United States v. Kieffer
| Decision Date | 01 February 2016 |
| Docket Number | No. 15-1078,15-1078 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HOWARD O. KIEFFER, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Colo.)
ORDER AND JUDGMENT*Before BRISCOE, SEYMOUR and LUCERO, Circuit Judges.
Howard O. Kieffer was convicted of various charges arising from his representation of clients in federal courts without a license or legal training. His sentencing has spurred much litigation, which has now reached this court for the fourth time.1 In this appeal, Kieffer challenges the district court's Fifth Amended Judgment, arguing that (1) it conflicts with the district court's orally pronounced sentence, (2) thedistrict court lacked jurisdiction to issue it, and (3) it constitutes double jeopardy. Because none of these arguments are meritorious, we affirm.
Although Kieffer does not have a law degree and is not licensed to practice law, he has represented clients in various federal courts, including district courts located in North Dakota and Colorado. These actions have resulted in convictions in both districts. In the District of North Dakota, Kieffer was convicted in 2008 of mail fraud in violation of 18 U.S.C. § 1341 and making false statements in violation of 18 U.S.C. § 1001, and sentenced to 51 months' imprisonment. He served 11 of those months before proceedings began in the District of Colorado.
In the District of Colorado, Kieffer was convicted of wire fraud in violation of 18 U.S.C. § 1343 (Count 1), making false statements in violation of 18 U.S.C. § 1001 (Count 2), and contempt of court in violation of 18 U.S.C. § 401 (Count 3). The district court initially sentenced Kieffer on August 16, 2010 to serve 57 months consecutively to his 51-month North Dakota sentence. But a prior panel of this court vacated that sentence because U.S.S.G. § 5G1.3(b) requires that the Colorado sentence run concurrently with the prior North Dakota sentence, and the restitution order lacked factual support. Kieffer I, 681 F.3d at 1166-68, 1170-71.
During the resentencing hearing on August 22, 2013, the district court calculated the applicable guideline range as 57-71 months. It then announced its intent to vary upward from the guideline range, which it viewed as "not sufficient to meet the objectives set forth at [18 U.S.C. § 3553(a)]." Kieffer III, 596 F. App'x at 656. This conclusion was reached in part because "the 10th Circuit has ruled that this Court cannot run the sentence in this case consecutive to the 51-month sentence he received in [the North Dakota case], but rather must run the sentence in this case concurrent to that sentence." Id. (alteration in original). The district court then announced Kieffer's sentence:
Id. at 657 (). A series of written amended judgments followed, all attempting to memorialize the district court's oral pronouncement. Only the first and the fifth are relevant to the issues presented on this appeal.
The First Amended Judgment read:
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: ninety-nine (99) months as to each of Counts 1 and 2, to be served concurrently with each other and with the [North Dakota sentence]. Pursuant to 5G1.3(b), the Courtadjusted the ninety-nine (99) months by subtracting the fifty-one (51) months already served in [North Dakota], for a remaining sentence of forty-eight (48) months as to each of Counts 1 and 2, and thirty-seven (37) months as to Count 3, all counts to be served concurrently with each other.
Id. (emphasis omitted). In Kieffer III, a prior panel of this court concluded that "the First Amended Judgment did not accurately memorialize the court's orally pronounced sentence," which it interpreted as follows:
The court sentenced . . . Kieffer to "a term of 99 months on Counts 1 and 2," to be served concurrently to each other and to the 51 months of imprisonment that . . . Kieffer had already served in North Dakota. The court continued by stating, "to make it clear," . . . Kieffer should be incarcerated "for a term of 48 months for the criminal conduct he was convicted of in Counts 1 and 2 in this case," emphasizing its intent for . . . Kieffer to be imprisoned for his conduct in Colorado beyond his North Dakota sentence. Read in this context, the court's next statement—"that's 99 months less or adjusted by the 51 months that he served in North Dakota for a total of 48 months"—does not alter the 99-month sentence.
