United States v. Zajac ( 2022 )

Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 28, 2022
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 20-4123
v. (D.C. No. 2:06-CR-81-CW-JCB-1)
(D. Utah)
THOMAS JAMES ZAJAC,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TYMKOVICH, SEYMOUR, and EBEL, Circuit Judges.
In September of 2010, Thomas Zajac was convicted on a multicount indictment
for bombing the Salt Lake City library. Initially, he was sentenced to 420 months
imprisonment, including a 360-month sentence for using or carrying a destructive device
in violation of 18 U.S.C. § 924(c)(1)(B)(ii). That part of the conviction was vacated by
the district court after the Supreme Court determined that § 924(c) was unconstitutionally
vague. United States v. Davis, 139 S. Ct. 2319, 2336 (2019).
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Thereafter, on November 6, 2020, the district court resentenced Mr. Zajac to 258
months imprisonment with credit for time served on the remaining counts. In arriving at
this new sentence, the district court relied on its mistaken belief that 18 U.S.C. § 844(i)
required the sentence on Count 1 to run consecutively to the sentences on the remaining
counts. Rec., vol. II at 83, 88, 98. As this mistake of law constitutes plain error, we
reverse and remand for resentencing.
Background
In September 2006, Thomas Zajac placed and detonated a homemade bomb in the
Salt Lake City Library. The bomb resulted in property damage but no personal injury.
Approximately a month later, the Salt Lake City Police Department received a
threatening letter which included unreleased details about the bombing and additional
threats about a future bomb that would be larger and designed to kill. Federal agents
soon linked the bomb and the threatening letter to Mr. Zajac, who held an apparent
grudge against the Salt Lake police for a 2004 DUI that his son received.
Mr. Zajac was indicted, convicted, and ultimately sentenced on the following six
counts: Count 1, attempting to damage and destroy a building using an explosive device
in violation of 18 U.S.C. § 844(i); Count 2, using or carrying a destructive device in
relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(B)(ii); Count 3,
possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d); Count
4, being a felon in possession of a destructive device in violation of 18 U.S.C. §
922(g)(1); Count 5, possessing a destructive device following a domestic violence
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conviction in violation of 18 U.S.C. § 922(g)(9); and Count 6, willfully using the mail to
threaten the use of explosives in violation of 18 U.S.C. § 844(e).
After Count 2 was vacated by the district court in a § 2255 proceeding, Mr. Zajac
was resentenced. In this appeal he asserts that during the resentencing the district court
plainly erred because of its mistaken belief that that a sentence under 18 U.S.C. § 844(i)
must run consecutively to the remaining counts. 1
Standard of Review
Neither Mr. Zajac nor the government objected to the district court’s erroneous
assertion that it was required to run the § 844(i) sentence consecutively to all other
counts. Consequently, we review for plain error. Plain error occurs when there is (1)
error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects
the fairness, integrity, or public reputation of judicial proceedings. United States v.
Finnesy, 953 F.3d 675, 691 (10th Cir. 2020) (quotations and citations omitted).
Discussion
As we have noted, during the November 6, 2020 sentencing hearing the district
court repeatedly expressed the mistaken belief that it was required to run the § 844(i)
sentence consecutively to the other counts. The plain language of § 844(i) has no such
requirement: “Whoever maliciously damages or destroys, or attempts to damage or
destroy, by means of fire or an explosive, any building…shall be imprisoned for not less
1
Mr. Zajac also asserts allocution errors in this appeal but it is not necessary to
reach the merits of those claims because any such alleged errors can be corrected on
remand.
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than 5 years and not more than 20 years, fined under this title, or both . . . .” 18 U.S.C. §
844(i). The district court’s error was therefore plain, satisfying the first and second prong
of the plain error standard. A sentence imposed under a plainly erroneous belief that a
statute commands a sentence to run consecutively to sentences on other counts also
satisfies the third and fourth prongs of the plain error standard because the integrity of the
judicial process is challenged where the court fails to correct such an obvious error. See
United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014); see also Molina-
Martinez v. United States, 578 U.S. 189, 203, 204 (2016) (citing Sabillon-Umana, 772
F.3d at 1333, 1334); United States v. Silva, 981 F.3d 794, 802-03 (2020) (citing Sabillon-
Umana, 772 F.3d at 1333-34).
In remanding for resentencing, we pass no judgment on the propriety of the overall
sentence. We merely remand this matter to the district court for resentencing with the
knowledge that there is no statutory requirement that the sentence on Count 1 run
consecutively to the sentences on the remaining counts.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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United States v. Zajac, No. 20-4123,
EBEL, J., concurring.
I concur fully in the majority order and judgment in this case. I agree with the
panel that Zajac’s sentence must be reversed and this case remanded for resentencing
because the district court mistakenly believed that Zajac’s sentence on Count 1 had to run
consecutively to his sentences on the remaining counts. I write separately because I
believe the district court also denied Zajac an adequate opportunity for allocution.
Addressing that error briefly here may aid the district court in avoiding further error on
remand.
