United States v. Diane Smagola , 390 F. App'x 438 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0450n.06
No. 08-4061 FILED
Jul 23, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DIANNE L. SMAGOLA, NORTHERN DISTRICT OF OHIO
Defendant-Appellant.
/
Before: SILER and CLAY, Circuit Judges; and GRAHAM, District Judge.*
CLAY, Circuit Judge. Defendant, Dianne L. Smagola, appeals from her sentence of
seventy months’ imprisonment after pleading guilty to mail fraud in violation of 18 U.S.C. § 1341.
For the reasons set forth below, we VACATE Defendant’s sentence and REMAND for the district
court to resentence Defendant to a term of imprisonment not to exceed sixty months.
BACKGROUND
From April 22, 1999 to March 26, 2004, Defendant devised a scheme to defraud friends and
family members who had given her money to invest. Defendant represented that she was a licensed
investment broker with experience buying and selling securities and annuities. Once Defendant
obtained money from a friend or family member, often through United States mail, she claimed to
*
The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
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open an investment account in each investor’s name and make investments. However, Defendant
never opened these accounts or made any investments. To create the impression that Defendant was
making investments, she engaged in activity such as sending fraudulent statements by mail, mailing
checks to investors representing alleged interest, and making phone calls to investors in which she
told them a fictitious amount of interest they had earned on their investments.
On several occasions during the relevant time period, all of the investors contacted Defendant
and attempted to withdraw their funds and/or liquidate their accounts. Defendant lied, claiming on
certain occasions that the funds were tied up in long-term investments and could not be liquidated
or that the funds could not be returned due to tax penalties for early withdrawals. Even when the
investors said they did not care about the tax penalties, Defendant did not return the money. As a
result of Defendant’s fraudulent investment scheme, the investors sustained a total loss of
approximately $728,706.
On October 10, 2007, Defendant was charged with mail fraud in violation of 18 U.S.C. §
1341. On March 12, 2008, Defendant pled guilty to the one count indictment with no written plea
agreement. During the plea hearing, the district court informed Defendant that “the maximum
penalty is five years imprisonment, plus a fine of up to $250,000.” (Plea Tr. at 8). However, the
maximum penalty for a violation of 18 U.S.C. § 1341 is twenty years’ imprisonment, a fine of
$250,000, and three years’ supervised release. The Presentence Investigation Report, dated June 13,
2008, correctly states the maximum penalty for a violation of 18 U.S.C. § 1341 as twenty years’
imprisonment, a fine of $250,000, and three years’ supervised release.
At sentencing on July 16, 2008, the district court asked Defendant and her counsel if they had
the opportunity to read and discuss the Presentence Report. Both replied that they had read the
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report and that they had no objections.1 The district court determined that Defendant had an adjusted
offense level of twenty-five and a criminal history category of I, resulting in an advisory guideline
range of fifty-seven to seventy-one months’ imprisonment. Shortly before the sentencing hearing
started, Defendant submitted a statement for acceptance of responsibility to the court. However, the
court declined to grant Defendant a two-level reduction for acceptance of responsibility, adopting
the following reasons stated by the government as the basis for the decision: (1) Defendant failed to
make a statement accepting responsibility until the day of her sentencing; (2) Defendant failed to
attempt restitution, even though it had been four years since her criminal conduct ceased; and (3)
Defendant did not cooperate with pre-trial services. Furthermore, the court did not find Defendant
to be remorseful, even at sentencing.
The court sentenced Defendant to seventy months’ imprisonment, restitution in the amount
of $728,706, and three years of supervised release. On July 17, 2008, Defendant timely filed a notice
of appeal.
DISCUSSION
I. Misstatement of Maximum Sentence
A. Plain Error Analysis
When a defendant does not object during the plea colloquy or at sentencing before the district
court, we review the district court’s actions for plain error. See Fed. R. Crim. P. 51(b), 52(b); United
States v. Vonn, 535 U.S. 55, 59 (2002). To show plain error, a defendant must show (1) error (2) that
1
Defendant had previously made two objections to the Presentence Report, which were listed
in the addendum, concerning enhancements for abuse of trust and vulnerable victim. However,
Defendant withdrew these objections at sentencing. Defendant made no objections relating to the
length of the maximum sentence.
