United States v. Siddons

• Decision Date: 05 October 2011
• Docket Number: No. 10–1350.,10–1350.
• Citation: 660 F.3d 699
• Parties: UNITED STATES of America v. Daniel R. SIDDONS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

660 F.3d 699

UNITED STATES of America

v.Daniel R. SIDDONS, Appellant.

No. 10–1350.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) Sept. 13, 2011. Opinion Filed: Oct. 5, 2011.

Todd E. Henry, Esq., Philadelphia, PA, for Appellant.

Mary A. Futcher, Esq., Ashley K. Lunkenheimer, Esq., Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: RENDELL, JORDAN and BARRY, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

Daniel Siddons pled guilty to a 34–count indictment charging him with various types of fraud. Prior to sentencing, Siddons moved to withdraw his guilty plea, a motion the District Court denied. At sentencing, the Court imposed certain enhancements and varied upward from the recommended Sentencing Guidelines range. Siddons now appeals the denial of his motion to withdraw the guilty plea, as well as the imposition of the sentencing enhancements and the upward variance. We will affirm.

I. Background

Siddons was a licensed financial adviser working at the investment arm of Mellon Bank (later Citizens Bank), and then at Wachovia Securities. His job involved advising clients about purchasing investment products, and many of his clients were elderly customers seeking to invest their retirement savings. On November 15, 2007, a grand jury indicted Siddons, charging him with nine counts of mail fraud, in violation of 18 U.S.C. § 1341, five counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of bank fraud, in violation of 18 U.S.C. § 1344. A superseding indictment was later returned charging thirty-four counts of mail, wire, and bank fraud. The Government alleged that Siddons solicited his bank clients to invest in speculative real estate transactions that he controlled and that were unrelated to bank products, an illegal practice in the securities industry known as “selling away.” Some of his clients invested their modest life savings with Siddons, initially believing that they were investing in a bank-supported, conservative investment product. The Government accused Siddons of collecting $1.55 million between October 2002 and January 2006.

On February 3, 2009, while he was out on bail, Siddons requested that the District Court appoint him a new attorney; the Court denied his request. On March 3, 2009, one week prior to trial, the Court held a change of plea hearing after Siddons indicated that he wished to plead guilty. During the plea colloquy, Siddons stated that he was not satisfied with his attorney, and the Court called a halt to the plea proceedings. The Government's motion to revoke bail was then addressed, with the Court hearing sworn testimony from Siddons and remanding him after finding that he had contacted witnesses. Before the Court entered the remand order, Siddons stated that he wished to plead guilty to one count, and the Court recessed for Siddons to consult with his attorney. Following the recess, Siddons stated, upon repeated questioning by the Court, that he was “unequivocally” satisfied with his attorney, Supp.App. at 118, and he thereafter pled guilty to all counts of the indictment without a written plea agreement.

On July 15, 2009, Siddons, represented by new counsel, filed a motion to withdraw the plea. The District Court held a hearing, and Siddons and his father, who had been present at the meeting during the recess on March 3, 2009, testified that Siddons' prior attorney was unprepared to go to trial and had browbeaten Siddons into pleading guilty. That attorney and his associate testified and challenged Siddons' testimony. The Court stated that it did not believe Siddons, that the Government would be prejudiced by a withdrawal of the plea, and that Siddons had not adequately supported his claim of innocence. The motion was denied.

Siddons' Presentence Investigation Report listed a Guidelines range of 78 to 97 months. The range included a four-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(16)(A) (2008) because the offense involved a violation of securities law and Siddons was a financial adviser. The District Court imposed a two-level enhancement for obstruction of justice because it found that Siddons provided materially false information to the Court during his testimony at the hearing on the motion for new counsel and at the hearing to withdraw his guilty plea. It also found that he obstructed justice by contacting witnesses. With the enhancements, the final Guidelines range was 135 to 168 months. After reviewing the 18 U.S.C. § 3553(a) factors, the Court varied upward and imposed a sentence of 180 months on each count, to be served concurrently, as well as $1.3 million in restitution.

Siddons appeals the District Court's (1) denial of his motion to withdraw the guilty plea; (2) imposition of the four-level enhancement under § 2B1.1(b)(16)(A); (3) imposition of the two-level obstruction of justice enhancement; and (4) upward variance to 180 months.

