U.S. v. Kilkenny

• Decision Date: 05 July 2007
• Docket Number: Docket No. 05-6847-CR.
• Citation: 493 F.3d 122
• Parties: UNITED STATES of America, Appellee, v. Patrick J. KILKENNY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

493 F.3d 122

UNITED STATES of America, Appellee, v. Patrick J. KILKENNY, Defendant-Appellant.

Docket No. 05-6847-CR.

United States Court of Appeals, Second Circuit.

Submitted October 27, 2006.

Decided July 5, 2007.

Terence L. Kindlon, Kindlon and Shanks, P.C., Albany, NY, filed a brief for Defendant-Appellant.

Sara M. Lord, Assistant United States Attorney, Albany, N.Y. (Glenn T. Suddaby, United States Attorney, Brenda K. Sannes, Assistant United States Attorney, Northern District of New York, Albany, NY, of counsel), filed a brief for Appellee.

Before: CARDAMONE, WALKER, and STRAUB, Circuit Judges.

CARDAMONE, Circuit Judge.

Patrick Kilkenny (defendant or appellant) appeals from an amended judgment of conviction entered on December 8, 2005 in the United States District Court for the Northern District of New York (Hurd, J.). The conviction followed Kilkenny's plea of guilty to three counts of an information charging him with bank fraud in violation of 18 U.S.C. § 1344(2), mail fraud in violation of 18 U.S.C. §§ 1341, 1342, and structuring a financial transaction to evade currency reporting requirements in violation of 31 U.S.C. § 5324(a)(3).

Applying the 2002 version of the United States Sentencing Guidelines (Guidelines or U.S.S.G.), the district court sentenced Kilkenny principally to a term of 216 months imprisonment. Kilkenny appeals this judgment alleging, inter alia, that the district court's use of the 2002 version of the Guidelines violated the Ex Post Facto Clause of Article I of the Constitution. U.S. Const. art. 1, § 9, cl. 3. We think that application of the 2002 version of the Guidelines was in error and therefore remand the case for resentencing. We have considered defendant's other arguments and find them to be without merit.

BACKGROUND

The facts underlying this appeal are largely uncontested. On July 25, 2003 Kilkenny waived indictment and pled guilty to each of three counts in a felony information. The plea agreement that defendant entered into with the government on that date included a detailed set of stipulated facts that formed the factual predicate for the guilty plea. Although Kilkenny admitted to having fraudulently obtained over a dozen bank loans and to having committed various other crimes, only three criminal counts were charged against him in the information.

Count One charged him with executing a scheme "[f]rom in or about September 2000 through on or about May 8, 2002" to defraud M & T Bank. The government alleged, and defendant admitted, that on September 19, 2000 he applied for and subsequently received a loan from M & T Bank in the amount of $467,541. In his loan application, Kilkenny grossly overstated his assets and income, submitted fraudulent personal and corporate income tax returns, and failed to report more than $1.3 million in debts. As a result of these misrepresentations, M & T Bank was forced to foreclose on the loan on May 8, 2002 and in so doing suffered a monetary loss of more than $450,000. Count Two charged defendant with defrauding 22 individuals of $910,000 by inducing them to invest in Panamanian bonds which Kilkenny was not authorized to issue and which were not valid instruments. The government alleged and defendant admitted that this scheme took place from February 2000 through June 2001. Finally, in Count Three of the information, the government charged defendant with structuring certain cash deposits on July 24, 2001 to avoid currency reporting requirements.

Following defendant's guilty plea, the United States Probation Office prepared a presentence investigation report (PSR) using the 2002 version of the Guidelines. The PSR calculated a base-offense level of six pursuant to U.S.S.G. § 2B1.1(a) (2002) and recommended five enhancements: (1) a 20-level enhancement for the amount of loss, id. at § 2B1.1(b)(1)(K); (2) a four-level enhancement for the number of victims, id. at § 2B1.1(b)(2)(B); (3) a two-level enhancement for obtaining more than $1 million from financial institutions, id. at § 2B1.1(b)(12)(A); (4) a two-level enhancement for obstruction of justice, id. at § 3C1.1; and (5) a two-level enhancement for defendant's supervision of a criminally responsible participant, his bookkeeper, Melanie Ramsey, id. at § 3B1.1(c). The resulting total offense level was 36, with a Guidelines range between 188 and 235 months imprisonment.

