U.S. v. Day
| Decision Date | 12 August 2005 |
| Docket Number | No. 04-2663.,04-2663. |
| Citation | 418 F.3d 746 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jack A. DAY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul W. Connell (argued), Office of United States Attorney, Madison, WI, for Plaintiff-Appellee.
Kelly A. Welsh (argued), Wessel, Brown & Associates, Madison, WI, for Defendant-Appellant.
Before POSNER, RIPPLE and MANION, Circuit Judges.
Jack Day pleaded guilty to one count of making false statements with respect to the actual mileage of a motor vehicle in violation of 49 U.S.C. §§ 32705(a)(2) and 32709(b). Mr. Day was sentenced to 25 months' imprisonment and ordered to pay restitution in the amount of $39,875. In this appeal, Mr. Day challenges his sentence as well as the amount of restitution. For the reasons set forth in the following opinion, we reverse the judgment of the district court with respect to the order of restitution. We further order a limited remand consistent with this court's decision in United States v. Paladino, 401 F.3d 471 (7th Cir.2005), petition for cert. filed, No. 04-10402 (May 26, 2005). In all other respects, we affirm the judgment of the district court.
From June 2000 through March 2002, Mr. Day was involved in a scheme to profit from the resale of used vehicles by altering the odometers of the vehicles and misrepresenting the mileage at the time of sale. On January 13, 2004, Mr. Day was charged with three counts of knowingly and willfully resetting and altering vehicle odometers, in violation of 49 U.S.C. §§ 32703(2) and 32709, as well as four counts of knowingly and willfully making false statements relating to the actual mileage of a motor vehicle, in violation of 49 U.S.C. §§ 32705(a)(2) and 32709(b). Mr. Day initially entered a plea of not guilty on all the charges. However, he later pleaded guilty, pursuant to an agreement, to Count 5 of the indictment, one of the counts of making false statements with respect to the mileage of a vehicle. According to the plea agreement, Mr. Day agreed
to pay restitution for all losses relating to the offense of conviction and all losses covered by the same course of conduct or common scheme or plan as the offense of conviction. The exact restitution figure will be agreed upon by the parties prior to sentencing or, if the parties are unable to agree upon a specific figure, restitution will be determined by the Court at sentencing.
At the plea hearing, Mr. Day admitted only those facts related to Count 5 of the indictment. Specifically, Mr. Day affirmed that, on September 28, 2001, he knowingly and willfully had given false information relating to the mileage of a 1993 Ford truck: Mr. Day represented that the mileage was 59,645 when, in actuality, the mileage was 159,591. During the plea hearing, no other vehicles or other aspects of the criminal scheme were discussed or were admitted by Mr. Day. The district court accepted the plea agreement.
The United States Probation Office ("Probation Office") then prepared a Presentence Report ("PSR") for Mr. Day. The starting point for Mr. Day's sentence calculation was United States Sentencing Guidelines ("U.S.S.G.") § 2N3.1(a) (2000), which provides for a base offense level of six. However, § 2N3.1(b) includes a cross-reference to § 2F1.1 (Fraud and Deceit) if the offense involved more than one vehicle. Relying on other charged and uncharged conduct attributed to Mr. Day, the Probation Office determined that Mr. Day's offense included more than one vehicle and therefore employed § 2F1.1 in the calculation.
Like § 2N3.1, the base offense level for § 2F1.1 is six. However, § 2F1.1 also contains a chart that increases the offense level according to the total amount of loss. To determine the amount of loss, the Probation Office considered the losses associated with the sale of all of the vehicles involved in the roll-back scheme. The Probation Office estimated that the loss associated with the sale of these vehicles was more than $20,000 but less than $40,000, which corresponded to a four-level increase and resulted in an offense level of ten. The PSR then recommended adding two levels pursuant to § 2F1.1(b)(2)(B) because the offense involved more than one victim. Finally, the PSR recommended a two-level down-ward departure for Mr. Day's acceptance of responsibility, which returned Mr. Day's offense level to ten. This offense level, in conjunction with Mr. Day's criminal history level, corresponded to a guideline range of 21 to 27 months.1 The PSR also recommended that Mr. Day be ordered to pay restitution in the amount of $39,875.