Id. at 661 (internal citations omitted). The panel therefore "instruct[ed] the district court to enter a new and final judgment consistent with its orally pronounced sentence of 99 months but with full credit for the 11 months . . . Kieffer served between the start of his incarceration in North Dakota and the start of the Colorado case," which "results in a sentence of 88 months on Count 1." Id. at 661-62. It also instructed the district court to "reduce . . . Kieffer's term of imprisonment on Count 2 from 99 months to 60 months" to reflect the maximum statutory penalty for violation of 18 U.S.C. § 1001. Id. at 662.
On remand, the district court entered the Fifth Amended Judgment, sentencing Kieffer to "eighty-eight (88) months as to Count 1, sixty (60) months as to Count 2, and thirty-seven (37) months as to Count 3, each count to be served concurrently with eachother and with the sentence imposed in United States District Court, District of North Dakota." ROA Vol. I at 593. Kieffer appeals, offering three reasons why the Fifth Amended Judgment should be vacated and the First Amended Judgment reinstated.
Kieffer first argues that the Fifth Amended Judgment conflicts with the district court's oral pronouncement made at the resentencing hearing. Where such conflict exists, an unambiguous oral pronouncement controls. United States v. Barwig, 568 F.3d 852, 855 (10th Cir. 2009) (citing United States v. Villano, 816 F.2d 1448, 1451 (10th Cir. 1987) (en banc)). In Kieffer III, a prior panel of this court concluded that "the sentence orally pronounced at [the] resentencing hearing was unambiguous." 596 F. App'x at 661. It interpreted the district court's oral pronouncement as having sentenced Kieffer to a total "term of 99 months on Count[] 1 . . . to be served concurrently . . . to the 51 months of imprisonment that [he] had already served in North Dakota," meaning that Kieffer was to serve 51 months in North Dakota and then serve the remaining 48 months of his 99-month concurrent sentence in Colorado. Id. (internal quotations omitted).
There is no discrepancy between the district court's oral pronouncement and the Fifth Amended Judgment, which imposed a sentence of "eighty-eight (88) months as to Count 1 . . . to be served concurrently . . . with the sentence imposed in . . . North Dakota." ROA Vol. I at 593. The Fifth Amended Judgment merely clarified the import of the orally pronounced sentence as required by this court's mandate in Kieffer III. The panel in Kieffer III instructed the district court to "enter a new and final judgmentconsistent with its orally pronounced sentence of 99 months but with full credit for the 11 months . . . Kieffer served between the start of his incarceration in North Dakota and the start of the Colorado case," which "results in a sentence of 88 months on Count 1." 596 F. App'x at 661-62 (emphases added). The Fifth Amended Judgment does just that.
"[U]nder the mandate rule, the district court should act in conformity with the appellate court's mandate." United States v. Gama-Bastidas, 222 F.3d 779, 784 (10th Cir. 2000). We review a district court's compliance with a mandate de novo. See United States v. Shipp, 644 F.3d 1126, 1129 (10th Cir. 2011) (citing United States v. Carales-Villalta, 617 F.3d 342, 344 (5th Cir. 2010)). The mandate rule is not jurisdictional; instead, it "is a discretion-guiding rule subject to exception in the interests of justice." United States v. Moore, 83 F.3d 1231, 1234-35 (10th Cir. 1996) (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)). Exceptions to the mandate rule include "(1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) that blatant error from the prior sentencing decision would result in serious injustice if uncorrected." Id. at 1234 (citing United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993)). Kieffer invokes the third exception.
Kieffer first argues that U.S.S.G. § 5G1.3(b) requires that his sentence include a 51-month downward adjustment. We disagree. The language of § 5G1.3(b) reads:
U.S.S.G. § 5G1.3(b) (emphasis added). Nowhere does the language require a downward variance to account for the sentence imposed by the North Dakota courts; it requires only that the sentences run...
To continue reading
Request your trial