U.S. v. Koeberlein, 97-1424

Citation161 F.3d 946
Decision Date12 November 1998
Docket NumberNo. 97-1424,97-1424
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Francis A. KOEBERLEIN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Frank E. Stanley (argued and briefed), Grand Rapids, Michigan, for Defendant-Appellant.

Daniel Y. Mekaru (argued and briefed), Office of the U.S. Attorney for the Western District of Michigan, Grand Rapids, Michigan, for Plaintiff-Appellee.

Before: KRUPANSKY, NORRIS, and SILER, Circuit Judges.

OPINION

ALAN E. NORRIS, Circuit Judge.

Hoping to receive the benefit of a downward departure for acceptance of responsibility, defendant Francis Koeberlein pleaded guilty to one count of interstate transportation of stolen property. 18 U.S.C. § 2314. 1 However, not only did the district court decline to grant the departure, it imposed a much harsher sentence than anticipated. Defendant challenges the court's sentencing calculation.

I.

Defendant pleaded guilty to a one-count indictment charging him with transporting a rented Bobcat front-end loader and trailer from Michigan to Wisconsin. On February 8, 1996, defendant rented the Bobcat and an equipment trailer from Andrews Rental in Battle Creek, Michigan. When defendant failed to return the equipment, the company alerted the authorities.

On February 15, Radey's Rental of Manitowoc, Wisconsin, notified Andrews Rental that it had just exchanged the Bobcat for a 1996 Haulmark car trailer. The equipment was eventually returned to Andrews Rental.

Were this the extent of defendant's brush with the law, this appeal would not be before us. However, the parole officer who prepared the pre-sentence report characterized the charged conduct as the "tip of the iceberg" in light of defendant's extensive history of theft. The district court agreed and considered these other illicit activities as relevant conduct under the Sentencing Guidelines. Rather than ordering restitution in the amount of $7,532.79, which was contemplated by the plea agreement, the district court ordered restitution of $168,195.15. The court also imposed a two-level enhancement for obstruction of justice rather than the hoped-for reduction for acceptance of responsibility. Finally, it determined that the sentencing range did not adequately reflect defendant's criminal history and therefore departed upward, imposing a sentence of seventy months' imprisonment.

II.
A. Relevant Conduct

Before reaching the merits of defendant's first argument, we must first determine whether it has been waived because trial counsel failed to object either to the pre-sentence report's relevant conduct assessment or its determination that the amount of loss was "at least" $168,195.15. In the past, this circuit has on occasion declined to review objections that were not raised below. See United States v. Kincaide, 145 F.3d 771, 784 (6th Cir.1998) (failure to object to district court's calculation of drug amount waives issue for appeal); United States v. Cullens, 67 F.3d 123, 124 (6th Cir.1995) (a failure to object results in waiver); United States v Nagi, 947 F.2d 211, 213 (6th Cir.1991) (appellate court does not ordinarily address issues that might have been but were not raised in the trial court).

Defendant concedes that his trial counsel failed to object to the pre-sentence report's conclusion concerning relevant conduct and that the conduct resulted in a loss of at least $168,195.15, the amount that should be subject to restitution, or to the district court's treatment of relevant conduct and restitution at sentencing. However, he asks that we at least entertain the issue, albeit under the plain error standard of review prescribed by Fed.R.Crim.P. 52(b). This circuit has taken this approach in at least one published opinion that concerned the proper amount of restitution where the defendant had failed to object to the amount of restitution included in his presentence report. United States v. Hall, 71 F.3d 569, 573 (6th Cir.1995) ("The Sixth Circuit has held that where no objection is made to the order of restitution at sentencing, the appellate court reviews for plain error."); 2 see also United States v. Barajas-Nunez, 91 F.3d 826, 830 (6th Cir.1996) (failure to notify the district court of any concern regarding downward departure constituted forfeiture of the issue but permitted plain error review); United States v. Thomas, 24 F.3d 829, 832 (6th Cir.1994) (plain error review when defendant failed to object at sentencing hearing to upward departure).

