United States Court of Appeals
For the First Circuit
No. 03-1384
UNITED STATES OF AMERICA,
Appellee,
v.
STELIOS ANTONAKOPOULOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Victor A. Wild, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Cynthia A. Young,
Assistant United States Attorney, were on brief for appellee.
Terrance J. McCarthy for appellant.
February 22, 2005
LYNCH, Circuit Judge. In this case we set forth our
standards for review of unpreserved claims of sentencing errors in
the aftermath of United States v. Booker, 543 U.S. ___, 125 S. Ct.
738 (2005).
Defendant Stelios Antonakopoulos was convicted by a jury
on August 2, 2002 on one count of bank fraud, under 18 U.S.C.
§§ 1344 and 2, and one count of theft/embezzlement by a bank
officer, under 18 U.S.C. § 656. He defrauded the National Bank of
Greece (NBG) in November 1990, and embezzled funds from the
Mercantile Bank and Trust Company (MBT) in Boston, in July of 1991.
Antonakopoulos had been Branch Manager of the Boston Branch of NBG
from March 1983 to July 20, 1988, at which time he became President
and a member of the Board of Directors of MBT. He was sentenced to
30 months' imprisonment, largely based on the calculation of loss
amount under the Sentencing Guidelines. He was also ordered to pay
$350,000 in restitution.
Antonakopoulos has appealed his sentence, arguing that
the district court erred on both points -- the amount of loss was
lower and so his sentence should be shorter and the restitution was
excessive. On appeal he also argues for the first time that a
jury, not a judge, should have calculated the loss amount. From
this he argues he is entitled to a remand for resentencing under
Booker.
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The government now concedes that a portion of the
restitution amount ordered was in error under the statutory scheme
in place at the time of the offense. It requests that the
restitution amount be reduced from $350,000 to $100,000. We order
the reduction in the restitution amount accordingly. We reject all
of Antonakopoulos's other claims, including his Booker claim as it
is presented, but leave one door open under Booker.
I.
The district court's calculation of loss attributable to
the defendant and the amount of restitution is described herein.
The details of how the frauds were perpetrated are not described,
other than to say defendant kept helping himself to money to which
he was not entitled in order to buy stocks on the Athens Stock
Exchange (ASE) and then, as the stock prices fell, to pay off
previous loans obtained by fraud. The defendant thought that
Athens would be named to host the 1996 Olympic Games, and that as
a result, the stocks would soar in value. He had hoped to get
himself half a million dollars for his retirement fund. When
Athens was not named as host and the stock prices fell, his fraud
became a sort of Ponzi scheme covering up his victimizing of banks
and bank customers.
The scheme, in count one, was executed in July 1990 when
Antonakopoulos caused the NBG wrongly to advance a loan of $50,000
in the name of Michael Mavris, a relative of Antonakopoulos who
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lived in California. Antonakopoulos actually deposited the loan
proceeds into an account that he had opened in the name of his
brother Nikolaos, and not Michael Mavris. These funds were used to
purchase stocks on the ASE. Neither Nikolaos nor Marvis was aware
of these machinations.
From November 7, 1990 to November 9, 1990, the defendant
caused NBG to wrongly advance $190,000 in the name of his brother,
Nikolaos (count two). Antonakopoulos deposited the funds in the
account he opened in his brother's name. The funds were used in
part to pay off the previous loan then in default. On November 29,
1990, Antonakopoulos created a loan for $170,000 from MBT to the
name of Nondas Lagonakis, using Lagonakis's name without his
permission or knowledge. The proceeds from this loan were used to
pay off an earlier loan the defendant had obtained by fraud and to
continue to buy stocks on the ASE. Although the $170,000 loan was
not charged in the indictment, evidence of it was admitted by the
district court at trial under Fed. R. Evid. 404(b).
In July 1991, in an effort to cover up his previous fraud
by paying off those loans, Antonakopoulos embezzled $100,000 from
the account of an MBT customer, Maurice Frances, without Frances's
knowledge or permission (count three). Antonakopoulos was able to
hide this transaction from Frances because he arranged for
Frances's monthly statements to be held at MBT, and not sent
directly to Frances in Greece.
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After eight days of trial, the jury convicted the
defendant on counts two and three and deadlocked on count one.
The Pre Sentence Report
Applying the November 1, 1990 Sentencing Guidelines
Manual, the Pre-Sentence Report (PSR) calculated Antonakopoulos's
offense level alternatively under the embezzlement and theft
guideline, U.S.S.G. § 2B1.1, which has a base offense level of 4,
and under the fraud guideline, U.S.S.G. § 2F1.1, which has a base
offense level of 6. Under both, if the loss exceeds a certain
amount, the guidelines required an upward adjustment.1 The PSR
concluded that under either guideline the amount of loss was more
than $350,000, but less than $500,000. In calculating loss, the
PSR found that the convictions on counts two and three meant the
defendant was responsible for the loss resulting from the $190,000
Nikolaos Antonakopoulos loan in November 1990, and the embezzlement
of $100,000 from the account of Maurice Frances in July 1991. This
$290,000 loss figure was coupled with the loss associated with
other fraudulent loans made by the defendant; those loans met the
relevant conduct definition because they were "part of the same
course of conduct and have been proven by a preponderance of the
evidence."2 U.S.S.G. § 1B1.3(a)(1). The PSR added the outstanding
1
Under U.S.S.G. § 2B1.1, the amount was $100; under U.S.S.G.
