F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 30, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 03-3287
VEREL TRACY WESTOVER, SR.,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 02-CR-40012-01-SAC)
Melissa Harrison, Assistant Federal Public Defender, Kansas City, Kansas (David J.
Phillips, Federal Public Defender, and Ronald E. Wurtz, Assistant Federal Public
Defender, Topeka, Kansas, on the brief) for Defendant-Appellant.
Thomas G. Luedke, Assistant United States Attorney, Topeka, Kansas (Eric F. Melgren,
United States Attorney, Topeka, Kansas, with him on the brief) for Plaintiff-Appellee.
Before EBEL and TYMKOVICH, Circuit Judges, and HEATON, District Judge.*
HEATON, District Judge.
Defendant Verel Tracy Westover was convicted by a jury of violating 18 U.S.C. §
1001, by making false statements regarding matters within the jurisdiction of a federal
agency, and 18 U.S.C. §641, by embezzling government funds in conjunction with his
receipt of public housing assistance and food stamps. He was sentenced to a term of
imprisonment of one year and one day, followed by two years of supervised release. He
was also ordered to pay $15,200.79 in restitution. Westover appealed his conviction and
sentence. After briefing and oral argument were completed, but prior to a decision by this
court, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004). Defendant sought leave to supplement his brief to raise
additional issues in light of that decision. We affirmed defendant’s convictions, but
authorized supplemental briefing on defendant’s Blakely claim and retained jurisdiction
to address that issue.
Subsequent to the submission of the supplemental briefs, the Supreme Court
decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),
The Honorable Joe Heaton, United States District Judge for the Western District of
*
Oklahoma, sitting by designation.
2
which extended the Sixth Amendment holding of Blakely to the United States Sentencing
Guidelines (“U.S.S.G.”). The Supreme Court concluded that “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at
756. To remedy the constitutional infirmity flowing from the then-mandatory nature of
the Guidelines, the Court severed two provisions of the Sentencing Reform Act of 1986,
effectively making the Guidelines advisory.
Here, the district judge imposed a sentence which exceeded that supported by the
facts found by the jury or admitted by the defendant. However, under the circumstances
of this case and on plain error review, we conclude defendant’s sentence should be
AFFIRMED.
Background
The jury found defendant guilty of four counts of making false statements and one
count of embezzlement. The district court then found the following facts during
sentencing, which were not established by the jury’s verdict: (1) that the monetary loss to
the government was $15,200.76 and (2) that the defendant committed perjury by
testifying falsely during the trial. Under the Sentencing Guidelines, defendant had a base
offense level of 6. The district court increased that level by adding four levels based on
the amount of the loss (U.S.S.G. §2B1.1(b)(1)(c)) and two levels for obstruction of
3
justice (U.S.S.G. §3C1.1).1 The result was a total offense level of 12. Coupled with a
criminal history category of II, the Guidelines indicated a range of 12-18 months
imprisonment. Without those two enhancements, defendant’s Guidelines range would
have been 1-7 months imprisonment.
The court sentenced defendant to 12 months plus one day on each of the five
counts, to be served concurrently. Defendant contends, and the government concedes,
that the judge-found facts increased his sentence beyond the maximum authorized by the
jury's verdict, the jury having found only that the loss was “in excess of $1,000.”
Discussion
While defendant contested the district judge’s findings in some respects, he did not
assert at trial or sentencing that the Sentencing Guidelines were unconstitutional. In the
absence of a constitutional objection below, we review the district court’s sentencing
decision for plain error. United States v. Magallanez, 408 F.3d 672, 683 (10th Cir. 2005),
cert. denied, ___ U.S. ___, 126 S.Ct. 468 (2005). Plain-error review is conducted “‘less
rigidly when reviewing a potential constitutional error.’” United States v. Hauk, 412 F.3d
1179, 1194 (10th Cir. 2005) (quoting United States v. Dazey, 403 F.3d 1147, 1174 (10th
Cir. 2005)).
To establish plain error, defendant must demonstrate that (1) the district court
Defendant was sentenced under the 2003 version of the Guidelines. Although he
1
disputed at sentencing which version should apply, he has not pursued that issue here.
4
committed error, (2) the error was plain, (3) the error affected his substantial rights, and
(4) that the error seriously affected the fairness, integrity, or public reputation of judicial
proceedings. United States v. Lawrence, 405 F.3d 888, 906 (10th Cir. 2005), cert.
denied, ___ U.S. ___, 126 S.Ct. 468 (2005). In sentencing Mr. Westover, the district
court committed constitutional error under Booker as it applied the then-mandatory
Guidelines and relied on facts the judge found by a preponderance of the evidence to
increase defendant’s sentence beyond the maximum authorized by the jury’s verdict.
