United States v. Smolka , 261 F. App'x 578 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4728
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS E. SMOLKA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cr-00525-REP)
Argued: November 2, 2007 Decided: January 11, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert James Wagner, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. S. David Schiller, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Acting Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas E. Smolka appeals his conviction for failing to appear
at a court proceeding in violation of 18 U.S.C.A. § 3146(a)(1)
(West 2000), and he raises numerous challenges to his sentence. We
affirm.
In January 2003, Smolka pled guilty to mail and wire fraud
charges stemming from his scheme, as a licensed attorney, to
defraud clients by falsely promising to provide them legal advice
during post-conviction relief proceedings. Smolka was released on
bond pending his August 28, 2003, sentencing in the Eastern
District of Virginia, but he fled the jurisdiction and failed to
appear at sentencing. Federal marshals eventually located Smolka
in Portland, Oregon, and arrested him on March 23, 2004. He was
returned to the Eastern District of Virginia and, in September
2004, sentenced to a prison term of 78 months on the mail and wire
fraud convictions. In reaching this sentence, the district court
took into account Smolka’s failure to appear for sentencing and
imposed an obstruction enhancement under U.S.S.G. § 3C1.1.
During the time that he was a fugitive in Oregon, Smolka,
operating under a false identity, concocted various fraudulent
schemes that resulted in additional fraud-based charges. In August
2004, after Smolka had been returned to federal custody in
Virginia, a federal grand jury in Oregon indicted him on a number
of charges, including mail fraud, bank fraud, and Social Security
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fraud. In August 2005, Smolka pled guilty in Oregon to these three
charges, for which he received a sentence of 37 months to run
consecutively to the 78-month sentence imposed in the Eastern
District of Virginia.
Finally, on December 6, 2005, Smolka was indicted for
violating 18 U.S.C.A. § 3146 based on his failure to appear at his
sentencing for mail and wire fraud in August 2003 in Virginia.
Section 3146(a)(1) punishes anyone who has been released under 18
U.S.C.A. § 3143(a) pending sentencing and “knowingly . . . fails to
appear before a court as required by the conditions of release.”
18 U.S.C.A. § 3146(a)(1). Following unsuccessful motions for
recusal of the district judge and for the dismissal of the
indictment for prosecutorial vindictiveness, Smolka opted for a
bench trial. However, when the district court advised him that
this option could undermine his recusal argument on appeal, Smolka
requested a jury trial. At trial, Smolka stipulated to all of the
government’s evidence and presented no evidence of his own. The
jury returned a guilty verdict.
The district court imposed a 60-month sentence to run
consecutively to his other sentences. This sentence consisted of
a 51-month term for the failure to appear offense under 18 U.S.C.A.
§ 3146(a)(1), plus an enhancement of nine additional months under
18 U.S.C.A. § 3147 (West 2000).
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On appeal, Smolka argues that the district court erred in
denying his motion to dismiss the indictment as vindictive. Smolka
contends that the government intentionally delayed charging him
with failure to appear under § 3146(a)(1) in order to manipulate
the sentencing guidelines to produce a much greater sentencing
range than would have otherwise applied. According to Smolka, if
the government had charged him earlier, the district court could
have sentenced him for the failure to appear conviction and the
predicate mail and wire fraud convictions at the same time, and the
guidelines would have required the court to group the charges. See
U.S.S.G. § 3C1.1, cmt. n.8. Application of the grouping rules,
argues Smolka, would have yielded concurrent, not consecutive,
sentences.
The district court rejected Smolka’s argument, finding that he
failed to present sufficient evidence of vindictiveness on the part
of the government to overcome the presumption of regularity
attached to prosecutorial decisions. See United States v. Johnson,
325 F.3d 205, 210 (4th Cir. 2003). The district court likewise
rejected Smolka’s claim that the pre-indictment delay, i.e., “the
passage of time between the alleged crime and the indictment,”
deprived him of his right to a fair trial under the Due Process
Clause, see United States v. Marion, 404 U.S. 307, 323-24 (1971),
concluding that Smolka suffered no prejudice from the separate
trial and sentencing on the failure to appear charge.