§ 2F1.1, the amount was $5,000.
2
The loans outlined in the PSR as relevant conduct included a
May 31, 1990 loan to Nikolaos in the amount of $47,000; three loans
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balance of each of those loans and determined that the total loss
was $435,600. This calculation of loss enhanced the defendant's
sentence (a) by 11 levels under U.S.S.G. § 2B1.1 and (b) by 9
levels under U.S.S.G. § 2F1.1. This produced a total offense level
of 15 under either guideline, subject to further enhancements. In
fact the PSR may have understated the loss because it considered
only the outstanding loan balances. Cf. United States v. Walker,
234 F.3d 780 (1st Cir. 2000).
The PSR also recommended enhancing Antonakopoulos's
offense level by a total of six additional levels, including two
levels for more than minimal planning, under U.S.S.G. § 2F1.1(b)(2)
or 2B1.1(b)(5); two levels for obstruction of justice, under
U.S.S.G. § 3C1.1; and two levels for role in the offense, under
U.S.S.G. § 3B1.3. The PSR concluded that Antonakopoulos's total
offense level under either the fraud or embezzlement guideline was
21, his criminal history category was I, and his guideline
sentencing range was 37 to 46 months' imprisonment.
to Nondas Lagonakis in the amounts of $100,000, $170,000, and
$85,000, issued on June 27, 1990, November 29, 1990, and May 10,
1991 respectively; and a loan in the amount of $50,000 to Michael
Mavris. The only relevant conduct considered by the district court
in calculating loss was the $170,000 loan to Lagonakis. While not
prohibited from considering the amount of the Mavris loan, on which
there was acquittal, the court declined to do so in the calculation
of loss.
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Court's Sentencing
The district court calculated the defendant's guideline
range under U.S.S.G. § 2B1.1, finding that the defendant's crimes
were most analogous to embezzlement. As for calculation of loss,
the court considered only what it deemed to be the three
transactions fully developed at trial: the $190,000 loan to
Nikolaos in November of 1990, the $170,000 loan to Lagonakis in
November of 1990,3 and the $100,000 embezzlement from Frances's
account. These produced a total loss of $460,000. With the
exception of the $170,000 loan to Lagonakis, the district court did
not consider the other "relevant conduct" in its calculation. Had
it done so, the loss amount would have been greater and, most
likely, the sentence would have been greater.
The district court rejected the defendant's request to
reduce the amount of loss based on any repayments made by the
defendant on these loans, relying on Walker, 234 F.3d at 783-84.
Based on loss between $350,000 and $500,000, the district court
enhanced the defendant's base offense level from 4 to 15, as the
PSR recommended.
The district court declined the government's request to
enhance the defendant's sentence for obstruction of justice. The
other two enhancements -- for more than minimal planning and for
3
The defendant did not object to the characterization of this
loan as relevant conduct under U.S.S.G. § 1B1.3(a)(1).
-7-
role in the offense -- were not directly addressed by the court at
the sentencing hearing, but they were clearly included in the
court's final determination of the offense level, which was 19.
The court did not grant the defendant's motion for two
downward departures: the first based on post-offense rehabilitation
and the second based on family circumstances. As to the first, the
defendant argued that since his illegal conduct he "has been
unblemished and free from incident," and cited his exemplary work
record, his constant and committed caring for his son, and his
active participation in his church. The district court replied,
"the first one [based on post-offense rehabilitation] I don't think
is a difficult one. Presentence rehabilitation wouldn't even be an
issue in this case had it not taken so long to bring this case to
trial from the time of the original offense." The court's
conclusion on this point was made irrespective of the fact that
this is a rare ground of departure under the guidelines.4
Although not presented to us as part of the defendant's
Booker argument, our own review of the record shows that the
4
The court continued by stating:
But putting that observation aside, I think United States
v. Craven [239 F.3d 91 (1st Cir. 2001)] more or less
rules out a departure on that ground in this case. . . .
[T]his is a hen's teeth rare departure and . . .
generally . . . the Court['s consideration] should be
directed to . . . whether rehabilitation began pre arrest
or post arrest. Where it is post arrest it would be [a]
hen's teeth rare circumstance, the award of a departure
on that ground.
-8-
defendant also asked for a downward departure based on family
circumstances under U.S.S.G. § 5K2.0 -- he argued that he was an
"irreplaceable" care taker for his adult son who suffered serious
and permanent brain injuries as the result of a 1993 automobile
accident. The court considered and rejected the request, stating:
What is difficult about this case is obviously
the situation with the defendant's son, which
anyone would have a compassionate reaction to.
