[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 5, 2005
No. 05-10150 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00007-CR-HL-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT B. ELLIS, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 5, 2005)
Before TJOFLAT, PRYOR and ALARCON*, Circuit Judges.
TJOFLAT, Circuit Judge:
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
On July 21, 2005, we vacated the defendant’s sentence, remanded the case
for resentencing pursuant to United States v. Booker, 543 U.S. __, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005), and admitted the defendant to bail on the conditions on
which he was admitted prior to sentencing. United States v. Ellis, 2005 WL
1705008 (11th Cir. July 21, 2005). We now explain the basis of that order.
Defendant Robert B. Ellis, Jr., is the former District Attorney for the
Alapaha Judicial Circuit in Georgia. On April 14, 2004, Ellis was indicted in the
United States District Court for the Middle District of Georgia, on three counts of
civil rights violations, 18 U.S.C. § 242, and one count of witness tampering, 18
U.S.C. § 1512(b)(3). The indictment alleged that on three different occasions
between July 2003 and February 2004, while acting under color of law, Ellis
deprived Jody Manning, a defendant in a then-pending criminal case in his judicial
circuit, of her due process right to bodily integrity—twice by “causing her to
engage in sexual acts, resulting in bodily injury to her,” and once by touching her
breasts. The indictment further alleged that Ellis “corruptly persuade[d] and
engage[d] in misleading conduct toward Jody Manning by telling [her] that he
would prefer that she not talk to [the FBI], with the intent to hinder or prevent” the
FBI’s investigation of him. On May 25, 2004, a superseding indictment added a
single count of making a false statement to a federal agent, 18 U.S.C. § 1001,
2
which alleged that on February 24, 2004, when asked by an FBI agent whether he
had ever had sex with a woman with past or pending criminal charges in his
judicial circuit, Ellis falsely answered, “No.”1
Although Ellis maintained that his relationship with Manning was purely
consensual, on August 31, 2004, he pled guilty to making a false statement to the
FBI in violation of 18 U.S.C. § 1001. In exchange, the Government dismissed the
remaining charges against him. The base offense level for the offense to which
Ellis pled guilty was six, U.S.S.G. § 2B1.1, and Ellis’s criminal history category
was I, yielding a guideline range of 0-6 months’ imprisonment. At the sentencing
hearing, however, the district court departed upward nine offense levels under
guideline section 5K2.7, which provides that “[i]f the defendant’s conduct resulted
in a significant disruption of a governmental function, the court may increase the
sentence above the authorized guideline range to reflect the nature and extent of
the disruption and the importance of the governmental function.” The basis for
the departure was the court’s determination that “a local court postponed
prosecuting criminal cases in order to assess the impact and repercussions and
1
The superseding indictment also amended two of the original counts to allege
specifically that Ellis caused Manning to engage in sexual acts “by using force against her.”
These changes responded to a motion to dismiss filed by Ellis, in which he contended that the
corresponding counts in the original indictment did not state offenses because they did not allege
that his sexual contact with Manning was either forcible or not consensual. A second
superseding indictment, filed on June 23, 2004, included no significant substantive revisions.
3
ramifications of [Ellis’s] conduct and acts,” and that “the integrity of the Alapaha
Judicial Circuit district attorney’s office and the public perception of the criminal
justice system were adversely affected.” With a total offense level of 15, Ellis’s
guideline range increased to 18-24 months’ imprisonment, and the court imposed a
sentence of eighteen months.2 As of our July 21 order, Ellis had served slightly
more than eight months of that sentence. Ellis’s appeal challenged only the
upward departure under section 5K2.7.
