However, Mr. Anderson did not timely notify authorities of his intention to enter a plea of guilty. Mr. Anderson appeared before the Court for jury trial and then entered a plea of guilty. Therefore, an additional one level [sic] decrease is not given.

Given Anderson's criminal history, the report calculated an applicable guideline sentence of 121 to 151 months coupled with supervised release of 2 to 3 years. The statutory maximum punishment for possession of a sawed-off shotgun, however, was 120 months' imprisonment. During the hearing, the court engaged Anderson in a lengthy discussion about appellant's family, upbringing, criminal history, motivation for joining a gang, and the immense threat that gang violence posed to communities. Following allocution, Judge Randa continued to view Anderson skeptically, noting that the defendant “seems to think he can do everything better than someone else, including his legal representation.” The court thus sentenced Anderson to the maximum 120-month sentence. It also imposed a three-year term of supervised release, stating:

Now, I have to place you on supervised release, Mr. Anderson. And I'm going to set-obviously set some conditions of supervised release. I'm going to waive the fine in this case, because you don't have, as the analysis of your economic circumstances discloses, the ability to pay a fine in this case. Minimum fine is $15,000. Statutory. But you do have to pay the $100 mandatory special assessment, which the Court informed you of at the time of your plea.... Now, the Court's disposition again also as to Count 24, supervised release for 3 years.

Judge Randa then went on to explain the conditions of the supervised release and their respective justifications. One of his comments reads as follows: “The presentence report indicates that you were a marijuana user, Mr. Anderson, so the Court-unless the defense objects-is going to recommend that he participate in a drug treatment program.” No objection followed.

Anderson puts forward two claims. First, he argues that the district court committed clear error that runs against the interests of justice when it neglected to hold the government to the terms of the plea agreement. Accordingly, he asks that we remand the case to the district court for rehearing on the issue. Second, he asserts that the district court did not adequately consider the factors specified in 18 U.S.C. § 3553(a) prior to sentencing defendant to three years of supervised release.

II. Discussion

The threshold issue in Anderson's appeal of his sentence is whether he merely forfeited or fully waived his right to object to the guideline calculation. His counsel acknowledges at least the former by stating that “Mr. Anderson did not raise the government's obligation to move for the third point for acceptance of responsibility in the district court and has forfeited it for review.” If we accept this argument, we would review Judge Randa's decision for plain error because Anderson never presented his claim to the district court. See Fed.R.Crim.P. 52(b); Puckett v. United States, --- U.S. ----, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); United States v. Huffstatler, 571 F.3d 620, 622 (7th Cir.2009); United States v. Ortiz, 431 F.3d 1035, 1038 (7th Cir.2005).

On the other hand, the government asserts that Anderson affirmatively waived his right to appellate review of the third-point reduction by endorsing the PSR. That is, the United States attempts to portray the lack of objections to the government's compliance with the plea agreement as a strategic decision by Anderson. From this perspective, appellant stayed quiet because he sought to divert the court's attention from whether any § 3E1.1 adjustment for acceptance of responsibility was appropriate in his case at all. See United States v. Jones, 52 F.3d 697, 701 (7th Cir.1995) (holding that a sentencing judge may look for “genuine remorse” or complete acceptance of responsibility before awarding a reduction under § 3E1.1(a)).

To distinguish between forfeiture and waiver, we examine a party's state of mind at the time that an objection could have been raised. Forfeiture takes place...