United States v. Timewell ( 2010 )

09-2777-cr
United States v. Timewell
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY ORDER M UST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 15 th day of July, two thousand ten.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 09-2777-cr
GREGORY PAUL TIMEWELL,
Defendant-Appellant.
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APPEARING FOR APPELLANT: BRENDAN WHITE (Diarmuid White, on the
brief), White & White, New York, New York.
APPEARING FOR APPELLEE: BURTON T. RYAN, JR. (Peter A. Norling, on
the brief), Assistant United States Attorneys, for
Benton J. Campbell, United States Attorney for
the Eastern District of New York, Brooklyn, New
York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Thomas C. Platt, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the June 17, 2009 order of the district court is VACATED, and the case
REMANDED for further proceedings consistent with this decision.
Defendant Gregory Paul Timewell, sentenced principally to 275 months’ incarceration
upon his plea of guilty to conspiring to import hashish and marijuana, see 21 U.S.C. §§ 960,
963, and making false statements to federal agents, see 18 U.S.C. § 1001, appeals from the
district court’s decision not to resentence him following the second of two remands pursuant
to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). See United States v. Johnson
(“Johnson II”), 567 F.3d 40 (2d Cir. 2009); United States v. Timewell (“Johnson I”), 124 F.
App’x 55 (2d Cir. 2005). Timewell contends that the district court committed procedural
error by (1) ruling before the mandate issued in Johnson II, (2) failing to afford the parties
an opportunity to be heard, and (3) disregarding this court’s instructions on remand.
Timewell also challenges his sentence as substantively unreasonable and requests
resentencing by a different district judge. We review sentencing decisions for
reasonableness, a standard “akin to review for abuse of discretion,” United States v.
Fernandez, 443 F.3d 19, 27 (2d Cir. 2006), even after a district court declines to resentence
pursuant to Crosby, see United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007). In
doing so, we assume familiarity with the facts, which are set forth in our previous decisions
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in this case, but we begin by summarizing the relevant procedural history.
The district court initially sentenced Timewell on March 5, 2004, to 275 months’
incarceration. On March 3, 2005, in Johnson I, 124 F. App’x 55, we remanded for a
determination whether Timewell’s sentence would have been different in light of United
States v. Booker, 543 U.S. 220 (2005). At a September 20, 2007 hearing, Timewell argued
that his sentence should be reduced in light of (1) his extensive cooperation, detailed in a
letter submitted by the government under U.S.S.G. § 5K1.1; and (2) the lower sentences
imposed on two codefendants. On October 3, 2007, the district court declined to resentence
Timewell, citing “the fact that Timewell violated his plea agreement” by initially failing to
reveal millions of dollars in drug proceeds.
On June 1, 2009, in Johnson II, 567 F.3d 40, we held that the district court had erred
by failing directly to address the threshold Crosby inquiry. We further concluded that the
omission could not be deemed harmless in light of other errors informing the court’s remand
decision, specifically (1) reliance on a perceived government practice of voiding breached
plea agreements, which, in fact, was unsupported by the record; (2) increasing the sentence
based on the government’s failure to follow that practice in Timewell’s case; and (3)
assuming, incorrectly, that the top of Timewell’s advisory range under the Sentencing
Guidelines was life imprisonment. See id. at 52-53. We remanded with instructions to
“formulate a proper response to the Crosby inquiry.” Id. at 54. Both Timewell and the
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government sought and were granted extensions of the time for filing petitions for rehearing,
and Timewell filed such a petition, which was denied on August 26, 2009. The mandate
issued on September 3, 2009.
On June 17, 2009, while the parties were still pursuing rehearing in this court, the
district court issued an opinion responding to Johnson II. Addressing the threshold Crosby
inquiry, the district court held that resentencing was not required because the sentence would
not have been “materially different” under Booker. The district court stated further that it
“did not commit error” in the October 3, 2007 order; it had taken Timewell’s § 5K1.1 letter
into account and indeed had reduced his sentence on that basis; its references to the
government’s “usual practice” were “ancillary” to its decision; and it had understood that,
although Timewell faced a statutory maximum sentence of life, the top of his Guidelines
range was 405 months.1
By ruling before the mandate issued in Johnson II – and, thus, before it regained
jurisdiction over Timewell’s case – the district court erred. See United States v. Rivera, 844
F.2d 916, 921 (2d Cir. 1988) (noting that “jurisdiction follows the mandate”). The
government is correct that “the divestiture of jurisdiction rule is . . . not a per se rule,” United
1
The district court also referenced language in Johnson II indicating that we vacated
Timewell’s sentence. Had we in fact done so, our remand would not have been for the
renewed Crosby inquiry we instructed the district court to undertake, but for resentencing.
As the parties appear to recognize, Johnson II addressed an appeal from the district court’s
prior order declining to resentence him, not from the judgment of conviction, and vacated
only the district court’s Crosby ruling, not the sentence.
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States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996), and we have declined to apply that rule
where no proper appeal has been taken, see, e.g., id. at 252; Burger King Corp. v. Horn &
Hardart Co., 893 F.2d 525, 527 (2d Cir. 1990); SEC v. Am. Bd. of Trade, Inc., 829 F.2d 341,
344 (2d Cir. 1987); Leonhard v. United States, 633 F.2d 599, 610-11 (2d Cir. 1980). That,
however, is not this case. Here, the considerations underlying the traditional rule of
divestiture, “rooted in the interest of judicial economy” and “designed to avoid confusion
[and] waste of time,” United States v. Rodgers, 101 F.3d at 251 (internal quotation marks
omitted), are fully applicable.