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was obvious or clear, (3) that affected the defendant’s substantial rights and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings. United States v. Vonner, 516 F.3d
382, 386 (6th Cir. 2008) (en banc).
Under Federal Rule of Criminal Procedure 11, the district court must inform the defendant
of “any maximum possible penalty, including imprisonment, fine, and term of supervised release.”
Fed. R. Crim. P. 11(b)(1)(H). However, Rule 11(h) states that “[a] variance from the requirements
of this rule is harmless error if it does not affect substantial rights.” Thus, we must determine
whether the district court committed plain error by violating Rule 11(b)(1)(H), and, if so, whether
the error affected Defendant’s substantial rights such that Defendant is entitled to a remedy.
“The mere fact that a defendant does not know at the time of his guilty plea the exact
sentence that [s]he will receive does not mean that the plea was entered into unknowingly.” United
States v. Malcom, 114 F.3d 1190, at *7 (6th Cir. 1997) (table) (citing United States v. Stephens, 906
F.2d 251, 254 (6th Cir. 1990) (“the mere fact that an attorney incorrectly estimates the sentence a
defendant is likely to receive is not a fair and just reason to allow withdrawal of a plea agreement”)
(internal quotation omitted)). However, it is well-established that “for a defendant’s plea of guilty
to be voluntary, the defendant must be aware of the maximum sentence that could be imposed.”
King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994). See also United States v. Syal, 963 F.2d 900, 905
(6th Cir. 1992) (“To plead knowingly, the defendant must know the maximum possible penalty
provided by law.” (internal quotations omitted)).
In the instant case, the government does not dispute that the district court misinformed
Defendant about the maximum sentence for mail fraud under 18 U.S.C. § 1341 at the plea hearing.
The court stated that the maximum sentence was five years, when, in fact, the maximum sentence
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was twenty years. Neither the government nor defense counsel objected to the court’s statement that
the maximum sentence was five years. Further, the indictment against Defendant did not indicate
the maximum possible sentence for mail fraud, and there was no written plea agreement in this case.
Thus, nothing in the record indicates that Defendant independently knew or was advised of the
correct maximum sentence prior to pleading guilty. The district court ultimately sentenced
Defendant to seventy months’ imprisonment, which is ten months longer than the maximum
sentence stated by the court at the plea hearing. Therefore, the district court committed a clear error
by misinforming Defendant of the maximum sentence in violation of Federal Rule of Criminal
Procedure 11(b)(1)(H). See, e.g., Hart v. Marion Corr. Inst., 927 F.2d 256, 259 (6th Cir. 1991)
(granting habeas relief to the petitioner because the trial judge erred by incorrectly informing the
petitioner that the possible term of incarceration was fifteen years rather than seventy-five years
before the plea was entered).
Having found that the court committed a clear error, we must next determine whether the
error was harmless. An error may be considered harmless only if it does not affect a defendant’s
substantial rights. Syal, 963 F.2d at 906. An error affects a defendant’s substantial rights if it is
“prejudicial,” in the sense that it “affected the outcome of the district court proceedings.” United
States v. Olano, 507 U.S. 725, 734 (1993). See also United States v. Story, 503 F.3d 436, 438 (6th
Cir. 2007); United States v. Oliver, 397 F.3d 369, 379 (6th Cir. 2005) (“a sentencing error affects
substantial rights where it causes the defendant to receive a more severe sentence” (internal quotation
and citation omitted)).
