United States v. Brooks ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10072
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD GENE BROOKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:99-CR-311-ALL-H)
December 13, 2000
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pursuant to a plea agreement, Donald Gene Brooks pleaded
guilty to one count of securities fraud. Departing upward six
levels, the district court sentenced Brooks to the statutory 60
months maximum. We VACATE and REMAND.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
From 1992 to 1999, Brooks fraudulently induced others to
invest in an “Interim Church Loan Fund” through Brooks’ business,
Brooks Financial Planning, Inc. Brooks diverted and misapplied the
funds and concealed his actions.
The presentence report (PSR) identified 31 victims, with
losses totaling more than $1.3 million. Most of them were elderly,
many were widowed, and many were on fixed incomes. They knew
Brooks as a minister; he had officiated at some of the victims’
spouses’ funerals and one wedding. The PSR excerpted victims’
statements describing the emotional and financial impact of the
fraud and the pain of Brooks’ betrayal.
The PSR applied the sentencing guideline for fraud, § 2F1.1,
and assigned a base offense level of six. U.S.S.G § 2F1.1. That
level was increased by 11, because the loss amount exceeded
$800,000, but not $1.5 million, see U.S.S.G. § 2F1.1(b)(1)(L), and
by two, because the offense involved more than minimal planning and
was a scheme to defraud more than one victim. U.S.S.G. §
2F1.1(b)(2).
The offense level was increased by two, because Brooks abused
a position of private trust and used his special skills to
significantly facilitate the fraud. U.S.S.G. § 3B1.3. But, a
three-level downward adjustment was recommended for acceptance of
responsibility. U.S.S.G. § 3E1.1(a), (b)(1) & (2).
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Based on the resulting offense level of 18 and criminal
history category of I, Brooks’ guideline range was 27 to 33 months.
See U.S.S.G. ch. 5, pt. A. The maximum term of imprisonment was
five years. See 15 U.S.C. §§ 77q(a), 77x.
The PSR noted that upward departure might be warranted
pursuant to both § 5K2.3, for extreme psychological injury to the
victims, and § 5K2.5, for property loss not taken into account by
the Guidelines. U.S.S.G. §§ 5K2.3, 5K2.5. Brooks objected to
these bases.
A resulting PSR addendum stated that, in addition to the
possible §§ 5K2.3 and 5K2.5 upward departure, the court could
consider it under the comment to §2F1.1: “where the loss determined
significantly understates the seriousness of defendant’s conduct”.
The addendum stated the court could also rely on United States v.
Nevels, in considering an upward departure based on egregious
conduct, noting that in Nevels, the district court departed upward
seven levels pursuant to § 5K2.0, which authorizes a departure
based on a “combination of factors”. See United States v. Nevels,
160 F.3d 226, 230 (5th Cir. 1998), cert. denied, 525 U.S. 1185
(1999). However, the addendum did not specifically describe the
applicable factors.
On 28 December 2000, the district court advised the parties it
was considering an upward departure. But, its order did not
specify the basis for it.
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Brooks objected to the PSR addendum, again urging upward
departure was not warranted under §§ 5K2.3 or 5K2.5. He also
referenced the “combination of factors” basis for upward departure,
and quoted the last paragraph of the comment to § 5K2.0, which
notes: a sentence outside the guideline range is not authorized
unless the case is atypical; and dissatisfaction with the available
range is not an appropriate departure basis. See U.S.S.G. § 5K2.0,
cmt.
Sentencing was held the same day Brooks received a second PSR
addendum. It stated upward departure was warranted because several
factors were not adequately accounted for by the Guidelines,
including: extreme psychological harm; length of fraudulent
behavior; victims’ age; their close relationship with Brooks; his
role as minister to them; and knowing endangerment of their
solvency.
At the hearing, Brooks asserted: the upward departure grounds
delineated in the second addendum were new; and he had not had an
opportunity to consider them. He contended he was prepared only to
address the two grounds specified in the original PSR — extreme
psychological harm and property loss.