And I don't understand the government not to
have that reaction.
I am however persuaded, by Mr. Wild's
memorandum that there are adequate alternative
means of care. Therefore, I do not believe
that the very high standard established by
[United States v. Pereira, 272 F.3d 76 (1st
Cir. 2001)] permits a departure for that
ground in this case either.
I do think the situation of the son is an
adequate ground actually to impose a sentence
at the minimum that the guideline range
otherwise calls for, which by my calculation I
believe to be 30 to 37 months.
The court correctly determined that the appropriate
offense level was 19, with a criminal history category of I,
resulting in a guideline range of 30 to 37 months. The court
sentenced the defendant to 30 months' imprisonment, the bottom end
of the range.
In an entirely different calculation, one which does not
affect the defendant's sentence of imprisonment, the district court
ordered restitution in the amount of $165,000 to be paid to MBT and
$185,000 to be paid to Lagonakis as mandated by U.S.S.G. § 5E1.1.
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II.
Effect Of Unpreserved Booker Error on Sentences
Oral argument in this case was heard on February 8, 2005
after the Supreme Court decided United States v. Booker, 543 U.S.
___, 125 S. Ct. 738 (2005). We address for the first time this
circuit's standards for unpreserved claims of Booker error in cases
on direct appeal.5
To summarize our position at the outset, we intend to
apply, in accordance with Justice Breyer's admonition, conventional
plain-error doctrine where a Booker error exists but has not been
preserved. See id. at 769; United States v. Olano, 507 U.S. 725,
731-32 (1993). The Booker error is that the defendant's Guidelines
sentence was imposed under a mandatory system. The error is not
that a judge (by a preponderance of the evidence) determined facts
under the Guidelines which increased a sentence beyond that
authorized by the jury verdict or an admission by the defendant;
the error is only that the judge did so in a mandatory Guidelines
system. A mandatory minimum sentence imposed as required by a
statute based on facts found by a jury or admitted by a defendant
is not a candidate for Booker error. The first two Olano
requirements –- that an error exists and that it is plain at the
time of appeal –- are satisfied whenever the district court treated
5
This opinion is, of course, without prejudice to petitions
for rehearing and rehearing en banc.
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the Guidelines as mandatory at the time of sentencing. But to meet
the other two requirements –- that this error affected defendant's
substantial rights and would impair confidence in the justice of
the proceedings –- we think that ordinarily the defendant must
point to circumstances creating a reasonable probability that the
district court would impose a different sentence more favorable to
the defendant under the new "advisory Guidelines" Booker regime.
We follow the more flexible standard for plain error articulated in
United States v. Dominguez Benitez, 542 U.S. ___, 124 S. Ct. 2333
(2004). We engage in case by case review and we reject certain
automatic reversal rules.
We explain our position, starting by describing what we
regard as the Booker error, and what is an "unpreserved" Booker
error, and then address in turn the content of plain-error review
in a Booker situation, the standard to be used at the third and
fourth prongs, and our rejection of automatic reversal rules.
A.
Booker reaffirmed the principle of Apprendi v. New
Jersey, 530 U.S. 466 (2000), 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," but did so only insofar as the
sentence resulted from a mandatory system imposing binding
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requirements on sentencing judges. Booker, 125 S. Ct. at 756.
Justice Stevens' opinion for the Court stressed that it was the
mandatory nature of the Guidelines which raised constitutional
concerns:
If the Guidelines as currently written could
be read as merely advisory provisions that
recommended, rather than required, the
selection of particular sentences in response
to differing sets of facts, their use would
not implicate the Sixth Amendment. . . .
The Guidelines as written, however, are not
advisory; they are mandatory and binding on
all judges.
Id. at 750. And Justice Breyer's opinion stated:
[W]ithout this provision--namely the provision
that makes the relevant sentencing rules . . .
mandatory and impose[s] binding requirement on
all sentencing judges--the statute falls
outside the scope of Apprendi's requirement.
Id. at 764 (internal quotation marks omitted).
The Court, as part of its remedy, struck two provisions
from the Sentencing Reform Act. Id. at 765. It excised from the
statute the provision which had mandated that judges sentence
within the Guidelines range. See 18 U.S.C. § 3553(b)(1) ("[T]he
court shall impose a sentence of the kind, and within the range,
referred to in subsection (a)(4) [which in turn referred to the
Guidelines] . . . ."). It also excised the provision which gave
the courts of appeals de novo review over certain aspects of
sentencing. 18 U.S.C. § 3742(e). The remainder of the Sentencing
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Reform Act is intact and the Guidelines must be considered by the
district courts in sentencing. Booker, 125 S. Ct. at 767.
