U.S. v. Wilson, No. 89-50236

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtBefore FARRIS, BOOCHEVER and NOONAN; BOOCHEVER
Citation900 F.2d 1350
Docket NumberNo. 89-50236
Decision Date06 April 1990
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Stephen WILSON, Defendant-Appellant.

Page 1350

900 F.2d 1350
58 USLW 2663
UNITED STATES of America, Plaintiff-Appellee,
v.
John Stephen WILSON, Defendant-Appellant.
No. 89-50236.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 8, 1990.
Decided April 6, 1990.

Page 1351

Denise Meyer, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Adam B. Schiff, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before FARRIS, BOOCHEVER and NOONAN, Circuit Judges.

BOOCHEVER, Circuit Judge:

John Stephen Wilson appeals his sentence for mail fraud. He challenges the Sentencing Guidelines, claiming they violate his due process rights by requiring the district court to make findings without considering the reliability of the underlying facts and without requiring that those facts meet any articulated standard of proof. 1 We find that the Guidelines do not violate due process on these grounds. Wilson also challenges his sentence under the Guidelines, claiming that the district court, in applying Sec. 2F1.1, incorrectly computed the value of the loss to the company Wilson attempted to defraud. We disagree and affirm the district court's decision.

FACTS AND PROCEDURAL HISTORY

Wilson was employed as a research associate with Amgen, Inc., a biotechnology and pharmaceutical firm. As a condition of employment, Wilson agreed to keep the company's research and discoveries confidential. Wilson nevertheless photocopied documents containing Amgen's financial information and research data on its process for producing erythropoietin, a human hormone that stimulates the production of red blood cells. On June 22, 1988, Wilson mailed a letter to Genetics Institute, Amgen's chief competitor, offering to sell these documents for $150,000 or 10,000 shares of Genetics Institute stock. He signed his name as "Pimpernel" and provided a self-addressed envelope with the name "D. Wallace" as the return addressee/sender.

Genetics Institute received Wilson's letter and contacted Amgen, informing Amgen of the existence of the letter and its contents. Amgen, in turn, contacted the FBI, whose agent arranged to meet with Wilson to exchange the documents for $150,000 in cash. Wilson also told the agent he had additional information he was willing to sell for $50,000. On August 11, 1988, Wilson met with the undercover agent and exchanged the documents for what he believed was $200,000 in cash. He was then arrested.

On December 12, 1988, Wilson pled guilty to one count each of mail fraud and use of a fictitious name in a mail fraud scheme in violation of 18 U.S.C. Secs. 1341 and 1342 (1982). Wilson was sentenced on April 10, 1989. To calculate Wilson's sentence under Guidelines Sec. 2F1.1, the district

Page 1352

court was required to determine the value of the materials he attempted to sell. The court considered the presentence report, defense and government exhibits, and testimony of expert witnesses, and determined that the value of Amgen's documents was $1 million. From the resulting Guideline range of 15 to 21 months, the court sentenced Wilson to 15 months in custody to be followed by three years of supervised release.
DISCUSSION

I. Due Process

Wilson relies on the district court opinion in United States v. Davis, 715 F.Supp. 1473 (C.D.Cal.1989), to support his constitutional claims. In Davis, the court held that the Guidelines unconstitutionally mandate periods of imprisonment "based on factors which, for the most part, the sentencing judge is required to apply on the basis of any available information, whether or not that information was introduced at trial or proved beyond a reasonable doubt." Id. at 1476. Wilson makes the same two claims: 1) The Guidelines do not allow the sentencing court to consider the reliability of the available evidence and determine the weight to be given the applicable sentencing factors, and 2) the Guidelines do not require that facts underlying sentencing factors be proved beyond a reasonable doubt. The constitutionality of the Guidelines is a question of law which we review de novo. United States v. Brady, 895 F.2d 538, 539 (9th Cir.1990).

Reliability of Sentencing Information

Wilson argues that the Guidelines mandate periods of incarceration based on findings that the sentencing court is required to make on the basis of whatever information is available regardless of the reliability of that information. "In the exercise of [traditional] sentencing discretion, judges adjust[ed] the weights of the sentences to reflect the differences in the relative certainty of information on which the sentences are based." Davis, 715 F.Supp. at 1477. By eliminating that discretion, Wilson maintains, the Guidelines violate due process.

Wilson overstates the requirements of the Guidelines. They do not require the sentencing court to impose base level adjustments regardless of the reliability of the applicable facts. Rather, the Guidelines require the district court to "[d]etermine the base offense level and apply any appropriate specific offense characteristics" and "adjustments as appropriate related to victim, role, and obstruction of justice" as well as acceptance of responsibility and criminal history. United States Sentencing Commission, Guidelines Manual Sec. 1B1.1(b), (c), (e), and (f) (emphasis added). We interpret the Commission's use of the word "appropriate" to mean that the district court should apply only those factors for which sufficiently reliable information exists. When the court is not satisfied that the evidence supporting the application of a particular factor is reliable, the court should find that the factor has not been established and not apply it. 2

"In the sentencing context, '[d]ue process requires that a defendant be given an opportunity to assure the accurate presentation of reliable sentencing information to the district court.' " Brady, 895 F.2d at 542 (quoting United States v. Romano, 825 F.2d 725, 728 (2nd Cir.1987)). This does not include the right to have a sentence weighed according to a sliding scale of factual certainty or reliability. Therefore, to the extent that the Guidelines remove the discretion of the sentencing court to adjust the weights of sentences to reflect the differences in the relative certainty of information on which the sentences are

Page 1353

based, the Guidelines do not violate due process.

