United States v. Harris ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 99-6362
(D.C. No. CR-98-209-T)
RONALD MARK HARRIS, (W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, KELLY, and HENRY, Circuit Judges.
Petitioner-Appellant Ronald Mark Harris pled guilty to bank fraud in
violation of 18 U.S.C. § 1344(2). He was sentenced to 63 months imprisonment,
five years supervised release, and ordered to pay a $100 special assessment and
restitution of $949,737.03. Mr. Harris appeals the sentence imposed, alleging
three grounds of district court error: (1) improper use of the 1998, rather than the
1997, version of the Sentencing Guidelines; (2) upward departure based on
impermissible factors; and (3) restitution awarded to individuals who were not
*
This order and judgment is not binding precedent, except under the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.
victims of the underlying bank fraud. We decide only the first ground, reverse,
and remand for resentencing de novo.
Mr. Harris did not object at the time of sentencing, and we therefore
review only for plain error. See United States v. Gilkey , 118 F.3d 702, 704 (10th
Cir. 1997). The underlying bank fraud scheme occurred between November 5,
1993 and April 30, 1998. Mr. Harris was sentenced in September 1999 under the
November 1998 version of the Sentencing Guidelines. Ordinarily, a sentencing
court must use the version of the Guidelines in effect on the date of sentencing,
unless to do so would violate the Ex Post Facto Clause “‘by altering the
definition of criminal conduct or increasing the punishment for the crime.’”
United States v. Svacina , 137 F.3d 1179, 1186 (10th Cir. 1998) (citation
omitted). Sentencing a defendant under a guideline which “contains an
adjustment that did not exist at the time of the offense” would violate this
principle. United States v. Nichols , 169 F.3d 1255, 1270 n.3 (10th Cir. 1999).
Mr. Harris received upward adjustments to his sentence under U.S.S.G. §
3A1.1(b). The 1997 version of that section states:
If the defendant knew or should have known that a
victim of the offense was unusually vulnerable due to
age, physical or mental condition, or that a victim was
otherwise particularly susceptible to the criminal
conduct, increase by 2 levels.
The 1998 version is markedly different.
-2-
(1) If the defendant knew or should have known that a
victim of the offense was a vulnerable victim, increase
by 2 levels.
(2) If (A) subdivision (1) applies; and (B) the offense
involved a large number of vulnerable victims, increase
the offense level determined under subdivision (1) by 2
additional levels.
Mr. Harris was given a 2 point enhancement under § 3A1.1(b)(1) and an
additional 2 point enhancement under § 3A1.1(b)(2). Because § 3A1.1(b)(2) was
not in effect at the time of the underlying conviction, the district court plainly
erred in applying it to Mr. Harris, and we will remand for resentencing.
Finally, should the district court again order restitution under 18 U.S.C.
§ 3663(a)(3) as agreed in the plea agreement, 1 R. doc. 11 at 6, it should identify
the basis for any restitution to investors in Mr. Harris’ family entertainment
center venture (“The Original Spot”), as opposed to victims of the bank fraud
scheme. See 18 U.S.C. § 3663(a)(2); United States v. Sapp , 53 F.3d 1100, 1105
(10th Cir. 1995).
REVERSED and REMANDED for de novo sentencing.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-3-