U.S. v. Paulus

• Decision Date: 22 August 2005
• Docket Number: No. 04-3092.,04-3092.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph F. PAULUS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

419 F.3d 693

UNITED STATES of America, Plaintiff-Appellee, v. Joseph F. PAULUS, Defendant-Appellant.

No. 04-3092.

United States Court of Appeals, Seventh Circuit.

Argued May 10, 2005.

Decided August 22, 2005.

COPYRIGHT MATERIAL OMITTED

Matthew C. Solomon (argued), Department of Justice, Criminal Division, Public Integrity, Washington, DC, for Plaintiff-Appellee.

Franklyn M. Gimbel (argued), Kathryn A. Keppel, Gimbel, Reilly, Guerin & Brown, for Defendant-Appellant.

Before FLAUM, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

Joseph Paulus, the former District Attorney for Winnebago County, Wisconsin, pled guilty to one count of using the mail and interstate facilities to promote bribery and one count of filing a false tax return. At sentencing, the district judge departed from the Sentencing Guidelines to give Paulus a longer sentence than the one contemplated by the parties in Paulus's plea agreement. Paulus appeals his sentence on the grounds that it was imposed in violation of the Ex Post Facto Clause of the Constitution and that it fails to comply with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We find that the district court properly considered factors such as the number of bribes Paulus accepted, the amount of money received, and the resulting loss of public confidence in the justice system when it sua sponte departed upward from the guideline range agreed upon by the parties. The sentence also complies with the Supreme Court's Booker decision and must be affirmed.

I. History

Paulus was the elected District Attorney for Winnebago County, Wisconsin. As the chief law-enforcement officer of the county, he had the authority to issue and negotiate charges, decline prosecution, and make sentencing recommendations for all criminal and traffic law offenses that occurred within the jurisdiction. From June 1998 to June 2000, Paulus abused his official position by taking bribes from a particular defense attorney. During the two-year period, Paulus gave this attorney's clients favorable treatment (without their knowledge) in exchange for half the legal fees paid in each case.¹ In all, Paulus accepted bribes relating to 22 cases: sixteen in connection with drunk-driving and traffic violations, and six in connection with criminal cases. Paulus received a total of $48,050 in bribe money. He did not report these proceeds on his federal income tax returns, causing a tax loss to the government of $13,531.

On April 26, 2004, Paulus pled guilty to one count of using the mail and interstate facilities to promote bribery, in violation of 18 U.S.C. § 1952, and one count of filing a false tax return, in violation of 26 U.S.C. § 7206(1). He signed a Factual Basis for Plea, stipulating to all of the underlying facts recounted above. The plea agreement between Paulus and the government set forth what the parties believed to be the appropriate Sentencing Guidelines calculation: an offense level of 18, which corresponded to a sentence of 27-33 months.² The parties also agreed that the offenses could not be grouped and that neither party would seek an upward or downward departure.

Importantly, the agreement was not entered pursuant to Federal Rule of Criminal Procedure 11(c)(1)(c) (binding the court to the recommended sentence once it accepts the plea agreement), and it specifically stated that "[t]he defendant acknowledges and understands that the sentencing guidelines recommendations in this agreement do not create any right to be sentenced within any particular sentence range." The agreement further stated:

The parties acknowledge, understand, and agree that neither the sentencing court nor the United States Probation Office is a party to or bound by this agreement. . . . The sentencing court will make its own determinations regarding any and all issues relating to the application of the sentencing guidelines and may impose any sentence authorized by law up to the maximum penalties [authorized by law (five years of incarceration for count one and three years of incarceration for count two)]. The parties further understand that the sentencing court may, in certain circumstances, depart either upward or downward from the otherwise applicable guideline range.

In his plea hearing, Paulus confirmed his understanding that he was "not entitled to any particular sentence other than one within the maximum provisions of the law." (Apr. 26, 2004, Tr. at 13.)