At a sentencing hearing on December 12, 2003 defense counsel made several objections to the PSR. First, defense counsel took issue with the version of the Guidelines used to calculate defendant's sentence. Kilkenny contended that instead of the 2002 Guidelines, the 2000 Guidelines should have been applied because all of the conduct relating to the offenses of conviction occurred before November 1, 2001 when the 2001 version of the Guidelines went into effect. Second, defense counsel objected to the two-level enhancement for Kilkenny's supervision of a criminally responsible participant. Third, the defense asserted a three-level reduction was warranted for acceptance of responsibility. The sentencing court was not persuaded by these objections. Applying the 2002 version of the Guidelines, which are in all relevant respects identical to the 2001 version, the court sentenced Kilkenny to 235 months in prison, followed by five years of supervised release, and restitution in the amount of $7,327,854.36.

While defendant's first appeal to this Court was pending, the Supreme Court handed down United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered advisory the sentencing range calculated under the Guidelines. In a summary order, we remanded the case for resentencing pursuant to Booker and declined to reach the other issues defendant raised on appeal. United States v. Kilkenny, 125 Fed.Appx. 360 (2d Cir. March 15, 2005).

Defendant was resentenced on November 28, 2005. The district court again applied the 2002 version of the Guidelines, finding that the offense of conviction continued through May 8, 2002. In particular, it concluded that, although Kilkenny applied for and received the M & T bank loan in September 2000, his subsequent failure to make payments on the loan extended the offensive conduct until the bank initiated foreclosure proceedings in 2002. The trial judge stated that in applying the 2002 date he was "relying on the entire range of conduct" and that Kilkenny's conduct of fraud and deception extended "actually even into 2003 in relation to additional individual victims which were not specifically charged but detailed in the presentence report." The court also noted that "the May 8, 2002 date is specifically charged in Count One of the Information." Applying the 2002 Guidelines, it resentenced Kilkenny to a total term of 216 months imprisonment, 19 months less than the sentence it had originally imposed, followed by five years of supervised release, restitution of $7,860,321.39, and a special assessment of $300.

From this judgment, Kilkenny appeals. For the reasons set forth below, we remand the case to the district court with instructions to resentence defendant under the 2000 version of the Guidelines.

DISCUSSION

I Standard of Review

We review a sentencing court's interpretation and application of the Guidelines de novo. United States v. Sloley, 464 F.3d 355, 358 (2d Cir.2006). Findings of fact are reviewed under the clearly erroneous standard. Id. A finding is clearly erroneous if, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

II Ex Post Facto Laws

The premise of this opinion rests on an application of that provision in Article I of the United States Constitution that prohibits Congress from passing any "ex post facto Law." See U.S. Const. art. I, § 9, cl. 3; see also art. I, § 10, cl. 1 (prohibiting states from passing any ex post facto law). For that reason it is helpful to state first our understanding of what that constitutional clause means. It is hard to improve on the definition of the Ex Post Facto Clause set out in an early Supreme Court case, Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). In that case Justice Chase described the following kind of legislation as prohibited

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2d. Every law that aggravates a crime, or makes it greater than it was, when committed.

3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Id. at 390, 1 L.Ed. 648.

The reason for the clause's adoption in the Constitution was, as the Supreme Court has explained, to restrain Congress from enacting "arbitrary or vindictive" laws. See Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). The clause also ensures that individuals are given "fair warning" of a law's effect. Id. at 430, 107 S.Ct. 2446. Examples from history vividly illustrate the importance of these dual functions. Perhaps the most dramatic example of a vindictive law unconstrained by any ex post facto prohibition occurred in pre-World War II Germany. After an arsonist burned the Reichstag in Berlin in February 1933, the newly empowered Nazi government authorized increasing the punishment for arson from imprisonment to death. See 2 Morris Ploscowe, Crime and Criminal Law 70-71 (1939). The arsonist was duly executed. Id. Blackstone illustrates the second purpose of the Ex Post Facto Clause, providing fair warning, by looking to the policies of the Roman despot Caligula. S...