U.S. v. Pirani

• Decision Date: 29 April 2005
• Docket Number: No. 03-2871.,03-2871.
• Citation: 406 F.3d 543
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis F. PIRANI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

406 F.3d 543

UNITED STATES of America, Plaintiff-Appellee, v. Louis F. PIRANI, Defendant-Appellant.

No. 03-2871.

United States Court of Appeals, Eighth Circuit.

Submitted: March 9, 2005.

Filed: April 29, 2005.

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Samuel Arnold Perroni, argued, Little Rock, AR (Patrick R. James, on the brief), for Defendant-Appellant.

Michael R. Dreeben, argued, Little Rock, AR (Karen D. Coleman, U.S. Attorney's Office, Little Rock, AR, on the brief), for Plaintiff-Appellee.

Before LOKEN, Chief Judge, HEANEY, WOLLMAN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER and BENTON, Circuit Judges, en banc.

LOKEN, Chief Judge.

In this case, we apply the Supreme Court's recent decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to a sentencing error that defendant Louis F. Pirani failed to preserve in the district court. Having carefully considered the divergent analyses of our sister circuits, we follow decisions of the First, Fifth, and Eleventh circuits¹ in holding that a remand for resentencing is not required unless the defendant meets his burden to demonstrate plain error prejudice under controlling Supreme Court precedents, that is, a "reasonable probability" that the district court would have imposed a more favorable sentence under the advisory sentencing guidelines regime mandated by Booker. As Pirani has not met that burden, we affirm.

I. Background

During a federal investigation into allegations that Crittenden County deputy sheriffs were stealing money seized at drug interdiction points, FBI and IRS agents interviewed former deputy Louis F. Pirani. Pirani denied an ownership interest in a ski boat and an airplane, assets the investigators doubted he could afford based on his legitimate sources of income. When the investigation uncovered documentary evidence that Pirani had an interest in both crafts, he was charged with two counts of making materially false statements to federal investigators in violation of 18 U.S.C. § 1001(a). After a trial, the jury convicted him of both counts.

At sentencing, the district court² applied the then-mandatory United States Sentencing Guidelines, using the November 1, 2000, Guidelines in effect when Pirani's offenses were committed. Pirani argued that his total offense level should be 6, the base offense level under U.S.S.G. § 2F1.1 (2000), which governed most § 1001 fraud convictions. The court found, however, that upward adjustments for the amount of loss ($114,000), more than minimal planning, and obstruction of justice would increase the total offense level under § 2F1.1 to 16, producing a guidelines sentencing range of 21 to 27 months in prison, a range the court considered "too high" for Pirani's offenses. The court further found that "defendant's conduct as established at trial, which consisted of giving false statements to agents of the FBI and IRS knowing that they were conducting an investigation," established a violation of 18 U.S.C. § 1505. Application note 14 to § 2F1.1 stated, "Where the indictment or information setting forth the count of conviction ... establishes an offense more aptly covered by another guideline, apply that guideline rather than § 2F1.1." The court invoked this cross reference and assessed Pirani a total offense level of 12 under U.S.S.G. § 2J1.2 (2000), the obstruction of justice provision governing violations of 18 U.S.C. § 1505. That produced a guidelines sentencing range of 10 to 16 months in prison. The court imposed a ten-month sentence and "split" the sentence into five months in prison and five months home detention. See U.S.S.G. § 5C1.1 (2000).

Pirani appealed his conviction and sentence, arguing the district court committed evidentiary errors at trial and erred in applying § 2J1.2 to determine his offense level under the mandatory Guidelines. After oral argument to a panel of this court, the Supreme Court issued its decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Pirani moved to remand his case for re-sentencing, arguing that the district court violated his Sixth Amendment rights under Blakely by finding that his conduct as charged and proved at trial satisfied the elements of obstruction of justice. The panel affirmed Pirani's conviction but concluded that use of the § 2F1.1 cross-reference violated his Sixth Amendment right to trial by jury and was plain error requiring a remand for resentencing. The en banc court vacated the panel's opinion and granted rehearing en banc. After the Supreme Court issued its decision in Booker, we requested supplemental briefing on the issue "whether the district court committed sentencing error in light of [Booker], and if so, whether it is plain error warranting relief under ... United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)."

