United States v. Majors , 426 F. App'x 665 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 15, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-1141
v. (D.C. No. 1:07-CR-00471-JKL-01)
(District of Colorado)
ERIC RICHFIELD MAJORS,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HARTZ, HOLLOWAY and O’BRIEN, Circuit Judges.
In this direct criminal appeal, Defendant-Appellant Eric Richfield Majors contests
two components of his sentence. Jurisdiction of this appeal is granted to this court by 28
U.S.C. § 1291, and our review is guided by 18 U.S.C. § 3742(e).
I
Mr. Majors and another were indicted on multiple counts of securities fraud, wire
fraud, and mail fraud. More than a year after his indictment, Mr. Majors pleaded guilty to
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
a single count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371.
Because this appeal presents only limited sentencing issues, we need not delve into the
underlying facts, which are quite complex. We note, for example, that a nearly forty-
pages-long section of the Plea Agreement is devoted to setting out the factual basis for the
guilty plea, facts to which both Mr. Majors and the prosecution stipulated.
After entry of the guilty plea, the probation office prepared a Presentence
Investigation Report (PSR). Among other things, the PSR included calculation of the
sentencing range under the advisory United States Sentencing Guidelines, and it
recommended imprisonment for sixty months, the statutory maximum. The PSR also
recommended that Mr. Majors participate in mental health treatment during his period of
supervised release. After Mr. Majors had objected to that recommendation, it was
changed (in an Addendum to the PSR) to a recommendation that Mr. Majors undergo a
psychological evaluation as part of the period of supervised release following his
imprisonment.
The PSR also addressed the matter of restitution to the Internal Revenue Service
(IRS) for income taxes due for previous years. Even though Mr. Majors had admitted in
his plea agreement that he would owe restitution to the IRS, the initial version of the PSR
recommended no restitution because the amount owed was disputed and because the IRS
is capable of enforcing tax liabilities on its own, without assistance from the Probation
Office. Although the prosecution had objected to that recommendation, the subsequently
issued Addendum also recommended that no restitution to the IRS be ordered as part of
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the sentence.
At sentencing, the district judge resolved two disputed matters from the PSR, ones
which are not at issue in this appeal. As to all other disputes between the parties
regarding the PSR, the judge announced that he would not resolve those because those
issues would have no bearing on his decisions. After hearing from counsel for both sides
and from Mr. Majors, the judge pronounced sentence. In addition to the term of
imprisonment already noted, the sentence included two components that are challenged
before this court. First, the judge ordered Mr. Majors to participate in a program of
mental health treatment as part of his three-year term of supervised release.1 Second, the
judge ordered Mr. Majors to pay restitution to the IRS in the amount of $39,301.17.2
II
On appeal, Mr. Majors challenges the requirement that he undergo mental health
treatment during his period of supervised release, and the requirement that he pay
$39,301.17 in restitution to the IRS.
1
This part of the judgment states:
The defendant shall participate in and successfully complete a program of
mental health treatment, as approved by the probation officer, until such
time as the defendant is released from the program by the probation officer.
The defendant shall pay the cost of treatment as directed by the probation
officer. The Court authorizes the probation officer to release to the
treatment agency all psychological reports and/or the presentence report for
continuity of treatment.
2
Mr. Majors was also ordered to pay restitution totaling approximately
$146,000.00 to identified victims. That part of the judgment is not at issue in this appeal.
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A
To decide the dispute about the mental health treatment requirement, we must first
identify our standard of review. This in turn depends on whether the issue presented by
Mr. Majors is characterized as one of procedural reasonableness or one of substantive
reasonableness. This follows from two facts. First, Mr. Majors did not object at
sentencing to the requirement (although as noted he had objected to the recommendation
for treatment in the original PSR), and so he forfeited any issue of procedural
unreasonableness. Second, when a sentence is challenged on the ground that it is
procedurally unreasonable, we review forfeited issues only for plain error, see United
States v. Romero, 491 F.3d 1173, 1176-77 (10th Cir. 2007). But when the substantive
reasonableness of a sentence is challenged “we do not require the defendant to object in
order to preserve the issue,” United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th
Cir. 2006), so long as the defendant made the argument in the district court before
sentence was pronounced, see United States v. Mancera-Perez, 505 F.3d 1054, 1059
(10th Cir. 2007), which Mr. Majors did in this case.