Justice Breyer's opinion in Booker directly addressed the
issue of how the courts of appeals should address unpreserved
claims of Booker error, holding: "[W]e expect reviewing courts to
apply ordinary prudential doctrines, determining, for example,
whether the issue was raised below and whether it fails the 'plain-
error' test." Id. at 769. Under the post-Booker approach,
"district courts, while not bound to apply the Guidelines, must
consult those Guidelines and take them into account when
sentencing," subject to review by the courts of appeals for
"unreasonableness." Id. at 767.
B.
Forfeited Error
We briefly address what a "forfeited" error is as to
Booker, so as to raise plain-error review.
The error under Booker is, as we have said, that the
defendant was sentenced under a mandatory Guidelines system. A
variety of arguments led the Supreme Court to that conclusion,
wending from Apprendi, through Ring v. Arizona, 536 U.S. 584 (2002)
and Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), to
Booker. The argument that a Booker error occurred is preserved if
the defendant below argued Apprendi or Blakely error or that the
Guidelines were unconstitutional. This is broader in scope than
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the argument that the mandatory Guidelines system was
unconstitutional. Generally, there is no Booker argument if the
sentence imposed was a statutory mandatory minimum sentence
resulting from facts found by a jury or admitted by the defendant.6
Here the defendant agrees that the Booker issue was not
preserved, so at most he is entitled to plain-error review. The
government, for its part, concedes that the Booker issue was
forfeited and not waived.7 Like many other choices criminal
defendants make, there may be some risks to defendants in seeking
Booker remands.8
Content of Plain-Error Review
Under Olano, for the court of appeals to notice and
correct an error not objected to in the district court, "[t]here
must be an 'error' that is 'plain' and that 'affect[s] substantial
rights.'" Olano, 507 U.S. at 732. If those three factors are all
6
We need not address here substantial assistance departures
below mandatory minimum sentences, 18 U.S.C. § 3553(e), or safety
valve departures, 18 U.S.C. § 3553(f), and what effect if any
Booker had on them. See United States v. Crosby, No. 03-1675, 2005
WL 240916, at *4 n.8 (2d Cir. Feb. 2, 2005).
7
"[F]orfeiture is the failure to make the timely assertion of
a right, waiver is the intentional relinquishment or abandonment of
a known right." Olano, 507 U.S. at 733 (internal quotation marks
and citation omitted).
8
In traditional remands for new trials or for resentencing
made at defendant's behest, a judge may at times impose a higher
sentence under the Guidelines in effect at the time of the original
sentencing. We do not address what constraints may exist on the
resentencing judge.
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met, the court of appeals then has discretion to correct the error
only if it "seriously affects the fairness, integrity or public
reputation of judicial proceedings." Id. at 736 (internal
quotation marks and alteration omitted). Olano also makes it clear
that under plain-error analysis "[i]t is the defendant rather than
the Government who bears the burden of persuasion with respect to
prejudice." Id. at 734.
The first two prongs of the Olano test as to Booker error
are satisfied whenever defendant's Guidelines sentence was imposed
under a mandatory Guidelines system. There was "error" and it was
"plain" at least at the time of appellate consideration. See
Johnson v. United States, 520 U.S. 461, 468 (1997). So far, all
circuits have reached the same conclusion.
The more significant questions arise as to application of
the third and fourth prongs to unpreserved Booker claims. In
Olano, the court gave some definition to the phrase "affecting
substantial rights" in the third prong by requiring a defendant to
make a showing of prejudice. Olano, 507 U.S. at 735. The Olano
court stressed that "[n]ormally . . . the defendant must make a
specific showing of prejudice to satisfy the 'affecting substantial
rights' prong" of the plain-error test. Id.
Choosing Among Third Prong Plain-Error Standards
The Supreme Court has used different formulations,
varying with context, as to the content of the defendant's burden
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to show his "substantial rights" have been affected. Clearly, the
prejudice alleged from the mandatory Guidelines system must relate
to some degree of likelihood of the error having affected his
sentence. The Supreme Court has articulated at least "four
assertedly different standards of probability relating to the
assessment of whether the outcome of trial would have been
different if error had not occurred." Dominguez Benitez, 542 U.S.
___, 124 S. Ct. at 2342 (Scalia, J., concurring) (emphasis in
original). This poses the question of which is the most
appropriate standard to apply to Booker errors.
A Booker error strikes us as qualitatively different from
an inquiry into the likely effect of a trial error on a verdict of
conviction. The different articulated standards for prejudice
which Justice Scalia cited all involve trial error: the question
was what degree of effect was required on the outcome of a verdict
of guilt. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(assessing prejudice standard for overturning conviction based on
trial error on collateral review); Strickland v. Washington, 466
U.S. 668, 694 (1984) (assessing prejudice standard for overturning
conviction based on ineffective assistance of counsel claims);
United States v. Agurs, 427 U.S. 97, 111-13 (1976) (assessing
prejudice standard for overturning convictions based on Brady
violation claims); Chapman v. California, 386 U.S. 18, 24 (1967)
(assessing prejudice standard for overturning conviction on direct
-16-
review for constitutional errors). On trial error claims, because
there is a record of all evidence introduced (or excluded) at
trial, it is often easier to determine whether there was any likely
effect on the verdict of guilt, than it is to predict the effect
here of a possible new and more lenient sentence under the Booker
regime.
