U.S. v. Milton, 97-30570

• Decision Date: 21 July 1998
• Docket Number: No. 97-30570,97-30570
• Citation: 147 F.3d 414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John E. MILTON, III, also known as Boo Milton, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 414

147 F.3d 414

UNITED STATES of America, Plaintiff-Appellee, v. John E. MILTON, III, also known as Boo Milton, Defendant-Appellant.

No. 97-30570.

United States Court of Appeals, Fifth Circuit.

July 21, 1998.

Robert William Piedrahita, Asst. U.S. Atty., Baton Rouge, LA, for Plaintiff-Appellee.

Robert Glass, Glass & Reed, New Orleans, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana.

Before WIENER, BARKSDALE and DeMOSS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal presents, once again, application of our plain error standard of review for a defendant's failure at sentencing to object to lack of notice, when the district court utilizes a basis for upward departure not advanced pre-sentencing by either the presentence report, a submission by the Government, or the district court. Having pleaded guilty to a drug trafficking conspiracy, John E. Milton, III, challenges his sentence, contending that the district court erred, inter alia, (1) by enhancing his sentence for obstruction of justice for inducing a co-conspirator to sign a false affidavit; (2) by not giving notice that it would consider misrepresentation of assets as a basis for an upward departure; and (3) by departing upward on that basis. We AFFIRM.

I.

Between January 1993 and August 1995, Milton participated in a conspiracy to possess with intent to distribute cocaine. More than 88 kilograms of powder cocaine and 6.9 kilograms of cocaine base were transported from Houston, Texas, to Baton Rouge, Louisiana, where it was sold.

In mid-March 1996, Milton and three others were indicted for that conspiracy, which violated 21 U.S.C. § 846; Milton, also for three counts of cocaine distribution. A warrant was then issued for Milton's arrest.

Although Milton knew he had been indicted, he did not surrender until mid-August. Milton pleaded guilty in October 1996 to the conspiracy count. Pursuant to his plea agreement, the other counts were dismissed.

The presentence report (PSR) identified factors warranting an upward departure from the offense level, including Milton's obstruction of justice by hiring lawyers to approach three of Milton's co-conspirators to sign false affidavits exonerating him. Two co-conspirators did so. At a hearing in March 1997, the district court gave notice of its intent to depart upward, as detailed below.

At sentencing in April 1997, the district court found that Milton had asked a co-conspirator to sign a false affidavit exonerating Milton, and that this was an obstruction of justice which justified the PSR's recommended two-point enhancement under U.S.S.G. § 3C1.1, bringing the offense level to 42. The court next imposed a one-point upward departure, because it found that Milton had obstructed justice by failing, during the presentence investigation, to provide sufficient financial information to the probation officer. But, the court reconsidered its earlier denial of the Government's U.S.S.G. § 5K1.1 motion for a two-level downward departure, and granted one level. Based on the final offense level of 42 and criminal history category of I, the imprisonment range was 360 months to life. Milton was sentenced to 600 months (50 years) imprisonment and fined $250,000.

In addition, the court stated that, if its upward departure was reversed on appeal, then in the alternative, it would have imposed a one-level upward departure for any of the three instances in which Milton solicited others to sign the false affidavits. In the further alternative, it stated that it would raise Milton's criminal history category one level because of his use of "clone" cellular telephones and his continuing drug dealing with the knowledge he had been indicted.

II.

Milton contests (1) the enhancement for obstruction of justice for inducing a co-conspirator to sign a false affidavit exonerating Milton; (2) the lack of notice that misrepresentation of assets would be considered as a basis for an upward departure; (3) such departure for obstruction of justice based on misrepresentation; and (4) the alternative sentencing bases, claimed to be impermissible, lacking in notice, and unwarranted. Because we do not find reversible error as to the original sentence, we do not reach the alternative. (Milton also preserves, but in the light of well-established authority does not argue, his sentencing disparity issue concerning cocaine base and powder cocaine.)

A.