On July 20, 2004, the district court did, in fact, issue a notice of possible departure from the Guidelines for the number and amount of bribes accepted and the "disruption of government function" that occurred as a result of Paulus's conduct. Paulus filed his opposition to the proposed departure based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and this court's decision in United States v. Booker, 375 F.3d 508 (7th Cir.2004), aff'd, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court rejected Paulus's arguments, and, on August 2, 2004, sentenced Paulus to 58 months of incarceration — longer than the 33-month sentence contemplated by the parties in the plea agreement.

In a thorough and thoughtful sentencing order, the court first opined that an upward departure would not violate Blakely because Paulus had "admitted the essential facts upon which the court suggested that a departure [was] warranted" and had acknowledged in both his plea agreement and plea colloquy that the court could depart upward. United States v. Paulus, 331 F.Supp.2d 727, 732 (E.D.Wis.2004). The court also indicated that under this court's decision in Booker, the Guidelines could be considered "as a guide, as opposed to a mandate[.]" Id. at 733 (discussing Booker). The court ultimately found that a six-level upward Guidelines departure was appropriate considering the number of bribes, the period of time over which the bribes were taken, the amount of money received, and Paulus's status as the elected District Attorney. See U.S.S.G. §§ 2C1.1(b)(1), 2C1.1(b)(2), 5K2.7. To support that fourth factor, the court discussed information supplied by the State of Wisconsin's special prosecutor investigating Paulus's criminal conduct and a newspaper article calling into question the integrity of Paulus's work on cases other than those for which he admitted taking bribes. The court stated that it cited these sources not as proof that Paulus committed crimes in addition to those he admitted, but to demonstrate "the fact that the public confidence in Wisconsin's system of justice ha[d] been seriously undermined." Paulus, 331 F.Supp.2d at 736.

II. Analysis

Paulus filed his notice of appeal on August 10, 2004. He argues that his plea agreement foreclosed an upward departure, and that the district court improperly sentenced him to longer than the 33 months proposed in the plea agreement. He further argues that the Ex Post Facto Clause of the Constitution was violated because of changes in federal sentencing — namely, the Supreme Court's Booker decision — that took place between his plea agreement and his sentencing. Finally, Paulus argues that even if Booker can constitutionally be applied to his case, the district court's methodology did not comport with Booker, and he is thus entitled to resentencing.

To provide context for Paulus's arguments, we will roughly sketch the changes to the criminal sentencing landscape that have occurred since his plea agreement was entered. The federal Sentencing Guidelines were promulgated in the late 1980s. Under the Guidelines regime, it was mandatory for the district courts to impose sentences based on the Guidelines, and they had limited discretion to depart from the sentences set forth by Congress for particular crimes and aggravating factors. See Mistretta v. United States, 488 U.S. 361, 367-68, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The courts could, however, depart from the guidelines based on certain mitigating or aggravating factors found by the judge by a preponderance of the evidence. See id. at 367, 109 S.Ct. 647. In June 2000, the Supreme Court ruled that, in the context of state sentencing guidelines, "any fact [increasing] the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The standard for factors increasing a sentence beyond the statutory maximum was raised from "preponderance of the evidence" to "beyond a reasonable doubt," and such facts had to be admitted by a defendant or found by a jury. See Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Harris v. United States, 536 U.S. 545, 563, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). This was the state of the law at the time Paulus entered his guilty plea in April 2004.

In June 2004, the Supreme Court clarified that the "prescribed statutory maximum" that must not be exceeded without satisfaction of the criminal burden of proof is actually the presumptive maximum under the guidelines, "not the maximum sentence a judge may impose after finding additional facts[.]" Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004). Paulus's sentence was imposed in August 2004, after Blakely and before the Supreme Court's 2005 decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which overthrew the federal mandatory-guidelines regime. In Booker, the Court reaffirmed Apprendi and extended it to the federal Guidelines, stating that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id. at 756. To answer the question of remedy, the Court excised the provision of...