II. Discussion¹

We review a district court's ruling on a motion to withdraw a guilty plea for abuse of discretion. United States v. Martinez, 785 F.2d 111, 113 (3d Cir.1986). We review a district court's factual findings regarding adjustments to the Guidelines range for clear error, and we review the court's “legal interpretation and application of the sentencing guidelines under a plenary standard.” United States v. Powell, 113 F.3d 464, 467 (3d Cir.1997). Finally, we review the reasonableness of the ultimate sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

A. Withdrawal of the Guilty Plea

A defendant seeking to withdraw a guilty plea bears a substantial burden of “showing a ‘fair and just reason’ for the withdrawal of his plea.” United States v. King, 604 F.3d 125, 139 (3d Cir.2010) (quoting Fed.R.Crim.P. 11(d)(2)). Accordingly, “[a] shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to impose on the government the expense, difficulty, and risk of trying a defendant who has already acknowledged his guilt by pleading guilty.” United States v. Jones, 336 F.3d 245, 252 (3d Cir.2003) (citation and quotation marks omitted). When determining whether a defendant has shown a “fair and just reason” for withdrawing a plea, a district court must consider whether: “(1) the defendant asserts his innocence; (2) the defendant proffered strong reasons justifying the withdrawal; and (3) the government would be prejudiced by the withdrawal.” King, 604 F.3d at 139 (internal quotation marks omitted). “Assertions of innocence must be buttressed by facts in the record that support a claimed defense.” United States v. Wilson, 429 F.3d 455, 458 (3d Cir.2005) (citation and quotation marks omitted). Further, a defendant must also “give sufficient reasons to explain why contradictory positions were taken before the district court.” Jones, 336 F.3d at 253 (citation and quotation marks omitted).

Siddons argues that his “fair and just reason” for seeking to withdraw his guilty plea was that at the time of his plea, his attorney was unprepared to go to trial and pressured him into pleading. Siddons' appeal on this issue fails for at least three reasons. First, while he states that he is innocent, he does not, as required, cite to any record evidence that would support his claim of innocence or sufficiently explain the contradictory position he took during the plea colloquy. Second, the District Court correctly found that the Government would be prejudiced by the withdrawal of the plea. Many of the Government witnesses were elderly, and there was a real risk that key witnesses would pass away or memories would fail prior to trial; indeed, at least four victims had died between the time of the defendant's fraud and the time of his motion to withdraw the plea. Reopening the case would delay the trial and increase the likelihood that other witnesses would be unable to testify on behalf of the Government. Finally, as the Court found after the hearing on the motion to withdraw the plea, Siddons' attorney was prepared to try the case had Siddons not pled guilty on March 3, 2009. Accordingly, there was no “fair and just reason” justifying the withdrawal of the plea.

B. The Four–Level Investment Adviser Enhancement

A defendant's Guidelines range is to be increased by four levels if the offense involved

a violation of securities law and, at the time of the offense, the defendant was (i) an officer or a director of a publicly traded company; (ii) a registered broker or dealer, or a person associated with a broker or dealer; or (iii) an investment adviser, or a person associated with an investment adviser.

U.S.S.G. § 2B1.1(b)(16)(A) (2008).²

The District Court applied this provision. Siddons argues, however, that (1) he was not technically an investment adviser ³ in March 2003, the time that the indictment sets as the earliest offense date for the wire fraud counts; and (2) the § 2B1.1(b)(16)(A) enhancement did not exist at the time that he was an investment adviser, so it is an ex post facto violation to apply it to him.

With reference to his first argument, Siddons began “selling away” in 2002, while employed as a financial adviser at Wachovia Securities. When Wachovia found out, Siddons resigned under threat of termination on January 23, 2003. The pertinent indictment against Siddons alleges that he committed instances of wire fraud, at the earliest, on March 3, 2003, after his resignation from Wachovia. The enhancement under § 2B1.1(b)(16)(A) still applies, however, because, as the Government states, “[t]he determination of loss and other factors pertinent to a fraudulent scheme is never confined to the date of the charged mailing or wiring, but always encompasses all relevant conduct that was ‘part of the same course of conduct or common scheme or plan.’ ” Appellee's Br. at 78 (quoting U.S.S.G. § 1B1.3(a)(2)); see also United States v. Stephens, 198 F.3d...