The district court disagreed:
I think I was entitled to assume and I did
assume that you had briefed the question of
what would support an upward departure
request.... And I think you ought to come
today, regardless of what was in [the PSR]
addendum, prepared to discuss any and all
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aspects of the upward departure situation. So
I deny the request for delay.
The district court then identified the factors it was considering
to support upward departure: length of fraudulent behavior;
victims’ age; close relationship with Brooks; number of victims and
their losses; knowing endangerment of victims’ solvency; and degree
of planning required to perpetuate the fraud. The court stated
that psychological harm was not a factor.
The district court adopted the findings in the PSR, and held
upward departure warranted. It departed six levels to an offense
level of 24, resulting in a sentencing range of 51 to 63 months.
Brooks was sentenced to the 60 months statutory maximum and ordered
to make restitution of approximately $1.3 million.
II.
Brooks maintains: (1) the district court failed to provide
reasonable notice of its upward departure grounds; (2) it erred by
departing upward, instead of applying the vulnerable victim
guideline enhancement; (3) it erred in denying his request to
review victims’ letters excerpted in the PSR; and (4) the
Government breached the plea agreement. Because we are remanding
for resentencing (first issue), we do not reach whether an upward
departure is proper (second issue). But, to frame the
resentencing, we do reach the third (victims’ letters) and fourth
(breach of plea agreement) issues.
A.
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Concerning claimed lack of reasonable notice of the upward
departure grounds, and because Brooks so objected in district
court, we review de novo. United States v. Pankhurst, 118 F.3d
345, 356-57 (5th Cir.), cert. denied, 522 U.S. 1030 (1997) (no
plain error review where sufficient lack-of-notice objection).
A sentencing court must provide the parties an opportunity to
comment on matters relating to the appropriate sentence. FED. R.
CRIM. P. 32(c)(1). Burns v. United States, 501 U.S. 129, 138-39
(1991) (emphasis added), held:
[B]efore a district court can depart upward on
a ground not identified as a ground for upward
departure either in the presentence report or
in a prehearing submission by the Government,
Rule 32 requires that the district court give
the parties reasonable notice that it is
contemplating such a ruling. This notice must
specifically identify the ground on which the
district court is contemplating an upward
departure.
The notice should be sufficient to satisfy “Rule 32's purpose of
promoting focused, adversarial resolution of the legal and factual
issues relevant to fixing Guidelines sentences”. United States v.
Milton, 147 F.3d 414, 421 (5th Cir. 1998) (quoting Burns, 501 U.S.
at 137).
The Government responds: citation to Nevels and § 5K2.0 in the
first PSR addendum sufficiently apprised Brooks of the “combination
of factors” basis for departure; he had adequate notice of the
facts on which the upward departure was based and did not object to
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them; and, early in the sentencing hearing, the district court
further alerted Brooks to the factors it was considering.
Although the facts on which the district court relied are
found in the original PSR and the “combination of factors”
departure basis was stated in the first PSR addendum, the addendum
did not describe the factors justifing § 5K2.0 departure. Brooks
did not receive, until the day of sentencing, notice of the
combination of factors on which the district court relied in
upwardly departing.
Upward departure notice must be sufficient to avoid placing
defense counsel in the position of “trying to anticipate and negate
every conceivable ground on which the district court might choose
to depart on its own initiative”. Milton, 147 F.3d at 421 (quoting
Burns, 501 U.S. at 137). “Because the Guidelines place essentially
no limit on the number of potential factors that may warrant a
departure ... no one is in a position to guess when or on what
grounds a district court might depart, much less to ‘comment’ on
such a possibility in a coherent way”. Burns, 501 U.S. at 136-37.
