United States v. Angleton , 201 F. App'x 238 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 28, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20408
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT NICHOLAS ANGLETON,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
USDC No. 4:03-CR-264-1
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Robert Angleton pleaded guilty to two
counts of aiding and abetting the delivery and misuse of a
passport, in violation of 18 U.S.C. § 1544, and to one count of
conspiracy to commit passport fraud, in violation of 18 U.S.C. §
371. He raises on appeal three challenges to his sentence. We
affirm.
I
*
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that this opinion should not be published and is not precedent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.
The State of Texas charged Robert Angleton with the capital
murder-for-hire of his wife, Doris Angleton, but a Texas jury
acquitted him of the crime. A federal grand jury then indicted him
for the same crime, an indictment that this court declined to
dismiss on double-jeopardy grounds.1
On June 12, 2003, four days before his federal trial was
scheduled to begin, Angleton failed to appear for a pre-trial
conference and a bench warrant issued. That same day, Angleton was
detained by Dutch immigration officials at Schiphol Airport in
Amsterdam, for attempting to enter the Netherlands with an altered
passport in the name of Alan August. Dutch officials also found
several other fake identification documents, including social
security cards and drivers licences.
Angleton and a co-defendant, Lorenzo Salinas, were charged in
the present case with two counts of misuse of a passport, and one
count of conspiracy to commit passport fraud. Angleton was also
charged with one count of failure to appear in the murder-for-hire
case.2 The Netherlands extradited Angleton on the three passport
charges, but refused to extradite him on the failure-to-appear
charge or on the murder-for-hire charge itself. Angleton pleaded
1
See United States v. Angleton, 314 F.3d 767 (5th Cir. 2002).
2
Angleton had previously been charged with three counts of tax evasion
relating to his bookmaking activities in a separate case. These charges
remain pending against him in district court.
2
guilty to the three passport-related charges without the benefit of
a plea agreement.
Under U.S.S.G. § 2L2.2(a), the base offense level for misuse
of a passport is eight. The Presentence Report applied the cross
reference in 2L2.2(c)(1)(A) because Angleton committed the passport
offense in the commission of a felony, failure to appear. The
failure to appear guidelines, 2J1.6(b)(2)(A), provide for a base
offense level fifteen because the crime for which Angleton failed
to appear, murder for hire, is punishable by more than fifteen
years. Upon the government’s objection, the Presentence Report
further applied a four-level adjustment under 3B1.1(a) based upon
a finding that Angleton was an organizer or leader of an extensive
criminal activity. After subtracting two points for acceptance of
responsibility, the Presentence Report recommended a guideline
sentence range of 24-30 months’ imprisonment, based on an offense
level of seventeen.
The government moved for upward departure under U.S.S.G. §§
5K2.7 for disruption of governmental function, under 5K2.9 for
criminal purpose, and under 5K2.21 for dismissed uncharged conduct.
The government also urged that a non-guideline sentence was
appropriate based on the section 3553(a) factors. It requested
that the court sentence Angleton to 15 years’ imprisonment.
The district court agreed that upward departure under the
guidelines was appropriate, ruling that the recommended sentence
range did not adequately capture the criminal purpose and planning
3
of Angleton’s offense, the disruption of governmental functions
caused by Angleton’s offense, or the seriousness of Angleton’s
unextradited offenses. The district court further ruled that the
section 3553(a) factors justified an upward deviation to a non-
guideline sentence because of the criminal purpose for which
Angleton committed the offense. The court balked, however, at the
government’s proposed 15-year sentence and instead sentenced
Angleton to 60 months’ imprisonment.
Angleton appeals his sentence on three grounds, arguing that
(1) the district court clearly erred in finding that he was
organizer or leader of an extensive criminal activity; (2) the
district court erred in departing upward based on his disruption of
a governmental function; and (3) the district court unlawfully
considered during sentencing his failure to appear, in
contravention of Article XV of the extradition treaty between the
United States and the Netherlands.
II
The district court applied a four-level adjustment under
U.S.S.G. § 3B1.1(a), finding that Angleton operated as an organizer
or leader of an extensive criminal activity. Angleton first
contends that the district court clearly erred in applying this
adjustment since there was no evidence that (1) his criminal
activities were extensive or (2) he operated as an organizer or
leader of those activities. On both points, we disagree, and hold
4
that the district court did not clearly err in finding the
requisite facts to support this four-level role adjustment.
The district court’s decision to enhance a sentence under the
Guidelines “will be upheld if it results from a legally correct
application of the Guidelines to factual findings that are not
clearly erroneous.”3
On the first point, Angleton attacks the district court’s
finding that his criminal activity was “otherwise extensive.”