Magallanez, 408 F.3d at 685. This violated defendant’s Sixth Amendment rights. Id. at
683. Although defendant was sentenced based on well-settled law at the time of
sentencing, the error was clear by the time of the appeal and is therefore “plain” for
purposes of plain error review. United States v. Gonzalez-Huerta, 403 F.3d 727, 732
(10th Cir. 2005), cert. denied, ___U.S. ___, 126 S.Ct. 495, reh. denied, ___U.S.___, 126
S.Ct. 795 (2005). The first and second elements of the plain error analysis are therefore
present here; only elements three and four are in issue.
It is unnecessary to resolve the question of whether defendant has met his burden
of showing an effect on his substantial rights, as we conclude he has failed to show that
the error seriously affected the fairness, integrity or public reputation of judicial
proceedings. See Magellanez, 408 F.3d at 658 (unnecessary to address third element of
plain error analysis if fourth not met). Even where plain error affecting substantial rights
is shown to have occurred, this Court “has authority to order correction, but is not
5
required to do so.” United States v. Olano, 507 U.S. 725, 735 (1993); see also
Fed.R.Crim.P. 52(b). A court of appeals should correct a plain error not raised below if
the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 736, quoting United States v. Atkinson, 297 U.S. 157, 160 (1936).
This court has identified a number of non-exclusive factors which may show that a
defendant has satisfied the fourth element of the plain error analysis: (1) a sentence
increased substantially based on Booker error; (2) a showing that the district court would
likely impose a significantly lighter sentence on remand; (3) a substantial lack of evidence
to support the entire sentence the Guidelines required the court to impose; (4) a showing
that objective consideration of the 18 U.S.C. §3553(a) factors warrants a departure from
the suggested guidelines sentence, and (5) other evidence peculiar to the defendant which
demonstrates a complete breakdown in the sentencing process. U. S. v. Dowlin, 408 F.3d
647, 671 (10th Cir. 2005).2
Here, although our review is more exacting because constitutional Booker error is
involved, consideration of all the circumstances leads to the conclusion that the error in
this case does not satisfy the fourth element of plain error analysis.
2
This court has employed different formulations of factors which may be applicable.
In United States v. Houk, 412 F.3d 1179 (10th Cir. 2005), we identified three factors that
were pertinent there: whether the underlying right was constitutional or not, whether the
defendant challenged the factual findings upon which the district court relied, and the
magnitude of the difference between the sentence imposed and that authorized by the facts
found by the jury or admitted to by the defendant.
6
The district judge’s findings as to loss and obstruction of justice resulted in an
increase in the defendant’s potential term of imprisonment from 1-7 months to 12-18
months. That increase is not as substantial as the ten year increase the Booker court
viewed as “very serious”, Booker, 125 S.Ct. at 751, or as the degree of change we have
found significant in other cases.3 Nonetheless, it involves an increase in relative and
absolute terms which might, in a proper case, be deemed significant for purposes of plain
error analysis. In this case, however, the most pertinent consideration is that defendant has
already served the term of imprisonment to which he was originally sentenced.4 Even if
the district court would be disposed to reduce the sentence on remand, a prospect we find
unlikely on this record, it could not “unring the bell” and cause defendant to serve a
shorter term of imprisonment. The only practical impact would be on the unexpired term
of supervised release,5 potentially shortening the term or eliminating it altogether. See
U.S.S.G. 5D1.1 Such a limited potential impact, though sufficient to prevent this appeal
from being moot,6 is not of such significance as would suggest the court should exercise
its discretion to notice the sentencing error involved here.
For example, in United States v. Dazey, 403 U.S. 1147, 1178-9 (10th Cir. 2005), we
3
termed a 20 level enhancement based on judicial fact-finding “sizable.”
4
Defendant was released by the Bureau of Prisons on November 4, 2004.
5
The restitution ordered by the court is not part of the criminal penalty imposed and
therefore does not raise Sixth Amendment concerns. United States v. Visinaiz, 428 F.3d
1300, 1316 (10th Cir. 2005).
6
United States v. Castro-Rocha, 323 F.3d 846 (10th Cir. 2003).
