U.S. v. Huber, 05-3797.

• Decision Date: 12 September 2006
• Docket Number: No. 05-4030.,No. 05-3797.,05-3797.,05-4030.
• Citation: 462 F.3d 945
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Duane HUBER, Duane Huber, doing business as Huber Farms General Partnership; Huber Farms, Inc., Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

462 F.3d 945

UNITED STATES of America, Appellee/Cross-Appellant, v. Duane HUBER, Duane Huber, doing business as Huber Farms General Partnership; Huber Farms, Inc., Appellants/Cross-Appellees.

No. 05-3797.

No. 05-4030.

United States Court of Appeals, Eighth Circuit.

Submitted: May 17, 2006.

Filed: September 12, 2006.

COPYRIGHT MATERIAL OMITTED

Irvin B. Nodland, argued, Bismarck, ND, for appellant.

Clare R. Hochhalter, argued, Asst. U.S. Attorney, Bismarck, ND, for appellee.

Before MURPHY, BEAM, and BENTON, Circuit Judges.

BEAM, Circuit Judge.

In this fraud action, we revisit Duane Huber's direct appeal, and the government's cross-appeal, of Huber's conviction and sentence.¹ We affirm.

I. BACKGROUND

We recounted the underlying facts in great detail in our prior opinion, United States v. Huber, 404 F.3d 1047 (8th Cir. 2005) (Huber I), and decline to do so again. Briefly, Huber and his corporate farming entities were convicted of making fraudulent statements to the government, committing tax fraud, and laundering money, acts designed to obtain more farm program benefits than were warranted by Huber's farming operations. Huber was sentenced to sixty-months' imprisonment, and the corporate farming entities were given probation. In addition, Huber was ordered to forfeit approximately $5.9 million in the form of a money judgment under the money-laundering charge. In Huber I, we affirmed the conviction, but remanded to the district court to recalculate the forfeiture amount² and for re-sentencing in light of the recently decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 404 F.3d at 1060-63. Upon remand, the district court reduced the forfeiture judgment to approximately $3.9 million, re-sentenced Huber to sixty-months' imprisonment and the corporations to probation, and again refused to order a fine or restitution. Both parties appeal, raising numerous claims of error.

II. DISCUSSION

A. Huber's Appeal

Huber's primary complaint is that he received the same sentence upon remand. He contends that the district court disregarded the Booker mandate by simply imposing the same sentence. Huber also argues that his Sixth Amendment rights were violated because the jury found facts used for sentencing enhancements by only a preponderance of the evidence. Notably, Huber does not contend that the district court erroneously applied the guidelines. To the contrary, he admits that his is a "guideline sentence." E.g., United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005).

First, contrary to Huber's argument, facts used to enhance a sentence, post-Booker, do not need to be found beyond a reasonable doubt. The Booker court remedied the Sixth Amendment problem by making the guidelines advisory, rather than mandatory. 543 U.S. at 246, 125 S.Ct. 738. Accordingly, Huber's Sixth Amendment arguments are without merit.

Essentially, Huber argues that his sentence is unreasonable because it is a guidelines sentence, and more specifically, the same guidelines sentence he was given before Blakely³ and Booker threw the federal sentencing scheme into a state of upheaval. We reject this reasoning. First, Huber's argument does not withstand our circuit's overwhelming post-Booker precedent that a sentence within the guidelines range is presumptively reasonable. E.g., United States v. Gatewood, 438 F.3d 894, 896 (8th Cir.2006). Second, Huber's description of the district court's actions upon re-sentencing is a textbook example of post-Booker sentencing procedure.

Upon remand, the district court first noted that the guidelines were now advisory under Booker. Citing Haack, the court acknowledged that the Eighth Circuit has directed the district courts to consult the guidelines during sentencing, and then "individualiz[e]" the sentence by consulting the factors set forth in 18 U.S.C. § 3553(a). The district court then proceeded to do just that, and thus performed its duties to the letter on re-sentencing. The sentence is not invalid simply because the district court came to the same conclusions both pre- and post-Booker. We reject Huber's arguments that the district court erred by reimposing his sixty-month sentence.