In claims of sentencing error in non-capital cases, the
Supreme Court has addressed the question of plain-error review, but
only as to the fourth Olano prong. In United States v. Cotton, 535
U.S. 625, 631-32 (2002), the Court applied plain-error analysis to
an Apprendi error. The Apprendi attack was on an enhanced
statutory maximum9 based on drug quantity which was not specified
in the indictment. Cotton reversed the court of appeals ruling
which had vacated the sentence and remanded for resentencing. Id.
at 634. Cotton did not address whether the defendant's substantial
rights were affected. It skipped to the fourth prong and said the
error "did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings" where the evidence as to
quantity of drugs was overwhelming. Id. at 632-33. Cotton does
not itself address the third prong of the plain-error test.
9
Cotton, however, can also be viewed as closer in category to
claims that due to a trial error the verdict of guilt should be
vacated. It is relatively easy, as in Cotton, to evaluate whether
the presented evidence of drug quantity was overwhelming,
regardless of whether it was for purposes of verdict or sentencing.
In Cotton it was clear no other outcome was possible and so the
fourth prong of Olano could not be met.
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For Booker purposes, the Supreme Court's most recent
articulation of the third prong of the plain error test, in
Dominguez Benitez, 124 S. Ct. at 2333, strikes us as most apt. The
Court extended, to an unpreserved claim of a Rule 11 violation, the
general tethering of the prejudice requirement to an effect on
outcome. Id. at 2340. The Court adopted a standard that:
[A] defendant who seeks reversal of his
conviction after a guilty plea, on the ground
that the district court committed plain error
under Rule 11, must show a reasonable
probability that, but for the error, he would
not have entered the plea. A defendant must
thus satisfy the judgment of the reviewing
court, informed by the entire record, that the
probability of a different result is
sufficient to undermine confidence in the
outcome of the proceeding.
Id. (internal quotation marks omitted). Dominguez Benitez also
held that "[t]he reasonable-probability standard is not the same
as, and should not be confused with, a requirement that a defendant
prove by a preponderance of the evidence that but for error things
would have been different." Id. at 2340 n.9.
The Court in Dominguez Benitez formulated its standard by
noting the contrast between the Rule 11 problem it addressed and
the trial error claims presented in Strickland, supra, and Brady v.
Maryland, 373 U.S. 83 (1963). Both Strickland and Brady claims,
inter alia, may be presented in post-conviction proceedings, at
which evidence may be taken. By contrast, the defendant presenting
a Rule 11 claim will rarely, if ever, be able to obtain relief in
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post-conviction proceedings. Dominguez Benitez, 124 S. Ct. at 2340
n.9. Without today deciding the issue of whether Booker may be
raised in post-conviction relief, the Dominguez Benitez reasoning
seems more apt here.
C.
Rejection of Automatic Plain-Error Rules
We need not discuss the exact relationship between the
"reasonable probability of a different outcome" third prong
standard of Dominguez Benitez and Olano's fourth prong. But we
reject two per se arguments, whether made under the third or fourth
prong. We reject a per se remand rule solely on the basis that a
defendant's sentence was enhanced by judicial fact finding beyond
that authorized by facts found by the jury or admitted by the
defendant (a Blakely error), and we reject a per se remand rule
solely on the basis that the Guidelines are no longer mandatory.
Blakely Error
For several reasons, we reject the view that a Blakely
error automatically requires a Booker remand. This is a necessary
consequence of our view of the nature of the Booker error. At
least two circuits view the nature of the error as we do. See
United States v. Rodriguez, No. 04-12676, 2005 WL 272952 (11th Cir.
Feb. 4, 2005); United States v. Crosby, No. 03-1675, 2005 WL 240916
(2d Cir. Feb. 2, 2005). As Judge Newman said in Crosby: "As a
result of the Remedy Opinion in Booker/Fanfan, . . . the maximum
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lawful sentence is the statutory maximum sentence, and because
judicial fact-finding under advisory guidelines cannot increase
that lawful maximum, judicial fact-finding now encounters no Sixth
Amendment difficulties." 2005 WL 240416, at *3 n.6.
It may be that other circuits view this differently.
Earlier, of course, under Blakely, the possible error was thought
to be that the judge, based on facts found by him, had increased
the sentence beyond that authorized solely by the facts found by
the jury or admitted by the defendant. Some circuits may have
found such situations sufficient unto themselves to constitute
Booker error and to warrant remand under Booker. See, e.g., United
States v. Milan, Nos. 02-6245/6302, 2005 WL 309934 (6th Cir. Feb.
10, 2005); United States v. Oliver, No. 03-2126, 2005 WL 233779
(6th Cir. Feb. 2, 2005); United States v. Hughes, No. 03-4172, 2005
WL 147059 (4th Cir. Jan 24, 2005).10 That situation standing alone
-- that the judge found additional facts which raised the sentence
authorized solely by the jury verdict or guilty plea -- in our view
10
An argument has been made in United States v. Milan, Nos.
