U.S. v. Dupas, 04-50055.

Citation417 F.3d 1064
Decision Date03 August 2005
Docket NumberNo. 04-50055.,04-50055.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Matthew Eugene DUPAS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Richard Y. Lee, Assistant United States Attorney, Santa Ana, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CR-02-00339-DOC-2.

Before JOHN R. GIBSON,* GRABER, and CALLAHAN, Circuit Judges.

GRABER, Circuit Judge.

Defendant Matthew Eugene Dupas appeals the sentence imposed after his conviction for possessing stolen mail in violation of 18 U.S.C. § 1708.1 The government concedes that Defendant's sentence of imprisonment may be remanded to the district court pursuant to our decision in United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc), because that sentence rested on the district court's finding of fact as to the amount of loss and was imposed according to the then-mandatory United States Sentencing Guidelines. Here, we address two other challenges to Defendant's sentence, both of which present issues of first impression in this circuit. Both issues are raised for the first time on appeal, so we review only for plain error. See id. at 1078 (reviewing the defendant's Sixth Amendment challenge for plain error); United States v. Rearden, 349 F.3d 608, 618 (9th Cir.2003) (reviewing a challenge to conditions of supervised release for plain error), cert. denied, ___ U.S. ___, 125 S.Ct. 32, 160 L.Ed.2d 32 (2004).

First, Defendant argues that the retroactivity principles of the Fifth Amendment's Due Process Clause preclude the retroactive application of the remedial holding of United States v. Booker, ___ U.S. ___, ___ _ ___, 125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005), which excised portions of Title 18 of the United States Code in order to make the Sentencing Guidelines effectively advisory. As we explain below, we reject Defendant's argument and hold that he may be resentenced according to the principles set forth in Booker and Ameline.

Second, Defendant challenges two conditions of supervised release pertaining to searches and to payments for substance abuse treatment. We affirm the former and, although we are uncertain whether the latter was an improper delegation of the district court's authority under 18 U.S.C. § 3672, our very uncertainty persuades us that the district did not plainly err.

A. Factual and Procedural Background

Defendant and a co-defendant were stopped by a police officer for traffic violations. After the officer learned that an arrest warrant was outstanding for the co-defendant, he arrested the co-defendant and searched the passenger compartment of the car. He found mail, checks, and credit cards belonging to other people and, consequently, arrested Defendant as well. A search of the entire car revealed many similar items.

After the district court denied Defendant's motion to suppress, he entered a conditional guilty plea to one count of possession of stolen mail. In the plea agreement, Defendant and the government stipulated to an amount of loss not exceeding $5,000. Before accepting Defendant's plea, the district court warned him that the court was bound to apply the Sentencing Guidelines ("U.S.S.G.") and, therefore, could not guarantee that Defendant would receive the sentence agreed to in the plea agreement.2

At sentencing, the district court declined to accept the parties' stipulated calculation of loss and instead found, over the objections of both parties, that the intended loss was $49,306.95. The court based its calculation on information in the presentence report ("PSR") that Defendant had possessed 67 "unauthorized access devices" (under U.S.S.G. § 2B1.1, cmt. n. 2(F)(I) (2002), the minimum loss per access device is $500, for a total of $33,500); and that Defendant possessed stolen checkbooks from which they had written checks amounting to $15,806.95. Because of those findings, Defendant received an upward adjustment of 6 offense levels under U.S.S.G. § 2B1.1(b)(1)(D), resulting in a total offense level of 13 and a sentencing range of 24 to 30 months. The court sentenced Defendant at the bottom of that range.

The court also imposed several conditions of supervised release, two of which Defendant challenges on appeal. The conditions are reproduced below, in our discussion of Defendant's arguments.

B. Ex post facto principles do not prohibit resentencing under Booker and Ameline.

Some background is helpful to understanding Defendant's argument. After the Supreme Court invalidated Washington State's sentencing scheme in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), many courts and commentators correctly predicted that the Supreme Court also would hold that the federal system of sentencing guidelines violated the Sixth Amendment (as it ultimately did in Booker). Commentators discussed a variety of remedies, including sentencing trials at which a jury would be required to find, beyond a reasonable doubt, the facts that determine the sentencing range. See, e.g., Nancy J. King & Susan R. Klein, Beyond Blakely, 16 Fed. Sent. Rep. 316, 322-23 (2004) (discussing sentencing findings by juries). The Supreme Court did not select that remedy, preferring instead to excise the elements of the Sentencing Reform Act that had made the guidelines mandatory. See Booker, 125 S.Ct. at 756-57.

