United States v. Lossia , 193 F. App'x 432 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0606n.06
Filed: August 22, 2006
No. 05-1434
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
JAMES LOSSIA, EASTERN DISTRICT OF MICHIGAN
Defendant-Appellant.
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BEFORE: BATCHELDER, CLAY, and ROGERS, Circuit Judges.
CLAY, Circuit Judge. Defendant James Lossia appeals the March 21, 2005 order of the
United States District Court for the Eastern District of Michigan, sentencing Defendant to 98 months
imprisonment and 36 months of supervised release for Defendant’s violations of 18 U.S.C. §§
1028(a)(7), 1029(a)(2), identify theft and access device fraud. Defendant argues that the district
court committed numerous errors in sentencing, including an unjustifiable upward departure from
the Sentencing Guidelines recommended range for his offense of conviction.
For the following reasons, we AFFIRM Defendant’s sentence.
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I.
BACKGROUND
On September 28, 2004, a two-count information was filed against Defendant, alleging that
Defendant committed identify theft, in violation of 18 U.S.C. § 1028(a)(7), and access device fraud,
in violation of 18 U.S.C. § 1029(a)(2). Defendant waived indictment and thereafter entered a plea
agreement with the government, whereby Defendant agreed to a sentencing range of 77 to 96
months. As part of the plea agreement, the government also promised to move for a downward
departure in exchange for substantial assistance. The sentencing judge rejected this plea agreement,
however, at Defendant’s first sentencing hearing on February 25, 2005. The district court then gave
Defendant one month in which to reconsider his decision to plead guilty.
After taking one month to reconsider his plea of guilty, Defendant decided to move forward
with a plea of guilty without the benefit of an accepted plea bargain. According to the Presentence
Investigation Report, Defendant’s adjusted offense level was 19 and his criminal history score a 28,
placing him in the highest criminal history category, Category VI. The recommended sentence was
therefore 63 to 78 months of incarceration. U.S. Sentencing Guidelines Manual § 5A (2004). The
district court determined that a greater sentence was called for, in large part because of Defendant’s
extensive criminal history of committing the same type of crimes. In reaching its sentencing
determination, the district court rejected Defendant’s objections to the Presentence Investigation
Report’s calculation of his criminal history score, determining that, contrary to Defendant’s
contentions, certain of Defendant’s prior offenses were not “related” such that they merited fewer
criminal history points. The district court therefore sentenced Defendant to 98 months incarceration,
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to be followed by three years of supervised release. The maximum statutory incarceration term for
Defendant’s violation of 18 U.S.C. § 1028(a)(7) is 15 years. 18 U.S.C. § 1028(b)(1). The maximum
statutory incarceration term for a violation of 18 U.S.C. § 1029(a)(2) is 10 years. 18 U.S.C. §
1029(c)(1).
Defendant filed a timely notice of appeal.
II.
ANALYSIS
A. The District Court Correctly Calculated Plaintiff’s Advisory Guidelines Sentence
After United States v. Booker, 543 U.S. 220 (2005), this Court reviews a sentence for both
procedural and substantive reasonableness. United States v. McBride, 434 F.3d 470, 476 n.3 (6th
Cir. 2006); United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). An element of reasonableness
is the correct calculation of the advisory Guidelines sentence. See United States v. Foreman, 436
F.3d 638, 644 (6th Cir. 2006); United States v. Richardson, 437 F.3d 550, 553-54 (6th Cir. 2006);
United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005); Webb, 403 F.3d at 383. Sentencing
with an improperly calculated advisory Guidelines range is unreasonable because the sentencing
court lacks a required input into the process. See 18 U.S.C. § 3553(a) (requiring sentencing courts
to consider the applicable Guidelines range); cf. United States v. Cortez, 166 Fed. App’x 196, 197
(6th Cir. 2006).
In determining whether a district court correctly determined whether prior sentences were
“related” for purposes of Guideline § 4A1.2(a)(2), this Court “continue[s] . . . to apply the standards
of review . . . applied prior to Booker,” United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005),
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and thus will not overturn a district court’s determination as to whether offenses are related unless
that court has committed a clear error, United States v. Horn, 355 F.3d 610, 613 (6th Cir.), cert.
denied, 541 U.S. 1082 (2004) (“We must review deferentially, that is, for clear error, the . . . district
court’s determination that [defendant’s] prior robbery convictions were not related.”).
