United States v. Bacon , 322 F. App'x 591 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 15, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-4125
v.
(D.C. No. 2:07-CR-00910-TC-1)
(D. Utah)
MICHAEL ALEXANDER BACON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and GORSUCH, Circuit Judges.
Michael Bacon appeals his sentence of 60 months’ imprisonment for
burglary. He contends that the district court failed to comply with Federal Rule
of Criminal Procedure 32 by neglecting to provide him the opportunity to
comment on a letter it received prior to sentencing from a county prosecutor
concerning his prior criminal conduct. We conclude that any error was harmless
because the letter added nothing to what was already apparent from the
*
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
undisputed facts in the presentence report available to the parties. Accordingly,
we affirm.
***
After Mr. Bacon and his wife, Freeda Bacon, were indicted for their roles
in a pair of post office burglaries, they both pled guilty. Prior to their sentencing,
a Sevier, Utah county attorney wrote a letter to the Assistant United States
Attorney prosecuting both Mr. and Ms. Bacon. The letter urged leniency for Ms.
Bacon, but not for Mr. Bacon:
Allow me to express the appreciation of many people in this area of
the state for your prosecution of Michael Bacon. In every sense of
the word, he is a menace to society.
However, I am obligated to request leniency on behalf of his wife
Freeda. She has provided much useful information and cleared many
cases for us. I should also note that she has been in no trouble since
Mr. Bacon was locked up. With her small child, I hope you will
consider probation and no incarceration.
Supp. Vol. III
This letter found its way from the U.S. Attorney’s office to the district
court, though the timing and mode of its transmission is not clear from the record
before us. At Ms. Bacon’s sentencing hearing, the district court referred to the
letter “from the Sevier County Attorney, who requests that in essence I throw the
book at Michael Bacon, but that I put Ms. Freeda Bacon on probation, which I am
inclined to do.” Supp. Vol. I. at 2-3. The district court sentenced Ms. Bacon to
24 months of probation.
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Nine days later, the court held a sentencing hearing for Mr. Bacon. The
pre-sentencing report (“PSR”) detailed Mr. Bacon’s 15 prior convictions,
including five burglaries, one theft, two attempted uses of another’s credit card or
financial transaction card, one forgery, one arson, one threat against life or
property, and one possession of controlled substances. The PSR resulted in a
criminal history score of 33, a criminal history category of VI, and a
recommended guideline range of 30 to 37 months.
At the sentencing hearing, the government sought an upward departure and
a sentence between 48 and 60 months. The government argued that Mr. Bacon’s
criminal history category under-represented his prior criminal history and the
likelihood he would commit future crimes. USSG § 4A1.3(a)(1). Meanwhile,
Mr. Bacon sought a downward departure, arguing that his difficult childhood
predisposed him to illegal activities. At the sentencing hearing, the court
recognized Mr. Bacon’s tragic upbringing but ultimately concurred with the
government’s recommendation, sentencing Mr. Bacon to 60 months. The court
neither referenced the letter nor disclosed its existence in the course of sentencing
Mr. Bacon.
***
On appeal, Mr. Bacon claims that he learned about the Sevier County
Attorney letter only after his sentence, and that the court did not comply with
Fed.R.Crim.P. 32(i)(1) by failing to afford him the opportunity to comment on its
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description of him as a “menace to society.” The government does not dispute
that Mr. Bacon was unaware of the letter at the time of his sentencing, but does
dispute whether any Rule 32 violation took place. The government argues that
Rule 32 only applies to information on which the district court relied at
sentencing and there is no indication the court relied on the letter in Mr. Bacon’s
sentence. Alternatively, the government submits, the district court did not have to
disclose the letter under Rule 32 because its description of him as a “menace to
society” was merely a pejorative characterization, not factual information.
All of these arguments are beside the point, however, if, assuming a Rule
32 violation occurred, the violation was harmless. 1 Appellate courts exist, after
all, to correct errors that affect a defendant’s “substantial rights,” Fed. R. Crim.
P. 52(a), not those that don’t, id. (stating that “[a]ny error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded”).
Accordingly, before reversing a district court’s sentence we are required by law to
ask “whether the [putative] error had a ‘substantial influence’ on the sentencing
determination or leaves one in ‘grave doubt’ as to whether it had such effect.”
1
Ordinarily, an asserted error to which a party did not object before the
district court is reviewed by this court for plain error. See United States v.
Jordan, 890 F.2d 247, 250 (10th Cir. 1989). We find plain error review
inappropriate in this circumstance because Mr. Bacon was unaware of the letter at
the sentencing hearing and thus had no opportunity to object on Rule 32 grounds.
See Fed. R. Crim. P. 51(b) (“If a party does not have opportunity to object to a
ruling or order, the absence of objection does not later prejudice that party.”).
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United States v. Garcia, 78 F.3d 1457, 1465 (10th Cir. 1996) (quoting Kotteakos
v. United States, 328 U.S. 750, 765 (1946)).
On the facts of this case, we see no way to answer that question
affirmatively. The district court’s decision to grant an upward departure on the
basis sought by the government – namely, that the criminal history category
assigned to Mr. Bacon by the guidelines failed to capture fully his criminal
history or the likelihood that he would commit future crimes, U.S.S.G. § 4A1.3 –
was supported by overwhelming evidence in the PSR made available to the
parties. The PSR detailed 15 prior convictions spanning 18 years. Mr. Bacon’s
resulting criminal history score of 33 was almost three times the number needed
for a criminal history category of VI, the highest category contemplated by the
guidelines. In addition, Mr. Bacon’s criminal history set forth in the PSR
established an increasing propensity for violence, as well as a disregard for the
terms of his sentences. We count at least two probation revocations, three parole
revocations, and two escapes. In connection with his 2004 conviction for arson
and threat against life or property, the victim reported that Mr. Bacon “threatened
to dismember him and gouge out his eyes” if he didn’t leave the state; to show
that he was serious, he said he would torch a building and “[a]bout an hour later,
a storage shed within one block of the [victim’s] home was set on fire.” PSR at
20-21. In connection with a 2007 forgery scheme, officers learned that Mr.
Bacon “put a knife to [a confederate’s] throat and he told her that if she were not
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a relative she would already be dead. [Mr. Bacon] told her to leave, and [the
confederate] moved out of the Richfield area.” Id. at 23.
While the information contained in the PSR was more than sufficient to
support the district court’s sentence, Mr. Bacon offers us no countervailing reason
to think that the unproduced letter had any, let alone a substantial, influence on
the district court’s ultimate sentencing determination. He thus gives us no path
for overcoming the harmless error hurdle imposed by Fed. R. Crim. P. 52.
Neither are we able to discern any such plausible path for ourselves. To be sure,
the letter attached a pejorative label to Mr. Bacon, and we have no need to rule
out the possibility some undisclosed pejorative characterization could, in some
imaginable case, have a substantial impact on a court’s sentencing decision. But
in the case before us the stark and undisputed facts of Mr. Bacon’s criminal
history, as embodied in the PSR, speak much louder than the pejorative found in
the letter. In fact, they all but drown it out. In these circumstances, we cannot
help but conclude that the letter had no meaningful effect on the ultimate sentence
Mr. Bacon received; his criminal past did.
The district court’s sentence is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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