7
Even if the potential for a significant reduction in the sentence existed, there is little
reason to believe the district court would impose it here. It is true that the court imposed a
sentence at the bottom of the Guideline range --- a year plus a day.7 However, “[t]he
district court did not make any comment that could be construed as expressing
dissatisfaction with [defendant’s] sentence, nor were there any facts in the record to
suggest a reasonable probability that the district court would have exercised its discretion
to depart from the Guidelines.” Magallanez, 408 F.3d at 686. “[T]here is nothing to
suggest that the court was inclined to go lower, even if it had realized it had discretion to
do so. Id. (citing Gonzalez-Huerta, 403 F.3d at 735-36, for its affirmance of a sentence at
the bottom of the range based on the fourth prong of the plain-error test). See also
Lawrence, 405 F.3d at 907 (“Whether the district court would simply reimpose the same
sentence on remand, or whether instead the sentence would likely change to a significant
degree if the case were returned to the district court for discretionary resentencing, is one
factor to consider in determining whether the defendant can satisfy the fourth plain-error
prong.”) (internal quotation marks and brackets omitted; emphasis added).
Defendant’s sentence was within the national norm8 and, while the district court did
not state, as did the judge in Magallanez, id. at 686, that he found the sentencing-
The additional day was presumably intended to make defendant eligible to earn
7
good time credits. See 18 U.S.C. §3624(b).
8
The Sentencing Guidelines are the national norm. Gonzalez-Huerta, 403 F.3d at
738.
8
enhancement facts had been “proved ‘beyond any doubt in my mind,’” the judge clearly
was confident in the findings he made that underlay the sentencing enhancements.
With respect to the judicial findings of loss amount,9 defendant did not seriously
contest their factual accuracy. Defendant did object to the loss amount, calling it
“overstated and theoretical.”10 However, his objection focused on his argument that the
government unreasonably delayed in charging him and hence manipulated his sentence,11 a
legal argument we have previously concluded was properly rejected by the district court,12
rather than the factual accuracy of the loss amount. There is ample support in the record
for the factual determination made by the court.
With respect to the enhancement for obstruction of justice (perjury), substantial
evidence supported the district court’s determination and there is nothing in the record to
suggest the district court would see the matter differently on remand. The district court
rejected defendant’s attribution of his misstatement to faulty memory, noting that
9
Defendant’s objection was couched in terms of objection to the amount of
restitution. However, the restitution amount and amount of loss for guideline purposes are
the same in this case.
10
Addendum to Presentence Investigation Report, pp. 42-43.
11
In his Corrected Motion for Downward Departure and Sentencing Memorandum,
the only loss amounts objected to consisted of “all amounts of alleged losses which occurred
after the Government discovered that he had under-reported his income on the ground that
the Government’s control of the sentence through its actions violate[d] the Constitutional
separation of powers doctrine.” R. Vol. I, doc. 98, p. 1.
12
Order and Judgment filed August 11, 2004, pp. 13-14.
9
defendant conceded his testimony was incorrect. Recalling defendant’s trial testimony that
he had not received any money from Childress, his employer, at the time he leased the
apartment and evidence that defendant told the Topeka Housing Authority that he had not
received a check from Childress, the court recounted that the trial exhibits showed that
Childress had written defendant a check before he signed the contract for the apartment.
The judge stated:
And the parties agree that the Government has now obtained copies of the
cancelled checks showing that one was cashed by Defendant before he
signed the lease and another was cashed on the very day that he signed the
lease. The Court recalls this testimony. This testimony relates to a material
matter and was the result of Defendant’s willful intent to provide false
testimony rather than confusion, mistake or faulty memory.
R. Vol. IX, pp. 4-5 (sentencing transcript). There is nothing in the trial judge’s comments
to suggest that a different result would be likely on remand.
The sentence imposed in this case was substantially supported by the evidence. See
United States v. Clifton, 406 F.3d 1173, 1181-82. Our review of the evidence, considered
in light of the sentencing factors identified in 18 U.S.C. §3553(a), does not suggest a
sentence lower than that imposed by the district court.13 Further, we find nothing in the
evidence here that would suggest a complete breakdown in the sentencing process.
13
Defendant sought a downward departure based on his own health and that of his
wife. While consideration of such circumstances is appropriate under §3553(a), we conclude
that the entire record, including the circumstances of these offenses and defendant’s prior
criminal history, amply supports the sentence imposed.
10
As the sentencing error in this case did not seriously affect the fairness, integrity or
public reputation of judicial proceedings, we AFFIRM the sentence.
11