U.S. v. Medley, 05-2383.

• Decision Date: 09 February 2007
• Docket Number: No. 05-2383.,05-2383.
• Citation: 476 F.3d 835
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pamela MEDLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

476 F.3d 835

UNITED STATES of America, Plaintiff-Appellee, v. Pamela MEDLEY, Defendant-Appellant.

No. 05-2383.

United States Court of Appeals, Tenth Circuit.

February 9, 2007.

Jacquelyn Robins, Albuquerque, NM, for Defendant-Appellant.

Fred Joseph Federici III, Assistant United States Attorney, (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before HARTZ, ANDERSON, and McCONNELL, Circuit Judges.

HARTZ, Circuit Judge.

Pamela Medley complains that the 97-month sentence imposed after our remand for resentencing is harsher than the original 78-month sentence that she appealed. On both occasions the district court sentenced her within the sentencing range computed under the United States Sentencing Guidelines. The first sentence was at the top of the range; the second sentence was at the bottom. The increase in her Guidelines sentencing range resulted from two changes. First, at the sentencing on remand the court used the 2000 version of the Guidelines rather than the 2001 version used at the initial sentencing; on her original appeal Ms. Medley had argued that the 2000 version should have been used. Second, at the sentencing on remand the court correctly¹ applied some Guidelines provisions that had been mistakenly omitted or misapplied at the initial sentencing; on the original appeal the Government had noted all but one of those errors and argued that Ms. Medley therefore would not benefit from a remand for resentencing. Ms. Medley contends that an unrebutted presumption of vindictiveness attached to the district court's higher sentence on remand. She also argues that the district court disregarded our mandate to resentence her in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because it failed to explain why her initial 78-month sentence was not reasonable. We disagree. There is no basis for a presumption of vindictiveness; and if there were, any presumption was rebutted. And there was no Booker error.

I. BACKGROUND

In January 2002 Ms. Medley was convicted on five counts of wire fraud, see 18 U.S.C. § 1343; six counts of mail fraud, see id. § 1341; one count of making a fraudulent claim on the government, see id. § 287; seven counts of money laundering, see id. § 1956(a)(1)(B)(i); two counts of impersonating a government employee, see id. § 912; one count of making false statements, see id. § 1001; and one count of falsely representing her social security number, see 42 U.S.C. § 408(a)(7)(B). The convictions arose out of a complex pattern of deceit that she employed in attempting to obtain government funds intended for victims of the New Mexico Cerro Grande Fire. She was not a victim of the fire.

The probation office applied the 2001 version of the Guidelines in preparing her presentence investigation report (PSR). The PSR, as modified by an addendum, arrived at a total offense level of 24 after it (1) grouped all the conviction counts together under USSG § 3D1.2(d); (2) applied §§ 2S1.1(a)(1) and 2B1.1 to arrive at a base offense level of 6; (3) added 14 levels under § 2B1.1(b)(1)(H) for an intended loss of between $400,000 and $1 million; (4) added 2 levels for money laundering under § 2S1.2(b)(1)(B); and (5) added 2 levels for obstruction of justice under § 3C1.1. It calculated her criminal history as category I, because her only countable prior offense was a 1992 conviction in California. The Guidelines range was therefore 51 to 63 months. The PSR added, however, that her criminal-history category did not adequately reflect her background.

The government filed a motion for an upward departure under the Guidelines on the ground that Ms. Medley's "`criminal history category does not adequately reflect the seriousness of [her] past criminal conduct or the likelihood that [she] will commit other crimes.'" R. Vol. 2 Doc. 110 at 1 (quoting USSG § 4A1.3). It suggested that a criminal-history category of V was the minimum level necessary to protect the public from Ms. Medley. Ms. Medley filed objections to the PSR in which she maintained that she was innocent of all the crimes that the PSR had identified as warranting an upward departure, but she did not dispute the PSR's application of the 2001 Guidelines.

The district court conducted the sentencing hearing on December 17, 2002. It adopted the PSR's factual findings and its Guidelines calculation. It also determined that an upward departure was warranted because a criminal-history category of I did not sufficiently account for Ms. Medley's past criminal conduct. The court found that she had violated court orders in connection with a baseless lawsuit that she had filed against the University of California Medical Center, attempted to drug the attorneys of her opponents in that case, committed fraud in an effort to obtain a New Mexico medical license, and made false statements in an application for public assistance. The court therefore ruled that a criminal-history category of III, leading to a sentencing range of 63 to 78 months' imprisonment, was more representative of Ms. Medley's past criminal conduct. The court imposed a sentence of 78 months.