The error in the district court’s reasoning is clear: Ellis’s false statement to
the FBI did not actually disrupt any governmental function. An upward departure
under section 5K2.7 is not “ordinarily . . . justified” when, as here, “the offense of
conviction is an offense such as bribery or obstruction of justice” because “in such
cases interference with a governmental function is inherent in the offense, and
unless the circumstances are unusual the guidelines will reflect the appropriate
punishment for such interference.” U.S.S.G. § 5K2.7. The Government concedes
that Ellis did not disrupt the FBI’s investigation in the least—indeed, the agents
knew that Ellis was lying when they questioned him—but it argues that an upward
2
Ellis’s offense level was also increased two levels for obstruction of justice, U.S.S.G. §
3C1.1, based on the conduct alleged in the witness tampering account of the original and
superseding indictments, but this increase was offset by a two-level decrease for acceptance of
responsibility, U.S.S.G. § 3E1.1(a).
4
departure is appropriate because Ellis’s false statement disrupted the local criminal
docket and undermined the public perception of the criminal justice system in
general and the integrity of his office in particular. In other words, the collateral
consequences of Ellis’s false statement constitute unusual circumstances justifying
an upward departure.
While the Government’s theory is plausible as a general matter, it breaks
down on the facts of this case, for it is clear from the record that any delay in the
disposition of criminal cases in Ellis’s circuit and any disgrace Ellis brought to his
office or the criminal justice system are the result of Ellis’s conduct toward
Manning—whether consented to or not—and his subsequent indictment, not his
false statement. To be sure, there was credible testimony supporting both sorts of
“disruption of a governmental function,” but the only reasonable inference is that
these disruptions were caused by the allegations of sexual misconduct in the April
14 indictment.
The local court “postponed prosecuting criminal cases in order to assess the
impact and repercussions and ramifications of [Ellis’s] conduct and acts” as soon
as the April 14 indictment, which did not even include the false statement count,
became public. Thus, Ellis’s false statement was logically irrelevant to this
“disruption”; indeed, once Ellis was indicted, it did not matter what he said,
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whether he pled guilty or stood trial, or even whether he was ultimately acquitted.
The same is true with respect to the integrity and public perception of the
district attorney’s office and the criminal justice system. The cause of this loss in
public confidence was clearly Ellis’s indictment and subsequent admission to what
was, at best, a consensual sexual relationship with a criminal defendant in a case
pending in his judicial circuit. It defies common sense, as well as the testimony at
the sentencing hearing, to suggest that the incremental harm, if any, caused by his
false statement was more than de minimis.3
The Government’s argument relies primarily on two cases. At oral
argument, the Government said that United States v. Magluta, 198 F.3d 1265 (11th
Cir. 1999), was its “best case.” The relevant portion of that opinion, however, was
subsequently vacated, 203 F.3d 1304 (11th Cir. 2000), and vacated opinions “are
officially gone. They have no legal effect whatever. They are void. [They have
no] remaining force and cannot be considered to express the view of this Court.”
United States v. Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002).
Accordingly, we do not address Magluta.
3
For example, at the sentencing hearing, the interim district attorney who was appointed
to replace Ellis testified that “a lot of people [he] met . . . would make jokes like . . . how many
girlfriends you got, or who all are you sleeping with.” But there is no evidence or reason to
believe that Ellis’s false statement further undermined respect for the district attorney’s office or
the criminal justice system.
6
The Government’s second case is United States v. Gunby, 112 F.3d 1493
(11th Cir. 1997). In Gunby, the Chief Magistrate Judge for Baldwin County,
Georgia, embezzled more than $400,000 in filing fees paid into his court and
eventually pled guilty to mail fraud and tax fraud counts stemming from that
scheme. Id. at 1496-98. In affirming an upward departure under section 5K2.7,
we reasoned that “[i]f Gunby’s fraudulent schemes caused the people of Baldwin
County to doubt the impartiality of the magistrate court, then Gunby . . .
significantly disrupted a governmental function,” and “[t]he district court did not
abuse its discretion in concluding that guideline section 5K2.7 encompasses this
loss of confidence in government.” Id. at 1502-03. Thus, the “loss of confidence
in government” in Gunby was actually attributable to the fraud to which Gunby
pled guilty. Here, in contrast, any disruption was caused by Ellis’s misconduct
toward Manning and the resulting indictment, not Ellis’s false statement.
