U.S. v. Katzopoulos
| Decision Date | 15 February 2006 |
| Docket Number | No. 04-6501.,04-6501. |
| Citation | 437 F.3d 569 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anastasios S. KATZOPOULOS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jeffrey A. Rothman, Daniels & Rothman, Athens, Georgia, for Appellant.
Byron M. Jones, Assistant United States Attorney, Nashville, Tennessee, for Appellee.
ON BRIEF:
Jeffrey A. Rothman, Daniels & Rothman, Athens, Georgia, for Appellant. Byron M. Jones, Assistant United States Attorney, Nashville, Tennessee, for Appellee.
Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge.*
Pursuant to a written plea agreement, Anastasios Katzopoulos pled guilty to ten counts of mail fraud and conspiracy to commit wire fraud for his involvement in an internet auction scheme. At the time of the plea agreement, the Federal Sentencing Guidelines constitutionality was in question as the Supreme Court had not decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The uncertain legal landscape caused the parties to enter into an agreement which required the district court to determine whether the Sentencing Guidelines were constitutional in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). If the district court found the Sentencing Guidelines to be unconstitutional, then Katzopoulos would waive his right to have a jury determine the enhancements and allow the district court to determine whether the enhancements existed beyond a reasonable doubt.
At sentencing, the district court, over defense objections on grounds of both hearsay and a violation of his Sixth Amendment right to confrontation, admitted the hearsay testimony offered by the government's sole witness at the hearing, United States Postal Inspector Jill Gregg. Relying in part on her testimony, the district court found that two sentencing enhancements applied: (1) the value of loss to the victims exceeded $200,000; and (2) that the number of victims exceeded fifty.
Following the Sixth Circuit precedent at the time, the district court held the mandatory application of the Sentencing Guidelines to be constitutional and imposed a thirty-three month sentence with three years' supervised release under the mandatory Sentencing Guidelines regime. Alternatively, the district court made a factual finding that the sentence enhancements were proven by the government beyond a reasonable doubt and therefore imposed an identical, alternative sentence as if the Guidelines were unconstitutional.
Petitioner now challenges his sentence on direct appeal. Katzopolous contends that the district court erroneously enhanced his sentence by impermissibly relying on hearsay evidence in violation of his Sixth Amendment right to confrontation articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Katzopoulos also argues that the district court improperly enhanced his sentence in violation of his Sixth Amendment rights by relying on sentencing factors, not charged, admitted in open court or proven by the government beyond a reasonable doubt. For the reasons set forth below, we affirm Katzopoulos' sentence.
In January 2002, Katzopoulos operated a business named the Surplus of Nashville which offered merchandise such as computers, cameras and electronic devices for sale through internet auction sites and booths at tradeshows. The ten named customers in the indictment were persons who were the highest bidders for particular merchandise. They were informed by Surplus of Nashville employees that their bids were accepted. The winning bidders would submit their payments to Appellant through one of three means, i.e., internet based payment, personal checks or telephone credit card transactions. After their payments were received, the customers were informed that their merchandise would ship from a warehouse in Nashville in approximately four to six weeks. The winning bidders never received their merchandise or a refund.
Employees of Surplus of Nashville were unaware of Katzopoulos' scheme, though there were suspicions. Whenever questions arose, Katzopoulos provided answers that would assuage their concerns.
In February of 2002, postal authorities began investigating the Surplus of Nashville. In late March, a search warrant was executed at Katzopoulos' recently abandoned apartment. As a result of the search, over a hundred and fifty refund checks drawn from two separate bank accounts were seized. Three months later, Katzopoulos was indicted on five counts of mail fraud and five counts of wire fraud. The indictment alleged that the Defendant had collected payments totaling $273,030.60 from approximately one hundred and thirty-eight customers from his scheme to defraud.