Defendant argues that his Guidelines’ sentence calculation was in error in two ways. First,
Defendant argues that the district court improperly refused to consider certain of his prior offenses
“related” for purposes of calculating Defendant’s criminal history category. Second, Defendant
argues that the district court improperly refused to grant the government’s motion for downward
departure under § 5K1.1 of the Guidelines for Defendant’s substantial assistance.
1. The District Court Did Not Commit Clear Error in Finding That Defendant’s Prior
Convictions Were Not “Related” for Purposes of § 4A1.2(a)(2) of the Guidelines
Defendant alleges that the district court erred in computing his criminal history category
because certain prior offenses were “related” within the meaning of § 4A1.2(a)(2) of the Sentencing
Guidelines. In particular, Defendant argues that these offenses were part of a “single common
scheme or plan” and should have been treated as one crime for sentencing purposes.
Chapter Four, Part A of the Sentencing Guidelines delineates the assessment of points for
an offender’s prior sentences for the purpose of computing his Criminal History Category. Section
4A1.2 is the guideline provision used for determining whether prior sentences are to be treated as
one sentence for assigning criminal history points and states in pertinent part:
(a) Prior Sentence Defined.
(1) The term “prior sentence” means any sentence previously imposed
upon adjudication of guilt whether by guilty plea, trial, or plea of
nolo contendere, for conduct not part of the instant offense.
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(2) Prior sentences imposed in unrelated cases are to be counted
separately. Prior sentences imposed in related cases are to be treated
as one sentence for purposes of § 4A1.1(a), (b), and (c).
Application Note 3 to § 4A1.2 provides:
Prior sentences are not considered related if they were for offenses that were
separated by an intervening arrest . . . . Otherwise, prior sentences are considered
related if they resulted from offenses that (1) occurred on the same occasion, (2)
were part of a single common scheme or plan, or (3) were consolidated for trial or
sentencing.
In the instant case, Defendant argues that certain of his prior offenses were “related” because
they were part of a “single common scheme or plan.” This Court has held that “scheme” and “plan”
are “words of intention, implying that [offenses] have been jointly planned, or at least that . . . the
commission of one would entail the commission of the other as well.” United States v. Irons, 196
F.3d 634, 638 (6th Cir. 1999). The criminal defendant carries the burden of proving that prior
offenses and their sentences are “related.” Id.
In the instant case, Defendant’s arguments center around his sentences handed down on April
14, 1997, November 19, 1999, and November 13, 2002. On each of those dates Defendant was
sentenced for multiple counts of varying types of financial fraud. Defendant argues that all counts
for which Defendant was sentenced on the same day should be “related” for purposes of § 4A1.2.
In support of this contention, Defendant points out that for each day of sentencing the crimes were
for the same or similar offenses, that they shared a “modus operandi,” that they happened in close
temporal and geographic proximity to each other, that in many instances they were investigated by
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the same police officer, and that they were sentenced by the same judge on the same day. (J.A. at
15.)
This Court has rejected all of Defendant’s arguments in prior cases. Merely because a court
system takes a functional approach to sentencing a defendant convicted of multiple crimes, treating
all charges at the same sentencing hearing and even sentencing the defendant to concurrent
sentences, this Court will not automatically treat the crimes as “related” for purposes of § 4A1.2.
See United States v. Smith, 905 F.2d 1296, 1303 (9th Cir. 1990) (rejecting proposition that
concurrent sentences automatically indicated that the offenses were “related” for purposes of §
4A1.2). There must be a formal order of consolidation (thus qualifying under subpart (3) of
Application Note 3 on what constitutes related crimes), United States v. Coleman, 964 F.2d 564, 566
(6th Cir. 1992), or the crimes must be part of a “common plan or scheme” as Defendant alleges
here.1
This Court has held that “neither close geographic or temporal proximity commands a
finding that the defendant jointly planned the crimes.” Irons, 196 F.3d at 640. Neither does the
sharing of a “modus operandi” makes the crimes related. United States v. Cowart, 90 F.3d 154, 159
(6th Cir. 1996). Hence, prior convictions are not “related” merely because they are part of a crime
spree. Irons, 196 F.3d at 640. Instead, Defendant must present evidence that the crimes were
“jointly planned” or that “the commission of one offense necessarily requires the commission of the
1
Defendant does not argue that the cases were formally consolidated for sentencing, nor
could he, because on each occasion of sentencing he was sentenced under multiple indictments and
court docket numbers. (J.A. at 116-128); see also Coleman, 964 F.2d at 566 (taking separate docket
numbers as an indication that the cases were not formally consolidated).