Ms. Medley appealed her conviction and sentence. Her counsel filed a brief raising nine issues but stating that eight were raised under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (court may grant counsel's motion to withdraw after counsel files a brief that explores possible avenues of appeal and demonstrates that all lack merit). The ninth issue was that the district court had erred in applying the 2001 version of the Guidelines. Application of the 2001 Guidelines rather than the 2000 version, she argued, resulted in an additional three-level increase in the offense level under the amount-of-loss Guideline, USSG § 2B1.1(b)(1) (2000). Ms. Medley also filed a pro se brief asserting that her sentence should be vacated and remanded for resentencing under the 2000 Guidelines.

The government's appellate brief contended that use of the 2001 Guidelines was not plain error. Noting that plain error arises only when the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings," Aplee. Answer Br. in No. 03-2026 at 38; see United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005) (en banc), the brief argued that there would be no such effect because Ms. Medley's Guidelines offense level would be higher if calculated correctly on remand. Specifically, the government asserted that her fraud and money-laundering counts had been mistakenly grouped together and that under the 2000 Guidelines her offense level would be increased because of an intended loss of more than $500,000 (under § 2F1.1(b)(1)(K)), more-than-minimal planning (under § 2F1.1(b)(2)), the use of so-phisticated means (under § 2F1.1(b)(6)(C)), the unlawful use of identification to obtain another means of identification (under § 2F1.1(b)(5)(C)(i)), and the grouping rules (§ 3D1.4). It calculated that a criminal-history category of III would place her in a Guidelines sentencing range of 78 to 97 months' imprisonment.

After submission of the original briefs, Ms. Medley sent a letter to this court raising a Booker argument. We remanded for resentencing because Booker, issued after Ms. Medley's original sentencing, had rendered the Guidelines advisory; Ms. Medley had preserved Booker error at sentencing; and the government had not established that any sentencing error was harmless. See United States v. Medley, 130 Fed.Appx. 248, 252 (10th Cir.2005). We said that the remand rendered it unnecessary for us to address Ms. Medley's other sentencing issues. See id.

On remand the government submitted objections not previously made to the PSR, pointing to the mistakes in the original PSR that it had noted in its brief on appeal. One of Ms. Medley's responses to the government's objections was her own objection to "any sentence which is greater than the sentence which was previously imposed." R. Vol. 1 Doc. 130 at 5.

The probation office's second addendum to the PSR tracked the government's objections. It applied the 2000 Guidelines and grouped the money-laundering counts separately from the fraud counts (wire fraud, mail fraud, false claims, impersonation, false statements, and false representation of social security number). It computed Ms. Medley's base offense level for the fraud grouping as 6 under USSG § 2F1.1(a); added 10 levels under § 2F1.1(b)(1)(K) for an intended loss of more than $500,000; added 2 levels under § 2F1.1(b)(2)(A) for more than minimal planning; added 2 levels under § 2F1.1(b)(4)(A) for impersonating a government employee; added 2 levels under § 2F1.1(b)(5)(C)(i) for unauthorized use of identification to obtain another form of identification; added 2 levels under § 2F1.1(b)(6)(C) for use of sophisticated means; and added 2 levels under § 3C1.1 for obstruction of justice. The adjusted offense level for the fraud offenses was 26. It then grouped the money-laundering counts, and under § 2S1.1(a)(2) determined a base-offense level of 20. After applying another two-level adjustment for obstruction of justice under § 3C1.1, it arrived at an adjusted offense level of 22. It then computed the combined-offense level under § 3D1.4, resulting in a total offense level of 28. The only feature of the calculation not noted in the government's prior appellate brief was the upward adjustment for impersonating a government employee. Based on a criminal-history category of I, the applicable Guidelines range was 78 to 97 months' imprisonment. Ms. Medley filed objections to the second addendum, but the probation office rejected them in a third addendum.

The district court resentenced Ms. Medley on November 9, 2005. Her counsel argued vindictiveness, stating that "[i]t is our position that if the court were to increase the sentence, it could be seen as a sign of vindictiveness on the...