U.S. v. Burns, 88-3161

• Decision Date: 12 January 1990
• Docket Number: No. 88-3161,88-3161
• Citation: 893 F.2d 1343,282 U.S. App. D.C. 194
• Parties: , 2 Fed.Sent.R. 277 UNITED STATES of America v. William J. BURNS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1343

893 F.2d 1343

282 U.S.App.D.C. 194, 2 Fed.Sent.R. 277

UNITED STATES of America v. William J. BURNS.

No. 88-3161.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 16, 1989.

Decided Jan. 12, 1990.

Appeal from the United States District Court for the District of columbia.

Maureen DelDuca, (appointed by this Court as co-counsel), with whom Steven H. Goldblatt, (appointed by the Court), was on the brief, for appellant.

J. Douglas Wilson, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., Washington, D.C., was on the brief for appellee.

Before MIKVA, SILBERMAN, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This case requires us to rule on the validity of the trial judge's decision to depart from the sentence range contemplated in the Federal Sentencing Guidelines. The defendant, William J. Burns, pled guilty to theft of government funds, making a false claim against the government, and income tax evasion, crimes for which he expected to receive a sentence of 30 to 37 months in prison pursuant to the applicable Guidelines range. Despite the agreement of the U.S. attorney to the 30-37 month range and the recommendation of Burns' probation officer that Burns receive a sentence within that range, the trial judge found three reasons for an upward departure and sentenced Burns to 60 months in prison. Burns appeals his sentence, contending that the trial judge relied on impermissible grounds in enhancing his sentence and that the extent of departure was unreasonable. He also maintains that the Federal Rules of Criminal Procedure and the Guidelines require that he be given advance notice of the judge's intention to depart. Because we find that the trial judge relied on three legitimate grounds for her departure decision and that nothing in the law requires a trial judge to provide advance notice of her intention to depart from the Guidelines, we affirm. As we are troubled by the plea bargaining procedure used in this case, we suggest that future plea agreements explicitly address the possibility that the trial judge may depart from the Guidelines, even if such a departure is not recommended by the government or the probation officer.

I. BACKGROUND

Burns was employed by the United States Agency for International Development ("AID" or "the agency") from 1967 until 1988. Beginning in February 1982, he used his position as a supervisor in the agency's Financial Management Section to authorize the payment of unused travel funds from the U.S. Treasury to Vincent Kaufman. However, the payments to Kaufman were really a front for diverting government funds to Burns' own pocket. From 1982 to 1988, Burns authorized the issuance of 53 checks totaling in excess of $1,200,000. Burns' scheme was discovered after a routine security check revealed that he owned a $400,000 house despite his annual salary of $35,000. Prior to his arrest, but after the government became aware of his embezzlement activities, Burns authorized the issuance of two checks in the name of Vincent Kaufman; these checks formed the basis for the government's case against Burns on charges of making false claims against the government.

After his arrest, Burns and the government entered into an agreement whereby Burns agreed to plead guilty to theft of government funds in violation of 18 U.S.C Sec. 641, making a false claim against the government in violation of 18 U.S.C. Sec. 287, and evasion of income tax in violation of 26 U.S.C. Sec. 7201. Burns agreed to surrender all of his assets, except for some minor personal property, and to pay restitution to the government by surrendering 50 percent of all his future annual income over $40,000 and 100 percent of all future annual income over $70,000. He also agreed to cooperate fully with the government in its investigation of the matter. Under the agreement, both parties understood that Burns' plea would be covered by the Sentencing Guidelines and that a sentencing level of 19, Criminal History Category I (30-37 months) would apply to his case.

The probation officer's presentence report also concluded that Burns' sentence would be within the 30-37 month range, and did not recommend that Burns be given a sentence in excess of that prescribed by the Guidelines. At the sentencing hearing, however, Judge Johnson concluded that in order to give Burns an appropriate sentence, the court had to depart from the Guidelines. She noted that according to 18 U.S.C. Sec. 3553(b), the sentencing judge is entitled to depart from the Guidelines in light of aggravating or mitigating circumstances that were not adequately considered by the Sentencing Commission. The trial judge found three factors involved in Burns' case that were not adequately addressed by the Guidelines. First, she found that although the Guidelines permit adjustment for the amount of money stolen and the level of planning, they do not give sufficient weight to the duration of the crime. Because the defendant's fraudulent scheme persisted for six years and involved 53 separate instances, the judge concluded that departure from the Guidelines was warranted.

