U.S. v. Niven, 90-50110

• Decision Date: 23 December 1991
• Docket Number: No. 90-50110,90-50110
• Citation: 952 F.2d 289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James B.A. NIVEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 289

952 F.2d 289

UNITED STATES of America, Plaintiff-Appellee, v. James B.A. NIVEN, Defendant-Appellant.

No. 90-50110.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 3, 1991.

Decided Dec. 23, 1991.

Michael J. Treman, Santa Barbara, Cal., for defendant-appellant.

Carolyn Kubota, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BOOCHEVER, KOZINSKI and O'SCANNLAIN, Circuit Judges.

PER CURIAM:

James B.A. Niven appeals his sentence for mail and wire fraud. Niven contends that the district court erred in calculating his adjusted offense level. Niven asserts eight errors: (1) an erroneous loss calculation; (2) incorrect adjustment for role as supervisor or manager; (3) refusing to give a downward adjustment for acceptance of responsibility; (4) inclusion of prior convictions when he was not represented by counsel; (5) considering that he was on unsupervised release at the time of his present offense; (6) separately sentencing him for offenses initiated before November 1, 1987 rather than treating them as continuing offenses completed after that date; (7) including the pre-Guidelines portions of the total loss when determining both the pre-Guidelines and Guidelines sentence; and (8) not limiting the order of restitution to the offenses for which he was convicted. We consider each in turn.

I

Pursuant to Guidelines section 2F1.1, the district court determined that the loss attributable to Niven's criminal conduct was between $2 and $5 million dollars and, accordingly, added ten points to Niven's base offense level. Niven contests the district court's loss calculation. ¹ We review the district court's legal interpretations of the Guidelines de novo, and its factual determinations made in the course of applying the Guidelines for clear error. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir.1990).

"The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level, regardless of the number of counts of conviction." U.S.S.G. § 2F1.1, comment (n. 6). "The amount of loss need not be precise.... The court need only make a reasonable estimate of the range of loss, given the available information." Id., comment (n. 8). Here, the Federal Bureau of Investigation's accounting revealed that Niven had taken $7.7 million and had returned approximately $3.7 million to investors. Thus, the district court's estimate, based upon the FBI accounting, that the loss ranged between $2 and $5 million was not clearly erroneous.

II

Niven challenges the two-point offense-level increase for his role in the offense as an "organizer, leader, manager, or supervisor." U.S.S.G. § 3B1.1(c). Section 3B1.1 applies only when the offense is committed by more than one person who is criminally responsible for the commission of the offense. United States v. Anderson, 942 F.2d 606, 616-17 (9th Cir.1991) (en banc). Here, although there was some evidence before the district court from which it could so conclude, the record is not clear whether the district court's upward adjustment was based on a finding that Eric Laing was also criminally responsible for the offenses. Accordingly, we remand this case to the district court to reconsider this upward adjustment in light of Anderson.

III

Niven contends that he was entitled to a two-point offense level reduction for "acceptance of responsibility" pursuant to section 3E1.1 of the Guidelines. We review a district court's decision on acceptance of responsibility for clear error. See United States v. Ramos, 923 F.2d 1346, 1360 (9th Cir.1991).

As evidence of his acceptance of responsibility, Niven notes that he testified at trial, admitting that he formed the companies and made the representations for which he was charged. Likewise, Niven notes that he substantially cooperated with the government in this complicated, document-laden proceeding.

If these factors comprised the sum total of the evidence regarding Niven's acceptance of responsibility, we might be inclined to agree. However, there is more. The district court observed:

During the trial, [Niven] showed no contrition. In my view he testified falsely in certain instances.... [p] But in terms of a judgment about his credibility and contrition, I am convinced he has none. It seems to me he is a cold and callous individual and that he ought to suffer some of the same miseries he's caused others.

When I looked upon this defendant, as I do all, I looked for some redeeming feature and found none. Zero. That's unusual.

Based upon our review of the record, we cannot say that the district court's observations were clearly erroneous. Accordingly, we conclude that the district court's refusal to give a downward adjustment for acceptance of responsibility was not erroneous.

