United States v. Hallahan

• Decision Date: 07 July 2014
• Docket Number: Nos. 12–3748,12–3787.,12–3781,12–3750,s. 12–3748
• Citation: 756 F.3d 962
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Janet HALLAHAN and Nelson G. Hallahan, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

756 F.3d 962

UNITED STATES of America, Plaintiff–Appellee,

v.Janet HALLAHAN and Nelson G. Hallahan, Defendants–Appellants.

Nos. 12–3748, 12–3750, 12–3781, 12–3787.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 10, 2014.

Decided March 7, 2014.

Amended July 7, 2014.

Rehearing and Rehearing En Banc Denied July 7, 2014.

Ross Brandon Goldman, Attorney, Department of Justice, Washington, DC, for Plaintiff–Appellee.

Elisabeth R. Pollock, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant–Appellant.

Before FLAUM and EASTERBROOK, Circuit Judges, and GRIESBACH, District Judge.^*

GRIESBACH, District Judge.

Defendants–Appellants Janet and Nelson Hallahan engaged in a prolonged fraud that bilked investors out of more than $1,000,000. They pled guilty, as part of plea agreements, to two counts of conspiracy. Rather than face sentencing for their crimes, the defendants chose to flee the district. They remained on the run for twelve years. After they were finally arrested, both pled guilty without a plea agreement to the additional crime of failing to appear for sentencing. At their long-delayed sentencing in 2012, the district court imposed above-guideline sentences of 270 months on Nelson Hallahan and 195 months on Janet Hallahan. They now challenge their sentences on a variety of grounds, despite having waived their rights to appeal in their original plea agreements.

On March 7, 2014, this panel issued a decision affirming the district court's judgments in both cases. United States v. Hallahan, 744 F.3d 497 (7th Cir.2014). The defendants-appellants requested a panel rehearing on the grounds that the panel had erred in a number of respects, including using a base offense level of seven, instead of six, for calculating the advisory sentencing guideline for the conspiracy counts. While we agree that the proper base level was six, we conclude that this does not change the result. Finding no merit in any of the other grounds asserted, we deny the petition for a rehearing. The following constitutes the panel's amended opinion superseding our prior opinion.

I. BACKGROUND

On January 6, 2000, the defendants pled guilty to conspiracy to commit mail and bank fraud, in violation of 18 U.S.C. §§ 371, 1341, and 1344, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), as part of plea agreements. The charges stemmed from their actions beginning in 1993 or earlier until 1999, during which time they convinced individuals to provide loans ostensibly for Janet Hallahan's tanning business. As a result of these acts, they were charged with sixteen counts of mail fraud, nine counts of money laundering, and three counts of bank fraud, in addition to the conspiracy charges. In exchange for their guilty pleas on the conspiracy counts, the government agreed to move to dismiss the other charges, not bring additional charges related to the offenses, recommend a downward adjustment for acceptance of responsibility, and recommend a sentence at the low end of the applicable guideline range. The plea agreements also included appeal waivers:

[T]he defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement.

After a full and complete plea colloquy in accordance with Rule 11 of the Federal Rules of Criminal Procedure, the district court accepted both pleas, finding that Janet and Nelson Hallahan were competent to enter their pleas and did so knowingly and voluntarily.

The defendants were scheduled to be sentenced on May 4, 2000, but they did not appear. Instead, the defendants chose to flee. The probation office discovered the defendants had absconded on January 18, 2000—just twelve days after they pled guilty. For the next twelve years, they eluded justice while living in Missouri and Arizona. They were arrested on May 12, 2012, in Arizona, where they were residing under false names. Upon their return, Janet and Nelson Hallahan were charged with, and pled guilty to, willfully failing to appear for sentencing, in violation of 18 U.S.C. § 3146(a)(1).

