U.S. v. Wilson

• Citation: 416 F.3d 1164
• Decision Date: 21 July 2005
• Docket Number: No. 03-5207.,03-5207.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry Darian WILSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

416 F.3d 1164

UNITED STATES of America, Plaintiff-Appellee, v. Henry Darian WILSON, Defendant-Appellant.

No. 03-5207.

United States Court of Appeals, Tenth Circuit.

July 21, 2005.

COPYRIGHT MATERIAL OMITTED

Art Fleak, Tulsa, OK, for the Defendant-Appellant.

Charles M. McLoughlin, Assistant United States Attorney, and David E. O'Meilia United States Attorney, Tulsa, OK, for the Plaintiff-Appellee.

Before BRISCOE, McKAY, and HARTZ, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Henry Wilson entered a plea of guilty to a two-count information charging him with mail fraud, in violation of 18 U.S.C. § 1341, and income tax evasion, in violation of 26 U.S.C. § 7201. He was sentenced to two concurrent 37-month terms of imprisonment and ordered to pay $1,148,546.34 in restitution. On appeal, Wilson argues the district court erred in calculating his criminal history category for purposes of the Sentencing Guidelines. Further, he argues the court misapprehended the scope of its discretion to determine the manner in which restitution would be paid. Finally, he contends he is entitled to resentencing in light of the Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (1994), and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Calculation of Criminal History Category

We review the district court's legal interpretation of the Sentencing Guidelines de novo. United States v. Gardiner, 931 F.2d 33, 34 (10th Cir.1991). Factual findings are reviewed for clear error. Id. A defendant's criminal history category (I-VI) is a function of the total criminal history points attributable to him under U.S.S.G. § 4A1.1, which provides in part:

(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.

(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).

(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this item.

(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.

In this case, the first count of the information charged that, from January 2001 through March 2002, Wilson devised and participated in a scheme to defraud MCI WorldCom. It is undisputed that, on December 6, 2001, Wilson was convicted of transporting a loaded firearm in a motor vehicle and given a one-year deferred sentence. Based on that sentence, the district court attributed one criminal history point pursuant to § 4A1.1(c). Additionally, the district court attributed two points pursuant to § 4A1.1(d) because the instant offense was committed while under the deferred sentence. The total of three criminal history points put Wilson in criminal history category II, which, in combination with an offense level of 20, resulted in a sentencing range of 37 to 46 months. As stated, Wilson was sentenced at the bottom of that range.

On appeal, Wilson argues his firearm offense could have been considered as "relevant conduct" and, therefore, his sentence on that conviction should not have been considered in calculating his criminal history pursuant to § 4A1.1(c) and (d).¹ "The term `prior sentence' means any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1) (emphasis added).

A sentence imposed after the defendant's commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense. Conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of section 1B1.3.

U.S.S.G. § 4A1.2, cmt. n. 1 (emphasis added). "[A] conviction will not be treated as a prior sentence (and no criminal history points can be added) so long as the underlying conduct meets the definition of relevant conduct." United States v. Keifer, 198 F.3d 798, 801 (10th Cir.1999).

When a district court takes a "prior sentence into account in calculating the offense level, then it is clear that to prevent double counting the court cannot use that same sentence in its criminal history calculation." United States v. Torres, 182 F.3d 1156, 1160 (10th Cir.1999). When, as in this case, "the record shows that the court did not take the prior sentence into account for its base offense level calculation but instead used it for criminal history purposes ... [w]e also must review the court's underlying finding that the prior sentence was not part of the instant offense, i.e., that it was not relevant conduct." Id. "To determine whether a prior offense is conduct related to the instant offense, courts generally examine several factors, including the similarity, temporal proximity, and regularity of the instant offense and the prior sentence." Id.; see also United States v. Taylor, 97 F.3d 1360, 1365 (10th Cir.1996) (stating two offenses are part of same course of conduct where there is "sufficient similarity and temporal proximity [between the acts] to reasonably suggest that repeated instances of criminal behavior constitute a pattern of criminal conduct").