Mr. Day did not contest the guideline calculation; however, he did submit a written objection to the restitution recommendation. Mr. Day claimed that the amount of restitution was excessive based on the amount of loss sustained by each victim as well as on his financial resources, financial needs and earning ability. Mr. Day filed objections to this amount on the ground that he had no present or future financial resources that would allow him to pay such a sum. Mr. Day stated, as part of his objections, that he wished to pay full restitution if he were to become able to do so. However, his current economic circumstances did not allow for the payment of any amount of restitution, nor did he anticipate being able to pay the full amount of restitution in the foreseeable future. Consequently, he requested that the court order only nominal periodic payments towards his restitution pursuant to 18 U.S.C. § 3664(f)(3)(B).
In the Addendum to the PSR, the Probation Office acknowledged that it would be difficult for Mr. Day to pay restitution; it nevertheless recommended that the court order the full amount of restitution. The Government, as well, acknowledged the difficulty Mr. Day would have in paying the recommended restitution amount; at sentencing the assistant United States attorney stated:
Although it probably isn't likely that the defendant will ever be able to repay, assuming the defendant is not incarcerated for the rest of his life . . . you never know what can happen with someone's financial circumstances. . . . He could win the lottery. He could come into money in some other way and we just want to have the order in place.
Tr.ll at 8. The Government therefore urged the district court to order the restitution amount recommended in the PSR.
At sentencing, the district court recounted Mr. Day's criminal activities:
The Court notes that from on or about June 2000 to March 2002 the defendant was involved in a scheme to profit from the resale of used vehicles by tampering or rolling back the odometers and/or misrepresenting the actual mileage at the time of sale, submitting multiple false applications to the Wisconsin Department of Transportation. The results of the investigation have revealed that he was responsible for rolling back and misrepresenting approximately 1,430,000 miles of use on 19 vehicles.
Id. at 9. It then adopted that sentencing calculation set forth in the PSR and imposed a sentence of 25 months. The district court similarly accepted the PSR's restitution recommendation and ordered Mr. Day to pay restitution in the amount of $39,875, due and payable immediately. In sentencing Mr. Day, the district court ordered Mr. Day "to pay restitution in the amount of $39,875 which is due and payable immediately to the Clerk of Court for the Western District of Wisconsin to be disbursed to the victims in the amended Appendix A which is attached to your Judgment of Conviction." Id. at 11. The district court, however, refused to impose a fine: "The defendant has neither the means nor the earning capacity to pay a fine without impairing his ability to pay the mandatory restitution and support himself upon release." Id.
Mr. Day timely appealed his sentence and the restitution order.
Mr. Day first argues that the district court's imposition of a sentence that was based upon facts that neither were admitted nor found by a jury runs afoul of the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, Mr. Day did not argue to the district court that the imposition of the sentence would violate his Sixth Amendment rights. Consequently, our review is for plain error. See Booker, 125 S.Ct. at 769; Paladino, 401 F.3d at 481. We may review an error not raised below under the following circumstances: There must be (1) "error," that is (2) "plain," and that (3) "affect[s] substantial rights." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and citations omitted). If these three conditions are met, the court may exercise its discretion to notice a forfeited error, but only if it (4) "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 732, 113 S.Ct. 1770 (internal quotation marks and citations omitted).
Mr. Day admitted to rolling back the odometer on one Ford truck and to misrepresenting the actual mileage on the truck when it was resold. The district court concluded, however, based on facts which Mr. Day did not admit, that more than one vehicle was involved, that the loss was in the range of $20,000 to $40,000, and that more than one victim was harmed. These findings resulted in a six-level increase in offense level and a correspondingly higher guideline range for Mr. Day.
The Government concedes that, "[i]n light of Booker, the imposition of a mandatory Guideline sentence in this case is error that was plain in the sense that it is now clear or obvious." Appellee's Supp. Br. at 4. However, the Government maintains that Mr. Day cannot establish the third prong of the plain error test because "he cannot establish that he would have received a different sentence had the Guidelines...
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