II. Sentencing Issues

In Booker, the Supreme Court applied the core Sixth Amendment principle of Blakely to enhancements imposed under the mandatory federal Sentencing Guidelines—"[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." 125 S.Ct. at 756. Then, invoking its power to sever provisions that render a statute unconstitutional, the Court "severed and excised" two provisions of the Sentencing Reform Act of 1984: 18 U.S.C. § 3553(b)(1), the provision that made the Guidelines mandatory; and 18 U.S.C. § 3742(e), the provision establishing standards of appellate review which, as revised in 2003, "make Guidelines sentencing even more mandatory than it had been." 125 S.Ct. at 765. The effect of this remedy (assuming no responsive legislation by Congress) is an advisory Guidelines system in which sentencing judges continue to "take account of the Guidelines together with [the] other sentencing goals" enumerated in 18 U.S.C. § 3553(a), and courts of appeal review sentences for "unreasonableness." 125 S.Ct. at 764-66.

The advisory Guidelines mandated by Booker apply to all federal sentencings, whether or not the defendant is subject to one of the enhancements that triggered the Sixth Amendment issues that invalidated the mandatory Guidelines regime. The Court in Booker confirmed that this profound change in federal sentencing applies to all cases now on direct appeal. In determining how these diverse cases should be resolved, the Court provided significant guidance to the courts of appeals:

[The fact that this new rule applies to cases pending on direct review] does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the "plain-error" test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for unreasonableness may depend upon application of the harmless-error doctrine.

125 S.Ct. at 769. Before turning to the question of plain error, we must consider two preliminary issues raised by Pirani—whether the district court misapplied the then-mandatory Guidelines, an issue that is still important because the statute as excised by Booker "requires judges to take account of the Guidelines together with other sentencing goals," 125 S.Ct. at 764; and whether Pirani preserved the issue of Booker error in the district court, so that the plain error doctrine does not apply.

A.

Pirani argues that the district court misapplied the cross reference in U.S.S.G. § 2F1.1(2000) because, while his conduct as proved at trial might have constituted a violation of 18 U.S.C. § 1505, the indictment did not establish that his offense was more aptly covered by U.S.S.G. § 2J1.2, as application note 14 required. Like the district court, we disagree. The two counts in question did not expressly allege obstruction of justice or a violation of § 1505. But the facts alleged, including those incorporated from a prior count, charged Pirani with making false statements to FBI and IRS agents during the course of a government investigation at a time when Pirani, himself in law enforcement, knew of the investigation. In these circumstances, the district court did not clearly err in finding that the indictment established an offense more aptly covered by another guideline, invoking the cross reference in § 2F1.1, and sentencing Pirani in accordance with § 2J1.2. Accord United States v. Kurtz, 237 F.3d 154 (2d Cir.2001).

B.

An error by the trial court, even one affecting a constitutional right, is forfeited—that is, not preserved for appeal— "by the failure to make timely assertion of the right." United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To preserve an error for appellate review, an objection must be timely and must "clearly stat[e] the grounds for the objection." United States v. Williams, 994 F.2d 1287, 1294 (8th Cir.1993); Fed.R.Crim.P. 51(b). Errors not properly preserved are reviewed only for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure, as construed in Olano and its progeny. The plain error principle applies even when, as here, the error results from a change in the law that occurred while the case was pending on appeal. See Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

Pirani argues that the plain error doctrine does not apply in this case because he preserved his Booker claim when he "raised numerous legal and factual objections in the district court to the Presentence Report, challenging the proposed...