02-6245/6302, 2005 WL 309934, at *7 (6th Cir. Feb. 10, 2005), that
because the Supreme Court "remanded Booker's case for
resentencing," the Court must have decided "that the error in his
case was reversible, i.e., was not harmless and affected Booker's
substantial rights." Id. We do not think such an inference can be
made from Booker's remand. There were only two questions on which
the Supreme Court granted certiorari, and neither dealt with the
circuit court's decision to remand the case for resentencing.
Booker, 125 S. Ct. at 747 n.1. Further, the circuit court had
remanded, without discussing plain-error review, because the
government had waived any such argument. Booker v. United States,
375 F.3d 508, 515 (7th Cir. 2004).
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is insufficient to meet the third and fourth Olano prongs on plain-
error review. We explain why.
It is far from necessarily true, as a per se remand rule
assumes, that a judge who found the facts underlying an enhanced
sentence would have reached a different result under a post-Booker
regime. In these situations a judge's factual findings, unless
they were found to be clearly erroneous, are far more likely than
not to be the same if the case were remanded. The fact that the
judge initially did the fact finding on a certain factor is surely
a different matter than what the judge would have done with that
factor if the Guidelines were not mandatory. The use of judicial
fact finding, then, ordinarily cannot alone meet the "reasonable
probability" standard of the third Olano prong.
A second reason for rejecting such an automatic plain-
error rule in Blakely situations is that there is nothing
inherently unreliable about judicial fact finding that raised a
sentence beyond that authorized solely by the jury verdict or
guilty plea. Under Booker, a judge may do such fact finding in
determining the Guidelines range. Nothing in Booker requires
submission of such facts to a jury so long as the Guidelines are
not mandatory. That judicial fact finding was used certainly, in
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our view, cannot itself mean that the fourth prong of Olano is met;
more is needed.11
Further, to find plain error automatically in Blakely
situations would be inconsistent with pre-Booker law. Even before
Booker, and after Blakely, this circuit had rejected any such
automatic rule of reversal and remand for resentencing when a judge
engaged in fact finding that raised the defendant's sentence beyond
that authorized by the jury verdict or guilty plea. See United
States v. Morgan, 384 F.3d 1 (1st Cir. 2004). So did the Supreme
Court in Cotton, 535 U.S. at 634.
We also do not adopt the contrary per se rule that a
Blakely type situation cannot meet the standard of a reasonable
probability of a different sentence. The burden is on the
defendant to convince us on specific facts.
Non-Mandatory Guidelines
The plain-error standard is not met by a simple assertion
that the defendant was sentenced under a mandatory Guidelines
11
Nor is this structural error. In certain structural error
cases, those which "undermin[e] the fairness of a criminal
proceeding as a whole," errors can be corrected regardless of an
individualized showing of prejudice to the defendant. Dominguez
Benitez, 124 S. Ct. at 2339; Olano, 507 U.S. at 735; see Arizona v.
Fulminante, 499 U.S. 279, 309-310 (1991) (providing examples of
structural error). Because sentencing under a mandatory system is
not an error that "undermines the fairness of a criminal proceeding
as a whole," as we discuss above, a Booker type error is not a
structural error; the defendant must convince us of prejudice.
Indeed, had the majority in Booker thought there was structural
error, it would have said so.
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system, and so is entitled to remand. In our view, one cannot
possibly say that all sentences imposed before Booker threatened
the fairness, integrity, or public reputation of judicial
proceedings, or undermined our confidence in the outcome of the
sentence, simply because the Guidelines were mandatory. As to the
"reasonable probability" test under the third prong, it is not met
by the mere assertion that the court might have given the defendant
a more favorable sentence.
D.
Booker Remand Considerations
It would be a fool's errand for us to try now to describe
all situations in which remand may be warranted under plain-error
review. We offer a few observations.
First, where in a pre-Booker world we would have remanded
for procedural12 or substantive error in the application of the
Guidelines, that would normally lead to a Booker remand. Where, as
in pre-Booker cases, we engage in plain-error review and find it
clear that the district court has made a sentencing error under the
Guidelines, the correction of which ordinarily would have led to a
lower sentence in the pre-Booker era, there is a strong argument
for remand. See, e.g., United States v. Sedoma, 332 F.3d 20, 29
12
The Ninth Circuit's decision in Ameline may fall into this
category because the sentencing court violated pre-Booker circuit
precedent, but we are uncertain. See United States v. Ameline, No.
02-30326, 2005 WL 350811, at *7-*8 (9th Cir. Feb. 10, 2005).
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(1st Cir. 2003) (resentencing granted in plain-error review of a
grouping error which led the district court to increase defendant's
sentence by 58 months). This means that in some cases we will
continue to review pre-Booker type claims of Guideline error where
it is plausible that the error committed affected the sentence.
