United States v. Hamilton ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 31, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-5124
(D.C. No. 4:16-CR-00096-JED-1)
TIMOTHY PAUL HAMILTON, JR., (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, BALDOCK, and EID, Circuit Judges.
_________________________________
Appellant Timothy Hamilton, along with his parents, owned and operated two
companies used to defraud investors. In all, his misrepresentations persuaded 18
individuals to invest almost $900,000 in the businesses. Although some of the
money was returned, most of it was used for personal benefit, including supporting
Hamilton’s aspirations to become a country music star. Hamilton pleaded guilty to
an information charging him with wire fraud in violation of 18 U.S.C. § 1343. The
district judge sentenced Hamilton to the statutory maximum, above his recommended
Guidelines range. He appeals the sentence, asserting the district court erred by
*
This order and judgment is not binding precedent, except under the doctrines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.
failing to provide notice of its intent to depart upward as required by Fed. R. Crim. P.
32(h), rendering his sentence procedurally and substantively unreasonable. We
conclude the sentence was reasonable because the district court did not depart, but
rather varied upward. Therefore, no notice was required.
I.
As part of his plea agreement and allocution, Hamilton acknowledged the
court had discretion to impose any sentence up to the federal maximum, which in this
case was five years. The presentence investigation report recommended a Guideline
range of 37 to 46 months’ imprisonment, but Hamilton filed a motion for downward
variance requesting a probation sentence without imprisonment. The Government
opposed the motion, arguing instead for a sentence near the upper end of the
recommended Guidelines range.
In Hamilton’s Petition to Enter Plea of Guilty, he stated that although he hoped
for lenience, he was “prepared to accept any punishment permitted by law which the
Court [saw] fit to impose.” Further, the accompanying certificate made clear
Hamilton’s counsel had advised him of the court’s sentencing discretion and that the
court could “depart from the advisory [G]uideline range or impose a non-[G]uideline
sentence.” During Hamilton’s change of plea hearing, the magistrate judge made
sure Hamilton understood “that regardless of the [G]uidelines range, [the district
court] may sentence you to imprisonment for up to the maximum time allowed by
law.” Hamilton also stated no sentence had been promised to him and that he knew
the district court could impose a sentence more severe than he was expecting.
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At Hamilton’s sentencing the Government produced several victims to testify,
many of whom noted Hamilton had used religion as a way to gain their trust.
Hamilton apologized to the victims, admitted wrongdoing, and asked the court for
mercy. The court discussed each of the reasons Hamilton presented for a downward
variance, rejecting each in turn because “there are no factors present that separate this
defendant from the mine-run of similarly situated defendants to a degree that
warrants a downward variance.” The district court then found a sentence greater than
the recommended Guidelines sentence was warranted:
On the contrary, the court finds that a sentence within or below
the advisory guideline range is insufficient based upon the
aforementioned factors and a greater sentence is warranted. Therefore,
the defendant’s motion for nonguideline sentence is denied, and the
court will vary upward to a total offense level of 24. Combined with the
defendant’s criminal history category of I, the resulting variance
guideline range is 51 to 60 months.
The court recognizes that the United States Sentencing
Guidelines are advisory and not mandatory, but has considered the
sentencing guidelines along with all of the factors set forth in Title 18 of
the United States Code, Section 3553(a) to reach an appropriate and
reasonable sentence in this case.
In determining a sentence, the court has considered the nature of
the offense and the defendant’s lack of criminal history and his personal
characteristics. This case involved the defendant conspiring with his
parents to defraud 18 individuals of a combined total of 868 thousand
dollars—$868,300. The defendant is 32 years old with no prior criminal
convictions and no history of substance abuse. Based on these factors, a
sentence within the advisory guideline range will serve as an adequate
deterrent to this defendant as well as others, promote respect for the
law, provide just punishment for the offense, and provide protection for
the public. . . . Restitution is mandatory.
Aplt. App. 158–60.
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In the sentencing documents, the district court judge checked “variance” on the
minutes sheet, and in its Statement of Reasons under Section IV, “Court
Determination for a Variance,” the court checked “extreme conduct” and “victim
impact” as reasons supporting “[t]he nature and circumstances of the offense
pursuant to 18 U.S.C. § 3553(a)(1).” In the same subsection, under “[t]he history and
characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1),” the court
checked “Remorse / Lack of Remorse.” The space for stating “the basis for a
variance” referred to Section VIII of the form, where the district court reiterated its
explanation of the sentence on the record at the hearing.