As these cases indicate, our opinions have not made crystal clear whether failure to raise a timely objection to a sentencing decision in the district court precludes us from conducting review for plain error on appeal. We hold that it does not. Where, as here, a criminal defendant has failed to object below, he or she must demonstrate that the error was plain as defined by Fed.R.Crim.P. 52(b) before we may exercise our discretion to correct the error. 3 Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1550, 137 L.Ed.2d 718 (1997) (citing United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also United States v. Ovalle, 136 F.3d 1092, 1108 n. 17 (6th Cir.1998) ("The only exception to this rule [of waiver] is when the error falls under the 'plain error' rule of Federal Rule of Criminal Procedure 52(b)."). With this in mind, we now apply plain error review to the relevant conduct issue raised by defendant.

"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Fed.R.Crim.P. 52(b). To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant's substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings. Johnson, 117 S.Ct. at 1549; United States v. Thomas, 11 F.3d 620, 629-30 (6th Cir.1993) (discussing at length plain error doctrine set forth in Olano ).

The pre-sentence report catalogues defendant's extensive history of crimes involving fraud and theft. These included ten instances of failure to return rental property, two instances of outright theft, and two instances of bounced checks. The parole officer concluded that this activity, which resulted in at least $168,195.15 of loss, constituted "relevant conduct" under the Sentencing Guidelines. 4 Guideline section 2F1.1 applies to offenses involving fraud or deceit. Under that section, the amount of loss affects the offense level. By attributing a loss of $168,195.15 to defendant's crimes rather than the figure of $7,532,79 contemplated by the plea agreement, the district court raised defendant's base offense level by five since the section imposes a two-level increase when the loss is between $5,000 and $10,000, and a seven-level increase when the loss is between $120,000 and $200,000. U.S.S.G. § 2F1.1(b)(1).

We discussed relevant conduct in some detail in United States v. Hill, 79 F.3d 1477 (6th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996):

To qualify as part of a "common scheme or plan" under the "relevant conduct" guideline, the offenses "must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." U.S.S.G. § 1B1.3, application note 9(A). If offenses do not qualify as part of a common scheme or plan, offenses are nonetheless considered the "same course of conduct" if "they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses." U.S.S.G. § 1B1.3, application note 9(B). The three factors relevant to determining whether offenses are sufficiently related to constitute the "same course of conduct" include "the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses." Id. The commentary requires courts to balance these factors such that "when one of [these] factors is absent, a stronger presence of at least one of the other factors is required." Id. In an apropos illustration of this sliding scale approach, the commentary explains that "where the conduct alleged to be relevant is relatively remote to the offense of conviction, a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity." Id. Furthermore, the "nature of the offenses" may also be considered to the extent pertinent to the court's analysis of the three factors. Id. (citing as an example the failure to file a tax return for three consecutive years because such returns are only required at yearly intervals).

Id. at 1481-82 (footnote omitted); see also United States v. Moored, 997 F.2d 139, 143-44 (6th Cir.1993) (finding that two instances of fraud not sufficiently related for uncharged instance to constitute relevant conduct).

Defendant attempts to distinguish the incidents used in the relevant conduct calculus from the offense of conviction. However, his efforts fall far short of satisfying the exacting standard required by plain error review. Even were we to conclude that defendant had satisfied the first three parts of review under Olano, he has certainly not shown, as he must, that the forfeited error seriously affected the fairness or integrity of the judicial proceeding. The relevant conduct, while not a mirror image of the offense of conviction, shares many of its traits. Moreover, with respect to the fairness of the judicial proceeding, defendant was provided with a report prior to sentencing that contained the relevant conduct analysis, giving him ample opportunity to object. He failed to do so. Accordingly, we decline to find plain error.

B. ...

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