U.S. v. McCoy

• Decision Date: 20 December 2002
• Docket Number: No. 01-3052.,01-3052.
• Parties: UNITED STATES OF AMERICA, Appellee, v. JoAnn McCoy, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 561

313 F.3d 561

UNITED STATES OF AMERICA, Appellee, v. JoAnn McCoy, Appellant.

No. 01-3052.

United States Court of Appeals, District of Columbia Circuit.

Argued September 17, 2002.

Decided December 20, 2002.

Appeal from the United States District Court for the District of Columbia (No. 98cr00082-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender.

Elizabeth Trosman, Assistant U.S. Attorney, argued the cause for appellee. With her on the briefs were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese III, and Suzanne G. Curt, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, EDWARDS, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

Dissenting opinion filed by Circuit Judge HENDERSON with whom Chief Judge GINSBURG and Circuit Judge SENTELLE join.

STEPHEN F. WILLIAMS, Senior Circuit Judge:

We here address the scope of resentencing after a remand from the court of appeals under the following conditions: (1) the defendant seeks to raise a contention that was contingently relevant in the initial sentencing (but the contingency did not then materialize); (2) defendant did not raise the contention in that sentencing; and (3) the district court's action on remand renders the contention determinative (if it is allowable and correct). The source of the contingency here is the Sentencing Guidelines' complex treatment of multiple "groups" of offenses. See U.S.S.G. § 3D1.4.

We conclude that the defendant's ability to raise her contingent issue here depends upon whether she could establish "good cause," within the meaning of Rule 32(b)(6)(D) of the Federal Rules of Criminal Procedure, for not having raised it sooner. The district court never considered the good cause issue. Rather than remand to the district court, however, we remand to the panel. If it finds that the merits claim is not a winner, there will be no need for the district court to take the matter up yet again.

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JoAnn McCoy was convicted on two charges of making false statements in a loan application and on one count of perjury. Her case was referred to a probation officer, and the process of generating a Presentence Report ("PSR") proceeded along the lines prescribed by Rule 32(b)(6) (renumbered as Rules 32(e)-(g), per amendments effective December 1, 2002). The probation officer circulated a PSR (the "original PSR") to the defendant and counsel on both sides, see Rule 32(b)(6)(A), and the prosecution and the defense both objected to various aspects, see Rule 32(b)(6)(B). The most critical objection was the prosecution's request for an enhancement for obstruction of justice, to be applied to both the crime "groups" (false statements and perjury). The probation officer added the enhancements and circulated a new version of the PSR (the "revised PSR") on January 22, 1999. See Rule 32(b)(6)(C).

The revised PSR calculated a "combined" offense level of 21. Twenty levels derived from the two false statement counts — the false statement "group" for purposes of the multi-group adjustment. U.S.S.G. § 3D1.4. These 20 levels comprised 14 for the base offense and the size of the loss, plus three upward adjustments of two levels each — for McCoy's "managerial role" in directing other participants, for her "more than minimal planning," and for her obstruction of justice.

The second "group" was for McCoy's perjury conviction and totaled 14 levels, 12 for the base offense and two for obstruction of justice, and to a term of supervised release.

Finally, the revised PSR combined the two groups under "multiple count adjustment" provisions of U.S.S.G. § 3D1.4, adding one point to the false statement group for a "combined offense level" of 21. Simplifying the arcane formula of § 3D1.4 for purposes of this case, we may say that it calls for no upward adjustment of the count for the more serious group if the difference between the two groups is nine or more levels, a one-point upward adjustment if the difference is five to eight levels, and a two-level adjustment if the difference is zero to four levels. The logic of this is plainly that as the severity of the less serious group gets closer to that of the more serious, it becomes appropriate to add, and to add more, to the combined offense level.