Hamilton now appeals his sentence, arguing the district court erred by failing
to give notice of its intent to give a sentence greater than the recommended Guideline
range, and as a result, his sentence is procedurally and substantively unreasonable.
II.
Federal Rule of Criminal Procedure 32(h) requires courts “give the parties
reasonable notice that it is contemplating [] a departure,” and “specify any ground on
which” the departure might be based. Fed. R. Crim. P. 32(h). Hamilton argues the
district court erred by failing to provide the required notice of its intent to depart
upward, but this argument was not preserved for appeal. See Aplt. Br. at 13
(explaining the failure of defense counsel to object to lack of notice at sentencing
was “[un]imaginable” and “clearly defective”). Where a defendant fails to object to a
lack of notice under Fed. R. Crim. P. 32(h), this Court reviews for plain error. United
States v. Atencio, 476 F.3d 1099, 1104–05 (10th Cir. 2007) (en banc), overruled in
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part on other grounds by Irizarry v. United States, 553 U.S. 708 (2008). To
demonstrate plain error, Hamilton “must show: ‘(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. Bustamante-Conchas,
850 F.3d 1130, 1137 (10th Cir. 2017) (en banc) (quoting United States v. Mike, 632
F.3d 686, 691–92 (10th Cir. 2011)).
A.
Hamilton’s argument fails at the first step of plain error review. We conclude
there was no error because the district court varied, rather than departed, upward, and
the Supreme Court has previously held that Rule 32(h) does not apply to variances.
See Irizarry, 553 U.S. at 716 (“The fact that Rule 32(h) remains in effect today does
not justify extending its protections to variances.”).
Although there is some overlap, variances and departures are distinct actions
of district courts. See United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1220 n.4
(10th Cir. 2008). “A departure occurs ‘when a court reaches a sentence above or
below the recommended Guidelines range through application of Chapters Four or
Five of the Sentencing Guidelines.’” United States v. Sells, 541 F.3d 1227, 1237 n.2
(10th Cir. 2008) (quoting Atencio, 479 F.3d at 1101 n.1). “A variance occurs ‘[w]hen
a court enhances or detracts from the recommended range through application of
§ 3553(a) factors.’” Id.
Both the district judge’s statements at the sentencing hearing and the written
record produced at sentencing clearly reflect the district court’s intent to vary, rather
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than depart. First, the district court judge explicitly stated on the record that “the
court will vary upward,” and then recalculated “the resulting variance [G]uideline
range.” Aplt. App. at 158 (emphases added).
Second, in addition to labeling Hamilton’s actions a “variance,” the district
court specifically noted it “considered . . . all of the factors set forth in Title 18 of the
United States Code, Section 3553(a) to reach an appropriate and reasonable
sentence.” Aplt. App. at 158–59. Consideration of § 3553(a) factors is the hallmark
of a variance. See Sells, 541 F.3d at 1237 n.2. Here, the judge weighed the § 3553(a)
factors on the record: discussing “the nature of the offense and the defendant’s lack
of criminal history and his personal characteristics,” Aplt. App. at 159 (referencing
§ 3553(a)(1)); noting the sentence would “serve as an adequate deterrent to this
defendant as well as others, promote respect for the law, provide just punishment for
the offense, and provide protection for the public,” id. (referencing § 3553(a)(2)(A)–
(C)); explaining he considered “[s]entencing disparities among defendants” in
crafting “an appropriate sentence in this case,” id. (referencing § 3553(a)(6)); and
ordering mandatory restitution, id. (referencing § 3553(a)(7)).
Third, and finally, the written record produced from sentencing reflects the
district court’s intent to vary, rather than depart. On the court’s minute sheet from
sentencing, the word “variance” was checked, but “departure” was not. Aple. Supp.
App. at 54. In the court’s Statement of Reasons, the judge checked the box for
imposing “a sentence otherwise outside the sentencing [G]uideline system (i.e., a
variance).” That box directed him to complete “Section VI. Court Determination for
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a Variance,” where the judge checked boxes under “18 U.S.C. § 3553(a) and other
reason(s) for a variance.” If the district court had departed, it would have filled out
“Section V. Departures.”
Nowhere in the record is there any reference to Chapters Four and Five of the
Guidelines, which this court requires for a departure. See Sells, 541 F.3d at 1237 n.2.