IV

Niven also contests the two-point adjustment to his criminal history score. His prior convictions, Niven contends, should not result in such a high criminal history score since (1) he was not represented by counsel on one conviction, and (2) it was pure fortuity that he was on unsupervised probation at the time of the present offense, as any "greater" sentence would have already been completed.

The use of uncounseled convictions to increase a criminal history score was considered by Application Note 6 to section 4A1.2 of the Guidelines which, prior to November 1, 1990, provided that "if to count an uncounseled misdemeanor conviction would result in the imposition of a sentence under circumstances that would violate the United States Constitution, then such conviction shall not be counted in the criminal history score." Here, we find no such constitutional violation. The Constitution is implicated when a defendant is tried, over his objection, without state provision of counsel. See Scott v. Illinois, 440 U.S. 367, 369-70, 99 S.Ct. 1158, 1159-60, 59 L.Ed.2d 383 (1979). In contrast, an uncounseled misdemeanor may be used to enhance a subsequent sentence where the lack of counsel is not due to operation of law, but because the defendant knowingly waived his right to counsel. Cf. Baldasar v. Illinois, 446 U.S. 222, 223, 228, 100 S.Ct. 1585, 1585, 1588, 64 L.Ed.2d 169 (1980).

V

We are also unpersuaded by Niven's argument concerning his probationary (albeit unsupervised) status. In United States v. McCrudden, 894 F.2d 338 (9th Cir.), cert. denied, 494 U.S. 1060, 110 S.Ct. 1534, 108 L.Ed.2d 773 (1990), we held that "[t]he non-supervisory status of a sentence of probation does not exempt it from section 4A1.1(d)." Id. at 339. It is true that had Niven been jailed for the second offense rather than given probation, he would have had a lower criminal history score. However, we see no inconsistency. A subsequently enhanced penalty is not an unfair exchange for a prior grant of leniency. See id. ("It is not unreasonable to enhance the punishment of an offender who again violates the law before fully serving his prior punishment.").

VI

An offense initiated before November 1, 1987 but not completed until after that date comes within the ambit of the Sentencing Guidelines. See United States v. Gray, 876 F.2d 1411, 1418 (9th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 497 (1990). Niven reasons that his offenses were "continuing offenses" completed after November 1, 1987, and thus, they meet this criterion for exclusive sentencing under the Guidelines.

"[T]he doctrine of continuing offenses should be applied in only limited circumstances." Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). An offense should not be deemed continuous "unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Id. As this passage makes clear, the analysis turns on the nature of the substantive offense, not on the specific characteristics of the conduct in the case at issue. Here, the offenses at issue--18 U.S.C. §§ 1341 and 1343--criminalize each specific use of the mail or wire. Each offense is complete when the fraudulent matter is placed in the mail or transmitted by wire, respectively. Thus, the offenses for which Niven was convicted are not continuing offenses, and the district court did not err in sentencing him under pre-Guidelines law for those counts committed prior to November 1, 1987.

VII

Niven next contends that, even if certain counts pre-date the Guidelines, the inclusion of losses associated with those counts in calculating the loss under U.S.S.G. § 2F1.1 subjected him to multiple punishment for the same offenses. The question before us, then, is how a sentencing court should calculate an offense level under the Guidelines, when the amount of loss upon which it usually would rely has already served as the basis for a separate pre-Guidelines sentence.

The district court sentenced Niven to five years imprisonment for those counts involving offenses completed from late 1982 to November 1, 1987, the effective date of the Sentencing Guidelines. For the counts encompassing crimes committed between November 1, 1987, and the time of his arrest in November 1988, the district court used the total losses incurred over the six-year period to increase Niven's adjusted offense level by ten points. See U.S.S.G. § 2F1.1(b)(1)(K) (1988). Thus, the district court may have considered the pre-Guidelines loss incurred prior to November 1, 1987 in imposing the pre-Guidelines sentence of five years, yet counted that loss again in calculating the fifty-one month sentence under the Guidelines.

When offenses would require grouping of multiple counts under section 3D1.2(d), as is the case here, the Guidelines state that the relevant conduct in determining the applicable guideline range includes "all such acts and...