Additionally, while the Guidelines do consider the defendant's violation of the public trust, the trial judge found that the defendant's systematic abuse of the government's process of paying legitimate vendors, in addition to violating the public trust, constituted a disruption of government functions. Since Sec. 5K2.7 of the Guidelines permits departure when "the defendant's conduct resulted in the significant disruption of a governmental function," the trial court found this to be a second reason for imposing an enhanced sentence.

Finally, as the Guidelines also permit departure if "the defendant committed the offense in order to facilitate or conceal the commission of another offense," the trial judge concluded that Burns' evasion of over $400,000 in taxes allowed him to conceal his theft and false claims and accordingly justified an upward departure from the Guidelines.

II. ANALYSIS

A. Standard of Review

The Sentencing Guidelines provide that a trial judge can depart from the Guidelines based on aggravating or mitigating circumstances which were not adequately considered by the Sentencing Commission in formulating the Guidelines. 18 U.S.C. Sec. 3553(b). If a factor is one which the Commission has already considered, it must be "present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction." Guidelines Sec. 5K2.0, p 2. Determining whether a certain factor is an appropriate ground for enhancement of a sentence involves a question of statutory interpretation. To the extent that this requires us to decide whether the Commission adequately considered that particular factor, we subject the court's determinations to plenary review. United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); see also, United States v. Burke, 888 F.2d 862, 865 (D.C.Cir.1989). Once it has been established that a factor is a legally permissible basis for departure, we give broad deference to the district court's judgment as to the appropriateness of considering this factor, and we will uphold the departure so long as it is reasonable. 18 U.S.C. Sec. 3742(e)(4). We will reverse the factual findings that the trial court relied upon in its departure decision only if they are clearly erroneous. Diaz-Villafane, 874 F.2d at 49.

B. Reasonableness of Departure

Burns maintains that the trial court erred in departing from the Guidelines. He contends that the concealment and duration factors upon which the trial judge relied in her departure decision had already been contemplated by the Sentencing Commission and thus could not form a separate basis for departure. Burns also argues that the trial court's finding that he significantly disrupted government functions was not supported by the record. He further contends that the degree of departure was unreasonable and that the trial court unfairly failed to give him notice of its intention to depart from the Guidelines. We dispose of each of Burns' arguments in turn.

1. Concealment

Burns maintains that because the Guidelines allow upward adjustment for "more than minimal planning," Guidelines Secs. 2B1.1 and 2F1.1, his concealment of his theft and false claims through income tax evasion were factors that had already been considered within the Guidelines and therefore could not provide the basis for departure. Burns contends that since his "more than minimal planning" was not extraordinary, departure was unwarranted.

The trial court's upward departure for concealment, which is permitted under Sec. 5K2.9 of the Guidelines, applied to Burns' tax evasion, and not to the fact that he used other elaborate methods to conceal his crimes. Therefore, while the Guidelines discuss an adjustment for "more than minimal planning" for theft of government funds and false claims, this applies only to the planning of those offenses. Burns' evasion of taxes to conceal his embezzlement scheme constituted a separate basis for an upward departure, distinct from the fact that his activities were well planned. Since it is possible to be guilty of tax evasion without concealing other crimes, we conclude that the trial court's decision to depart based on concealment was reasonable.

2. Duration

Burns argues that duration was also a factor considered by the Commission under the "more than minimal planning" adjustment and therefore cannot provide a separate ground for departure. He notes that the commentary to the Guidelines states that the "more than minimal planning" adjustment applies to "any case involving repeated acts over a period of time." Guidelines Sec. 1B1.1, note 1(f). Therefore, since the Guidelines already accounted for the duration of his crime, and his theft was not...