By requiring Brooks to be “prepared to discuss any and all
aspects of the upward departure situation”, Brooks was in the
position of having to anticipate the grounds on which the court
might depart. Therefore, the notice was unreasonable. Cf. Milton,
147 F.3d at 419-21 (under plain error review, notice adequate
because, at hearing one month before sentencing, district court
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advised defendant of intention to accept evidence on factor on
which upward departure based); United States v. Clements, 73 F.3d
1330, 1341 (5th Cir. 1996) (notice reasonable because district
court faxed notice of intention to consider upward departure,
identified factual basis for departure at sentencing hearing the
next day, and rescheduled sentencing for six days later); United
States v. Bachynsky, 949 F.2d 722, 733-34 (5th Cir. 1991), cert.
denied, 506 U.S. 850 (1992) (notice adequate because defendant
apprised by PSR addendum seven days prior to sentencing of specific
upward departure grounds relied on).
Because Brooks was not given an opportunity to comment
consistent with Rule 32, we VACATE the sentence and REMAND for
resentencing, including giving Brooks and the Government notice and
an opportunity to respond to, and otherwise comment on, the noticed
possible grounds for departure. See Pankhurst, 118 F.3d at 358.
(Brooks suggests that, if his case is so remanded, it be assigned
to a different judge. He falls far short of showing reassignment
is warranted. See United States v. Winters, 174 F.3d 478, 487-88
(5th Cir.), cert. denied, 120 S. Ct. 409 (1999).)
B.
Brooks claims the court violated Rule 32 and his due process
rights by denying his request for copies of the victims’ letters.
We review de novo. United States v. Myers, 150 F.3d 459, 461 (5th
Cir. 1998).
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Rule 32 protects the right to due process by requiring
disclosure of most information relied on at sentencing. See FED.
R. CRIM. P. 32(c)(3)(A). If the district court receives information
that is excluded from the presentence report under Rule 32(b)(5),
it is required to summarize the information in writing if it is to
be relied on at sentencing. FED. R. CRIM. P. 32(c)(3)(A).
The court relied primarily on 18 U.S.C. §§ 3663 and 3664 in
denying Brooks’ request. These statutes pertain to restitution to
victims of certain crimes and the procedure for the issuance and
enforcement of such orders. In particular, § 3664(d)(4) provides:
After reviewing the report of the
probation officer, the court may require
additional documentation or hear testimony.
The privacy of any records filed, or testimony
heard, pursuant to this section shall be
maintained to the greatest extent possible,
and such records may be filed or testimony
heard in camera.
18 U.S.C. § 3664(d)(4) (emphasis added).
Brooks does not assert that § 3664(d)(4) did not authorize his
being denied access to the letters. In fact, he does not address
the statute’s applicability. Moreover, he has not shown why the
PSR summaries of the letters do not satisfy Rule 32(c)(3)(A).
Instead, Brooks maintains the court violated his due process
right to be sentenced on information that is neither false nor
materially incorrect. However, he has made no showing that the
information excerpted from the letters and relied on by the
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district court is false or materially incorrect. See United States
v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (“The defendant bears the
burden of demonstrating that information the district court relied
on in sentencing is materially untrue.” (internal quotation and
citation omitted)).
The district court did not violate Rule 32 or Brooks’ due
process rights by denying his request for copies of the victims’
letters.
C.
Finally, Brooks contends that the Government breached the plea
agreement by failing to recommend his being sentenced within the
guideline range stipulated by the parties. We review only for
plain error, because Brooks did not raise this issue at sentencing.
(On appeal, he requests specific performance of the agreement; he
does not request withdrawal of his guilty plea. Cf. United States
v. Palomo, 998 F.2d 253, 256 (5th Cir.), cert. denied, 510 U.S. 937
(1993).)
The plea agreement provided the parties would stipulate to a
calculation of the maximum potential guidelines; although not
binding on the district court, the stipulated guidelines were the
same as set forth in the PSR. The agreement also stated: “The
sentence in this case will be imposed by the Court. There is no
agreement as to what that sentence will be”. (Emphasis added.)
The agreement did not obligate the Government to take any action on
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Brooks’ behalf in the event of an upward departure. There is no
error, much less plain error.
III.
For the foregoing reasons, we VACATE the sentence and REMAND
for re-sentencing.
VACATED AND REMANDED
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