U.S. v. Brassell
| Decision Date | 21 February 1995 |
| Docket Number | No. 94-2618,94-2618 |
| Citation | 49 F.3d 274 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jay C. BRASSELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jon E. DeGuilio (argued), Andrew B. Baker, Jr., Asst. U.S. Atty., Office of the U.S. Atty., Dyer, IN, for plaintiff-appellee.
Gregory D. Ball (argued), South Bend, IN, for defendant-appellant.
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
Jay C. Brassell pleaded guilty to a single count of conspiracy to defraud the United States by filing fraudulent income tax returns, in violation of 18 U.S.C. Sec. 286. At the time of sentencing, Mr. Brassell was serving a state prison sentence imposed for crimes unrelated to the tax conspiracy. The district court sentenced Mr. Brassell to 37 months of imprisonment to run consecutively to the state prison sentence currently being served. For the reasons that follow, we vacate Mr. Brassell's sentence and remand for resentencing.
In 1991, Mr. Brassell was convicted in Indiana state court of two separate charges of theft and was sentenced to probation. While on probation in 1992, Mr. Brassell committed the state crimes of burglary and forgery, and committed the federal crime of tax conspiracy. Mr. Brassell organized and executed the tax conspiracy in the following manner. First, Mr. Brassell created false W-2 forms and fabricated the names of fictitious employers. Then, he recruited individuals to pose as employees of the fictitious employers who filed the W-2 forms and claimed they were owed a tax refund. The recruited individuals would then apply for a refund anticipation loan with a commercial tax preparer, and split the proceeds with Mr. Brassell. The scheme claimed false refunds of $40,286.00 and Mr. Brassell's personal gain was approximately $10,792.50.
After committing the tax conspiracy, Mr. Brassell was arrested and convicted in state court for the crimes of burglary and forgery. At sentencing, the state court revoked Mr. Brassell's probation, which he was serving for the 1991 theft convictions, and imposed four separate prison sentences. For the first theft conviction, pursuant to Mr. Brassell's probation revocation, Mr. Brassell received two-and-one-half years of imprisonment. For the second theft conviction, also pursuant to Mr. Brassell's probation revocation, Mr. Brassell received one-and-one-half years of imprisonment, to run consecutively to the two-and-one-half years. For the burglary and forgery convictions, Mr. Brassell received four years for each, to run concurrently to each other, but consecutively to the theft sentences imposed after Mr. Brassell's probation was revoked. Subsequently, while in state custody, Mr. Brassell was indicted and pleaded guilty to tax conspiracy in federal court. It is the sentence for this conviction that is before us today. Mr. Brassell was still serving a sentence in state prison when he was sentenced by the district court for the tax conspiracy. However, the theft sentences had run, and Mr. Brassell was then serving the four-year concurrent sentences for burglary and forgery.
The Presentence Investigation Report ("PSR") calculated an offense level of 14 for the tax conspiracy and a criminal history category of VI, yielding a range of 37-46 months of imprisonment, but made no recommendation as to whether the sentence should run consecutively or concurrently to the state sentences. The district court sentenced Mr. Brassell to 37 months of imprisonment to run consecutively to the state forgery sentence. The district court provided the following reasons:
The court ... believes that the sentence should be consecutive to his state sentences. The state time Mr. Brassell has been serving has nothing to do with this tax conspiracy, and would have been served regardless of whether he committed his federal crime; hence the court is not required to impose concurrent sentences. See U.S.S.G. Sec. 5G1.3(b) (1992). The court does not believe that his federal sentence should be effectively reduced by virtue of Mr. Brassell's state time for the crimes on which he was on probation when he committed his federal crime. Consecutive sentencing is necessary to achieve a reasonable incremental punishment for the tax conspiracy. U.S.S.G. 5G1.3(c) (1992).
. . . . .
Accordingly, pursuant to the Sentencing Reform Act of 1984, it is the judgment of the court that the defendant, Jay C. Brassell, is hereby committed to the Bureau of Prisons to be imprisoned for 37 months. The sentence shall be served consecutively to the Indiana sentence in Indiana cause number 71-DO8-9205-CF-00517, a sentence the defendant is presently serving.
