U.S. v. Gordon

• Decision Date: 23 July 2007
• Docket Number: No. 06-2080.,06-2080.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott L. GORDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

495 F.3d 427

UNITED STATES of America, Plaintiff-Appellee, v. Scott L. GORDON, Defendant-Appellant.

No. 06-2080.

United States Court of Appeals, Seventh Circuit.

Argued October 19, 2006.

Decided July 23, 2007.

Stephen Ehlke (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Bradley M. Orschel, Christopher W. Madel (argued), Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, for Defendant-Appellant.

Before RIPPLE, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Through a complex series of transactions, Scott Gordon embezzled between $117,000 and $189,000 from his former employer, Anchorbank, beginning in June 1995 and ending when he left the bank's employ (voluntarily) in May 2003. Anchorbank first uncovered parts of the scheme in September 2003, and initiated a detailed six-month investigation into Gordon's activities. The bank documented its investigation and the amount of loss in hundreds of pages of documents, receipts, and ledgers tracing the fraudulent transactions. As one example of fraud, the government's witness described a scheme in which Gordon would target a certificate account that had been closed legitimately and assessed an early withdrawal penalty. Then, using a high level security access, Gordon would reopen the certificate and then re-close it without the penalty, leaving a remaining balance from which he embezzled funds.

By March 30, 2004, Anchorbank had documented approximately $134,883.44 in losses. In 2004, as part of the investigation, two FBI agents visited Gordon's home in St. Paul. Gordon immediately confessed to his crime and provided the FBI with a letter to that effect. Shortly thereafter, Gordon's counsel sent a letter to the FBI on Gordon's behalf expressing Gordon's desire to accept responsibility for his crime. Gordon also took out a home equity loan to secure the funds to reimburse the bank for its losses, and signed an agreement turning over to the bank the $50,000 he had accumulated in his retirement accounts. By June 9, 2004, the bank had discovered an additional fraudulent loan in the amount of $54,000, and accordingly, the government adjusted the loss amount to $188,883.44. On September 15, 2005, the government filed a one count information charging Gordon with embezzling in excess of $117,000 in violation of 18 U.S.C. § 656. Gordon entered a guilty plea on November 8, 2005.

Gordon cooperated with investigators from the pretrial services office who arrived at a total offense level calculation of fifteen, including a recommended two-level reduction for acceptance of responsibility. Coupled with Gordon's criminal history category of I, his guideline imprisonment range was eighteen to twenty-four months.

On December 28, 2005, Gordon filed a written objection to the presentence investigation report in which he raised three key objections: first, that the bank had inadvertently double counted some funds thus inflating the loss amount; second, that the district court should have used the 1997 sentencing guidelines; and third, that he should not have received a two-level enhancement under U.S.S.G. § 3B1.3 for those who abuse a position of trust. Gordon filed two subsequent motions arguing in the first that, pursuant to U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), he was entitled to have a sentencing jury determine the loss amount and whether he held a position of trust, and, in the second, requesting that the court hold a hearing to determine the correct amount of loss.

In an addendum dated January 5, 2006, pretrial services stood by its original conclusions. A few days later, Gordon moved for a continuance and asked the court to issue a subpoena requiring Anchorbank to turn over more documents.

On March 17, 2006, pretrial services issued a second addendum lowering the loss figure from $188,883.44 to $168,735.85 based on Gordon's report of double counting, with which Anchorbank agreed. Despite these changes, Gordon filed an amended sentencing statement renewing the same objections he had made before, including additional arguments relating to the loss amount.

Gordon appeared for his sentencing hearing on March 28, 2006, and reiterated his objections to the loss calculation of $168,735, noting that he had found what he referred to as minor discrepancies amounting to between $5,000 and $6,000. In response, the government, after consulting with Anchorbank's representative, agreed to forgo $6000 of restitution in an effort to resolve the loss issue and proceed with sentencing without a hearing on the loss amount. Gordon conferred with his lawyer and rejected the government's offer, claiming that he was "just very concerned that because of the amounts here and the shifting sands, that even if they did go through this whole accounting, that it's going to change again." (Tr. 3/28/06 at 11). The district court then rescheduled the sentencing hearing for April 5, 2006.