The obstruction of justice finding concerning the false affidavit is reviewed for clear error. United States v. Paden, 908 F.2d 1229, 1236 (5th Cir.1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 710, 112 L.Ed.2d 699 (1991). Along this line, the pertinent Guidelines section, U.S.S.G. § 3C1.1, provides:

If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.

And, § 3C1.1 comment 3 states, in pertinent part:

The following is a non-exhaustive list of examples of the types of conduct to which this enhancement applies:

(a) threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so;

(b) committing, suborning, or attempting to suborn perjury;

(c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding....

Finding that Milton had induced co-conspirator Robertson to sign a false affidavit exonerating Milton, the court applied the enhancement. Milton claims there was no evidence of any willful obstruction of justice: he did not threaten Robertson, and the affidavit was never used.

The PSR found Milton to be a manager or supervisor in a conspiracy involving at least five participants. According to the PSR, attorneys hired by Milton asked three of his co-conspirators to sign affidavits exonerating Milton from the conspiracy. Robertson and one other co-conspirator signed such affidavits provided by the attorneys.

At Milton's sentencing hearing, Robertson testified that, after his arrest in June 1995, and prior to Milton's being indicted, he told Milton, during a telephone conversation, that another co-conspirator was cooperating with the Government. In response, Milton told Robertson that attorneys would come to the prison with an affidavit for him to sign, which would state that he and Milton were never involved in trafficking drugs. The attorneys brought the affidavit to Robertson, told him that Milton wanted him to sign it, and Robertson complied. Robertson later testified falsely at his own trial concerning his involvement with Milton in the drug conspiracy. During Milton's sentencing hearing, when Robertson was asked why he testified falsely and signed a false affidavit, he replied "to protect myself and to protect Milton".

As evidenced by Milton's guilty plea, he knew that, when his attorney approached Robertson, he (Milton) was involved in a drug conspiracy; therefore, Milton knew he was asking one of his co-conspirators to sign a false affidavit. Milton's contention that the district court failed to give proper consideration to the fact that the affidavit was not used by Milton is quite disingenuous; if Milton's case had gone to trial, the affidavit could have been used to impeach Robertson, had he chosen to cooperate with the Government and testify against Milton.

It was not clearly erroneous for the district court to find, based on the above evidence, that Milton was attempting to obstruct justice. Cf. United States v. Bethley, 973 F.2d 396, 402 (5th Cir.1992) (upholding § 3C1.1 obstruction of justice enhancement in part because a defendant contacted his associate on at least five occasions to ask her to sign a false affidavit exonerating him, stating "I would do it for you"), cert. denied, 507 U.S. 935, 113 S.Ct. 1323, 122 L.Ed.2d 709 (1993).

B.

Regarding whether the district court gave notice it would consider concealment of assets as a basis for upward departure, we must first determine the proper standard of review. As discussed infra, it is for plain error.

Federal Rule of Criminal Procedure 32(c)(1) provides: "At the sentencing hearing, the court must afford counsel for the defendant and for the Government an opportunity to comment on the probation officer's determinations and on other matters relating to the appropriate sentence". Our court interpreted this Rule to require a court to notify counsel of its intent to depart upward and identify the basis for such possible departure. United States v. Otero, 868 F.2d 1412 (5th Cir.1989). The Supreme Court provided further guidance in Burns v. United States, 501 U.S. 129, 138, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991):

We hold that before a district court can depart upward on a ground not identified as a ground for upward departure either in the [PSR] or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. This notice must specifically identify the ground on which the district court is contemplating an upward departure.

(Emphasis added.) See also United States v. Pankhurst, 118 F.3d 345, 357 (5th Cir.) ("Under Burns, Rule 32 requires that, before a district court may depart upward, the defendant must have notice, either in the PSR (see Rule 32(b)(4)(B)), or in a pre-hearing submission by the Government, or from the court."), cert. denied, --- U.S. ----, 118 S.Ct. 630, 139 L.Ed.2d 609 (1997).

The holding in Burns was based on the concern that

parties will address possible sua sponte departures in a random and wasteful way by trying to anticipate and negate every conceivable ground on which the district court might choose to depart on its own initiative. At worst, and more likely, the parties will not...