U.S. v. O'Georgia, 05-2598.
Decision Date | 24 June 2009 |
Docket Number | No. 05-2598.,No. 06-2505.,05-2598.,06-2505. |
Citation | 569 F.3d 281 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. McMaine Allen O'GEORGIA (05-2598); a/k/a Mark Arhebamen (06-2505), Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: Martin J. Beres, Law Offices of Martin J. Beres, Clinton Township, Michigan, for Appellants. Alan Hechtkopf, Elissa Hart-Mahan, John Hinton III, United States Department of Justice, Washington, D.C., for Appellee. McMaine Allen O'Georgia, Mark Arhebamen, Rochester, Minnesota, pro se.
Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.*
GILMAN, J., delivered the opinion of the court, in which MARTIN, J., joined. ZOUHARY, D.J. (pp. 297-307), delivered a separate opinion dissenting in part and concurring in part.
Mark Arhebamen, also known as McMaine Allen O'Georgia, pled guilty in 2001 to one count of aiding and assisting in the preparation of a false federal income tax return. He received a sentence of 21 months of imprisonment plus one year of supervised release. This court affirmed his conviction and sentence, but the Supreme Court remanded the case in 2005 for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court reimposed the same sentence.
While the appeal of his conviction and sentence was pending, Arhebamen was prosecuted separately for conduct that occurred during the false-tax-return proceedings. The new charges were for failure to appear at sentencing, making false claims of United States citizenship, corruptly endeavoring to obstruct justice by lying to the Probation Office, and making false statements to judicial officials. Arhebamen was tried before a jury in 2003 on these new charges and was convicted on all counts. After applying six different upward departures under the United States Sentencing Guidelines, the district court sentenced Arhebamen to 152 months of imprisonment and to four years of supervised release. This court affirmed Arhebamen's conviction, but remanded for resentencing pursuant to Booker. The district court again imposed the 152-month sentence and the four-year term of supervised release.
Arhebamen now appeals both sentences. For the reasons set forth below, we VACATE the sentences and REMAND the cases to the district court for resentencing consistent with this opinion.
These appeals have each come before this court once before, and our summary of the relevant factual and procedural background is largely drawn from United States v. Arhebamen, 197 Fed.Appx. 461 (6th Cir.2006). Arhebamen came to the United States from Nigeria in 1977 on a visitor's visa and has never left. He obtained a Social Security number later that year and applied for, but never received, permanent resident status. In 1979, he obtained a second Social Security number, this time claiming to be a United States citizen named McMaine Allen O'Georgia. Arhebamen used this alias for more than twenty years.
In 1999, Arhebamen was indicted in the district court under the O'Georgia alias on 22 counts of aiding and assisting in the preparation of false federal income tax returns, in violation of 26 U.S.C. § 7206. He pled guilty to one of those tax-fraud counts before District Judge Gerald E. Rosen in February 2001. During the plea proceeding, Arhebamen represented that he was a citizen of the United States. Judge Rosen released him on bond pending sentencing.
Arhebamen visited a physician in June 2001 and reported that he suffered auditory and visual hallucinations. The doctor made a provisional diagnosis of paranoid schizophrenia and prescribed medication. Arhebamen secured a one-month extension of his sentencing date as a result of the doctor's statements that he had entered her care and that she hoped to stabilize his condition before he returned to court. During this extension period, Arhebamen moved from Michigan to Arizona in violation of his conditions of release. Arhebamen saw a second physician in Arizona, who also recommended that his sentencing be postponed. After the district court rejected this second request, Arhebamen failed to appear for his scheduled sentencing before Judge Rosen in July 2001.
Arhebamen was arrested soon thereafter and returned to Michigan, where Judge Rosen sentenced him to 21 months of imprisonment and one year of supervised release on the plea-based tax-fraud conviction. The conviction and sentence were affirmed on appeal, United States v. O'Georgia, 80 Fed.Appx. 439 (6th Cir. 2003), but the Supreme Court later remanded the case for resentencing in light of Booker, 543 U.S. at 245-46, 125 S.Ct. 738 ( ). Although by that point Arhebamen had long since completed his 21 months of imprisonment, Judge Rosen reimposed the same sentence plus the one year of supervised release in November 2005. Arhebamen, who remains in prison due to his conviction on the second case described below, now appeals that decision.
