U.S. v. Roen, 03-CR-63.

• Decision Date: 25 February 2005
• Docket Number: No. 03-CR-63.,03-CR-63.
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: UNITED STATES of America, Plaintiff, v. Marquis ROEN, Defendant.

360 F.Supp.2d 926

UNITED STATES of America, Plaintiff, v. Marquis ROEN, Defendant.

No. 03-CR-63.

United States District Court, E.D. Wisconsin.

February 25, 2005.

Mario Gonzales, Milwaukee, WI, for Plaintiff.

Brian Mullins, Milwaukee, WI, for Defendant.

SENTENCING MEMORANDUM

ADELMAN, District Judge.

In United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the federal sentencing guidelines violated the Sixth Amendment. As a remedy, the Court excised the provision of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b), and the provision that required the courts of appeals to enforce the guidelines, 18 U.S.C. § 3742(e). With these excisions, the Court made the guidelines "effectively advisory." Booker, 125 S.Ct. at 757. Additionally, the Court directed appellate courts to henceforth review sentences for "unreasonableness." Id. at 765.

Although Booker imposes new responsibilities, a body of law exists to which courts can look for guidance. District courts imposing sentences following revocation of probation or supervised release have long used advisory guidelines, see U.S.S.G. ch. 7, pt. A, and appellate courts have reviewed such sentences to determine whether they were "plainly unreasonable," e.g., United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.2004); United States v. Marvin, 135 F.3d 1129, 1143 (7th Cir.1998). See United States v. Crosby, 397 F.3d 103, 115 (2d Cir.2005) (noting the parallel between sentencing after revocation and sentencing post-Booker).

I. PRINCIPLES OF SENTENCING AFTER REVOCATION

Before Booker, district courts sentenced defendants in revocation cases as, I believe, they now should in all cases. See United States v. Ranum, 353 F.Supp.2d 984, 984-87 (E.D.Wis.2005) (setting forth sentencing methodology after Booker). This is so because in revocation cases the Sentencing Commission promulgated advisory "policy statements" rather than mandatory guidelines. U.S.S.G. ch. 7, pt. A. Thus, in a revocation case, while a district court has to "consider" the guideline range, it is "thereafter free to impose a sentence outside the designated range, subject to the maximum sentence allowable under 18 U.S.C. § 3583(e)(3)," the statute governing revocation of supervised release. United States v. Hale, 107 F.3d 526, 529 (7th Cir.1997).

In sentencing defendants after revocation, courts have considered the factors set forth in 18 U.S.C. § 3553(a), as they now should in all cases. These factors include:

(1) the nature and circumstances of the offense, and the history and characteristics of the defendant;

(2) the need for the sentence imposed to —

(a) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(b) to afford adequate deterrence to criminal conduct;

(c) to protect the public from further crimes of the defendant; and

(d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the applicable range set by the guidelines;

(5) any pertinent policy statements issued by the Sentencing Commission;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a); see also Hale, 107 F.3d at 530 ("Section 3583(e)(3) provides that in revoking a term of supervised release and imposing a prison sentence, the court should consider certain of the factors set forth in section 3553(a), including the nature of the offense and of the defendant's history and characteristics, the need to afford adequate deterrence and protection to the public, applicable policy statements in the Sentencing Guidelines, and the need to avoid unwarranted sentencing disparities among similarly situated defendants.") Although § 3553(a) directs that courts "shall" consider the above factors, courts need not make specific findings as to each one but rather must make "comments reflecting that the appropriate factors were considered." Hale, 107 F.3d at 530; see also Kelley, 359 F.3d at 1305 (stating that while sentencing courts must consider § 3553(a), they are "not required to consider individually each factor listed in § 3553(a) before issuing a sentence").