Mr. Majors declares that his challenge is substantive. He contends that “there was
simply no evidence in the record to support the court’s order for mental health
treatment.”3 As Mr. Majors notes, we have held that “a challenge to the sufficiency of the
3
Opening Brief of Appellant Eric Majors at 12. In response to the government’s
argument that the alleged error is procedural, Mr. Majors offers this interesting
observation: “This dispute appears to be rooted in the fact that the entry of a condition of
supervised release without any evidentiary basis constitutes a procedural error that results
(continued...)
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[18 U.S.C.] § 3553(a) justifications relied on by the district court implicates the
substantive reasonableness of the resulting sentence.” United States v. Smart, 518 F.3d
800, 804 (10th Cir. 2008). We agree that Mr. Majors’ challenge does go primarily to the
sufficiency of the justifications relied on by the district court and so implicates the
substantive reasonableness of the sentence. Accordingly, our review is for abuse of
discretion. See Smart, 518 F.3d at 805; United States v. Friedman, 554 F.3d 1301, 1307
(10th Cir. 2009).
The government’s argument for plain error review is unpersuasive because the
government does not respond to Mr. Majors’ primary point: that under Smart a challenge
to the sufficiency of the evidence to support a sentence is a substantive challenge.
Instead, the government cites Mr. Majors’ secondary arguments. In addition to the
primary argument, Mr. Majors does assert that the district court failed to explain the
conditions it imposed and failed to comply with Fed. R. Crim. P. 32(i)(3)(B). These are
procedural issues, we recognize, but they are not the primary focus of Mr. Majors’ appeal.
The district court is vested with the authority to include a requirement for mental
health treatment in sentencing when appropriate to meet the sentencing goals set out in 18
U.S.C. § 3553(a). See United States v. Barajas, 331 F.3d 1141, 1144-45 (10th Cir. 2003)
(noting authorization in 18 U.S.C. §§ 3563(b)(9) & 3583(d)). And the Guidelines
recommend that the sentencing court include participation in a mental health program
3
(...continued)
in a substantively improper sentence.” Corrected Reply Brief of Appellant Eric Majors at
2, n.1.
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“[i]f the court has reason to believe that the defendant is in need of psychological or
psychiatric treatment . . . .” U.S.S.G. § 5D1.3(d)(5). But it is an abuse of discretion to
order psychological or psychiatric treatment when there is no evidence that it is necessary
or would be helpful. See United States v. Kent, 209 F.3d 1073, 1077-78 (8th Cir. 2000).4
Mr. Majors in effect contends that there was no reason for the court to believe that
he was in need of mental health treatment. In the “mental and emotional health” section
of the PSR, the probation officer relays Mr. Majors’ report that he has never had a mental
illness and never been suicidal. He reported having had “situational depression” during
the time he was participating in marital counseling, from 1998 to 2001. The probation
officer made contact by telephone with the counselor who had provided that service. Mr.
Majors objected to the PSR’s account of the interview with the counselor, contending that
the counselor’s statements were not trustworthy for several reasons, including that eight
years had lapsed since that counseling.
The district judge opted not to resolve the dispute about the counselor’s
statements, saying that doing so would not affect his sentencing decisions. Accordingly,
we disregard that information in our review of the sufficiency of the court’s justifications
for requiring mental health treatment during the period of supervised release.
Similarly, Mr. Majors objected to the PSR’s relay of information from one of his
ex-wives. The district judge did not resolve that objection, so we assume that the judge
4
Our court has expressed agreement with Kent in an unpublished opinion. United
States v. Hopson, 203 Fed. Appx. 230 (10th Cir. 2006).