The district court also erred by ruling without first affording the parties an opportunity
to be heard. Although Crosby does not require a defendant to be present when the district
court decides whether to resentence him, it does require the district court to permit the
parties, at a minimum, to file written submissions before any decision is made. See 397 F.3d
at 120. In Johnson II, we remanded to permit the district court to “formulate a proper
response to the Crosby inquiry,” i.e., to follow the procedure that case describes. 567 F.3d
at 54. Undertaking that procedure in its entirety was essential, even though the district court
had received submissions and heard argument from the parties prior to its initial Crosby
ruling, because the errors we identified in Johnson II included not only the district court’s
failure to address the threshold inquiry, but also errors in its analysis of the facts relevant to
that inquiry. The district court indicates that no such errors occurred or that they did not
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inform its Crosby determination. The parties were entitled to be heard on these points on
remand.
Moreover, the district court’s response to our second remand appears to
misapprehend and, therefore, to disregard, the terms of our mandate. In its October 3, 2007
Memorandum and Order, issued after our first remand in this case, the district court stated:
The major factor in the difference between Timewell and three other
defendants – Johnson, Bowler and Sherrett – was and is the fact that Timewell
violated his plea agreement with the government by failing to reveal five
million dollars ($5,000,000) in drug proceeds that he had concealed in
Europe. When confronted with this fact, he revealed only $2,890,000, i.e.,
leaving about $2,000,000 for which there has been no account. In
innumerable cases (notwithstanding counsel for Timewell’s claim to the
contrary) that have come before this Court, the Government has advised that
when a defendant violates his plea agreement with the Government, the
agreement is voided. This Court took that into account in substantially
increasing Timewell’s sentence from what it otherwise would have been.
(Emphasis added). In remanding again, we noted that the district court erred when it “‘took
. . . into account’ what the court perceived to be the government’s customary practice of
voiding plea agreements where a defendant violates the terms of the agreement[, despite the
fact that] such a customary practice [wa]s unsupported by the record before the District
Court.” Johnson II, 567 F.3d at 52.2 We thus clearly interpreted the district court’s 2007
2
We also stated that the district court erred by “(1) ‘substantially increasing
Timewell’s sentence from what it otherwise would have been’ and (2) giving as a reason for
the increase the government’s failure to comply with the purported customary prosecutorial
practice of voiding cooperation agreements upon breach by the defendant.” Johnson II, 567
F.3d at 52-53; see also id. at 54 (“The District Court should state the reasons for the response
[to the Crosby inquiry] without consideration of past practices of the government in regard
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comments regarding the U.S. Attorney’s purported plea agreement practice to account for
some unspecified but measurable component of Timewell’s original sentence. We recognize
that the district court’s statement could be interpreted otherwise. For example, the statement
could have been meant to convey that, even though the government had not followed its
perceived policy and voided Timewell’s plea agreement based on his deception, the court
had taken that deception into account in increasing Timewell’s sentence from what it would
otherwise have been if cooperation had been full and complete. That construction finds
some support in the fact that the district court did give Timewell considerable consideration
for his cooperation. Still, the district court has never itself so indicated. Rather, in response
to our remand, the district court downplayed its original comments regarding the U.S.
Attorney’s purported plea agreement practice as “ancillary to the determination of the
sentence in this matter.” This statement is unresponsive to our concern in that it fails to
explain how to reconcile the district court’s original comments with its current position that
Timewell’s sentence was not affected by the government’s practice regarding plea
agreements.3
to the rescission of cooperation agreements. Such consideration was error.”).
3
Moreover, in rejecting Timewell’s argument based on the disparity between his 275-
month sentence and his co-defendant Thomas Sherrett’s 120-month sentence, the district
court erroneously asserted both that Sherrett had been “re-sentenced in another court” and
that “Timewell was sentenced well before the other defendants.” Both these statements are
incorrect – Sherret had initially been sentenced in the District of Oregon, but was later
resentenced by Judge Platt himself, and Sherrett’s resentencing took place before Timewell’s
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The errors identified above compel us to remand the case yet again so that the district
court can begin the Crosby inquiry anew as directed in Johnson II, this time affording the
parties an opportunity to be heard. Timewell asks us to remand to a different judge. We
decline to do so because we are confident that on remand the district court: (1) will wait for
the mandate to issue; (2) will grant the parties an opportunity to be heard; and (3) to the
extent that the district court maintains that Timewell’s sentence was not affected by the
government’s practice regarding plea agreements, will adequately articulate how its
comments in its October 3, 2007 Memorandum and Order can be reconciled with that
position. See United States v. Woltman, No. 10-413, slip op. at 18 (2d Cir. July 6, 2010)
(setting forth criteria for such remands); United States v. Hernandez, 604 F.3d 48, 55-56 (2d
Cir. 2010); United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008). We decline now to
address Timewell’s substantive reasonableness challenge, deeming it the better course first
to afford the district court the opportunity to make its Crosby decision. See United States v.
Williams, 475 F.3d at 476 (“In remanding under Crosby, we generally decline to consider
whether the sentence of a defendant is unreasonably long because of the possibility that a
different sentence will be imposed after the Crosby remand.”); United States v. Crosby, 397
F.3d at 120 (“Because a remand is warranted, we have no occasion on this appeal to consider
sentencing. The government argues these are “trivial” errors. While in isolation they might
seem so, in context the errors are significant, because the district court was attempting to
justify the disparity by distancing itself from the sentence that it had itself imposed.
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whether Crosby’s sentence is unreasonable solely because of its length . . . .”).
We have considered Timewell’s other arguments on appeal and we conclude that they
are without merit. Accordingly, the June 17, 2009 order of the district court is VACATED,
and the case is REMANDED for further proceedings consistent with this decision.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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