Finally, because the guidelines in revocation (and now all) cases are advisory only, a sentence outside the advisory guideline range is not considered a "departure." See, e.g., Marvin, 135 F.3d at 1143 (holding that a deviation from § 7B1.4 is not a "departure," a conclusion "consistent with each and every circuit that has heretofore conclusively addressed this very issue"). Thus, courts imposing sentences higher or lower than the guideline range are not required to cite factors that take the case outside the heartland, but only to explain why the sentence imposed was necessary and reasonable in light of all of the relevant factors under § 3553(a). See, e.g., United States v. Patton, No. 04-6142, 118 Fed.Appx. 427, 430-31, 2004 U.S.App. LEXIS 25286, at *9-10 (10th Cir. Dec. 9, 2004) (holding that a sentence outside the chapter 7 range is not a departure, and that such a sentence need only be "reasoned and reasonable"); United States v. White Face, 383 F.3d 733, 738, 740 (8th Cir.2004) (8th Cir.2004) (holding that a sentence outside the § 7B1.4 range is not a departure, and rejecting defense argument that such sentence is proper only "when unusual factual circumstances are present");¹ United States v. Cook, 291 F.3d 1297, 1302 (11th Cir.2002) (affirming sentence outside advisory range where district court found that § 3553(a) factors called for a different sentence); United States v. Tadeo, 222 F.3d 623, 626 (9th Cir.2000) (stating that while § 7B1.4 ranges must be considered, "unlike a sentencing guideline adopted by the United States Sentencing Commission, a policy statement setting forth a suggested sentencing range may be freely rejected by a district court without abusing its discretion, if the sentence actually imposed is within the statutory maximum"); United States v. Shaw, 180 F.3d 920, 922 (8th Cir.1999) (per curiam) (stating that because Chapter 7 serves a non-binding, advisory role, "a revocation sentence exceeding the suggested range is ... not an `upward departure' because there is no binding guideline from which to depart"); United States v. McClanahan, 136 F.3d 1146, 1152 (7th Cir.1998) (holding that because "there is no sentencing `departure'" when a court sentences outside the advisory range "the sentencing court is not required to provide notice that the sentence it contemplates may exceed the Table's range").

In the present case, I was called upon to apply the above-described methodology in sentencing defendant Marquis Roen after revoking his supervised release.

II. FACTS

In 2003, defendant appeared before me on five counts of mail fraud arising out of a scheme he devised to defraud Northwestern Mutual Life ("NML") and dozens of vendors and merchants by writing checks on closed bank accounts. The scheme had two aspects. First, defendant induced NML to issue him loans against a life insurance policy, which he "repaid" with checks drawn on closed accounts at Northern Trust Bank ("NTB") and North Shore Bank ("NSB"). Defendant's scheme cost NML $19,254.82, the amount it loaned him less the value of the life insurance policy. The second aspect of the scheme involved an account defendant opened at NTB after promising to wire $600,000 from a non-existent Swiss bank account. NTB gave defendant pre-printed checks, which he used to attempt to acquire various high priced items totaling $1,200,000. Because defendant never wired the money, NTB closed the account, none of the checks were honored, and defendant failed to obtain any goods. United States v. Roen, 279 F.Supp.2d 986, 986-87 (E.D.Wis.2003).

Defendant pled guilty to the charges, and the pre-sentence report ("PSR") recommended an offense level of 19 (base level 6, U.S.S.G. § 2B1.1(a), plus 16 based on the amount of loss, § 2B1.1(b)(1), minus 3 for acceptance of responsibility, § 3E1.1), and a criminal history category of VI. I overruled defendant's objection to the loss amount but granted him a downward departure of nine levels because that amount bore no relation to "economic reality." Roen, 279 F.Supp.2d at 987-92. With the departure, the range was 24-30 months, and I imposed a sentence at the low end. I also ordered defendant to pay $19,403.73 in restitution to NML.

In November 2004, the Bureau of Prisons released defendant, and he commenced three years of supervised release. The conditions of release included drug testing and treatment; no consumption of alcohol; monthly restitution payments; restrictions on employment with fiduciary responsibilities and the opening of new lines of credit or bank accounts; submission of monthly reports and financial information; cooperation with the Child Support Enforcement Unit; and mental health treatment.

Upon release, defendant immediately began lying to his probation officer. He reported that he had secured employment at "Magnus Group," a real estate firm, as an assistant director with a gross monthly income of $5000. He reported that the firm was located at 250 East Wisconsin Avenue, Suite 1800 in Milwaukee and was directed by a John Engel. The probation officer conducted a field visit and found that the site consisted of a common reception area and a number of offices. The receptionist advised the probation officer that defendant was rarely present and that she had no knowledge of Mr. Engel. The probation officer ultimately discovered that defendant had leased the office in September 2004 while he was still in a halfway house and not permitted to lease property. When the probation officer questioned defendant...