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We agree that Smolka failed to establish this claim. Having
reviewed the record, we find it devoid of facts suggesting
vindictiveness by the prosecution. The alleged pre-indictment
delay is the result of Smolka’s own conduct, including his flight
from justice and the criminal activity he engaged in while he was
a fugitive. Accordingly, we affirm the denial of his motion to
dismiss the indictment as vindictive.
Next, Smolka argues that the district judge was required to
recuse himself under 28 U.S.C.A. § 455 (West 2006), which mandates
that any district judge “disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” 28
U.S.C.A. § 455(a). Moreover, disqualification is required “[w]here
[the judge] has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C.A. § 455(b)(1). Smolka points to various
snippets of the record that purportedly call into question the
impartiality of the district court, including the judge’s comments
during the prior 2004 sentencing hearing that Smolka was an
“embarrassment” to the legal profession; that he preyed on weak and
vulnerable victims; and that Smolka was unlikely to learn any
lesson from his conviction and punishment. Smolka further suggests
that the district judge’s animosity for him was apparent during the
sentencing proceedings for his § 3146 conviction, as reflected by
the court’s rulings on various enhancements and the judge’s
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characterization of various defense arguments as frivolous.
Because none of the comments offered by Smolka, nor any other facts
in the record, rise to the level of disqualifying bias, we conclude
that the district court was well within its discretion to deny the
recusal motion. See United States v. Cole, 293 F.3d 153, 164 (4th
Cir. 2002). Likewise, the legal rulings made by the district court
in the course of imposing Smolka’s sentence were an insufficient
basis for a recusal motion. See Liteky v. United States, 510 U.S.
540, 555 (1974) (“[J]udicial rulings alone almost never constitute
a valid basis for a bias or partiality motion.”).
Smolka also raises several sentencing issues. First, Smolka
contends that in determining an appropriate sentencing range as
recommended by the guidelines, the district court failed to group
Smolka’s obstruction offense under 18 U.S.C.A. § 3146 with the
“underlying offense (the offense with respect to which the
obstruction conduct occurred).” See U.S.S.G. § 3C1.1, cmt. n.8.
Smolka asserts that proper application of the grouping rules would
have produced the same guideline range for both the failure to
appear offense and the predicate wire and mail fraud offenses as
Smolka originally faced in his 2004 sentencing for only the mail
and wire fraud offenses. Because Smolka’s 78-month sentence was at
the top of the sentencing range used in the 2004 sentencing, Smolka
argues that he should not have received any additional prison time.
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See, e.g., United States v. Gigley, 213 F.3d 503, 505-07 (10th Cir.
2000).
The government contends that the language of 18 U.S.C.A.
§ 3146(b)(2) requires that “[a] term of imprisonment imposed under
[18 U.S.C.A. § 3146] . . . be consecutive to the sentence of
imprisonment for any other offense.” 18 U.S.C.A. § 3146(b)(2)
(emphasis added). In response, Smolka relies upon the commentary
to U.S.S.G. § 2J1.6, which suggests that the sentencing court may
determine a total sentence for both the underlying offense and the
§ 3146 offense and then divide the sentences between the offense.
To the extent that a guidelines provision conflicts with a
statute, we must follow the statute. See Stinson v. United States,
508 U.S. 36, 38 (1993). In view of the clear congressional
directive set forth in § 3146(b)(2), we conclude that the district
court correctly determined that it was required to impose the term
of imprisonment for Smolka’s violation of § 3146(a) consecutively.
See United States v. Packer, 70 F.3d 357, 59-60 (5th Cir. 1995);
United States v. Crow Dog, 149 F.3d 847, 849-50 (8th Cir. 1998).
Smolka next argues that he was entitled to a downward
adjustment of his offense level for acceptance of responsibility.
See U.S.S.G. § 3E1.1(a). Smolka’s argument rests on the fact that
he did not object to the obstruction enhancement during the 2004
sentencing for his wire and mail fraud convictions, that he
stipulated to the evidence at trial, and that he proceeded to trial
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only to preserve for appeal the issues of prosecutorial
vindictiveness and recusal. We disagree.
