United States v. Moolenaar ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-20-2007
USA v. Moolenaar
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1342
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NON-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-1342
UNITED STATES OF AMERICA;
GOVERNMENT OF THE VIRGIN ISLANDS,
Appellants
v.
LUCIEN A. MOOLENAAR, II
_____________________
On Appeal from the District Court of the Virgin Islands
District Court No. 03-CR-145
District Judge: The Honorable Raymond L. Finch
_____________________
ARGUED: December 11, 2007
Before: SMITH, NYGAARD, and ROTH, Circuit Judges
(Filed: December 20, 2007 )
Armando O. Bonilla (Argued)
Nicholas A. Marsh
United States Department of
Justice Criminal Division
1301 New York Avenue, N.W.
Washington, DC 20005
Counsel for Appellants
Arturo R. Watlington, Jr.(Argued)
#3B Store Gronne Gade, P.O. Box 261
Charlotte Amalie, St. Thomas USVI, 00804
Counsel for Appellee
_______________________
OPINION
_______________________
PER CURIAM.
This appeal concerns the reasonableness of the District Court’s below-guidelines
sentencing of Lucien A. Moolenaar, II (“Moolenaar”). After a three-day jury trial,
Moolenaar was convicted of: (1) conversion of government funds in violation of 18
U.S.C. § 666(a)(1)(A); (2) grand larceny in violation of 14 V.I.C. §§ 1081 and 1083; and
(3) making a false statement in violation of 14 V.I.C. § 843(3). The District Court set
Moolenaar’s Total Offense Level at 14 and his Criminal History Category at I, resulting
in a sentencing guideline range for Count I of 15 to 21 months incarceration. The court
then sentenced Moolenaar to five years of supervised probation as to Count I and imposed
a fine of $30,883.09; an amount equal to the interest that would have accrued on a loan of
the amount of government money Moolenaar converted. For the reasons set forth below,
we will vacate the judgment and remand for resentencing.
I.
Moolenaar is a former high-ranking official in the Virgin Islands Department of
Health. In January 1995, he submitted two stale government payroll checks to the
Department of Finance for re-issuance. In June 1995, the Department of Finance
processed that request and added the net sum of $1,626.25 to Moolenaar’s biweekly
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payroll check. Due to an error, the government thereafter continued to add this amount to
his pay check through September 2000. In total, Moolenaar received $102,497.85 in
erroneous payments, an amount that more than doubled his net income every other pay
period for more than five years.
Following a three-day trial, a jury convicted Moolenaar of all charges. On
December 14, 2005, the District Court – over the government’s objections – sentenced
him to five years of supervised probation and imposed a fine of $30,883.09 as to Count I.
Additionally, the court sentenced Moolenaar to concurrent general terms of two years
probation as to Counts II and III.
At the sentencing hearing, the District Court noted that:
I have studied the Probation report, and of course I’ve heard arguments from
both sides, and I am of the opinion that this is one of those cases where,
because of the circumstances that I’ve heard, would not . . . justify
confinement. And I am, therefore, not sentencing [the defendant] to a term of
confinement.
On December 22, 2005, the court filed a Statement of Reasons, which stipulated that
“[t]he Court departed from the advisory sentencing guideline range pursuant to Title 18
U.S.C. § 3553(a)(1), the nature and circumstances of the offense and the history and
characteristics of the defendant.” On January 20, 2006, the United States and the
Government of the Virgin Islands filed a timely notice of appeal.1
1
The District Court of the Virgin Islands had jurisdiction over this criminal matter
pursuant to 18 U.S.C. § 3231 and 48 U.S.C. § 1612. This Court has jurisdiction under 18
U.S.C. § 3742(b).
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II.
In United States v. Booker, the Supreme Court held that mandatory application of
the Federal Sentencing Guidelines was unconstitutional. 543 U.S. 220 (2005). Under the
resulting advisory-guidelines regime, District Courts enjoy significant latitude in
imposing criminal sentences. Rita v. United States, — U.S. —, 127 S. Ct. 2456, 2465
(2007); Gall v. United States, — U.S. — , No. 06-7949, 2007 WL 4292116, at *7 (U.S.
Dec. 10, 2007) . Post-Booker, appellate review is limited to reviewing the trial court’s
sentence for “reasonableness.” United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).