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likewise disregarded this part of the PSR.5
Mr. Majors contends that when the evidence not considered by the district judge is
excluded, there is nothing left to support the mental health treatment requirement. The
government offers little support for the district court’s ruling because its brief focuses on
the evidence that the judge specifically said that he would not consider, i.e., the
statements of the former marriage counselor and the former spouse. Other than that, the
government can cite only unsupported speculation that he might have suffered a head
injury in 1999 and Mr. Majors’ statements that he had experienced “situational
depression” during the dissolution of a marriage in the time frame of 1998 to 2001 and
during this prosecution (which coincided with his present wife suffering from a life-
threatening illness).
We find no other evidence to support the ruling. The evidence that exists is clearly
insufficient, we hold. Indeed, Mr. Majors’ description is accurate: There is nothing in
this record to support the conclusion that reason exists to believe that Mr. Majors is in
need of psychological or psychiatric treatment. Therefore, we reverse the imposition of
this condition of supervised release and remand for re-sentencing.
5
The government points out that Mr Majors specifically objected to paragraph 74
of the original PSR, in which the ex-wife opined regarding the commission of the offense.
The government contends that the remarks pertinent to the ex-wife’s opinion of Mr.
Majors’ mental health, which appeared in paragraph 73 of the PSR, should be included in
our analysis.
We think that Mr. Majors’ objection was intended to go to both paragraphs. The
objection was to “inclusion of comments” from the ex-wife. III R. Pt. 2 at 187-88. We
think the district judge likely understood this to pertain to all of her statements.
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B
The other condition of supervised release that is challenged in this appeal is the
requirement that Mr. Majors pay restitution to the IRS in the sum of $39,301.17. Again,
Mr. Majors’ primary argument is that the condition is not supported by any evidence that
was presented to the district court. Mr. Majors acknowledged in his plea agreement that
he owed income taxes for prior years and that the IRS would be entitled to restitution as a
part of his sentence. However, he contends that the prosecution failed to provide
evidence from which the district court could have determined the proper amount owed
and that the specific figure ordered by the district court was based solely on a statement
by the prosecuting attorney at the sentencing hearing.
Once again, the parties dispute the standard of review, but we need not resolve this
dispute. The government, while arguing that review should be only for plain error,
concedes that plain error was committed in this instance because the record shows no
evidence whatsoever to support the amount of restitution ordered by the district court.
The government concedes that we must therefore remand.
Thus, we must remand for re-sentencing.
C
The next question is the scope of our remand. Our basic rule is that when we
remand for re-sentencing, the district court is to conduct a de novo proceeding which
“permits the receipt of any relevant evidence the court could have heard at the first
sentencing hearing.” United States v. Ortiz, 25 F.3d 934, 935 (10th Cir. 1994) (emphasis
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in original). Under specific circumstances, however, we have exercised our discretion to
limit the scope of the proceedings on remand, in particular in cases where the government
had been alerted to deficiencies in its evidence but had nonetheless failed to produce
sufficient evidence to carry its burden of proof on a sentencing factor. See United States
v. Campbell, 372 F.3d 1179, 1183 (10th Cir. 2004); United States v. Forsythe, 437 F.3d
960, 963-64 (10th Cir. 2005).
With respect to the element of the sentence requiring restitution to the IRS, Mr.
Majors asks us to follow these last cited cases rather than allow the government a “second
bite of the apple,” i.e., a second chance to produce evidence that it must have known
would be necessary to support the restitution order. The government asks us to permit it
to introduce evidence on remand on the ground that it was only for “unknown reasons”
that a report that was “apparently” prepared was not made a part of the record.
We conclude that it is better left to the district court to exercise its discretion by
deciding whether to give the government another chance to produce evidence to support a
restitution award to the IRS. The record before us does not permit us to determine the
reasons that prevented the government from producing the evidence in a timely manner.
Similarly, with respect to the condition of psychological treatment, our remand
leaves further proceedings to the discretion of the district court.
The motion to withdraw by counsel for Mr. Majors is denied. Mr. Majors’ pro se
motion to file supplemental argument is denied. We are not obligated to consider pro se
submissions from parties represented by counsel.
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IT IS SO ORDERED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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