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other.” Id. at 638. Defendant has presented no such evidence of joint planning to this Court. Nor
has Defendant presented evidence that the commission of one of the crimes necessarily involved the
commission of the other crimes for which he was sentenced on the same day. Indeed, Defendant
fails to address the crimes individually and instead has relied on his general argument that the joint
sentencing and similar nature of the offenses makes the crimes part of a common scheme or plan.
The district court therefore did not clearly err in refusing to find that Defendant had proven that each
sentencing date encompassed “related” offenses for purposes of § 4A1.2.
2. This Court Does Not Review a District Court’s Refusal to Grant a Discretionary
Downward Departure Under § 5K1.1 in the Calculation of the Advisory Guidelines
Sentence
This Court has set forth the limited extent to which it will review a district court’s refusal
to grant a downward departure for substantial cooperation under the Sentencing Guidelines:
[T]he decisions whether to depart and how much to depart are entirely committed to
the district judge’s discretion. U.S.S.G. § 5K1.1; United States v. Gregory, 932 F.2d
1167, 1169 (6th Cir. 1991). The exercise of appellate jurisdiction is proper only in
the rare case in which the district court erroneously thought that it lacked the
authority to grant a departure. Schray, 383 F.3d at 433-34; United States v. Smith,
278 F.3d 605, 609 (6th Cir. 2002); United States v. Farrow, 198 F.3d 179, 199 (6th
Cir. 1999); United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995).
United States v. Jones, 417 F.3d 547, 550-51 (6th Cir. 2005).
Defendant in the instant case does not argue that the district court misunderstood its authority
to include a § 5K1.1 departure. Rather, Defendant disputes only the district court’s rationale for
allegedly not granting the departure.2 This Court does not review a district court’s conscious
2
Defendant may be additionally mistaken in his factual premise for this argument on appeal.
Defendant argues as if the district court refused to consider a § 5K1.1 departure. In the district
court’s judgment, the district court stated that it “granted the Government’s motion for a downward
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exercise of its discretion to include or not include a § 5K1.1 departure in its calculation of the
advisory Guidelines’ sentence. Id.
B. The District Court Did Not Exhibit Improper Bias Toward Defendant
1. Plain Error Review Applies
Defendant did not object to the district court’s alleged bias below. This Court reviews
allegations of a district court’s bias for plain error when the has defendant failed to challenge the
alleged bias below. See United States v. Johnson, No. 04-2371, 2006 U.S. App. LEXIS 11694, at
*24 (6th Cir. May 10, 2006). “To establish plain error, a defendant must show (1) that an error
occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error
affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the
fairness, integrity or public reputation of the judicial proceedings.” United States v. Abboud, 438
F.3d 554, 583 (6th Cir. 2006).
2. The Trial Court Did Not Exhibit Impermissible Bias or Prejudice
We find that Defendant fails to establish the first element of plain error; the district court’s
actions and statements do not rise to the level of impermissible bias or prejudice.
In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court provided guidance as to
when a district court’s remarks or rulings amount to a level of bias that denies a defendant a fair
trial:
Opinions formed by the judge on the basis of facts introduced or events occurring in
the course of the current proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a deep-seated favoritism or
departure.” (J.A. at 155.)
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antagonism that would make fair judgment impossible. Thus, judicial remarks
during the course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge. They may do so if they reveal on opinion that derives from an extra
judicial source; and they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible . . . . Not establishing bias or
partiality, however, are expressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display. A judge’s ordinary
efforts at courtroom administration – even a stern and short-tempered judge’s
ordinary efforts at courtroom administration – remain immune.
Id. at 555-56. Further, unfavorable judicial rulings almost never constitute judicial bias. Id. at 555.
