[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 17, 2005
No. 03-12810 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00262-CR-3-J-20HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM ALLEN ARNOLD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 17, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
The appeal of William Allen Arnold, pro se, is again before us, following a
remand from the Supreme Court of the United States for further consideration in
light of United States v. Booker, 125 S. Ct. 783 (2005). See Arnold v. United
States, 125 S. Ct. 2527 (2005). We previously affirmed Arnold’s conviction and
twelve-month sentence for conspiring to defraud the United States, in violation of
18 U.S.C. § 371. United States v. Arnold, 125 Fed. Appx. 269 (11th Cir. 2004).
After review, we conclude that because Arnold raised a Booker-type claim in his
initial brief on appeal, but raised no such claim before the district court, we can
review his sentence only for plain error. However, because Arnold has not
demonstrated a reasonable probability of a different result under the post-Booker
advisory guidelines system, we again affirm Arnold’s sentence and reinstate in part
our prior opinion.
BACKGROUND
After the jury returned a guilty verdict, the Pre-Sentence Investigation
Report (“PSI”) calculated $217, 586.00 as the total tax loss attributable to Arnold’s
role in the conspiracy. Using this loss amount, the PSI recommended a base
offense level of sixteen, pursuant to U.S.S.G. § 2T1.1(a)(1). The PSI also
recommended a two-level enhancement for obstruction of justice, pursuant to
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U.S.S.G. § 3C1.1, due to Arnold’s continued refusal to comply with grand jury
proceedings – conduct that ultimately resulted in a criminal contempt conviction.
With an adjusted offense level of 18 and a criminal history category of I, the PSI
calculated his guidelines’ imprisonment range at 27 to 33 months.
Arnold filed a pro se affidavit stating his objections to the PSI. His
extensive objections largely concerned allegations that the district court lacked
jurisdiction, as well as his related quasi-constitutional claims regarding the Internal
Revenue Service and Social Security Administration. While Arnold did repeatedly
object to the tax loss amounts calculated, he did not do so based on the judge’s
determination of the tax loss or jury’s failure to find the tax amount. Arnold’s
affidavit also failed to reference the Sixth Amendment or any cases in the line of
Apprendi v. New Jersey, 530 U.S. 266 (2000).
At the sentencing hearing, Arnold refused to address the district court
regarding his objections, repeatedly stating that he would remain silent and stand
on the objections contained in his previously-submitted affidavit. He explicitly
declined to be heard on the issue of tax loss calculations.
The district court ultimately overruled any objections and adopted the PSI’s
factual findings and guideline calculations. However, the district court then
departed downward pursuant to U.S.S.G. §5G1.3, because Arnold had already
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served 18 months for criminal contempt based on his failure to cooperate with the
grand jury proceedings. The district court ultimately sentenced Arnold to twelve
months’ imprisonment and two years’ of supervised release.
On appeal, Arnold, again proceeding pro se, raised a variety of claims
concerning his conviction and sentence. In relevant part, Arnold again objected to
the district court’s tax loss calculation on several grounds, including a claim that
his “sentence is not lawful” because it was “based upon [tax loss] ‘numerics’ . . .
conjured after trial, for a charge never even alleged, much less tried.” Appellant
Br. at 50 (emphasis in original). Arnold argued that imposing such a sentence
where the tax loss amount was neither charged nor tried, would “ rocket-sled
through the due process barrier at light speed.” Id.
We affirmed Arnold’s conviction and sentence, finding the tax loss amount
used by the district court in sentencing was a reasonable estimate of the tax loss
during the time of Arnold’s involvement in the conspiracy. Arnold, 125 Fed.
Appx. 269. Arnold then filed a petition for a writ of certiorari with the Supreme
Court. The Supreme Court granted that petition, vacating our opinion and
remanding the case for further consideration in light of Booker. Arnold, 125 S. Ct.
2527.
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STANDARD OF REVIEW
While Arnold asserts that he raised the Booker issue both at trial and on
direct appeal, the record does not support this assertion. Arnold’s sentencing
“affidavit” did not object to the district court’s estimation of the tax loss under the
preponderance standard, raise his jury trial rights under the Sixth Amendment, nor
cite to any case in the Apprendi line. See United States v. Dowling, 403 F.3d
1242, 1246 (11th Cir. 2005) (holding that appellant’s non-constitutional sentencing
objection failed to preserve Booker error, where the objection made no reference to
the Sixth Amendment, the role of judge as fact-finder, the right to jury
determination of disputed facts, or the Apprendi line of cases).
However, when reviewed under the liberal standards applicable to pro se
arguments, see Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000),
Arnold’s initial brief on appeal does appear to raise a Booker-type claim.
Specifically, Arnold argued that his sentence violated constitutional due process
guarantees because the tax loss amount was never tried before the jury, but instead
was calculated after trial. Appellant Brief at 50. Given our obligation to liberally
construe pro se filings, we hold that Arnold’s appellate-brief arguments are
sufficient to raise the Booker issue. Nonetheless, because Arnold did not raise any
such issue below, we review his Booker claim only for plain error. United States
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v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005), cert. denied, 125 S. Ct. 2935
(2005).
DISCUSSION
Under plain error review, appellate courts have a limited power to correct
errors that were not timely raised in the district court. United States v. Olano, 507
U.S. 725, 731 (1993). We may not correct such an error unless: (i) there is error;
(ii) it is plain; and (iii) it affects substantial rights. Id. If these three conditions are
met, we may exercise our discretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
In this case, the district court committed both constitutional and statutory
Booker errors when it sentenced Arnold under a mandatory guidelines system
based upon facts (the tax loss amount and Arnold’s obstruction of justice) that
were neither admitted by Arnold nor proven to a jury beyond a reasonable doubt.
Booker, 125 S. Ct. at 756. Though this error was not apparent at the time of
sentencing, under Booker it is now plain. Rodriguez, 398 F.3d at 1299.
However, it does not appear that under the third prong of the plain-error test,
Arnold’s substantial rights have been affected. The third prong of plain error
review requires Arnold to demonstrate that absent the error, there is a reasonable
probability of a different result. Id. Where the effect of the error is indeterminate
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or if we would be left to speculate, that burden has not been satisfied. Id. at 1301.
A close review of the record reveals no suggestion that the district court would
have imposed a lower sentence under the post-Booker advisory sentencing system.
As such, Arnold has failed to demonstrate that the Booker error affected his
substantial rights. See United States v. Cartwright, 413 F.3d 1295, 1301 (11th Cir.
2005).
Accordingly, we reinstate our prior opinion with the exception of our
discussion of the district court’s tax calculation, for which we substitute the
foregoing.
OPINION REINSTATED IN PART; AFFIRMED.
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