U.S. v. Beatty

• Decision Date: 17 December 1993
• Docket Number: No. 92-2920,92-2920
• Citation: 9 F.3d 686
• Parties: UNITED STATES of America, Appellee, v. Michael Charles BEATTY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 686

9 F.3d 686

UNITED STATES of America, Appellee, v. Michael Charles BEATTY, Appellant.

No. 92-2920.

United States Court of Appeals Eighth Circuit.

Submitted March 16, 1993.

Decided Nov. 10, 1993.

Rehearing Denied Dec. 17, 1993.

Kevin J. Short of Minneapolis, MN, argued, for appellant.

Douglas R. Peterson, Minneapolis, MN, argued (Thomas B. Heffelfinger, Elizabeth L. De La Vega and Laura Engleson, on the brief), for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Michael Charles Beatty pled guilty to one count of conspiracy to commit mail fraud in violation of 18 U.S.C. Secs. 371 and 1341 and to one count of mail fraud in violation of 18 U.S.C. Sec. 1341. The district court departed upward from the otherwise applicable Sentencing Guidelines range of 27 to 33 months and sentenced Beatty to a 41-month term of imprisonment. Beatty appeals and raises numerous issues challenging his sentence. We affirm.

I.

Beatty first contends that he did not receive adequate notice of the possibility that the district court might depart upward and, therefore, the district court abused its discretion in denying his motion for a continuance to submit a written brief regarding the departure issue. We disagree.

Beatty received sufficient notice about the departure issue. The presentence investigation report (PSR) included a section entitled "Factors That May Warrant Departure," which listed the specific factors that could justify an upward departure under U.S.S.G. Sec. 2F1.1 and specifically informed Beatty that "upward departure might be warranted." (See PSR at 16-17.) We conclude that the PSR provided sufficient information to Beatty about the possibility that the district court might depart upward. See United States v. Andrews, 948 F.2d 448, 449 (8th Cir.1991) (citing Burns v. United States, --- U.S. ----, ----, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991) (defendant received sufficient notice when either the PSR indicates that certain facts could justify an upward departure or when the government requests a departure)). In addition, Beatty's counsel acknowledged that he was aware of the district court's "inherent power" to depart upward and that he had thought about the departure issue and was prepared to orally address it during the sentencing hearing. (See Sent.Tr. at 4.) Consequently, the district court did not abuse its discretion in denying Beatty's motion for continuance. See United States v. Voss, 787 F.2d 393, 401-02 (8th Cir.) (standard of review for denial of a motion to continue is abuse of discretion), cert. denied, 479 U.S. 888, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986).

II.

Beatty next contends that the district court misapplied the Sentencing Guidelines by relying on the specific offense characteristic, "more than minimal planning," as the basis for both a two level upward adjustment pursuant to U.S.S.G. Sec. 2F1.1(b)(2)(A) and as one of its stated reasons for upward departure pursuant to U.S.S.G. Sec. 5K2.0, p.s. Beatty does not contend that "more than minimal planning" was not present in his offense conduct. He merely contends that the district court engaged in an improper form of "double-counting" when it used the same factor to increase his punishment under two separate and different provisions of the Sentencing Guidelines. We disagree.

Double-counting is permitted in some circumstances. Compare United States v. Burnett, 952 F.2d 187, 188-90 (8th Cir.1991) (holding that district court may consider defendant's underlying conviction under both Sec. 2J1.6(a) and Sec. 4A1.1(a) & (d) when sentencing him for failure to appear to serve his sentence), and United States v. Thomas, 930 F.2d 12, 13-14 (8th Cir.1991) (holding that district court may consider defendant's underlying conviction under both Sec. 2P1.1(a)(1) and Sec. 4A1.1(d) & (e) when sentencing him for escape), with United States v. Werlinger, 894 F.2d 1015, 1017-18 (8th Cir.1990) (holding that defendant's concealment of crime does not warrant adjustment for obstruction of justice because Commission provided for concealment in base offense level). The district court, however, did not actually engage in "double-counting." A two-level increase in the offense level is required if any one of four specific offense characteristics are present. U.S.S.G. Sec. 2F1.1(b)(2) (1987). If "several of the enumerated factors" are present, then "upward departure might be warranted." U.S.S.G. Sec. 2F1.1 comment. (n. 1) (1987). Beatty's offense level was adjusted upward two levels because of the first factor enumerated in Sec. 2F1.1(b)(2), i.e., more than minimal planning. Beatty was then subjected to the possibility of an upward departure if additional enumerated factors were present. In Beatty's case, the district court found that three of the four "enumerated factors" were present, i.e., Beatty had engaged in "more than minimal planning," he had defrauded more than one victim (the court found Beatty had defrauded 57 investors), and he had violated an administrative decree issued by the Minnesota Department of Commerce. Relying on the presence of the additional factors the district court departed upward. Thus, no single factor was directly responsible for two discrete increases in Beatty's sentence. We thus conclude that the district court did not err when it both adjusted Beatty's offense level and departed upward.

