U.S. v. Leach
| Decision Date | 03 August 2005 |
| Docket Number | No. 04-5117.,04-5117. |
| Citation | 417 F.3d 1099 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sherma Lee LEACH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Paul D. Brunton, Julia O'Connell, Barry L. Derryberry, Office of the Federal Public Defender, Tulsa, OK, for Defendant-Appellant.
David E. O'Melia, Kenneth P. Snoke, Office of the United States Attorney, Tulsa, OK, for Plaintiff-Appellee.
Before EBEL, McKAY and HENRY, Circuit Judges.
Sherma Lee Leach ("Defendant") pled guilty to theft of mail by a postal employee, a violation of 18 U.S.C. § 1709. After accepting Defendant's plea and conducting a sentencing hearing, the district court sentenced Defendant to thirty-seven months' imprisonment, followed by three years' supervised release.1 On appeal, Defendant challenges the district court's application of the United States Sentencing Guidelines as well as the constitutionality of her sentence under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Exercising jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we REVERSE Defendant's sentence and REMAND for proceedings consistent with this Opinion.
Defendant was employed by the United States Postal Service ("USPS") in Bartlesville, Oklahoma, as a mail sorter between 1999 and 2003. During this time, Defendant had contact with large volumes of mail addressed to the Voice of the Martyrs ("VOM"), a nonprofit organization that assists Christians around the world who are being persecuted for their faith. The group finances operations through charitable donations sent to its headquarters in Bartlesville.
During the same period Defendant was employed with the USPS, VOM began receiving reports from its donors that checks the donors had mailed to VOM were not being cashed. In accordance with its established internal procedure, VOM compiled a log, recording each time it was notified that a donation had not been cashed. VOM also notified postal inspectors, who began a formal investigation at the Bartlesville post office in July 2003.
The investigators observed Defendant hide VOM mail in a post office box and return after her shift to retrieve the mail by accessing the post office box from the lobby. During one of Defendant's trips to the post office box, postal inspectors apprehended Defendant, who was carrying 31 pieces of mail addressed to VOM as well as mail addressed to several other charitable organizations. Defendant admitted to postal inspectors that she had been stealing mail for five or six years and consented to a search of her residence.
The search of Defendant's residence yielded an additional forty-five pieces of discarded mail, most of which were addressed to VOM. The total amount of cash and checks found in Defendant's possession (both on her person and at her residence) on the date of her arrest was $4,707.
On August 23, 2003, the United States Attorney for the Northern District of Oklahoma charged Defendant by information with one count of theft of mail by a postal employee, a violation of 18 U.S.C. § 1709.2 On December 4, 2003, Defendant petitioned the district court to enter a plea of guilty to the charge against her. In her written petition, Defendant expressly admitted to stealing eighty pieces of mail, but made no admission as to the amount of funds that were embezzled or the number of victims involved. Defendant also expressly waived her right to a jury trial. The district court held a hearing the same day, accepted the guilty plea, and set sentencing for March 5, 2004.
Between the time of Defendant's guilty plea and her sentencing, the Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).3 Blakely invalidated the State of Washington's sentencing scheme on Sixth Amendment grounds because the scheme permitted judges to increase a criminal defendant's sentence based on facts neither admitted by a defendant nor proven to a jury. Id. at 2536-38. Because Blakely significantly changed the legal landscape of criminal sentencing, the district court permitted the parties to file supplemental briefs discussing the case's applicability to the federal sentencing guidelines.
At this point in the proceedings, there were two disputed factual issues relevant to sentencing: the amount of loss suffered and the number of victims. The district court offered Defendant an opportunity to withdraw her pre-Blakely guilty plea and waiver of jury trial. Defendant declined the offer, arguing that the earlier waiver of the right to a jury trial applied only to the right to have a jury determine guilt or innocence, not the right to have a jury determine facts relevant to sentencing.4 Because Blakely had not been decided at the time Defendant entered her waiver of the right to a jury trial, Defendant argued that she could not have knowingly waived her right under Blakely to a jury determination of facts relevant to sentencing.