At that hearing, Anchorbank's representative described the investigation and introduced the hundreds of pages of documents it had accumulated detailing the embezzlement scheme. Gordon testified that he wished to "take full responsibility for what I've done" but that he was concerned about the amounts and making certain that he was "responsible for the correct amount," and "sentenced appropriately according to the correct amount." (Tr. 3/28/06 at 37). Gordon also testified that he had reviewed the Anchorbank documents daily for a year and half and had found several errors. Specifically, he documented one error amounting to $2,552.73, another amounting to $272.80, and a third amounting to $2173.12. (Tr. 4/5/06 at 42-44). He also testified that he found discrepancies between the debits and credits listed in the Anchorbank documentation, and between the numbers of "cases" of theft reported in the government's recap and those Gordon found by going through the box of documents. (Id. at 39-45). In closing, Gordon's counsel argued that the government had not met its burden of proving by a preponderance of the evidence that Anchorbank had lost anything more than the $117,000 to which Gordon pled.

At the close of evidence, the district court denied Gordon's request for a sentencing jury, and concluded that the government had proved, by a preponderance of the evidence, that the relevant conduct resulted in an actual loss of $168,735.85. After expressing concern about Gordon's challenges to minor discrepancies in the accounting, the district court denied Gordon a reduction in offense level for acceptance of responsibility, and sentenced him to twenty-seven months' imprisonment.¹ Gordon appeals first, the district court's refusal to empanel a jury to determine the amount of loss and whether he held a position of trust, and second, the district court's decision not to reduce Gordon's sentencing range for acceptance of responsibility.

I.

Gordon believes that pursuant to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), he is entitled to have a sentencing jury determine first, the correct amount of loss, and second, whether Gordon held a position of trust for which he could receive an additional enhancement under U.S.S.G. § 3B1.3 (2002).² Gordon is not the first, nor will he be the last to argue unsuccessfully that Booker demands that any fact that enhances a sentence must be proven to a jury beyond a reasonable doubt. The guidelines, however, are advisory and not mandatory and therefore the presence or absence of a particular fact will determine only where within the guidelines a sentence falls, but will not necessarily determine the actual sentence. United States v. Dean, 414 F.3d 725, 730 (2005). If the factual determinations require a particular sentence, or result in a sentence exceeding the statutory maximum, then a jury must find those facts beyond a reasonable doubt. United States v. Bryant, 420 F.3d 652, 656 (7th Cir.2005); Dean, 414 F.3d at 730. Sentencing factors that do not increase a sentence beyond the statutory maximum need not be proven to a jury beyond a reasonable doubt — a proposition we have repeated numerous times explicitly and implicitly since the decision in Booker. See, e.g., United States v. James, 487 F.3d 518, 528 (7th Cir.2007); U.S. v. Swanson, 483 F.3d 509, 514-15 (7th Cir.2007); U.S. v. McCaffrey, 437 F.3d 684, 689 (7th Cir. 2006); U.S. v. Owens, 441 F.3d 486, 490 (7th Cir.2006); U.S. v. Robinson, 435 F.3d 699, 701 (7th Cir.2006); United States v. White, 472 F.3d 458, 464 (7th Cir.2006); Bryant, 420 F.3d at 656; Dean, 414 F.3d at 730; U.S. v. LaShay, 417 F.3d 715, 719 (7th Cir.2005). Gordon was not entitled to have the amount of loss or his role in a position of trust proven to a jury beyond a reasonable doubt.

Before the district court, Gordon objected not only to the choice of fact-finder for the loss calculation, but also to the amount of loss the government presented. Gordon never offered a concrete counter-proposal, arguing instead that the burden was on the government to prove the amount of loss, and objecting in a general fashion to the fact that the government's loss calculations had changed repeatedly. See (Tr. 4/5/06 at 37) ("There's been so much change. And in going through all the documentation that I've been presented with, a number if things did not make sense to me, and so my concern grew. And I'm just concerned that [sic] the correct amount I'm held responsible for."). See also (Tr. 3/28/06 at 11) ("[h]e's just very concerned that because of the amounts here and the shifting sands, that even if they did go through this whole accounting, that it's going to change again."). The court, however, expressed "grave doubt" about whether Gordon had accepted responsibility in light of the "nitpicking over Anchor's inability to find every penny that he manipulated." (Tr. 4/5/06 at 61-63). Consequently, the district court declined to give Gordon any ...