III.

Beatty contends that the following information contained in the PSR violated Federal Rule of Criminal Procedure 32(c):

On February 17, 1988, Van Slooten was murdered. The defendant was identified as a main suspect but was never arrested nor formally charged.

(PSR at 6.) While he maintained his innocence of the murder at sentencing, Beatty did not object to the accuracy of the report that he was a main suspect. In fact, in his written objections to the presentence report, he admitted that he had been "the target of a first degree murder investigation unprecedented in its intensity and scope" for more than four and one-half years. Beatty contended that the information about the murder was unnecessary because the sentencing judge already knew all about it from presiding over the wrongful death action, and that it was irrelevant because it occurred after the period of time covered by the Indictment and the plea agreement. Beatty also expressed concern that the Bureau of Prisons would use the information to his prejudice while confined.

The district court overruled Beatty's objection to this information and stated:

The information regarding Van Slooten's death, and the circumstances arising from his death, is information which the court needs in order to understands [sic] all of the circumstances stemming from the offense. Any potential harm, from the inclusion of such information, is mitigated by the inclusion of fact that [Beatty] was never arrested or charged with the murder of [his co-conspirator] Van Slooten.

(Sent.Tr. at 19.)

We conclude that the district court did not violate Rule 32 by refusing to strike the reference in the PSR concerning Van Slooten's death. The rule relied upon does not require that the objected-to material be stricken. United States v. Johnson, 767 F.2d 1259, 1276 (8th Cir.1985); see also United States v. Robertson, 901 F.2d 733, 735 (9th Cir.), cert. denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 405 (1990). The PSR specifically indicates that Beatty was never arrested or charged in Van Slooten's homicide. The information, therefore, was fairly presented and did not unfairly prejudice Beatty.

Another Ninth Circuit case addresses Beatty's concern that the objected-to material may be used to his disadvantage by prison officials.

Neither due process nor Rule 32 requires a district court judge to be an editor as well as an arbiter of justice. Any concerns a defendant might have about prison officials relying on unfounded, detrimental information in his presentence investigation report should be met by a district court's compliance with Rule 32(c)(3)(D).

United States v. Turner, 898 F.2d 705, 710 (9th Cir.), cert. denied, 495 U.S. 962, 110 S.Ct. 2574, 109 L.Ed.2d 756 (1990). We find no violation of Rule 32 in this context.

IV.

Beatty next contends that there was insufficient information to support the allegations contained in the PSR regarding the issues of acceptance of responsibility, U.S.S.G. Sec. 3E1.1, and of role in the offense, U.S.S.G. Sec. 3B1.1, and that the district court violated Federal Rule of Criminal Procedure 32(c)(3)(D).

With regard to acceptance of responsibility, Beatty contends that the PSR contained information alleging that he was "very uncooperative during the course of the Federal Fraud Investigation." He argues that even though the district court granted him a two-level downward adjustment for acceptance of responsibility, the unsubstantiated allegation might have affected the district court's decision to depart upward, and therefore, he is entitled to be resentenced.

As we have noted, the district court specifically enumerated three factors--more than minimal planning, more than one victim, and violation of an administrative decree--as the basis for departing upward. (See Sent.Tr. at 28-29.) According to the district court, therefore, the extent of Beatty's cooperation (or lack thereof) was not relevant to its decision to depart upward. Furthermore, Beatty misquotes the PSR. The PSR states, "Although it has been reported that the defendant was very uncooperative during the investigation of the instant offense it appears he has recently accepted responsibility for his criminal behavior and a two offense level reduction is warranted." (See PSR at 11.) We conclude that Beatty did not suffer any unfair prejudice.

With respect to role in the offense, Beatty and the government agreed that he "was a manager or supervisor in a criminal activity involving less than five participants which was not otherwise extensive,"...