In the instant case, Defendant claims that she was unaware of the maximum sentence before
the plea hearing, and nothing in the record indicates that the defendant independently knew or was
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advised of the correct maximum sentence prior to the plea colloquy. Furthermore, the district court’s
error may have caused Defendant to go to prison for longer than she thought possible for the crime
she committed. Thus, the court’s error affects Defendant’s substantial rights. See, e.g., Syal, 963
F.2d at 906 (holding that “the failure to notify the defendant of the term of supervised release and
its possible effect on his sentence was not harmless error” where “[n]othing in the record suggests
that the defendant understood that his sentence would include supervised release [and] [t]here was
no written plea agreement by which he might have been warned”); United States v. Walsh, 733 F.2d
31, 34 (6th Cir. 1984) (finding that the defendant “suffered identifiable prejudice because the
sentence imposed exceeded the maximum sentence he was promised he would receive”). Cf. United
States v. Williams, 899 F.2d 1526, 1531 (6th Cir.1990) (holding that court’s failure to tell defendant
in Rule 11 plea hearing that he faced a mandatory period of supervised release was harmless error
because the defendant was on notice of the supervised release requirement set out in the plea
agreement and the defendant did not claim he was unaware of the requirement, only that court
technically had failed to comply with requirements of rule).
Accordingly, because this error affected Defendant’s substantial rights, as well as the
fairness, integrity, or public reputation of the judicial proceedings, the district court committed plain
error.
B. Proper Remedy
Having determined that the district court committed plain error by misinforming Defendant
of the maximum sentence, we must next determine the appropriate remedy. Defendant argues that
she must either be resentenced to a period of not more than five years or her plea must be vacated
and the case remanded so that she can plead anew or proceed to trial. Defendant states that either
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remedy would appropriately correct the Rule 11 error. The government argues that resentencing
Defendant to five years, or sixty months, imprisonment is the proper remedy in this case.
This Court has found both resentencing and vacating a guilty plea to be appropriate remedies
to correct a Rule 11 error. In Hart v. Marion Correctional Institution, 927 F.2d at 259, this Court
found the appropriate remedy to be resentencing when a defendant was misinformed about the
maximum sentence. Both the trial judge and defense counsel had told the defendant that the
maximum sentence was fifteen years’ imprisonment, when the maximum sentence was in fact
seventy-five years’ imprisonment. This Court held that the appropriate remedy was for the defendant
to be resentenced to a term not to exceed fifteen years–the maximum sentence he was told at the time
of his plea. If the resentencing court then sentenced the defendant to more than fifteen years’
imprisonment, he would be allowed to withdraw his plea and the state could try him under the
original indictment. Id.In United States v. Reader, 254 F. App’x 479, 482 (6th Cir. 2007), this Court found the
appropriate remedy to be vacating the defendant’s plea when a defendant was misinformed about
the maximum term of supervised release. The government had stated in the written plea agreement
that maximum term of supervised release was three years, when, in fact, the maximum term of
supervised release was life. In addition, the district court incorrectly stated at the plea hearing that
the maximum term of supervised release was three years. Id. at 481. In light of the substantial
difference between a three year term of supervised release and a life term of supervised release, this
Court found that there were serious questions about whether the defendant would have entered a
guilty plea if he knew he was facing a life term of supervised release. Thus, this Court held that the
plea should be vacated. Id. at 482.
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The facts and circumstances of this case more closely resemble Hart than Reader. In the
instant case, there was no written plea agreement compounding the error of the district court, and
the difference between the maximum sentence stated by the court at the plea hearing and the actual
maximum sentence available is closer to Hart than to Reader. Furthermore, the Presentence Report
correctly identified the maximum sentence as twenty years’ imprisonment, and Defendant
acknowledged at sentencing that she read the report, discussed it with her attorney, and had no
objections. Thus, at least by the time of sentencing, Defendant should have known that the
maximum sentence exceeded five years’ imprisonment and did not move to withdraw her plea.
Finally, Defendant agrees that resentencing her to a term of no more than sixty months would
appropriately correct the Rule 11 error.
Accordingly, we hold that resentencing Defendant to a term not to exceed sixty months’
imprisonment is the proper remedy under the facts and circumstances of this case.
