U.S. v. Scott

• Citation: 631 F.3d 401
• Decision Date: 28 January 2011
• Docket Number: No. 10–1597.,10–1597.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Wayne C. SCOTT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

631 F.3d 401

UNITED STATES of America, Plaintiff–Appellee,

v.Wayne C. SCOTT, Defendant–Appellant.

No. 10–1597.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 29, 2010.Decided Jan. 12, 2011.As Amended Jan. 28, 2011.

Kaarina Salovaara, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.John C. Kocoras, Attorney (argued), McDermott, Will & Emery, Chicago, IL, for Defendant–Appellant.Before BAUER, WOOD and WILLIAMS, Circuit Judges.BAUER, Circuit Judge.

Wayne C. Scott pleaded guilty to two counts of mail fraud in violation of 18 U.S.C. § 1341. He appeals his sentence to this court and argues that he is entitled to resentencing because (1) the district court ignored the fact that the defendant's coconspirator was never convicted or sentenced, and (2) the defendant's sentence is unreasonable. We have reviewed the district court's sentencing procedures de novo and the reasonableness of the defendant's sentence for abuse of discretion. For the following reasons, we affirm.

I. BACKGROUND

The defendant engaged in two fraudulent schemes, both of which were carried out in almost the exact same manner. First, in 2007, the defendant represented himself to be Chris Harper, the advertising manager of a registered Illinois corporation, Media Concepts. Then, in 2009, the defendant represented himself to be Chris Jenkins, the advertising manager of a Delaware corporation, Moyer Direct. Acting through these companies, the defendant contacted random individuals through mail, e-mail, and the telephone, ultimately convincing over 250 people to invest in Media Concepts' and Moyer Direct's monthly advertising campaigns. The defendant described these monthly advertising campaigns as “tested and proven,” “absolutely safe,” and “absolutely guaranteed” to at least double an investment within sixty days. In reality, neither Media Concepts nor Moyer Direct engaged in advertising campaigns, and the investors received only a rude awakening. The defendant, however, pocketed at least $804,709, which he used to buy gifts and luxury items.

In June 2009, a criminal complaint charged the defendant and his coconspirator, Gabriel A. Brown, with engaging in a scheme to defraud investors. In July 2009, a federal grand jury charged the defendant in a six-count indictment for engaging in a scheme to defraud investors through the use of the United States mail. The defendant ultimately pleaded guilty to two counts of mail fraud, and the district court sentenced him to 63 months in prison, the lowest possible sentence within the advisory United States Sentencing Guideline range. For unknown reasons, however, prosecutors dismissed all charges against the coconspirator. The defendant now appeals his sentence to this court, asking that we vacate and remand for resentencing.

II. DISCUSSION

The bulk of the defendant's arguments concern the sentencing statute codified at 18 U.S.C. § 3553(a). In relevant part, this statute states,

(a) Factors to be considered in imposing a sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

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

(2) the need for the sentence imposed—

(A) to 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 kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ...;

(5) any pertinent policy statement ...;

(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) (2006). The defendant first challenges his sentence by focusing on the specific language of § 3553(a)(6), which we will refer to for clarity as “subparagraph (a)(6).” The defendant then centers his argument on all of the factors contained within § 3553(a) in general, which we will refer to either as “§ 3553(a)” or “§ 3553(a) generally.”

A. Consideration of a Coconspirator's Lack of Conviction Under Subparagraph (a)(6)

The defendant contends that the district court failed to follow proper sentencing procedures because it was implicitly required, or at least permitted, to consider a coconspirator's non-conviction and non-sentencing under subparagraph (a)(6). This is a question of law that we review de novo. See United States v. Curby, 595 F.3d 794, 796 (7th Cir.2010).

Subparagraph (a)(6) requires courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The defendant concedes that on its face subparagraph (a)(6) contemplates the avoidance of sentencing disparities only among those individuals who have been convicted of and sentenced for similar crimes. Nevertheless, the defendant argues that courts are implicitly required, or at least permitted, to consider the non-conviction and non-sentencing of coconspirators under this subparagraph. He reasons that the general purpose of subparagraph (a)(6) is to avoid sentencing disparities, and there is no greater disparity than the one between a coconspirator who is sentenced and a coconspirator who is not even charged or convicted, let alone sentenced. The defendant is therefore arguing that the generally phrased purpose of subparagraph (a)(6) permits us to read a statute requiring conviction on its face as a statute that does not require conviction in application.

While we agree that subparagraph (a)(6) is aimed at reducing sentencing disparities, we decline to use a broadly phrased purpose of the subparagraph as an opportunity to expand the reach of its clear, unambiguous, and narrowly phrased language. Instead, we remain true to our precedent, holding that in order for subparagraph (a)(6) to be applicable, the court must be presented with disparate sentences not among codefendants or coconspirators but among judges or districts. See, e.g., United States v. Bartlett, 567 F.3d 901, 907–08 (7th Cir.2009); United States v. Pisman, 443 F.3d 912, 916 (7th Cir.2006); United States v. Boscarino, 437 F.3d 634, 637–38 (7th Cir.2006). We therefore find that there is no sentencing disparity in this case, noting additionally that there can be no disparity between the defendant's sentence and the coconspirator's sentence when the latter does not even exist. Accordingly, we affirm the district court, finding that the court properly refused to consider the coconspirator's non-conviction and non-sentencing under subparagraph (a)(6).

B. Consideration of a Coconspirator's Lack of Conviction Under § 3553(a) Generally

The defendant argues that the district court erred when it held that it could not consider the coconspirator's lack of conviction and sentencing under § 3553(a) generally. However, the coconspirator here was not tried and acquitted; instead, the prosecutor dropped all charges against her. Thus, the defendant is not merely arguing that the district court should have considered the coconspirator's lack of conviction and sentencing; he is, more accurately, arguing that the court should have considered the prosecutor's decision not to bring charges against the coconspirator in the first place. The issue presented to this court therefore involves a conflict between the judge's responsibility to avoid interfering with prosecutorial discretion and the judge's responsibility to consider relevant information under § 3553(a). Compare United States v. Gil, 9 F.3d 113, 113 (7th Cir.1993) (stating that judicial review over a prosecutor's decision of when to prosecute and what sentence to recommend is generally improper) (citing Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)) with United States v. Jackson, 547 F.3d 786, 792 (7th Cir.2008) (noting that § 3553(a) factors “are broad, vague, and open-ended,” leaving the sentencing judge with “considerable discretion to individualize the sentence to the offense and offender as long as the judge's reasoning is consistent with § 3553(a)”) (quoting United States v. Wachowiak, 496 F.3d 744, 748 (7th Cir.2007)). This is a question of law that we review de novo. See Curby, 595 F.3d at 796.

We begin our analysis by questioning, even under the admittedly broad language of § 3553(a), whether the prosecutor's unexplained decision for not prosecuting the coconspirator is relevant to the judge's determination of a just sentence for the defendant. For all we know, the prosecutor may have decided not to charge the coconspirator because she is a cooperating witness or because she is still under investigation, neither of which would be a reason to reduce the defendant's sentence. See id. at 562 n. 13. We have expressed this same concern in other cases, noting that prosecutorial decisions at the charging stage are particularly ill-suited to judicial review because factors such as “the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Rodriguez v. Peters, 63 F.3d 546, 562 n. 13 (7th Cir.1995) (citing Wayte, 470 U.S. at 607, 105...