Defendant is not satisfied with the remedy selected by the Supreme Court. The "advisory guidelines" remedy gives the sentencing judge discretion to sentence outside the guideline range, but still allows the sentencing judge (as distinct from a jury) to make the findings of fact necessary to determine the guideline range in the first place. In Defendant's case, where the parties agreed to a loss of no more than $5,000 but the district court instead found a loss of $49,306.95, Defendant would prefer a remedy that eliminates the court's power to make findings of fact at all. Under Ameline, the district court could make the same finding of fact at resentencing and, if it does, Defendant will have to rely on the court's discretion to receive a sentence lower than the range set by the guidelines. By contrast, under a system in which the guidelines were mandatory but a jury was required to decide the facts necessary to determine the sentencing range, Defendant would be assured of a sentencing range corresponding to a loss of $5,000 or less, because the government agreed not to argue that the amount of loss exceeded $5,000. In pursuit of that result, Defendant fashions a novel due process argument based on ex post facto principles. His argument proceeds in two steps.

First, Defendant points out that Booker contains two separate holdings. One is the Sixth Amendment rule set forth in Justice Stevens' opinion: Within a system of mandatory sentencing guidelines, any fact (other than a prior conviction) that is necessary to support a sentence exceeding the maximum authorized by the facts established in a guilty plea or jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable doubt. See Booker, 125 S.Ct. at 756. The other is Justice Breyer's remedial holding, which modified the Sentencing Reform Act of 1984 to make the Guidelines advisory by excising the provisions of Title 18 that previously had made the Guidelines mandatory. Id. at 756-57.

In the second step of his argument, Defendant "essentially asks this court to apply Justice Stevens' opinion in Booker retroactively, but refuse to apply Justice Breyer's opinion in Booker retroactively." United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir.2005). He argues that we must apply different retroactivity analyses to Booker's two holdings. Specifically, he argues that, under Griffith v. Kentucky, 479 U.S. 314, 327-28, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), defendants in pending cases must be afforded the benefit of a constitutional rule such as Justice Stevens' Sixth Amendment holding. But retroactive application of new judicial interpretations of criminal statutes, Defendant argues, is barred by the ex post facto principles that informed the Supreme Court's due process decision in Bouie v. City of Columbia, 378 U.S. 347, 353-55, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).3 In short, Defendant seeks the benefit of Justice Stevens's opinion — which, standing alone, would require the facts supporting his sentence to be admitted or proved beyond a reasonable doubt — without the burden of Justice Breyer's opinion — which instead resolves the Sixth Amendment problem by making the Guidelines advisory. Again, in Defendant's particular circumstance, that would ensure a lower sentence than that originally imposed because Defendant and the government stipulated to an amount of loss not exceeding $5,000 and the guideline range would be correspondingly lower.

Defendant's argument suffers from three fatal flaws. First, as the Eleventh Circuit pointed out in responding to a very similar argument, "in Booker, the Supreme Court expressly stated that both holdings should be applied to cases on direct review." Duncan, 400 F.3d at 1304. And our decision in Ameline, under which Sixth Amendment violations can be cured by giving district courts the opportunity to resentence defendants under the now-advisory Guidelines, necessarily implies that appellate courts should apply both Booker holdings retroactively.

Second, "[i]n United States v. Newman, 203 F.3d 700, 703 (9th Cir.2000), we held that Bouie applied only to after-the-fact increases in the scope of criminal liability and not to retroactive sentence enhancements." Holgerson v. Knowles, 309 F.3d 1200, 1202 (9th Cir.2002) (emphasis added);4 see also Webster v. Woodford, 369 F.3d 1062, 1069 (9th Cir.2004...

To continue reading

Request your trial
19 cases
  • Van Le v. Beightler, Case No. 1:08 CV 2155.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 14, 2009
    ...v. Scroggins, 411 F.3d 572, 575-78 (5th Cir.2005); United States v. Jamison, 416 F.3d 538, 539 (7th Cir.2005); United States v. Dupas, 417 F.3d 1064, 1068-69 (9th Cir.2005); United States v. Rines, 419 F.3d 1104, 1106 (10th Duncan, 400 F.3d at 1306-08; and United States v. Alston-Graves, 43......
  • U.S. v. Alston-Graves, 04-3095.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 27, 2006
    ...and we do the same. E.g., United States v. Jamison, 416 F.3d 538, 539-40 (7th Cir.2005) (citing cases); accord United States v. Dupas, 417 F.3d 1064, 1068-69 (9th Cir.2005); United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir.2005). In 1997 and 1998, when Alston-Graves engaged in crim......
  • Thompson v. Williams
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 5, 2010
    ......States v. Jamison, 416 F.3d 538, 539 (7th. Cir.2005); United States v. Dupas......
  • U.S. v. Smith, 03-10548.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2005
    ...authorized by the unenhanced base offense levels, under ex post facto principles. We have rejected that argument in United States v. Dupas, 417 F.3d 1064 (9th Cir.2005). CONCLUSION For the foregoing reasons, the judgments of conviction are affirmed and the cases are remanded pursuant to 1. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT