United States v. Rene Kohler , 359 F. App'x 877 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 22 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50527
Plaintiff - Appellee, D.C. No. 8:07-cr-00024-AHS-1
v.
MEMORANDUM *
RENE BOUDEWIJN KOHLER, AKA
Seal A,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Submitted December 7, 2009 **
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Rene Boudewijn Kohler appeals his conviction of five counts of filing false
tax returns in violation of 26 U.S.C. § 7206(1) and his resulting sentence. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Mr. Kohler’s conviction but
remand for re-sentencing.
1. Mr. Kohler challenges the district court’s failure to separately instruct the
jury on his good faith defense. Because he failed to object to the jury instructions
in the district court, we review for plain error. United States v. Crowe, 563 F.3d
969, 972–73 (9th Cir. 2009). Here, the jury instructions “fairly and adequately
covered the issues presented.” United States v. Martinez-Martinez, 369 F.3d 1076,
1084 (9th Cir. 2004). Because the district court also properly instructed the jury on
the wilfulness element of the crime, an additional good faith instruction was not
necessary. See United States v. Pomponio, 429 U.S. 10, 13 (1970); United States
v. Solomon, 825 F.2d 1292, 1297 (9th Cir. 1987). As a result, the district court did
not commit plain error in failing to separately instruct the jury on Mr. Kohler’s
good faith defense.
2. Nor did the district court plainly err by requiring Mr. Kohler to cooperate
with the government in obtaining his DNA as a condition of his supervised release.
District courts are statutorily obligated to impose this condition of supervised
release on all convicted felons. 18 U.S.C. § 3583(d), 42 U.S.C. § 14135a(a)(2),
(d)(1). Mr. Kohler was convicted on five felony counts, unambiguously bringing
him within this requirement.
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It is true that under 18 U.S.C. § 3583(c) district courts must consider various
§ 3553(a) factors in imposing a supervised release condition. These requirements,
however, apply only to those conditions the district court may, but need not,
impose; they do not apply to the imposition of statutorily required conditions of
supervised release. Cf. United States v. Jackson, 189 F.3d 820, 823 (9th Cir. 1999)
(“In imposing a term of supervised release, ordering discretionary conditions of
supervised release, and modifying the conditions, the courts are to consider, among
other things, the deterrent, protective, and rehabilitative purposes of sentencing . . .
.”). Mr. Kohler’s reading of § 3583 would destroy the distinction between
mandatory and discretionary conditions of supervised release—a result that
directly conflicts with the plain language and structure of the statute. Thus, the
district court did not plainly err by imposing the condition pertaining to Mr.
Kohler’s DNA without referencing any 18 U.S.C. § 3553(a) factors.
3. We review the district court’s interpretation of the Guidelines de novo, its
application of the Guidelines for abuse of discretion, and its factual findings for
clear error. Crowe, 563 F.3d at 977. Mr. Kohler first challenges his Guidelines
calculation on the ground that under United States v. Booker, 543 U.S. 220 (2005),
it was error for the district court, and not a jury, to find that the tax loss resulting
from his unreported income was $638,286. However, Booker and its progeny do
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not forbid judicial fact-finding; rather, those cases allow a judge to “find additional
facts, so long as the judge treat[s] the Guidelines as advisory.” United States v.
Williamson, 439 F.3d 1125, 1140 (9th Cir. 2006); see also United States v. Hickey,
580 F.3d 922, 932 (9th Cir. 2009) (“Because the sentencing guidelines are advisory
after Booker, the Sixth Amendment does not require that the loss be proved to a
jury beyond a reasonable doubt.”). Additionally, because the government’s
evidence meets the “preponderance of the evidence” standard generally applicable
to Guidelines fact-finding, the district court did not clearly err in arriving at the tax
loss figure. United States v. Staten, 466 F.3d 708, 719 (9th Cir. 2006).1
However, the district court erred in applying the version of U.S.S.G. § 3C1.1
that appeared in the 2007 Guidelines Manual to the obstruction of justice
enhancement instead of the version in the 2005 manual. Generally, the Guidelines
Manual to be applied by the district court is the Guidelines Manual in effect at the
time of sentencing. United States v. Rising Sun, 522 F.3d 989, 992 n.1 (9th Cir.
2008). However, "the Ex Post Facto Clause of the U.S. Constitution requires the
1
The clear and convincing evidence” standard is inapplicable here because
the tax loss calculation did not have an extremely disproportionate impact on the
ultimate sentence imposed. United States v. Berger, — F.3d —, 2009 WL
4141478, at *8 (9th Cir, Nov. 30, 2009) (internal quotation marks omitted); see
also United States v. Jordan, 256 F.3d 922, 928 (9th Cir. 2001) (citing factors
relevant to the “disproportionate impact” analysis).
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defendant to be sentenced under the guidelines in effect at the time of the offense if
the Guidelines have undergone substantive changes that would disadvantage the
defendant." United States v. Stevens, 462 F.3d 1169, 1170 (9th Cir. 2006); see also
U.S.S.G. § 1B1.11. Substantive amendments to the Guidelines between 2005—the
last year in which Mr. Kohler engaged in conduct for which he was
convicted—and 2007 render use of this Manual error in this respect.2
Under the obstruction of justice enhancement provision in the 2005
Guidelines, the defendant must have "willfully obstructed . . . or attempted to
obstruct . . ., the administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction." U.S.S.G. § 3C1.1
(2005). The evidence demonstrates that Mr. Kohler cut the ledgers in May
2003—during the civil audit and almost two years before the criminal investigation
started. This conduct did not occur “during the course of the investigation . . . of
2
Mr. Kohler did not object to the use of the 2007 Guidelines in connection
with the obstruction of justice enhancement; nor did he raise an Ex Post Facto
challenge. However, Mr. Kohler did not waive this point as he did not “expressly
agree[]” to the use of the more recent Guidelines nor did he “affirmatively waive
consideration of the [post-amendment] version of the guidelines or abandon an ex
post facto argument.” United States v. Chea, 231 F.3d 531, 540 (9th Cir. 2000).
Rather, Mr. Kohler has pressed his argument against the obstruction enhancement
throughout these proceedings under the standard set forth in the 2005 Guidelines.
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the instant offense of conviction” and could not form the basis of an obstruction of
justice enhancement. See United States v. Ford, 989 F.2d 347, 352 (9th Cir. 1993).
In 2006, U.S.S.G. § 3C1.1 was amended to remove the strict requirement
that the obstructive conduct occur during the criminal investigation or prosecution.
See Rising Sun, 522 F.3d at 996–97; see also U.S.S.G. § 3C1.1 app. note 1. We
previously have held that this amendment constituted a substantive change. See
Rising Sun, 522 F.3d at 997. Because this amendment disadvantaged Mr. Kohler
by expanding the scope of conduct that could support an obstruction of justice
enhancement, it was error to rely on Mr. Kohler’s cutting of his ledgers in 2003 as
a basis for imposing the obstruction of justice enhancement.
The district court properly relied on findings that Mr. Kohler urged Ms.
Berger to lie and said that he should strangle her in imposing the obstruction of
justice enhancement. The district court did not clearly err in choosing to credit Ms.
Berger's testimony as to this conduct that did occur during the criminal
investigation. See United States v. Bridges, 569 F.3d 374, 377 (9th Cir. 2009). It
may very well be that the district court would have imposed the obstruction
enhancement even applying the version of § 3C1.1 in the correct Guidelines
Manual. However, we have held that Ex Post Facto violations at sentencing are
not subject to harmless error review, see Williams v. Roe, 421 F.3d 883, 887–88
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(9th Cir. 2005). Therefore, we must vacate the sentence and remand to the district
court for re-sentencing using the version of § 3C1.1 in the Guidelines in effect at
the time of the conduct underlying the conviction.
Conviction AFFIRMED; Sentence VACATED and REMANDED
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