After considering this argument, the district court held that Defendant's pre-Blakely waiver of a jury trial applied both to the guilt-innocence and sentencing phases of the proceedings. That is, the district court held that the Sixth Amendment right to a jury trial was not severable between guilt-innocence and sentencing phases, and that a waiver as to one was a waiver as to the other. The district court then concluded that, in light of Defendant's waiver, it could make factual findings without violating the Sixth Amendment.
Out of an abundance of caution, however, the district court opted to hold a full-blown evidentiary hearing in accordance with the Federal Rules of Evidence and required the Government to prove facts regarding loss amount and number of victims beyond a reasonable doubt.
Under the sentencing guidelines, Defendant's conviction under 18 U.S.C. § 1709 warranted a base offense level of six. See U.S.S.G. § 2B1.1(a)(2) (2003). The district court then imposed a two level enhancement for abuse of a position of trust based on admissions contained in Defendant's guilty plea petition.5 See U.S.S.G. § 3B1.3.
Next, the court applied two enhancements based on testimony presented at the evidentiary hearing. First, the district court found beyond a reasonable doubt that the amount of loss attributable to Defendant's conduct was $134,571.34. Pursuant to U.S.S.G. § 2B1.1(b)(1)(F), Defendant's offense level was enhanced by ten levels, bringing her total offense level to eighteen. Second, the district court found beyond a reasonable doubt that Defendant's crime involved fifty or more victims and enhanced her offense level by four levels pursuant to U.S.S.G. § 2B1.1(b)(2)(B).
Finally, the court applied a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a)-(b), bringing the total offense level to nineteen. With Defendant's criminal history category of I, the appropriate guidelines range was 30-37 months' imprisonment. The district court imposed the highest possible sentence of thirty-seven months, noting that such a sentence was appropriate because Defendant had abused a position of trust and it was likely that there were many more unidentified victims. The instant appeal followed.
On appeal, Defendant raises three issues: First, the challenges the district court's application of U.S.S.G. § 2B1.1(b)(2)(B), arguing that the district court incorrectly concluded that Defendant's crime involved fifty or more victims. Second, she argues that the district court incorrectly applied U.S.S.G. § 2B1.1(b)(1)(F) by miscalculating the amount of loss attributable to Defendant. Finally, Defendant argues that the enhancements to her sentence under U.S.S.G. § 2B1.1(b)(2)(B) and (b)(1)(F) violated her Sixth Amendment right to trial by jury because the district court engaged in unconstitutional fact finding. See Blakely, 124 S.Ct. at 2536-38, Booker, 125 S.Ct. at 755-56 (). Because the last of these three issues has the potential to be dispositive, we consider it first.
In Booker, the Supreme Court held that for federal sentences, "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." 125 S.Ct. at 756. Defendant raises constitutional Booker error,6 arguing that her Sixth Amendment rights were violated when the district court made factual findings regarding the amount of loss and the number of victims that enhanced her offense level by fourteen points.
A defendant's right to a jury trial at sentencing, just like the right to a jury trial at the guilt-innocence phase, can be voluntarily waived. Here, defendant's guilty plea (which was entered prior to the Supreme Court's decisions in Blakely and Booker) contained such a waiver. Our task, then, is to determine whether this waiver applies to Defendant's rights under Booker.
A waiver is the intentional relinquishment or abandonment of a known right or privilege. United States v. Chavez-Salais, 337 F.3d 1170, 1172-73 (10th Cir.2003). Here, when submitting her petition to plead guilty, Defendant also executed a written waiver of her Sixth Amendment right to a jury trial which read as follows:
Comes now the undersigned defendant having been fully apprised of my rights, do hereby waive a jury and agree to try the above styled and numbered criminal proceedings to the Court as provided by Rule 23(a), Rules of Criminal Procedure.
In addition, Defendant's petition to plead guilty contained the following statement regarding her waiver of constitutional rights:
WAIVER OF CONSTITUTIONAL RIGHTS
I know I have the right to plead "NOT GUILTY" to any offense charged against me. If I plead "NOT...
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