Accord United States v. Rodriguez, No. 04-12676, 2005 WL 272952
(11th Cir. Feb. 4, 2005). There may of course be other errors,
whether based on sentencing or not, that could also lead to a
remand, such as when the government is in breach of a plea
agreement.
Second, as Crosby points out, there is also the category
of claims about either aggravating or mitigating circumstances that
existed at the time of the original sentence but which were not
available for consideration under the mandatory Guidelines regime.
Crosby, 2005 WL 240916, at *11.
Finally, history shows that the mandatory nature of the
Guidelines has produced particular results which led trial judges
to express that the sentences imposed were unjust, grossly unfair,
or disproportionate to the crime committed, and the judges would
otherwise have sentenced differently. See, e.g., United States v.
Jackson, 30 F.3d 199, 203 (1st Cir. 1994); United States v.
Studley, 907 F.2d 254, 259-60 (1st Cir. 1990); see also United
States v. You; 382 F.3d 958, 967 (9th Cir. 2004); United States v.
Thompson, 367 F.3d 1045, 1046 (8th Cir. 2004); United States v.
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Thames, 214 F.3d 608, 611 (5th Cir. 2000); United States v.
Vizcaino, 202 F.3d 345, 347 (D.C. Cir. 2000). Where the district
judge has said as much about a Guidelines sentence, that is a
powerful argument for remand. If the resulting sentence after
remand is itself unreasonable, the government can appeal. By like
token, if the district judge has said at sentencing that he would
have reached the same result regardless of the mandatory nature of
the Guidelines, that is a powerful argument against remand.
A district judge's expression that he would have
sentenced a defendant more favorably if the Guidelines were not
mandatory is certainly not the only vehicle for a remand. The
existence of prejudice should not turn on how vocal the district
judge was. Even in cases where the judge was silent, there may be
cases in which the appellate panel is convinced by the defendant
based on the facts of the case that the sentence would, with
reasonable probability, have been different such that both the
third and fourth prongs have been met, and remand will be
warranted.
Our sister circuits have taken a variety of positions on
plain error review of Booker errors, some of which differ from
ours. Compare United States v. Crosby, No. 03-1675, 2005 WL 240916
(2d Cir. Feb. 2, 2005) (remanding all cases of claimed Booker error
to district court to decide whether to resentence and to do so if
they wish); with United States v. Ameline, No. 02-30326, 2005 WL
-25-
350811 (9th Cir. Feb. 10, 2005) (finding plain error when judicial
fact finding raised sentence above that authorized solely by jury
verdict); United States v. Oliver, No. 03-2126, 2005 WL 233779 (6th
Cir. Feb. 2, 2005) (same); United States v. Hughes, No. 03-4172,
2005 WL 147059 (4th Cir. Jan 24, 2005) (same); and with United
States v. Bruce, No. 03-3110, 2005 WL 241254 (6th Cir. Feb. 3,
2005) (declining to exercise discretion to notice claim of plain
error on fourth prong of Olano, despite judicial fact finding that
raised defendant's sentence above that authorized solely by facts
admitted in guilty plea, because evidentiary support for district
court's upward departure was sufficiently "overwhelming"); and with
United States v. Rodriguez, No. 04-12676, 2005 WL 272952 (11th Cir.
Feb. 4, 2005) (finding no plain error under third prong of Olano
when defendant merely claimed that under advisory system, sentence
might have been lower if enhancement issue had gone to jury).
There is no reason for us to comment further or to
attempt to distinguish those cases. The situation created by
Booker, although subject to familiar rules as to preserved and
unpreserved claims, is an unusual one and transitory in nature.
There may well be a range of entirely reasonable choices as to
plain error review, which vary with the circumstances of the
circuit.
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III.
Application of These Standards to Antonakopoulos
Antonakopoulos's primary argument is a Blakely type
argument that Booker automatically requires resentencing because
the court, rather than the jury, made the following findings to
enhance his sentence beyond that authorized by the jury verdict
alone: (1) the amount of loss, (2) his role in the offense, and
(3) the offense involved more than minimal planning. We have just
rejected the premise of this argument.
If the district court had committed clear error in those
three findings on which enhancements were based, that would provide
a basis for a remand. The court did not err. We take
Antonakopoulos to argue that independent of the order of
restitution, the district court erred in the calculation as to the
amount of loss for purposes of determining the applicable
Guidelines range. Factual findings as to the amount of loss by the
district court are reviewed for clear error; the appropriate method
for calculating loss amounts under U.S.S.G. § 2B1.1 is a question
of law and is reviewed de novo. United States v. Walker, 234 F.3d
780, 783 (1st Cir. 2000). Antonakopoulos preserved this issue.
The defendant argues that the district court erred by
failing (a) to credit the repayments that he claims were made to
MBT and other victims and (b) to recognize that the loss
attributable to the Lagonakis loan was actually attributable to the
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"vagaries of the stock market, not any actions of Mr.
Antonakopoulos." These arguments are without merit. Nor is there
any merit to a suggestion that there was no factual basis for his
enhancements based on role in the offense and more than minimal
planning.