We decline to accept Hamilton’s argument that the language “mine-run of similarly
situated defendants” is an oblique reference to Chapters Four and Five of the
Guidelines and are magic words that render the action a departure. See, e.g.,
Kimbrough v. United States, 552 U.S. 85, 109 (2007) (“[W]hile the Guidelines are no
longer binding, closer review may be in order when the sentencing judge varies . . .
even in a mine-run case.”). Hamilton provides no support for the proposition that the
district court’s recalculating a new Guidelines range necessarily makes the action a
departure, rather than a variance. Rather, in our view, the district court’s statements
emphasized the advisory nature of the Guidelines, applied § 3553(a) factors, and
noted the sentence fell within the resulting range after the court varied upward.
Given the district court’s broad discretion at sentencing, coupled with the
multitude of direct references to § 3553(a) factors in crafting the sentence, we
conclude the district court varied upward, which renders Rule 32(h) inapplicable, and
therefore, no notice was required. See Irizarry, 553 U.S. at 714–16.
B.
Sentences are reviewed for reasonableness, which encompasses a two-part
inquiry into both procedural and substantive reasonableness. United States v. Verdin-
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Garcia, 516 F.3d 884, 895 (10th Cir. 2008). Procedural reasonableness review turns
on whether the district court committed any error in calculating or explaining the
sentence, including “failing to calculate . . . the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors . . . or failing to
adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51
(2007). A sentence is substantively unreasonable when “the length of the sentence is
[un]reasonable given all the circumstances of the case in light of the factors set forth
in 18 U.S.C. § 3553(a).” Alapizco-Valenzuela, 546 F.3d at 1215 (quotation marks
and citation omitted). “The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.” Gall, 552 U.S. at 51.
Hamilton advances three arguments in favor of procedural error at sentencing:
(1) the district court failed to give notice of its intent to depart upward as required by
Rule 32(h); (2) the district court relied on improper factors in fashioning the
sentence;1 and (3) the district court failed to explain the sentence adequately. As
Hamilton did not preserve these arguments below, we review them for plain error and
again hold Hamilton’s claims fail at the first prong.
1
Hamilton also asserts the district court relied on improper factors in violation
of this Circuit’s four-prong test for upward departures in United States v. Robertson,
568 F.3d 1203, 1211 (10th Cir. 2009). Aplt. Br. at 20–29. We do not evaluate this
claim because Robertson is inapplicable, given our determination the district court
varied upward.
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Hamilton’s first argument was addressed and rejected above. Because we
conclude the district court varied upwards, no notice was required and no procedural
error committed. Hamilton’s second and third arguments also fail, because we
conclude the district court did not rely on improper factors and adequately explained
its sentence. Hamilton pleaded guilty to the requisite criminal conduct; the facts
related to his crimes are admitted. Aplt. App. at 24–41 (plea agreement); 42–45
(admitted facts). The district court properly considered those facts in explaining “the
nature of the offense” and Hamilton’s characteristics. See, e.g., United States v.
Sayad, 589 F.3d 1110, 1118 n.4 (10th Cir. 2009) (“District courts are granted wide
discretion in choosing which factors to rely on in determining whether a variance is
justified under § 3553(a), and may choose to rely on factors disfavored by the
Sentencing Commission.” (citations omitted)). Further, the district court explained
its sentencing decision at length and in great detail; we cannot agree that its
explanation did not “identify legitimate reasons for the sentence imposed.” We hold
the district court’s findings and conclusions were well-within its discretion,
adequately explained, and do not constitute error.
Finally, we hold the district court’s sentencing Hamilton to the statutory
maximum was not substantively unreasonable “given all the circumstances of the
case in light of the factors set forth in 18 U.S.C. § 3553(a).” Alapizco-Valenzuela,
546 F.3d at 1214 (quotation marks and citation omitted). Even if we were to disagree
with the district court’s decision, “[t]he fact that the appellate court might reasonably
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have concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall, 552 U.S. at 51.
In sum, Hamilton cannot show the district court committed plain error. The
district court varied upward, rendering Fed. R. Crim. P. 32(h) inapplicable, so the
district court was not required to give notice, and accordingly, committed no error.
The district court did not rely on improper factors or fail to adequately explain its
sentence; and ultimately, the sentence imposed was within the wide discretion of the
district court. We AFFIRM.
Entered for the Court
Allison H. Eid
Circuit Judge
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