Once the revised PSR was circulated, both sides commented on the probation officer's recommendation, through memoranda and at the sentencing hearing itself, as provided by Rule 32(c)(1). McCoy objected to all the enhancements, including the ones for obstruction of justice. She did not, however, object to the obstruction enhancement on a ground that was specific to the perjury group. Application Note 7 of the Guidelines section governing obstruction, U.S.S.G. § 3C1.1, explains that for a limited number of crimes, including perjury but not false statements, the obstruction bump should not be added unless "a significant further obstruction occurred during the ... prosecution ... of the obstruction offense [here perjury] itself." Victory on a potential Application Note 7 argument would have been useful if but only if other sentencing adjustments had occurred yielding a particular alignment of the two groups (as a practical matter, a gap of three or four levels, as opposed to the initial gap of six).

The district court rejected all of McCoy's objections and sentenced her to concurrent terms of 37 months on the false statement charges and 24 months on the perjury charge.

McCoy appealed her conviction, objecting to all the enhancements, see United States v. McCoy, 242 F.3d 399, 403 (D.C.Cir.2001) ("McCoy I") but again not raising the perjury-specific attack on the obstruction enhancement. Absent a change in the constellation of groups, lopping a couple of levels off the perjury calculation was of no moment. As it turned out, she did prevail on one enhancement, persuading us that the district court might well have applied an incorrect standard in assessing the "managerial role" bump. Id. at 410. Accordingly we remanded to the district court to reconsider that issue. Id. at 411.

On remand, the district court instructed the probation officer to update the PSR in light of McCoy I, and the probation officer read that decision as holding that no managerial role enhancement should apply. The government acquiesced in the elimination of that enhancement, and the probation officer prepared an updated version of the PSR (the "resentencing PSR") that reduced to 18 the sentencing level for the false statement offense. But now the gap between the more serious and the less serious groups was four points instead of six, so the proper multi-group adjustment was two points instead of one. Absent further changes, the combined offense level would be 20.

When the probation officer circulated the resentencing PSR reflecting the elimination of the managerial role bump and the higher multi-group adjustment, McCoy raised her perjury-specific attack on the obstruction enhancement. Victory on this issue would now be determinative. Overturning that enhancement would restore a six-point gap, causing the overall offense level to settle at 19 points. The government does not deny that within the resentencing procedure McCoy's claim was timely and in compliance with Rule 32.

The government objected, however, on the ground that McCoy had not raised the point in her first appeal. McCoy responded that at the time of that appeal, victory on the perjury-specific issue would have had no direct consequence. The district court did not address either of these arguments, but ruled simply that "the only issue presently before the court" was to "resentence without the two-level [managerial role] enhancement."

On McCoy's second appeal the major issue was how to apply our precedent, United States v. Whren, 111 F.3d 956 (D.C.Cir.1997), to these facts. There we had said that on a remand for resentencing the district court "may consider only such new arguments or new facts as are made newly relevant by the court of appeals' decision — whether by the reasoning or by the result." Id. At 960. The panel divided over the question whether an argument that in the first sentencing had been potentially relevant, but never immediately so, qualified as "newly relevant." See United States v. McCoy, 280 F.3d 1058, 1062 (D.C.Cir.2002) ("McCoy II"). We granted McCoy's petition for rehearing en banc to clarify the court's position on that issue.

* * *

Before turning to the merits we note that the government objected to rehearing en banc on the ground that McCoy's completion of her prison sentence had mooted the issue. But the controlling statutes explicitly make the Guidelines computation relevant to McCoy's supervised release, which persists to this day:

Factors To Be Considered In Including a Term Of Supervised Release. The court, in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release, shall consider the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6).

18 U.S.C. § 3583(c) (emphasis added). The most obviously relevant cross-referenced section is § 3553(a)(4)(A), which refers to "the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission...." Id. § 3553(a)(4)(A). Resentencing under a revised Guidelines computation clearly could benefit McCoy.

* * *

The government argues that McCoy should be barred by her failure to raise the Application Note 7 argument on her initial appeal. But Whren was clearly directed to the defendant's failure to raise an issue "at the original sentencing hearing," 111...