The sentencing court’s decision whether or not to award an
acceptance of responsibility adjustment is committed to the court’s
broad discretion. See U.S.S.G. § 3E1.1, cmt. n.5. Typically, a
defendant who proceeds to trial is precluded from receiving a
reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1,
cmt. n.2. Smolka argues that he went to trial only to preserve
issues unrelated to factual guilt. See id. (explaining that in
rare instances a defendant who goes to trial may be eligible for
acceptance of responsibility where he does so to challenge the
constitutionality of a statute or contest the applicability of a
statute to his conduct). Even if the defendant enters a guilty
plea, an acceptance of responsibility adjustment is not automatic.
See U.S.S.G. § 3E1.1, cmt. n.3. We agree Smolka failed to
demonstrate that this is the rare case in which an acceptance of
responsibility adjustment is appropriate despite his having gone to
trial. Smolka is neither raising a constitutional challenge to
§ 3146 nor challenging its application to his conduct. We conclude
that the district court’s refusal to award an acceptance of
responsibility adjustment was not an abuse of discretion.
Smolka also raises a double counting challenge to his
sentence. In sentencing Smolka for his mail and wire fraud
offenses in 2004, the district court took into consideration his
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failure to appear for sentencing and increased Smolka’s offense
level by two levels under U.S.S.G. § 3C1.1. Without the two-level
increase, Smolka’s sentencing range would have been 51-63 months.
In determining Smolka’s total offense level on the failure to
appear offense in 2006, the district court imposed a three-level
enhancement under U.S.S.G. § 2J1.7 and 18 U.S.C.A. § 3147 because
it was an “offense committed while on release.” See U.S.S.G.
§ 2J1.7 (“If an enhancement under 18 U.S.C. § 3147 applies, add 3
levels to the offense level for the offense committed while on
release . . .”).
We note that, to avoid any improper double counting, the
district court concluded a downward departure from the resulting
sentencing range was appropriate and reduced the final range by 15
months. Moreover, we have previously determined that Congress
intended for an enhancement under § 3147 to apply to an offense
under § 3146(a). Accordingly, we reject Smolka’s double counting
claim. See United States v. Fitzgerald, 435 F.3d 484, 487 n.3 (4th
Cir. 2006) (“Although the enhancement is based on the conduct in
the underlying offense, such double-counting is . . . authorized”
because “the plain, unambiguous language of § 3147 and the
Guidelines permit the enhancement.”) (internal quotation marks
omitted).
Next, Smolka challenges the district court’s conclusion that
his criminal history was underrepresented by criminal history
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category III and that category VI more accurately reflected
Smolka’s criminal history. See U.S.S.G. § 4A1.3(a)(1). The
district court concluded that “Smolka’s criminal history is
underepresentative of the likelihood that he would recidivate,”
J.A. 515, and that “[h]e has repeatedly time after time shown a
willingness to violate the law. He violated the law while he was
on release . . . and it reflects . . . the kind of extensive
criminal involvement that’s reflected in a category VI criminal
history,” J.A. 516-17.
Smolka claims that the district court’s upward criminal
history departure cannot be affirmed because the district court
failed to consider, before settling on category VI, whether the
intermediate criminal history categories adequately represented
Smolka’s criminal history. When a post-Booker sentencing court
determines that appropriate grounds exist for a departure based on
the inadequacy of Smolka’s criminal history score, the court still
must adhere to our pre-Booker requirement that courts depart
incrementally. See United States v. Dalton, 477 F.3d 195, 199 (4th
Cir. 2007). This practice, however, does not require the court “to
move only one level, or to explain its rejection of each and every
intervening level,” nor do we require the sentencing court to “go
through a ritualistic exercise in which it mechanically discusses
each criminal history category . . . it rejects en route to the
category . . . that it selects.” Id. (internal quotation marks
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omitted). We conclude that the district court provided sufficient
reasoning from which it is apparent that it considered, but found
inadequate, Criminal History Categories IV and V. In affirming the
district court’s upward departure, we also reject Smolka’s
collateral estoppel argument. See United States v. Salemo, 81 F.3d
1453, 1464 (9th Cir. 1996).
We have reviewed Smolka’s remaining arguments in light of the
record and the findings of the district court and conclude that
they are without merit.
Accordingly, we affirm the decision of the district court.
AFFIRMED
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