We also reject Huber's argument that he was entitled to have the forfeiture amount decided by the jury beyond a reasonable doubt, citing both Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."), and Booker. At trial, the court instructed the jury to find the forfeiture amount by a preponderance of the evidence, and the jury decided that amount would be approximately $5.9 million. Criminal forfeiture is an indeterminate sentencing scheme and accordingly, Huber was not entitled to a reasonable doubt forfeiture instruction under the Apprendi line of reasoning. In United States v. Hively, 437 F.3d 752, 763 (8th Cir.2006), we found that criminal forfeiture proceedings were unaffected by Booker, noting that the Booker Court expressly found that the forfeiture provision of the sentencing statute, 18 U.S.C. § 3554, was still "perfectly valid." 543 U.S. at 258, 125 S.Ct. 738.

We affirm the district court in its entirety with respect to Huber's direct appeal of his sentence.

B. Government's Cross-Appeal

1. Sentence

The government assigns eight errors, and almost forty pages of briefing, to the district court's application of the sentencing guidelines to Huber's case. We distill those alleged errors down to three primary claims-that the district court miscalculated and misapplied the guidelines when determining the base offense level; that the district court erred in refusing to enhance or adjust Huber's sentence upward; and that the district court erred in departing downward. We review the district court's interpretation and application of the sentencing guidelines de novo. United States v. Vasquez-Garcia, 449 F.3d 870, 872 (8th Cir.2006). We review the district court's factual findings for clear error. Id. A critical starting point in our review is whether the district court correctly calculated the advisory guideline range. An incorrect application of the guidelines can require remand, regardless of whether the resulting sentence was reasonable. United States v. Mashek, 406 F.3d 1012, 1017-18 (8th Cir.2005).

The government's primary complaint with the district court's base offense calculation involves the determination of the loss to the government. Key issues pervading trial, sentencing, and the forfeiture proceedings were the amount of the laundered funds and the total value of the government's loss. There is a distinction between these two concepts-the value of the laundered funds refers to the amount of money that Huber funneled into and out of the farming operations while obtaining farm program benefits. The total amount of loss to the government is a much more illusory figure referring to all loss to the government, on all twenty charged counts, as a result of the illicit farm program scheme. The difficulty with this latter figure is that while Huber was convicted of maintaining illegal farming operations in order to obtain farm program benefits to which he was not entitled, it is clear that he also conducted a legitimate farming operation. The funds involved in both the legitimate and illegitimate farming operations were continually co-mingled. So it is not easy to determine which funds in the entire Huber farms enterprise were wrongly obtained. Further complicating matters, the loss to the government amount and the sentencing guidelines calculation are inextricably intertwined.

The guideline for determining the base offense level in this money-laundering case is 2S1.1. Guideline 2S1.1 provides alternative methods for determining a defendant's base offense level. Section 2S1.1(a)(1) describes the first method of determining the base offense level: if both of two specified conditions are met, the offense level is the same as that "for the underlying offense from which the laundered funds were derived." U.S.S.G. § 2S1.1(a). The two conditions which must be satisfied are that the defendant actually committed the underlying offense, and that the offense level for that offense "can be determined." Id. If either of these two conditions are not met, the alternative method, found in section 2S1.1(a)(2), provides that the base offense level is eight plus a number of offense levels from a designated table "corresponding to the value of the laundered funds." Id. § 2S1.1(a)(2).

Huber clearly committed the underlying fraud offense, satisfying the first condition of 2S1.1(a)(1). However, the only way that the base offense level for this underlying fraud count can be determined is if the total amount of loss to the government can be determined. The district court decided that it could not do this, finding that because a calculation of the total amount of loss to the government was impracticable, if not impossible to make, section 2S1.1(a)(2) should be used to set Huber's offense level. The government argues that section 2S1.1(a)(1) should have been used instead. It argues that the total amount of loss was determinable, and sets the figure at approximately $19 million.

The district court rejected this position because of the co-mingling problem described above. Instead, the district court used subsection (a)(2) to calculate the guideline. The first thing the district court had to do under the (a)(2) analysis was to assign a value to the laundered funds. This calculation was based on the following: during the forfeiture proceedings, the jury was given Government Exhibit 1, which contained totals of grain sales, crop insurance, and farm payments for various years, ranging from 1994 through 1999, received...