Rule 32(i)(4)(A)(ii), Fed. R. Crim. P., requires the district court, before imposing
sentence, to “address the defendant personally in order to permit the defendant to speak
or present information to mitigate the sentence.” “Trial judges . . . should . . .
unambiguously address themselves to the defendant” and “should leave no room for
doubt that the defendant has been issued a personal invitation to speak prior to
sentencing.” Green v. United States, 365 U.S. 301, 305 (1961) (plurality). “[T]he right
of allocution is denied when a district court attempts to unduly limit the scope of a
defendant’s allocution statement.” United States v. Bustamante-Conchas, 850 F.3d 1130,
1136 (10th Cir. 2017) (reh’g en banc) (citing cases). That is essentially what occurred
here, not by design but because of how the sentencing proceeding unfolded.
Briefly stated, after Zajac’s conviction on Count 2 was vacated, the district court
conducted the sentencing proceeding at issue here in order to resentence Zajac on his
remaining five convictions. The court, after indicating it was “inclined to apply the
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sentencing packaging” doctrine to resentence Zajac (II R. 83), heard from the attorneys
on each side as to their sentencing recommendation. The court then stated: “I want to
hear from Mr. Zajac, but I believe before I allow him to talk to the Court and before I
make a judgment, I should alert you and give you an opportunity to respond as to how
I’m thinking about this at the present time.” (Id. at 86–87.) Then the court addressed, for
the first time and in some detail, how it intended to apply the sentencing packaging
doctrine to divide Zajac’s remaining convictions into three groups and then impose a
sentence for each group, resulting in a total sentence above the advisory sentencing
guideline range. The court then asked each attorney if he had any further argument. The
prosecutor spoke briefly, accepting the court’s position; defense counsel made a longer
argument. The court then addressed Zajac personally and asked: “Mr. Zajac, do you wish
to make any further statement to the Court?” (Id. at 90.)
Zajac apparently believed that the court wanted him to address just the court’s
structural plan to break the sentencing into the three groups. Zajac indicated it was his
understanding from the PSR and from discussions with defense counsel that the advisory
guideline range was between 62 and 78 months.
I thought that that is what we were working within given that that is the [PSR]
report. And I’m not sure what you’re describing when you break it into three
groups because I am simply not clear what the nomenclature is but that is
about as much as I know to say about it.
(Id.) The district court then clarified how the court intended to calculate Zajac’s new
sentence. The court then concluded its explanation by stating:
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So with that additional clarification you need to understand, Mr.
Zajac, that the Court is going to impose a sentence that is above the guideline
sentence.
THE DEFENDANT: Okay.
THE COURT: Anything further from anyone before I proceed and
make a judgment as to what the appropriate sentence in this case should be?
[PROSECUTOR]: Nothing from the United States, Your Honor.
[DEFENSE COUNSEL]: Nothing, Your Honor.
(Id. at 91–92.) The sentencing court then imposed sentence.
The court’s use of the phrase “any further statement,” coming on the heels of the
attorneys’ statements addressing the district court’s proposed method for determining his
sentence, would have signaled to an objectively reasonable person in Zajac’s position that
the district court wanted him, at that time, just to address the court’s proposed sentencing
method. See United States v. Platero, 564 F. App’x 927, 930 (10th Cir. 2014)
(unpublished) (rejecting defendant’s argument that the district court denied him an
adequate opportunity for allocution because the sentencing court issued the defendant an
“objectively clear invitation . . . to allocute”).
Under these circumstances, the court never addressed Zajac personally to give him
a clear and unambiguous opportunity for allocution on any subject other than the court’s
proposed sentencing procedure to provide separate sentences for each of three groups of
convictions. The court’s invitation to Zajac cannot reasonably be understood to have
been a broad-gauged invitation to Zajac to allocute generally on any matter other than the
court’s specified tripartite procedure. After the court had received everybody’s
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statements and was prepared to issue the sentence, the court asked generally of everybody
collectively “[a]nything further from anyone.” (II R. 92.) Because that inquiry was not
directed specifically to Zajac, it also was insufficient. See Bustamante-Conchas, 850
F.3d at 1135, 1137 (holding that sentencing court’s general inquiry, asking “if there was
any reason that [the already announced] sentence should not be imposed,” did not satisfy
Rule 32(i)(4)(A)(ii)’s requirement that the district court address the defendant
personally); see also United States v. Taylor, 457 F. App’x 835, 837 (11th Cir. 2012)
(unpublished) (holding district court denied defendant his right to allocution when the
court asked “‘whether counsel or his client had anything they wished to add’ or whether
there was ‘anything else anyone wants to say’” (alterations omitted)). The sentencing
court failed to “leave no room for doubt” that it had issued Zajac “a personal invitation to
speak [in allocution] prior to sentencing,” Green, 365 U.S. at 305.1 This violated Rule
32(i)(4)(A)(ii). The district court will have an opportunity to correct that error on
resentencing.
1
Although in a Rule 32(i)(4)(A)(ii) challenge, we evaluate what the court said rather than
how the defendant interpreted the court’s invitation for allocution, when the allocution
invitation on its face is ambiguous or inadequate, we can look to the defendant’s response
but only as evidence of the intrinsic ambiguity of the allocution offer itself. That is, the
test is ultimately not whether the defendant misunderstood the offer but rather whether
the offer itself was clear and unambiguous and directed specifically to the defendant. See
Platero, 564 F. App’x at 930.
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