II. Acceptance of Responsibility
We review for clear error the district court’s determination of whether to grant a sentencing
reduction for acceptance of responsibility. United States v. Kathman, 490 F.3d 520, 524 (6th Cir.
2007); see also United States Sentencing Guidelines Manual (“USSG Manual”) § 3E1.1 cmt. n.5
(2005) (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the sentencing judge is entitled to great
deference.”)
The USSG Manual grants sentencing courts discretion to decrease the offense level by two
levels “if the defendant clearly demonstrates acceptance of responsibility for his offense.” USSG
Manual § 3E1.1(a) (2007); see also United States v. Nelson, 356 F.3d 719, 721 (6th Cir. 2004). A
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guilty plea does not necessarily guarantee a defendant an automatic adjustment as a matter of right.
USSG Manual § 3E1.1 Note 3. If the sentencing court finds conduct that is inconsistent with
acceptance of responsibility, the court’s denial of a downward adjustment is entitled to great
deference. Id. at Notes 3, 5. Although a guilty plea is good evidence of acceptance of responsibility,
the truthfulness of a defendant’s admission of the charged offense, the defendant’s voluntary
assistance to authorities in resolving the offense, and the timeliness of a defendant’s acceptance of
responsibility are pertinent determinations in granting a reduction. See United States v. Jeross, 521
F.3d 562, 582 (6th Cir. 2008) (citing United States v. Gregory, 315 F.3d 637, 640 (6th Cir. 2003));
United States v. Jones, 997 F.2d 1475, 1478 (6th Cir. 1993).
In the instant case, the district court was within its discretion by refusing to grant Defendant
a two point reduction for acceptance of responsibility. Regarding the truthfulness of the statement
Defendant gave at the sentencing hearing, the judge found a number of inconsistencies concerning
Defendant’s efforts to invest the money she had stolen in an attempt to repay the money and the
extent to which Defendant used the money for her own personal gain, notably for building a new
house worth approximately $200,000. In addition, the court read a number of the victim impact
letters into the record, which opined that Defendant thinks she is “untouchable,” disingenuous in her
statements to the court, and not the least bit remorseful for her actions. (Sentencing Tr. at 12, 26,
32). Regarding the timeliness of Defendant’s conduct, Defendant failed to provide a statement to
the probation officer who prepared her Presentence Investigation Report after her plea, despite being
asked for a statement by the probation officer. Instead, Defendant waited until the day of the
sentencing hearing to submit a statement. Regarding Defendant’s voluntary assistance to the
authorities, the record shows that Defendant failed to respond to a civil suit arising from her
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fraudulent activities, failed to respond to the FBI during the investigation of her conduct, failed to
cooperate with pretrial services, and failed to appear for her arraignment, which resulted in her
having to be arrested.
Nearly all the above-mentioned conduct occurred after Defendant was indicted in this case.
Thus, contrary to Defendant’s argument, this is not a case like United States v. Hakley, 101 F. App’x
122, 128 (6th Cir. 2004), where “[a]lmost exclusively, the court [improperly] relied on events
occurring . . . prior to the defendant’s waiving indictment and agreeing to plead guilty and even prior
to her arrest for this conduct.” See also Gregory, 315 F.3d at 641 (reversing a district court’s
decision to deny a downward adjustment for acceptance of responsibility where any obstructive
behavior predated the indictment after which the defendant fully cooperated and never denied his
guilt).
In declining to grant the downward departure, the district court fully stated each of these
reasons on the record. Accordingly, we hold that the district court did not commit clear error by
declining to grant Defendant a two-level reduction for acceptance of responsibility.
CONCLUSION
The district court plainly erred by misstating the maximum sentence during the plea colloquy
as sixty months but did not clearly err by declining to grant Defendant a two-level reduction for
acceptance of responsibility. Therefore, we hereby VACATE the district court’s judgment and
REMAND for resentencing to a term of imprisonment not to exceed sixty months.
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