Section 3B1.1(a) of the Guidelines provides a four-level adjustment
“[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive . . . .”4 The Guidelines further provide that “[i]n
assessing whether an organization is ‘otherwise extensive,’ all
persons involved during the course of the entire offense are to be
considered. Thus, a fraud that involved only three participants
but used the unknowing services of many outsiders could be
considered extensive.”5 In finding Angleton’s crime extensive, the
district court ruled:
Here we clearly have that kind of involvement by a great
many providers of services, ranging from the banks,
people who provided the false identifications, unknown
people and unknowing people, presumably, in different
countries. ‘Otherwise extensive’ is not difficult to
reach in — on these facts.”
3
United States v. Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996).
4
U.S.S.G. § 3B1.1(a).
5
U.S.S.G. § 3B1.1 application note 3.
5
Angleton’s crime directly included at least three people, Angleton,
Sarinas, and August. Further, as the district court noted, several
more people, including employees of Sarinas, unknowingly provided
services that advanced Angleton’s scheme. Given these undisputed
facts, and the Guidelines’ express endorsement of a sentencing
court’s consideration of unknowing participants, the district court
did not clearly err in finding that Angleton’s criminal activity
was “otherwise extensive.”
On the second point, Angleton also contends that the district
court clearly erred in determining that he was an “organizer or
leader” of the criminal activity. We have held that “[p]roof that
the defendant supervised only one other culpable participant is
sufficient to make the defendant eligible for the enhancement.”6
We have further held that “[t]he district court may find that a
defendant exercised a leadership/organizer role by inference from
the available facts.”7 Here, the district court inferred from the
facts that Angleton exercised control over his co-defendant,
Sarinas, ruling:
“[U]nder 3B1.1(a), the Government must prove at least an
interdependence between the defendant and the supplier
that would support an inference that the supplier is
answerable to the defendant. . . . The evidence is that
6
United States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001); see also
United States v. Blaylock, 413 F.3d 616, 620 (7th Cir. 2005) (“[D]irect or
indirect control over a single participant is all that is required.”).
7
United States v. Cabrera, 288 F.3d 163, 174 (5th Cir. 2002).
6
Mr. Angleton on a number of occasions told Mr. Sarinas
what to do, paid him to do it, Mr. Sarinas did it; and
even when that—even when those specific tasks were
finished, told Mr. Sarinas to keep the suitcase and then
send it to him later. It does appear that there was an
extensive relationship between Mr. Angleton and Mr.
Sarinas, supported by the large number of telephone
calls, that is part of this record, over an extended time
period.
It does appear, indeed, that there is a kind of
interdependence . . . . It is enough for interdependence
that Mr. Sarinas have been instructed by Mr. Angleton to
obtain these specific items, illegal items . . . not
once, not twice, three times . . . . [I]ndeed, Mr.
Sarinas was answerable to Mr. Angleton.
The record supports this inference of control, and we accordingly
hold that the district court did not clearly err in finding that
Angleton was an organizer or leader of an extensive criminal
activity. We therefore affirm the district court’s application of
the four-level role adjustment under U.S.S.G. § 3B1.1(a).
III
In his second challenge to his sentence, Angleton argues that
the district court erred in granting the government’s request for
an upward departure based on his disruption of a governmental
function as provided by U.S.S.G. § 5K2.7. “This court, in
interpreting the Booker reasonableness standard, has applied an
abuse of discretion standard to the reasonableness inquiry for
upwardly departing guidelines sentences.”8
8
United States v. Reinhart, 442 F.3d 857, 862 (5th Cir. 2006).
7
Angleton correctly notes that the sentencing guideline for
failure to appear, the section on which his sentence was based,
already punishes the defendant for disrupting governmental
functions. He supports this argument by citing to section 5K2.7
itself, which advises:
Departure from the guidelines ordinarily would not be
justified when the offense of conviction is an offense
such as bribery or obstruction of justice; in such cases
interference with a governmental function is inherent in
the offense, and unless the circumstance are unusual the
guidelines will reflect the appropriate punishment for
such interference.9
The district court, however, found such “unusual” circumstances in
this case, noting that Angleton fraudulently applied for not one,
but three passports and that Angleton had effectively overruled
this court’s double jeopardy ruling, and thereby undermined “the
rule of law,” by fleeing the jurisdiction. Furthermore, the
district court rested its upward departure not only on Angleton’s
disruption of governmental functions, but also on the extent of his
“elaborate” and “extensive” planning for the charged crime (5K2.9)
and on the seriousness of his uncharged conduct (5K2.21). Finally,
the district court also characterized its sentence as a non-
guideline deviation, supported by the 3553(a) factors, none of
which Angleton discusses on appeal. Based on the district court’s
thorough explanation of its several reasons for upward departure,
9
U.S.S.G. § 5K2.7 (emphasis added).