Practically speaking, the reasonableness standard of appellate review is akin to
abuse of discretion. Gall, 2007 WL 4292116, at *7 (“Our explanation of
‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar
abuse-of-discretion standard of review now applies to appellate review of sentencing
decisions.”). In conducting a reasonableness review, we must ensure that the sentencing
court gave “meaningful consideration” to the sentencing factors articulated in 18 U.S.C. §
3553(a)2 and “reasonably applied them to the circumstances of the case.” Cooper, 437
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The factors a sentencing court must take into account include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
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F.3d at 300. As a threshold matter, it is therefore vital that the District Court “state
adequate reasons for a sentence on the record so that this court can engage in meaningful
appellate review.” United States v. King, 454 F.3d 187, 196-97 (3d Cir. 2006). The party
challenging the sentence has the burden of demonstrating unreasonableness. Cooper, 437
F.3d at 332.
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for--
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines
...;
(5) any pertinent policy statement . . . issued by the Sentencing
Commission . . . that . . . is in effect on the date the defendant is
sentenced[;]
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
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Here, the government says that the sentence the District Court imposed is both
procedurally and substantively unreasonable because (1) “the sentencing judge failed to
give any meaningful consideration to the relevant sentencing factors codified in 18 U.S.C.
§ 3553(a). . . ” and (2) “when reasonably applied to the facts of this case, the relevant
sentencing factors demand the imposition of a prison sentence . . . .” Moolenaar, in
contrast, argues that the District Court provided sufficient justification for his below-
guidelines sentence to withstand deferential post-Booker scrutiny. We agree that the
sentence cannot stand because the sentencing court failed to articulate the rationale for its
below-guidelines sentence.
To determine whether a sentencing court acted reasonably, we examine the court’s
application of the § 3553(a) factors to determine whether it reasonably applied them to
the circumstances of the case. “In doing so, we apply a deferential standard, the trial
court being in the best position to determine the appropriate sentence in light of the
particular circumstances of the case.” Cooper, 437 F.3d at 330. Meaningful appellate
review, however, is impossible where the sentencing court fails to articulate the rationale
for its sentence. Gall, 2007 WL 4292116, at *12 (“After settling on the appropriate
sentence, he [the sentencing Judge] must adequately explain the chosen sentence to allow
for meaningful appellate review and to promote the perception of fair sentencing.”); King,
454 F.3d at 196-97. Here, the record thoroughly fails to elucidate the basis for the
sentence the District Court imposed.
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At the sentencing hearing, the District Court did little more than note that it had
“studied” the Pre-Sentence Report and “heard” the arguments of both sides before
pronouncing that “the circumstances” of the case did not justify confinement. The
December 22, 2005 Statement of Reasons provided no additional insight into the court’s
thinking, stating only that the departure from the guidelines was based upon “Title 18
U.S.C. § 3553(a)(1), the nature and circumstances of the offense and the history and
characteristics of the defendant.” At no point did the sentencing court discuss how this
factor militates in favor of the sentence it ultimately imposed. Moreover, the record is
completely silent regarding if or how the District Court weighed the remaining six §
3553(a) factors.
Where, as here, the District Court fails to provide a reasoned basis for a criminal
sentence, we cannot engage in meaningful appellate review. Quite simply, deferring to
reasoning that the District Court declines to provide is impossible. Accordingly, we
cannot sustain the sentence the District Court imposed in this case.
Additionally, certain conduct of the District Judge exhibited at the sentencing
hearing troubles us. At that time, then-Chief Judge Finch stated that the Presentence
Report recommended a sentence of probation. The recommendation stated no such thing.
When the government properly objected to that statement, Judge Finch responded by
stating: “I don’t have to sentence, according to what Mr. Smith tells me to do. Gone
home. Goodbye.” He then threw the Presentence Report across the bench and left the
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courtroom. When considered in conjunction with the District Judge’s failure to provide
any basis for his sentence, this episode of intemperance leaves us with more than a
passing concern as to the appearance of his impartiality.
“Although ‘[i]t is the standard practice in the district courts and in this circuit that
a case on remand is assigned to the judge who originally heard it,’ we can, in the exercise
of our supervisory power, reassign this case to a different judge upon remand.”
Government of the Virgin Islands v. Walker, 261 F.3d 370, 376 (3d Cir. 2001) (internal
citation omitted). We have not articulated a specific test to determine when reassignment
of a case to a different judge for resentencing is appropriate. Id. However, such action is
called for when it is necessary to “preserve not only the reality but also the appearance of
the proper functioning of the judiciary as a neutral, impartial administrator of justice.”
Alexander v. Primerica Holdings, 10 F.3d 155, 165 (3d Cir.1993). This is such a case.
Accordingly, we will vacate the judgment and remand with the instruction that the Clerks
office reassign this case for resentencing.
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