Defendant argues that the district court’s inclination to depart upward from the Guidelines
range, its refusal to consider Defendant’s prior offenses “related” for § 4A1.2 purposes, and select
comments from the district court during the sentencing hearing, “exhibit[] a judicial predisposition
that goes beyond what is normal and acceptable.” (Def. Br. 35.) In particular, Defendant now
objects to comments made by the district judge that Defendant’s identify theft crimes “ruined lives,”
that the victims “can’t get credit, they can’t buy anything,” and that Defendant’s crimes were just
as bad or even worse than physical robbery of the victims. (See J.A. at 99-104.) Defendant avers
that the district court misunderstood the nature of his crimes because the “victims” of his crimes
were not individuals, but the credit companies; the Presentence Investigation Report lists the
recipients of restitution as a series of credit card companies and banks.
Because Defendant points to no extrajudicial source of the judge’s alleged bias, we presume
that Defendant is relying on that prong of the Liteky test which says that there exists impermissible
bias if a judge’s comments “reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Liteky, 510 U.S. at 555. We find that Defendant’s evidence of alleged bias
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fails to show such antagonism, and therefore Defendant has failed to show plain error. See, e.g.,
United States v. Hickman, 592 F.2d 931, 935 (6th Cir. 1979). In Hickman, this Court found plain
error where the district court interjected itself more than 250 times in a one-day trial, took it upon
itself to rehabilitate witness testimony after defense counsel had conducted cross-examination, and
did not wait for objections, but “would sua sponte interrupt a witness or counsel, with the words
‘objection sustained’ and then proceed to state why the witness’ testimony was in some way
objectionable.” Id. at 932-35. Further, the district court in Hickman cut off defense counsel in
closing argument and, in the jury’s presence, admonished that “I won’t let you tell them rotten law.”
Id. at 936.
In the instant case, the district court’s correct ruling that Defendant had failed to establish
the relatedness of his prior offenses cannot be the basis of a bias finding. See Liteky, 540 U.S. at
555. Similarly, the district court’s exercise of its discretion in imposing a sentence greater than that
which the Sentencing Guidelines recommend cannot, standing alone, establish bias. Id. Defendant
is therefore left with the statements pertaining to victim impact and likening Defendant’s crime to
violent robbery in support of his bias argument. The district court did not misunderstand the nature
of Defendant’s crimes. Although the ultimate bearers of the financial loss in Defendant’s case were
the credit companies, the consumers whose identities Defendant usurped had to pursue affirmative
remedies through these same credit companies in order to establish that Defendant’s expenditures
were fraudulent. It is common knowledge in such cases that damage to an individual’s credit is not
atypical, and certainly affirmative effort is required on the part of the consumer in order to ensure
that there is no long term damage to the consumer’s credit worthiness. The district court’s
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characterization of Defendant’s victims, then, was not out of bounds, nor the type of impermissible
antagonism which would implicate the fundamental fairness of Defendant’s sentence.
Finally, Defendant argues that the district court’s analogy of Defendant’s crimes to physical
robbery and personal violence necessarily implies impermissible bias, because Defendant’s crimes
were not “crimes of violence” as understood in the penal code. In this case, the district court’s
comments must be taken in context. During the sentencing hearing, defense counsel argued for a
downward departure, stating that “[h]e’s not murdering people. He’s not doing violent crime.” (J.A.
at 98.) The district court responded by asking, somewhat rhetorically: “It wasn’t doing violence to
his victims, these people whose identifies were stolen?” (J.A. at 99.) After continued argument by
defense counsel as to why Defendant was not as bad a criminal as a “bank robber,” the judge
responded: “No, it would have been better if he were a bank robber or better if he just stuck these
people up at their mailboxes and just taken their cash. What he did stays with them and with them
and with them.” (J.A. at 99-100.)
Defendant invited the analogy to robbery, and the district court’s use of that analogy did not
show impermissible bias, but demonstrated the judge’s informed perception of the extent and nature
of Defendant’s crimes. Moreover, even were this Court to construe the district court’s statements
as exhibiting his own position on the subject, “judicial remarks . . . that are critical or disapproving
of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge.” Liteky, 540 U.S. at 555.