On November 28, 2012, the district court finally sentenced Janet and Nelson Hallahan on the conspiracy and failure to appear counts. Both Janet and Nelson Hallahan argued that the court should use the version of the United States Sentencing Guidelines Manual (U.S.S.G. or Guidelines) that was in effect at the time of the offenses, rather than the version in effect at the time of the sentencing, to avoid a violation of the Ex Post Facto Clause. The district court disagreed and calculated the advisory sentencing range using the 2012 Guidelines which were in effect at the time of sentencing, consistent with this Court's decision in United States v. Demaree, 459 F.3d 791 (7th Cir.2006). Based on the 2012 Guidelines, the district court calculated the advisory range to be 210 to 262 months for Nelson Hallahan and 135 to 168 months for Janet Hallahan. Under the 1998 Guidelines, which were in effect at the time of the offenses, the advisory range would have been 121 to 151 months for Nelson Hallahan and 97 to 121 months for Janet Hallahan.

After hearing arguments from all of the parties, including the government's request for the “longest of sentences,” the district court imposed a sentence of 270 months on Nelson Hallahan and 195 months on Janet Hallahan based on its consideration of the sentencing factors under 18 U.S.C. § 3553(a). These sentences represented upward variances from the sentencing range under the 2012 Guidelines. Nelson and Janet Hallahan filed timely appeals. We consolidated the appeals on our own motion for purposes of briefing and disposition.

II. ANALYSIS

On June 10, 2013, while these appeals were pending, the Supreme Court decided Peugh v. United States, ––– U.S. ––––, 133 S.Ct. 2072, 2078, 186 L.Ed.2d 84 (2013), in which it abrogated this Court's decision in Demaree and held that the Ex Post Facto Clause is violated “when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.” In light of the Supreme Court's decision in Peugh, the defendants contend that the district court violated the Ex Post Facto Clause when it used the 2012 Guidelines in determining their sentences. They also argue that the district court incorrectly calculated the base offense level for the conspiracy to commit money laundering count, regardless of which version of the Guidelines applies, and that the district court failed to follow the procedure prescribed by the Guidelines for determining their sentences for the failure to appear counts. Janet Hallahan separately presents two additional challenges. First, she argues the district court erred when it failed to rule on her motion to withdraw from the appeal waiver provision of the plea agreement. Second, she contends that the district court's 195–month sentence was substantively unreasonable.

In response, the government has forcefully argued that the challenges related to the two conspiracy counts to which Nelson and Janet Hallahan pled guilty in 2000 are barred by the appeal waivers in their plea agreements. According to the government, even if the district court did err in applying the 2012 Guidelines or in calculating the base offense level for the money laundering offense, Nelson and Janet Hallahan bargained away their rights to appeal as part of valid and enforceable plea agreements. On the merits, the government argues that there is no ex post facto violation because, under the one-book rule, the latter version of the Guidelines applies when the earlier offense is grouped with a subsequent crime. The government concedes, however, that the base offense level was miscalculated on the money laundering count, but contends that the district court correctly applied the Guidelines for the failure to appear count. As for Janet Hallahan's separate challenges, the government argues that the district court provided ample reasons to support her sentence and the district court's failure to rule on her motion to withdraw from the plea agreement is not reversible error because it has no chance of success on remand.

A. Appeal Waivers

The parties have focused much of their attention on the enforceability of the appeal waivers contained in the plea agreements the defendants signed in 2000 when they pled guilty to the conspiracy counts. In response to the government's contention that they waived their rights to challenge the guideline calculation for the conspiracy offenses as part of their plea agreements, the defendants have argued that the appeal waivers are not enforceable. Regardless of whether they are enforceable, however, we conclude that the appeal waivers do not bar our review of the district court's guideline calculation on the conspiracy counts. This is because the district court used the same guideline to determine the defendants' sentences for the additional offense of failure to appear. As we explain below, all three offenses were, in Guidelines terminology, grouped, and therefore any error in the guideline calculation for the conspiracy counts necessarily affected the sentence imposed by the district court for the failure to appear count. Since the defendants did not waive their right to appeal when they entered their guilty pleas to that offense, they are entitled to review of the guideline calculations that were used as a starting point in the sentencing determination to the extent they preserved their right to review in the district court.

The issue of whether the waivers are enforceable is nevertheless relevant at least as to Janet, however,...