Standard of Proof

Wilson claims, as did the district court in Davis, that "[t]he Due Process Clause commands that Congress may not require that any person be incarcerated for a fixed period directly attributable to a specific fact determination unless proved beyond a reasonable doubt." Davis, 715 F.Supp. at 1477. Therefore, according to Wilson and the Davis court, "[i]f Congress desires to fix specific sentencing lengths in advance of the commission of crimes, it must also fix the standard of proof. For that purpose there is only one Constitutional standard: proof beyond a reasonable doubt." Id. (footnote omitted).

The Supreme Court, however, has "rejected the claim that whenever a State links the 'severity of punishment' to 'the presence or absence of an identified fact' the State must prove that fact beyond a reasonable doubt." McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 2515, 91 L.Ed.2d 67 (1986) (quoting Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977)). The Court in McMillan held that "States may treat 'visible possession of a firearm' as a sentencing consideration rather than an element of a particular offense," and that they may require that such possession be proved by only a preponderance of the evidence: "Pennsylvania has deemed a particular fact relevant and prescribed a particular burden of proof. We see nothing in Pennsylvania's scheme that would warrant constitutionalizing burdens of proof at sentencing." Id. 477 U.S. at 91-92, 106 S.Ct. at 2419.

McMillan upheld the constitutionality of a preponderance of the evidence standard in the context of sentencing under state law, but there is "no principled reason to distinguish in this respect a state sentence from one imposed in federal court." United States v. Lee, 818 F.2d 1052, 1057 (2nd Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987). Other circuit courts of appeals, relying on McMillan, have held that facts underlying Guidelines sentencing factors need not be proved beyond a reasonable doubt to satisfy due process. See United States v. McDowell, 888 F.2d 285, 290-91 (3rd Cir.1989); United States v. Guerra, 888 F.2d 247, 250-51 (2nd Cir.1989); United States v. Ehret, 885 F.2d 441, 444 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990); United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Wright, 873 F.2d 437, 441 (1st Cir.1989). We agree.

A convicted criminal defendant unquestionably retains some due process rights, but "[o]nce the reasonable-doubt standard has been applied to obtain a valid conviction, 'the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.' " McMillan,...

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142 practice notes
  • U.S. v. Mobley, No. 90-3832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 14, 1992
    ...F.2d 1052, 1057 (2d Cir.1987) (adopting McMillan 's preponderance of evidence standard for federal sentences); United States v. Wilson, 900 F.2d 1350, 1353 (9th Cir.1990) Before the Guidelines, a sentencing court had broad discretion whether to consider any and all information about a defen......
  • U.S. v. Trupin, Nos. 524
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1997
    ...reliable information available, including the scope of the operation." U.S.S.G. § 2B1.1, n.3 (1989). See United States v. Wilson, 900 F.2d 1350, 1356 (9th Cir.1990) ("where goods have no readily ascertainable market value, any reasonable method may be employed to ascribe an equivalent monet......
  • U.S. v. Kikumura, No. 89-5129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 5, 1990
    ...Page 1102 that guideline sentencing factors need only be proven by a preponderance of evidence, see, e.g., United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 493 (10th Cir.1990); United States v. Guerra, 888 F.2d 247, 250-51 (2d Cir.1989),......
  • U.S. v. Restrepo, No. 88-3207
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 4, 1991
    ...the question has answered affirmatively, including a panel in an earlier case in this circuit. See, e.g., United States v. Wilson, 900 F.2d 1350, 1353-54 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 492-93 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 171, 112 L.Ed.2d 135......
  • Request a trial to view additional results
141 cases
  • U.S. v. Mobley, No. 90-3832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 14, 1992
    ...F.2d 1052, 1057 (2d Cir.1987) (adopting McMillan 's preponderance of evidence standard for federal sentences); United States v. Wilson, 900 F.2d 1350, 1353 (9th Cir.1990) Before the Guidelines, a sentencing court had broad discretion whether to consider any and all information about a defen......
  • U.S. v. Trupin, Nos. 524
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1997
    ...reliable information available, including the scope of the operation." U.S.S.G. § 2B1.1, n.3 (1989). See United States v. Wilson, 900 F.2d 1350, 1356 (9th Cir.1990) ("where goods have no readily ascertainable market value, any reasonable method may be employed to ascribe an equivalent monet......
  • U.S. v. Kikumura, No. 89-5129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 5, 1990
    ...Page 1102 that guideline sentencing factors need only be proven by a preponderance of evidence, see, e.g., United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 493 (10th Cir.1990); United States v. Guerra, 888 F.2d 247, 250-51 (2d Cir.1989),......
  • U.S. v. Restrepo, No. 88-3207
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 4, 1991
    ...the question has answered affirmatively, including a panel in an earlier case in this circuit. See, e.g., United States v. Wilson, 900 F.2d 1350, 1353-54 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 492-93 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 171, 112 L.Ed.2d 135......
  • Request a trial to view additional results
1 books & journal articles
  • INTELLECTUAL PROPERTY CRIMES
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...methods when no market value exists and allowing the use of cost of production as one method of valuation); United States v. Wilson, 900 F.2d 1350, 1355–56 (9th Cir. 1990) (rejecting strict market value in cases where the goods had no readily ascertainable market value and allowing any reas......

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