8
we hold that the district court did not abuse its discretion in
sentencing Angleton to 60 months’ imprisonment.10
IV
Finally, Angleton argues that because the Netherlands did not
extradite him on the failure to appear charge, and because our
extradition treaty with the Netherlands prohibits the
requisitioning state from punishing any fugitive for a non-
extradited offense,11 the district court erred in considering
Angleton’s failure-to-appear conduct during sentencing for the
passport offenses. We disagree, and hold that Angleton’s sentence
does not violate the extradition treaty.12
We review de novo a district court’s determination that a
prosecution satisfies the doctrine of speciality.13 The extradition
treaty between the United States and the Netherlands, in
incorporating the doctrine of speciality, provides that a person
“extradited under this Treaty shall not be detained, tried, or
punished in the territory of the Requesting State for an offense
10
See United States v. Saldana, 427 F.3d 298, 308 (5th Cir.) (affirming
an upward departure from 10 to 60 months’ imprisonment), cert. denied, 126
S.Ct. 810 (2005), and cert. denied, 126 S.Ct. 1097 (2006).
11
Technically, the treaty prohibits the requisitioning state from
punishing a fugitive for any previously-committed non-extradited offenses.
12
It is still an open question in this circuit whether a criminal
defendant has standing to assert the rule of speciality. See United States v.
LeBaron, 156 F.3d 621, 627 (5th Cir. 1998). We again leave that question
unanswered since here we hold only that Angleton’s prosecution did not, in any
event, violate the doctrine.
13
United States v. LeBaron, 156 F.3d 621, 626 (5th Cir. 1998).
9
other than that for which extradition has been granted.”14 Angleton
contends that the district court, by considering his failure-to-
appear conduct in sentencing him for the passport offense, punished
him for both crimes.
The three circuits that have addressed this question disagree
with Angleton. In construing this very same Dutch extradition
treaty, the Ninth Circuit held that “[g]iven the long history of
consideration of relevant evidence — including other criminal
behavior, the Sentencing Guidelines’ clear mandate of such
consideration, and Supreme Court precedent, we conclude that the
Treaty and the extradition agreement contemplated consideration of
relevant offenses.”15 The Eighth Circuit agrees, and has held that
the doctrine of speciality “is generally understood to prohibit
indiscriminate prosecution of extradited individuals rather than to
prohibit the receiving state’s consideration of pre-extradition
offenses while prosecuting the individual for crimes for which
extradition was granted.”16 Finally, the Sixth Circuit also agrees,
and has held that a sentencing enhancement based upon a defendant’s
14
Netherlands-Extradition, Art. XV, June 24, 1980, U.S.-Neth., 35 U.S.T.
1334, 1342 (emphasis added); see also United States v. Archbold-Newball, 554
F.2d 665, 685 n.21 (5th Cir. 1977).
15
United States v. Lazarevich, 147 F.3d 1061, 1064 (9th Cir.), cert.
denied, 119 S.Ct. 432 (1998).
16
Leighnor v. Turner, 884 F.2d 385, 390 (8th Cir. 1989). Cf. Fiocconi
v. Attorney General of United States, 462 F.2d 475, 481 (2d Cir. 1972) (“The
‘principle of specialty’ reflects a fundamental concern of governments that
persons who are surrendered should not be subject to indiscriminate
prosecution by the receiving government, especially for political crimes.”)
(Friendly, C.J.).
10
failure to appear at his arraignment “did not constitute
‘punishment’ for that conduct so as to violate any implicit
proscription against such punishment in the extradition treaty.”17
The Ninth and Sixth Circuit both rely, in part, on the Supreme
Court’s decision in Witte, which held, in the context of the Double
Jeopardy Clause, that “the use of evidence of related criminal
conduct to enhance a defendant’s sentence for a separate crime
within the authorized statutory limits does not constitute
punishment for that conduct.”18 The defendant urges, however, that
the Supreme Court’s definition of “punishment” in the context of
the Fifth Amendment is a poor guide to the intended meaning of that
term as it was used by the parties to the relevant extradition
treaty. We disagree. As the Ninth Circuit has already explained,
“the Treaty . . . [was] made within an historical and precedential
context,” including the “long-standing practice of United States
courts of considering relevant, uncharged evidence at sentencing.”19
In Lazarevich, the Ninth Circuit rejected the defendant’s urging
for a plain reading of the term “punishment,” concluding “[i]f the
plain meaning of punishment is interpreted to preclude
consideration of other criminal behavior in sentencing, that
interpretation would seem to ‘effect a result inconsistent with the
17
United States v. Garrido-Santana, 360 F.3d 565, 578-79 (6th Cir.
2004).
18
Witte v. United States, 515 U.S. 389, 399 (1995).
19
Lazarevich, 147 F.3d at 1064.
11
intent’ of at least the United States, given its long history of
considering such conduct.”20 We agree with these circuits that the
doctrine of speciality is not offended by the Sentencing
Guideline’s consideration of non-extradited relevant conduct during
the punishment of an extradited offense. The sentence imposed by
of the district court is
AFFIRMED.
20
Id.12