U.S. v. Ross
| Decision Date | 05 February 2002 |
| Docket Number | No. 01-1497.,01-1497. |
| Citation | 279 F.3d 600 |
| Parties | UNITED STATES of America, Appellee, v. Arthur Schuyler ROSS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Virginia Guadalupe Villa, Assistant Federal Public Defender, Minneapolis, MN, argued, for appellant.
Mark R. Pitsenbarger, Assistant U.S. Attorney, Minneapolis, MN, argued, for appellee.
Before BYE, LAY, and JOHN R. GIBSON, Circuit Judges.
Arthur S. Ross, convicted of fifteen counts of wire fraud and eighteen counts of money laundering, was sentenced to a total of 121 months imprisonment and ordered to pay $2.7 million in restitution. He contends the district court1 erred in calculating the sentence, the restitution order violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and he should have a new trial. We affirm.
We review this case for the second time. In the first appeal, Ross challenged his convictions and the restitution order, and the government cross-appealed a sentence of 87 months imprisonment. We affirmed the convictions and restitution order, but remanded for resentencing because the district court did not adequately explain its two-level adjustment under United States Sentencing Guideline (U.S.S.G.) § 3B1.1 for Ross's role in the offense (the court did not indicate how many participants were involved in the criminal activity) or its three-level downward departure under U.S.S.G. § 5K2 .0. United States v. Ross, 210 F.3d 916, 925-26, 928 (8th Cir.), cert. denied, 531 U.S. 969, 121 S.Ct. 405, 148 L.Ed.2d 313 (2000).
On remand, the district court found Ross was an organizer or leader of criminal activity involving five or more participants or otherwise extensive, and applied a four-level adjustment under § 3B1.1. In calculating Ross's total offense level, the district court added four levels to both the money laundering and wire fraud counts, which had been separately grouped pursuant to U.S.S.G. § 3D1.2. The district court also explained its departure under § 5K2.0 and reduced the departure from three levels to two. Ross received a new sentence of 121 months (60 months on the wire fraud counts, served concurrently with 121 months on the money laundering counts) and was again ordered to pay $2.7 million in restitution.
In this appeal, Ross raises three distinct issues. First, Ross contends the district court erred by adding four levels under § 3B1.1 to the money laundering group of counts without separately addressing his leadership role in the money laundering activity. Ross contends leadership conduct from wire fraud counts cannot be used to adjust money laundering counts when those two groups of counts are grouped separately.
Second, Ross argues the restitution order violates Apprendi, which was decided by the United States Supreme Court the same day we issued our mandate in the first appeal. Ross contends that if a judge (rather than a jury) calculates restitution, the amount must be limited to losses arising directly from charged conduct. In a wire fraud case, Ross contends the charged conduct is limited to the wire transactions alleged in the indictment, and claims restitution should extend only to those victims affected by the specific wire transactions submitted to the jury.
Third, Ross claims the district court erred in denying a new trial motion brought after the first appeal. Shortly before Ross was resentenced, the government disclosed for the first time certain information about one of its trial witnesses. Ross argues the government's failure to disclose the information prior to trial violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the jury might have acquitted him had he been able to impeach the witness with the new information.
1. The § 3B1.1 Adjustment to the Money Laundering Counts
Ross argues the district court erred by adjusting the money laundering group of counts under § 3B1.1 as the result of leadership conduct from the wire fraud activity. We review the district court's application of the Sentencing Guidelines de novo. United States v. Blue, 255 F.3d 609, 611 (8th Cir.2001).
Pursuant to our remand, the district court determined that § 3B1.1 required a four, rather than two, level adjustment to Ross's offense level. The district court then calculated the Guideline range by maintaining separate groups for the wire fraud and money laundering counts, as it had in the original sentence. With the new four-level adjustment, the district court calculated the offense levels for each group as follows:
Wire Fraud Counts
Base offense level under § 2F1.1(a) 6
Adjustment for amount of loss under § 2F1.1(b)(1)(N) 13
Adjustment for more than minimal planning under § 2F1.1(b)(2) 2
Adjustment for role in the offense under § 3B1.1(a) 4
Total adjusted offense level 25
Money Laundering Counts
Base offense level under § 2S1.1(a)(1)2 23
Adjustment for amount of loss under § 2S1.1(b)(2)(G) 6
Adjustment for role in the offense under § 3B1.1(a) 4
Total adjusted offense level 33
The district court next determined the combined offense level as required by the grouping rules. The money laundering group counted as one unit, see U.S.S.G § 3D1.4(a), and the wire fraud group counted as one-half unit because it was eight levels less than the money laundering group, see § 3D1.4(b). With a total of 1 ½ units, the district court added one level to the highest offense level (33 for the money laundering counts) for a combined offense level of 34. See Grouping Table at § 3D1.4.
Ross objected. He urged the district court to consider his role in the money laundering and wire fraud activities separately. He claimed there were less participants in the money laundering scheme, and he denied a leadership role in the money laundering activity. He also argued his leadership role in the wire fraud activity could not be used to adjust the money laundering counts because the wire fraud and money laundering counts had been separately grouped. He argued the adjustment was therefore inconsistent with the grouping decision, because § 3D1.2(c) requires grouping "[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts." (Emphasis added).
Without the four-level adjustment to the money laundering guidelines, the combined offense level would have been different. The money laundering group would have counted as one unit because it would have been the highest offense level (29). See § 3D1.4(a). The wire fraud group (25) would also have counted as a full unit because it would have been only four levels less than the money laundering group. Id. With a total of 2 units, two levels would have been added to the highest offense level for a combined offense level of 31. See Grouping Table at § 3D1.4. Thus, Ross contends the district court's combined offense level of 34 was three levels higher than it should have been.
The district court rejected Ross's request to consider the leadership roles in the wire fraud and money laundering activity separately. After first expressing doubt about whether Ross's argument was foreclosed by our decision in the first appeal, the district court held Ross's role in the underlying fraud offense could be considered in applying a role enhancement to the separately-grouped money laundering counts.
Although the district court denied Ross's objection and refused to consider Ross's money laundering leadership role separately, the district court granted Ross's request for a downward departure under § 5K2.0 for essentially the same reasons advanced by Ross in the objection. Concerned about using conduct from the wire fraud activity to adjust the money laundering counts, the district court explained that
[t]he role enhancement is a result of the fact that courts consider the fraudulent conduct and the money laundering conduct together. The role enhancement is primarily the result of defendant's conduct in committing fraud, yet it is used to increase defendant's money laundering offense level. While defendant's involvement in money laundering conduct certainly renders his offense more serious, a circumstance which is reflected in the higher base offense level for money laundering, defendant's relative lack of personal profit from this scheme indicates that it is not the kind of reinvestment money laundering offense that needs to be deterred with the full effect of the role enhancement in addition to the already high offense level for money laundering. A mechanical application of the money laundering guideline with the additional role enhancement, therefore, results in a sentence higher than what is warranted in this case. For this reason alone, the Court finds that a minor downward departure is appropriate.
Statement of Reasons for Imposing Sentence, App.Add. B-8 through B-9 (emphasis added).
With a two-level downward departure under § 5K2.0, the district court arrived at a final offense level of 32, one level higher than the level 31 Ross contends should apply. A final offense level of 32 provided for a sentencing range, under Criminal History Category I, of 121 to 151 months. The district court sentenced Ross to 121 months.
We find no fault with the district court's consideration of the defendant's role in the underlying wire fraud offense to adjust the money laundering counts. In our first opinion, we observed the related nature of the wire fraud and money laundering conduct:
Ross' wire fraud convictions were predicated on facsimile transmissions of various...
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