While the tax-fraud appeal and resentencing were pending, Arhebamen was indicted anew for conduct that occurred during the tax-fraud proceedings. The charges were for failure to appear at sentencing, in violation of 18 U.S.C. § 3146(a)(1); making false claims of United States citizenship, in violation of 18 U.S.C. § 911; corruptly endeavoring to obstruct justice by lying to the Probation Office, in violation of 18 U.S.C. § 1503; and two counts of making false statements to judicial officials, in violation of 18 U.S.C. § 1001. United States District Judge Lawrence P. Zatkoff presided over the second case.
Arhebamen filed various pro se pretrial motions that sought, among other things, the recusal of Judge Zatkoff, a change of venue due to alleged negative publicity, and the exclusion of several of Arhebamen's state convictions from evidence. Judge Zatkoff denied all of these motions, and this court dismissed each of Arhebamen's ten interlocutory appeals from those rulings. This court has also denied at least five other appeals by Arhebamen that involve this second case, including duplicate appeals and a habeas corpus petition.
In response to Arhebamen's notice that he planned to offer an insanity defense at trial, Judge Zatkoff ordered him to submit to a mental evaluation. After considering Arhebamen's interlocutory appeal on whether the mental evaluation should be ordered, this court affirmed the district court's order. United States v. Arhebamen, 79 Fed.Appx. 104, 105 (6th Cir.2003). The court-appointed physician concluded "based on the marked discrepancies between his claimed distress and the observations of his ability to function, his atypical lack of cooperation with psychological testing, his exaggerated psychological symptoms, and his lengthy history of general fabrication," that Arhebamen was likely fabricating his complaints. No diagnosis was offered. Following a hearing at which the court-appointed physician testified about her observations, Judge Zatkoff found that Arhebamen was competent to stand trial. Arhebamen then proceeded to trial pro se. The jury returned a verdict of guilty on all counts.
Arhebamen was sentenced in April 2004. The district court used the 2000 version of the Sentencing Guidelines to determine that Arhebamen's initial offense level was 19 and his criminal history category was V. This led to a Guidelines range of 57 to 71 months of imprisonment. But the district court increased Arhebamen's total offense level to 28 after adding two levels for obstruction of justice, two levels for disrupting the sentencing proceedings in his tax-fraud case, two levels for moving to Arizona, one level for extent of planning, and two levels for concealing his false claim to United States citizenship. In addition, the court increased Arhebamen's criminal history category from V to VI after finding that category V underrepresented the seriousness of his prior criminal record. The court thus concluded that Arhebamen was subject to a Guidelines range of 140 to 175 months of imprisonment, and sentenced him to 152 months.
Arhebamen appealed. After affirming Arhebamen's convictions, this court remanded the case for reconsideration of the sentence in light of Booker. Arhebamen, 197 Fed.Appx. at 468. Judge Zatkoff, incorporating his prior sentencing memorandum by way of explanation, reimposed the same 152-month sentence and accompanying four-year period of supervised release. Arhebamen again appeals. He argues both that the district court abused its discretion in departing upward and that the resulting sentence is substantively unreasonable.
A district court's sentencing determination is reviewed "under a deferential abuse-of-discretion standard" for reasonableness, which has both a procedural and a substantive component. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). We must first ascertain whether the district court committed a procedural error. Id. at 597; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). A district court necessarily abuses its sentencing discretion if it
commit[s][a] significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range."
Our review of a district court's decision to depart upward from the now-advisory Guidelines employs the same "standards we use to judge the procedural and substantive reasonableness of a variance from any [g]uidelines range." United States v. Vowell, 516 F.3d 503, 510 (6th Cir.2008) (internal quotation marks omitted) (...
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