In summary, Defendant has failed to show that the district court demonstrated impermissible
bias or hostility such that Defendant was denied a fair sentencing. Further, because Defendant failed
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to object to the district court’s alleged bias during the sentencing hearing, Defendant must meet the
plain error standard. Even were the Court to assume that the district court’s statements were
questionable, the proceedings below were certainly not the type that would “seriously affected the
fairness, integrity or public reputation of the judicial proceedings,” Abboud, 438 F.3d at 583, as
would be necessary to satisfy plain error review.
C. The District Court Did Not Commit Plain Error in Sentencing Defendant
1. Plain Error Review Applies
Defendant has failed to preserve this issue for review. Although Defendant objected below
to the district court’s calculation of the advisory Guidelines sentence, and argued generally for a
downward departure from the Guidelines before the district court handed down its sentence of 98
months incarceration, Defendant did not lodge a complaint with the district court about the sentence
as ultimately imposed.
Because Defendant failed to object to the sentence when handed down by the district court,
this Court reviews Defendant’s sentence only for plain error. United States v.Willis, No. 05-5434,
2006 U.S. App. LEXIS 10099, at *9 (6th Cir. Apr. 20, 2006). “To establish plain error, a defendant
must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious
or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact
seriously affected the fairness, integrity or public reputation of the judicial proceedings.” Abboud,
438 F.3d at 583. The district court errs in sentencing a criminal defendant when the sentence is
unreasonable. Booker, 543 U.S. at 259.
2. No Plain Error Exists
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Defendant argues that the district court’s decision to impose a sentence higher than that
which the Sentencing Guidelines recommend is unreasonable. The Guidelines recommended a
range of 63 to 78 months of incarceration for a criminal defendant with a Criminal History Category
of VI and a total adjusted offense level of 19. The district court’s ultimate sentence was 98 months
incarceration, 20 months higher than the upper limit of the Guidelines’ recommended range.
The district court’s decision to impose a higher sentence was due, in large part, to the district
court’s assessment of Defendant’s history. Before sentencing in the instant case, Defendant had 24
prior criminal convictions, almost all in the area of monetary fraud. Defendant’s total criminal
history score was a 28, whereas only 13 points were necessary to place Defendant in the Category
VI offender for purposes of the Sentencing Guidelines, the highest category possible. Defendant
therefore had twice the criminal history points of a threshold Category VI offender. The Guidelines
themselves distinguish between sentences for defendants with varying criminal histories. A category
I offender in Defendant’s position, for example, would have had a recommended range of 30 to 37
months. See U.S. Sentencing Guidelines Manual § 5A (2004). Thirteen criminal history points
separate a Category I offender from a threshold Category VI offender. Id. Because Defendant has
twice as many criminal history points as a threshold Category VI offender, increasing his sentence
by 20 months is both consistent with past Guidelines practice and reasonable in the post-Booker
world, absent additional evidence that the sentence is somehow procedurally unreasonable.
Defendant attempts a procedural unreasonableness argument by asserting to this Court that
the district court failed to consider Defendant’s individual circumstances in imposing sentence.
Although the district court did not specifically mention Defendant’s personal problems, the district
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court did reference Defendant’s sentencing memorandum, in which Defendant outlines his past
personal problems which might warrant leniency. Defense counsel did not present evidence of
Defendant’s personal history at the sentencing hearing, despite the district court’s invitation to
present or discuss any factors the defense felt might be pertinent to sentencing. Defendant also
objects to the district court’s apparent determination that Defendant’s chances for rehabilitation are
slim. With 24 past criminal convictions for the same types of crimes, the district court’s conclusion
that Defendant was a likely recidivist was eminently reasonable.
Even were the district court’s consideration of the § 3553 factors questionable in the instant
case, Defendant has not been able to show that his sentence rises to the level of plain error. The
substance of the sentence is reasonable, given Defendant’s long history of similar crimes; moreover,
the sentence is well within the maximum incarceration penalties of 10 and 15 years for his two
crimes of conviction. Therefore, we cannot say that the sentencing hearing in this case either
affected Defendant’s substantial rights or has adverse implications for the integrity of the judicial
system. We therefore find that the district court did not commit plain error in sentencing Defendant.
III.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s sentence in this case.
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