At sentencing, the district court calculated the loss by
adding the two loans established at trial -- the $190,000 loan in
the name of Nicklas Antonakopoulos and the $170,000 loan in the
name of Nondas Lagonakis -- and the $100,000 embezzled from the MBT
account of Maurice Frances, which MBT ultimately paid to Maurice
Frances. The defendant does not challenge the amount of the loans
and the use of U.S.S.G. § 2B1.1. His argument is that the district
court did not consider the alleged repayments he made. The court
would have erred if it had done what Antonakopoulos requested. See
Walker, 234 F.3d at 783 (In sentencing under U.S.S.G. § 2B1.1, the
"sentencing court properly calculated loss by summing the amounts
of the [transactions] without regard for any repayments made [by
the defendant] at other times."). The loss calculation is
determined by the risk to which the bank was exposed at the time of
the embezzlement without consideration of any intention or even the
actual act of repayment of the funds. Id. at 783-84.
The district court gave the defendant several breaks at
sentencing. It chose not to consider, although it easily could
have, loss figures from relevant conduct which would have produced
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a sentencing range of 33 to 41 months. Instead, the court adhered
to a lower loss figure, which gave a range of 30 to 37 months, and
then gave the lowest point on that range -- a sentence of 30
months.
There is another type of Booker argument available but
which Antonakopoulos has not made: that there is a reasonable
probability that the district court, freed of mandatory guidelines,
would have given him a lower sentence. Because this case
establishes the standard for such a claim, we think it fairer to
give Antonakopoulos and his counsel time to consider whether he
wishes to advance the argument. If so, the prosecution must have
a chance to respond.
At sentencing the defendant sought a downward departure
based in part on the fact that his son was brain damaged and he had
been his son's caretaker. The court determined that others can
also provide care, and indeed have done so during his imprisonment.
The main grounds on which he sought remand, under Blakely, are now
gone. This ground, that of family circumstances, is still open and
is not frivolous.
If defendant wishes to pursue this remaining type of
Booker resentencing claim, he should advise this court and submit
a supplemental brief within ten days, in compliance with our rules,
not to exceed 15 pages. The brief should address the standards
articulated in the opinion. The government shall have five days to
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file a response of no greater length. If the defendant does not
make such a supplemental filing within the time allotted, he will
be deemed to have waived this option and judgment shall enter
accordingly.
IV.
Restitution Order
At the time of the conduct in question, U.S.S.G.
§ 5E1.1(a)(1) stated that the court "shall . . . [e]nter a
restitution order if such order is authorized under 18 U.S.C.
§§ 3663-3664." U.S.S.G. § 5E1.1(a)(1) (emphasis added). 18 U.S.C.
§ 3663 states: "The court, when sentencing a defendant convicted of
an offense under this title . . . may order, in addition to . . .
any other penalty authorized by law, that the defendant make
restitution to any victim of such offense . . . ." 18 U.S.C.
§ 3663. An order of restitution is a separate calculation from the
calculation of loss, and the amount of restitution has no bearing
on the defendant's Guidelines range or term of imprisonment.13
We review restitution orders for abuse of discretion and
the subsidiary findings of fact for clear error. United States v.
Cutter, 313 F.3d 1, 6 (1st Cir. 2002). If the appellant's
challenge is based on a legal conclusion, we review that conclusion
de novo. Id. Where the defendant has failed to object below, as
13
The defendant presents no serious claim of Booker error as
to restitution.
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is the case here, we review only for plain error. United States v.
Theodore, 354 F.3d 1, 8 (1st Cir. 2003).
The district court awarded restitution in the amount of
$350,000. The restitution amount included $165,000 to MBT and
$185,000 to Nondas Lagonakis. The government concedes error as to
$250,000, and argues that the appropriate amount of restitution is
$100,000 to MBT.14 This amount represents the money MBT paid to
Frances to replace the $100,000 Antonakopoulos embezzled from
Frances's account and on which Antonakopoulos was convicted under
count three.
Not content with the government's concession, the
defendant argues that this reduced amount of $100,000 is plain
error because the court, in ordering any restitution to MBT for the
money embezzled from the account of Maurice Frances, failed to take
into account the payments previously made to Frances by the
defendant. A simple principle disposes of the argument. The loss
was to MBT; any repayment Antonakopoulos relies on was to Frances,
not MBT. Defendant's complicated machinations in the fraud have
come back to bite him. There was no error, much less plain error.
14
The calculation of restitution is governed by statute, and
the government concedes that at the time the charged conduct
occurred, there was no statutory basis upon which the district
court could have granted restitution to MBT for the additional
$65,000 or to Lagonakis for $185,000. We accept the government's
concession without addressing the merits of its argument.
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V.
We affirm the conviction and reject certain challenges to
the sentence, as made. We order a reduction in the amount of
restitution to $100,000 to MBT. We retain jurisdiction for such
further proceedings as are described herein.
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