Sentencing Memorandum at 3-4. Mr. Brassell made no objection at sentencing. On appeal, Mr. Brassell argues that the district court should have imposed the federal prison sentence to run concurrently to the state prison sentences. 1
Because Mr. Brassell made no objection at the time of sentencing, review is limited to the standard of plain error. United States v. Korando, 29 F.3d 1114, 1120 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 496, 130 L.Ed.2d 406 (1994). Plain error must be clear, prejudicial, and affecting substantial rights. See United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Because of certain unresolved questions, the resolution of which may have a substantial impact on Mr. Brassell's sentence, we remand for resentencing. First, on the record before us, it is unclear why the district court used the 1992 version of the Guidelines, when Mr. Brassell was sentenced in 1994. Second, it appears that the district court did not apply the methodology of Sec. 5G1.3 Application Note 3 before deciding to make Mr. Brassell's federal sentence consecutive to his state sentence. Third, it appears, on the record before us, that the state sentences for theft, which had expired by the time of federal sentencing, nevertheless influenced the district court's decision to impose a consecutive sentence for tax conspiracy. In the following sections, we shall set forth the considerations that, on the record before us, should have controlled the sentencing process.
As a threshold matter, we must ask the district court to clarify its decision to employ the 1992 version of the Guidelines.
Mr. Brassell was sentenced in 1994. The district court used the 1992 version of the Guidelines, instead of the 1993 version that was in effect in 1994. Section 1B1.11(a) directs that "[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced." However, "[i]f the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause ..., the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." U.S.S.G. Sec. 1B1.11(b)(1).
Mr. Brassell committed the tax conspiracy in February 1992, when the 1991 version of the Guidelines was in effect. Thus, although Mr. Brassell was sentenced in 1994 (1993 Guidelines in effect), and committed the crime in 1992 (1991 Guidelines in effect), the district court used the 1992 version of the Guidelines. The district court acknowledges this use in its sentencing memorandum, but provides no further explanation. We are unsure why the 1992 version of the Guidelines was used in this case. It is unclear what effect, if any, the use of the 1992 Guidelines had on Mr. Brassell's sentence.
At the time Mr. Brassell was sentenced for the federal crime of tax conspiracy, he was serving two concurrent four-year sentences for burglary and forgery. Section 5G1.3 provides for "Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment." Neither Sec. 5G1.3(a) nor (b) applies to Mr. Brassell's situation. This leaves Sec. 5G1.3(c):
(c) (Policy Statement) In any other case, the sentence for the instant offense shall be imposed to run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense.
U.S.S.G. Sec. 5G1.3(c), p.s. Application Note 3 provides the methodology for computing the appropriate sentence:
... To the extent practicable, the court should consider a reasonable incremental penalty to be a sentence for the instant offense that results in a combined sentence of imprisonment that approximates the total punishment that would have been imposed under Sec. 5G1.2 (Sentencing on Multiple Counts of Conviction) had all of the offenses been federal offenses for which sentences were being imposed at the same time.
U.S.S.G. Sec. 5G1.3, comment. (n. 3).
At the time of federal sentencing, Mr. Brassell was serving undischarged terms of imprisonment for forgery and burglary. Thus, the Guidelines contemplate that the district court approximate the total sentence that would have been imposed had the burglary and forgery convictions been federal convictions, and were being sentenced at the same time as the tax conspiracy conviction.
If the burglary and forgery convictions had been federal convictions and sentenced simultaneously to the tax conspiracy conviction, sentence would have been imposed under Sec. 5G1.2 (Sentencing on Multiple Counts of Conviction). This section provides that "the combined length of the sentences ('total punishment') is determined by the adjusted combined offense level." Sec. 5G1.2, comment.
The adjusted combined offense level is determined under Sec. 3D1.1. First, the multiple convictions to be sentenced must be grouped. In Mr. Brassell's case, because each conviction concerned unrelated events, there would be three groups: burglary, forgery, and tax conspiracy. Second, the base offense level for each group...
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