Pursuant to a plea agreement, on August 2, 2004, Katzopoulos entered a plea of guilty to all counts admitting to the facts alleged in the indictment. The plea agreement addressed the parties' concerns over the Supreme Court's anticipated decision in Booker by including this condition:
The defendant acknowledges that he is aware of the recent decision of the Supreme Court in Blakely v. Washington, 542 U.S. 206, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The defendant further acknowledges he has discussed Blakely with his attorney. The defendant also acknowledges the possibility of the application of its holding to his case. The defendant and the United States agree to submit to the Court the question of whether the federal sentencing guidelines are unconstitutional for the same reasons expressed in the Blakely decision. If this Court finds that the federal sentencing guidelines are unconstitutional for the reasons expressed in the Blakely decision, the defendant waives his right to have a jury determine the total amount of the loss and total number of victims attributable to the fraudulent scheme alleged in the indictment and both the defendant and the United States agree that the amount of the loss and the number of victims shall be determined by the Court applying the standard of proof beyond a reasonable doubt.
At the sentencing hearing, the government intended to present the hearsay testimony of U.S. Postal Inspector Jill Gregg to further establish the amount of loss. The defense objected to the testimony as inadmissible hearsay and on the ground that it violated Katzopoulos' Sixth Amendment right to confrontation. After acknowledging that the total amount of loss would be difficult for the Government to prove without the hearsay testimony, the district court ruled that the testimony was admissible under Federal Rule of Evidence 807, the residual exception to the hearsay rule.
Postal Inspector Gregg testified that Katzopoulos' company had two bank accounts, one of which had total deposits of $130,240.22 and the other $142,790.50. Katzopoulos presented no evidence that he was involved in any legitimate business. As a result, the Court found that all of the money deposited into the accounts were the result of Katzopoulos' illegal activity.
The district court addressed the plea agreement's Booker issue by ruling that the Sentencing Guidelines were constitutional as mandatorily applied, following the Sixth Circuit precedent of United States v. Koch, 383 F.3d 436 (6th Cir.2004)(en banc), which considered the question after Blakely but prior to Booker.1
Using the 2003 edition of the U.S. Sentencing Guidelines, the district court determined that Katzopoulos' criminal history points totaled two and the base level offense was six. Relying on Katzopoulos' plea admissions and Postal Inspector Gregg's testimony, the district court found that the loss to the victims exceeded $200,000 but was not more than $400,000 to enhance the base level to twelve pursuant to USSG § 2B1.1(b)(1)(G). Relying on the same evidence, the base level was enhanced four more levels because the number of victims was over fifty but less than two hundred and fifty. A three level reduction was applied because of Katzopoulos' acceptance of responsibility, resulting in a level nineteen which listed the range between thirty-three and forty-one months. The district court sentenced Katzopoulos under the mandatory Guidelines scheme to thirty-three months, three years of supervised release, restitution in the amount of $88,264.90, and a special assessment of $1,000.
The district court ruled alternatively that if the Guidelines scheme were unconstitutional, the court would still find that the presentence report's enhancements were proven beyond a reasonable doubt:
The facts establish to the satisfaction of this Court that he was operating a scheme to commit wire fraud and to defraud people of moneys [sic] that were sent to him. And the Court finds that beyond a reasonable doubt, both as to the facts of this case and both as to the amount that were withdrawn from the fruits of that.
and would impose an identical sentence:
The alternative that the Court would impose in this case would be the same, 33 months.
A month after Katzopoulos filed his notice of appeal of sentence, the Supreme Court released its opinion in Booker. The opinion determined that the mandatory application of the Federal Sentencing Guidelines violated the defendant's Sixth Amendment rights, holding "any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 125 S.Ct. at 756. The Supreme Court concluded that this constitutional holding required the invalidation of 18 U.S.C. §§ 3553(b)(1) and 3742(e), "mak[ing] the Guidelines effectively advisory." Id. at 757.
A defendant's claims that the district court violated his rights under the Confrontation Clause...
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