Accordingly, Gunby does not support the Government’s position.
Post-Booker, we continue to review the district court’s application of the
Guidelines just as we did pre-Booker: “The district court’s interpretation of the
sentencing guidelines is subject to de novo review on appeal, while its factual
findings must be accepted unless clearly erroneous.” United States v. Jordi, __
F.3d __, 2005 WL 1798055 (11th Cir. Aug. 1, 2005) (quoting United States v.
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Pompey, 17 F.3d 351, 353 (11th Cir. 1994)). As we explain above, the district
court clearly erred if it found that Ellis’s false statement caused any significant
disruption of a governmental function. Therefore, the departure cannot be
sustained on that rationale.
Alternatively, if the district court believed that it could consider the
disruptive effects of Ellis’s indictment and conduct toward Manning, then it
misinterpreted the guideline and erred as a matter of law. A departure under
guideline subpart 5K2 may be based on “conduct underlying a charge dismissed as
part of a plea agreement,” but only to the extent necessary “to reflect the actual
seriousness of the offense.” U.S.S.G. § 5K2.21 (emphasis added).4 That is, such
conduct provides a basis for departure only if it sheds further light on the true
nature of the offense of conviction. An upward departure based on Ellis’s conduct
4
Similarly, section 5K2.0(a) provides that “[t]he sentencing court may depart from the
applicable guideline range if . . . there exists an aggravating or mitigating circumstance . . . of a
kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines.” U.S.S.G. § 5K2.0(a)(1) (emphasis added). The application notes to
section 5K2.0, in turn, define “circumstance” to “include[], as appropriate, an offender
characteristic or any other offense factor.” U.S.S.G. § 5K2.0 application note 1 (emphasis
added). “[T]herefore, upward departures are allowed for acts of misconduct not resulting in
conviction, as long as those acts, whether or not relevant conduct in the section 1B1.3 sense,
relate meaningfully to the offense of conviction.” United States v. Amirault, 224 F.3d 9, 12 (1st
Cir. 2000) (emphasis added); accord United States v. Neal, 249 F.3d 1251, 1259-1260 (10th Cir.
2001). Thus, even though section 5K2.7 refers to “significant disruption of a governmental
function” that results from “the defendant’s conduct,” it must be understood to encompass only
that conduct that “relate[s] meaningfully to the offense of conviction,” rather than any “conduct”
the defendant may be charged with.
8
toward Manning and his subsequent indictment would do nothing to reflect the
“actual seriousness” of the offense to which he pled guilty; rather, it would reflect
the seriousness of unproven allegations that, at least for sentencing purposes, are
not meaningfully related to his false statement to the FBI. Accordingly, any
collateral consequences of these allegations cannot, as a matter of law, form the
basis of an upward departure under section 5K2.7.
In sum, regardless of its precise rationale, the district court committed
reversible error by enhancing Ellis’s sentence under guideline section 5K2.7. By
our July 21 order, the defendant’s sentence has been vacated and the case
remanded for resentencing pursuant to United States v. Booker, 543 U.S. __, 125
S. Ct. 738, 160 L. Ed. 2d 621 (2005). On remand, “[t]he district court[], while not
bound to apply the Guidelines, must consult those Guidelines and take them into
account when sentencing.” Id. at __, 125 S. Ct. at 767. “[B]ecause true
consultation cannot be based on an erroneous understanding of the Guidelines,”
United States v. Crawford, 407 F.3d 1174, 1183 (11th Cir. 2005), the district must
begin by calculating an advisory guideline range that does not include a section
5K2.7 enhancement. The district may then “tailor the sentence in light of other
statutory concerns as well.” Booker, 543 U.S. at __, 125 S. Ct. at 757.
9