In arguing the firearm offense is "relevant conduct," Wilson relies solely on the fact that the prior sentence was imposed while his scheme to defraud was ongoing. The government, on the other hand, argues the two offenses were not part of a pattern of criminal conduct. The question raised by the parties—whether Wilson's prior offense was related to the instant offense—is a question of fact, and the government bears the burden of proving the prior offense is not relevant conduct. See Torres, 182 F.3d at 1161-64. In this case, the government offered no proof at sentencing that the prior offense was unrelated to the charged scheme to defraud, and the district court made no factual finding on the point. The record only reveals that the firearm offense was committed while the scheme to defraud was ongoing, but that fact by itself is not determinative. In addressing Wilson's argument, the district court merely stated that "the sentencing guidelines clearly want this Court to consider that conviction [as criminal history] because the sentencing occurred prior to today." Sent. Tr. at 3. In sum, the record is not sufficiently developed to allow a determination of whether Wilson's prior firearm offense is relevant conduct.

We conclude, however, that a remand for further findings on this issue is not necessary because any error by the district court was harmless. As noted, Wilson was sentenced pursuant to U.S.S.G. § 2B1.1. Section 2B1.1(b)(11)(B) provides that the defendant's offense level is to be increased two points when the "offense involved ... possession of a dangerous weapon (including a firearm) in connection with the offense." Thus, had the district court considered Wilson's prior firearm offense as relevant conduct pursuant to § 2B1.1(b)(11)(B) as Wilson suggests, his total offense level would have been 22 instead of 20, and his criminal history category would have been I instead of II. As a result, his sentencing range would have been 41 to 51 months, instead of 37 to 46 months. As stated, the district court imposed a 37-month sentence. Therefore, even if Wilson were to prevail on his relevant conduct argument, he would not receive a more favorable sentence on remand.

Wilson assumes that, on remand, his offense level would be fixed at 20. In other words, although Wilson contends his prior offense is relevant conduct, he believes that, on remand, the district court would be precluded from counting it as such. The general rule, however, is that resentencing on remand is de novo. See Keifer, 198 F.3d at 801 (stating "[r]esentencing on remand is typically de novo"); see also United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.1996) (stating "the court on remand has the discretion to entertain evidence that could have been presented at the original sentencing even on issues that were not the specific subject of the remand").

Wilson makes a second, independent argument regarding the district court's application of § 4A1.1(d). He argues the district court erred by adding two points pursuant to § 4A1.1(d) because the scheme to defraud commenced nine months prior to his being sentenced for the firearm offense. Under § 4A1.1(d) "[t]wo points are added if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including probation, parole, supervised release, [or] imprisonment." U.S.S.G. § 4A1.1, cmt. n. 4 (emphasis added). It is undisputed that Wilson continued to participate in the scheme to defraud after receiving the one-year deferred sentence for the firearm offense. Further, we have held that a deferred sentence imposed under Oklahoma law is a criminal justice sentence for purposes of § 4A1.1(d). United States v. Vela, 992 F.2d 1116, 1117 (10th Cir.1993) (applying Oklahoma law, which requires defendant be placed on probation during period of deferment).

Order of Restitution

The Mandatory Victim Restitution Act of 1996 (MVRA) requires the payment of restitution in any case involving an "offense against property under [Title 18]," including "any offense committed by fraud or deceit." 18 U.S.C. § 3663A(c)(1)(A)(ii). The procedures for issuing and enforcing a restitution order are set forth in 18 U.S.C. § 3664. "[T]he court shall order restitution to each victim in the full amount of each victim's losses as determined by the court without consideration of the economic circumstances of the defendant." 18 U.S.C. § 3664(f)(1)(A). The defendant's economic circumstances are relevant in fixing a payment schedule. "Upon determination of...