U.S. v. Duso, 93-2383

• Decision Date: 14 December 1994
• Docket Number: No. 93-2383,93-2383
• Citation: 42 F.3d 365
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence C. DUSO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 365

42 F.3d 365

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence C. DUSO, Defendant-Appellant.

No. 93-2383.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 30, 1994.

Decided Dec. 14, 1994.

Michael Hluchaniuk, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Bay City, MI, for plaintiff-appellee.

Thomas J. Plachta (argued and briefed), Brady & Plachta, Bay City, MI, for defendant-appellant.

Before: GUY and BATCHELDER, Circuit Judges; and McKEAGUE, District Judge. ^*

RALPH B. GUY, JR., Circuit Judge.

This case was earlier appealed, and, although we upheld Duso's conviction, we vacated his sentence and remanded for resentencing. 992 F.2d 1217. The sentence was vacated because of an inadequate factual basis set forth by the district judge to support the upward departure he made in the sentence. In the opinion remanding, we stated:

Upon remand, the court may consider whether the facts recited warrant an upward adjustment under Sec. 4A1.3 or any other Guidelines provision (e.g., Sec. 3C1.1 for obstruction of justice for subornation of perjury).

United States v. Duso, No. 92-1162, slip op. at 15, 992 F.2d 1217 (table) (6th Cir.1993) (per curiam) (emphasis added).

This court vacated a 36-month sentence. Upon remand, the district judge imposed a 41-month sentence from which the defendant again has appealed. The only issue raised on appeal is whether the new, harsher sentence was a result of vindictiveness and thus a violation of defendant's due process rights. Our review of the record convinces us that no due process violation occurred, and we affirm.

I.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court set aside the sentence of a state prisoner who had successfully appealed his conviction but upon remand was given a harsher sentence. The Court stated that a defendant's due process rights were violated when, after a successful appeal, a harsher sentence was imposed as a result of vindictiveness. The Court went on to hold that, if a more severe sentence is imposed following appeal, the reasons for the harsher sentence must appear on the record and must be "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at 726, 89 S.Ct. at 2081. Subsequent to the decision in Pearce, the Supreme Court decided Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). In Wasman, the Court clarified its Pearce holding by making it clear that enhanced sentences on remand were not prohibited unless the enhancement was motivated by actual vindictiveness against the defendant as punishment for having exercised his constitutionally guaranteed rights. See id. 468 U.S. at 568, 104 S.Ct. at 3222-23.

In 1989, the Supreme Court further clarified the Pearce doctrine in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), explaining that, unless there was a "reasonable likelihood" that the increased sentence was the product of actual vindictiveness, the burden was on the defendant to show actual vindictiveness. Id. at 799, 109 S.Ct. at 2204-05. None of these three cases involved a sentence imposed under the federal sentencing guidelines, however.

At the original sentencing hearing in this case, the trial judge explained that he thought the criminal history category did not accurately represent defendant's criminal history because four prior felony convictions over 10 years old were not counted pursuant to the dictates of the guidelines. The district judge also mentioned some other reasons in support of an upward departure, but, on review, the panel felt that the consideration of the sentences over 10 years old was central to the court's decision and that a remand for resentencing was necessary.

Upon remand, at the first resentencing hearing, the district judge made it clear that he still believed an upward departure was justified and set forth additional reasons in support of an upward departure. Defendant initially had been indicted on two drug counts and a firearms count (felon in possession). The jury acquitted him on the drug counts, but found Duso guilty of being a felon in possession of a firearm. Notwithstanding the acquittal on the drug charges, the district judge thought that drugs were clearly implicated in Duso's criminal activities and cited this as one of the potential reasons to justify an upward departure.

In arguing against considering drug involvement as a basis to support an upward departure, defense counsel made an argument that he was soon to regret. He pointed out to the court that the sentencing guidelines indicate that a court should not take into consideration, as a basis for an upward departure, a factor that the guidelines have already taken into account. Defense counsel elaborated, however, that under the guidelines:

If the defendant used or possessed any firearm ... in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.

United States Sentencing Commission, Guidelines Manual, Sec. 2K2.1(b)(5) (Nov.1991). Although it was not defense counsel's intention in citing to this section, the court concluded that it may have initially computed the base offense level erroneously and that the matter should be referred back to the probation department for further review. At this point, defense counsel unsuccessfully attempted to withdraw any arguments he had previously made.

The sentencing hearing was reconvened two weeks later, and, in the interim, the government, at the court's suggestion, submitted a supplemental memorandum. The defendant did not submit any additional arguments.

The probation officer also prepared a supplemental report in which the sentence was recomputed with reference to section 2K2.1(c), which dictates that, if the firearm was used in connection with the commission or attempt at commission of another offense, there would be a cross-reference to section 2X1.1, and that the defendant should be sentenced in accordance with the underlying substantive offense guideline if the resulting offense level would be greater. Accordingly, and notwithstanding the acquittal on the drug charges, the court found by a preponderance of the evidence that the firearm was used in connection with a drug offense, and that the offense level for the drug offense had to be determined based upon the quantity of drugs involved.

Over defendant's vigorous objections, the court determined that between 50 and 100 grams of cocaine were involved, and that this translated into a base offense level of 16. The court then added two points for possession of a firearm in connection with a drug offense and another two points for defendant's leadership role in connection with the drug offense. This resulted in an offense level of 20, which, when paired with a criminal history of II, resulted in a sentencing range of 37 to 46 months.

At this point, defense counsel argued that he was taken by surprise as to the court's calculation of the drug quantities and requested an evidentiary hearing. The court granted this request, and one month later the parties again appeared in court for the third hearing in connection with this resentencing.

At this hearing, defense counsel reiterated that both he and the defendant were urging the court to consider their "appeal" abandoned and respectfully requested that the court reinstate the original offense level which resulted in a sentence of 36 months.

The defendant also now argued that the court's refusal to consider the appeal abandoned was vindictive and in violation of Pearce.

The court spent a considerable amount of time in discussing this issue and gave defense counsel every opportunity to demonstrate what evidence supported a charge of actual vindictiveness on the part of the court. Although it was a touchy subject, defense counsel replied forthrightly and told the court that it appeared from the outset that the court was unhappy with being reversed, and that it appeared the court was bent on increasing defendant's sentence "as a punishment" for appealing and...