DocketNumber: 06-2716-cr
Filed Date: 11/28/2007
Status: Precedential
Modified Date: 9/17/2015
06-2716-cr United States v. Juwa 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2007 5 (Argued: September 5, 2007 Decided: November 28, 2007) 6 Docket No. 06-2716-cr 7 -----------------------------------------------------x 8 UNITED STATES OF AMERICA, 9 10 Appellee, 11 12 -- v. -- 13 14 ARTHUR JUWA, 15 16 Defendant-Appellant. 17 18 -----------------------------------------------------x 19 20 B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges. 21 Appeal by Defendant Arthur Juwa from a judgment of 22 conviction of one count of possession of child pornography in 23 violation of 18 U.S.C. § 2252A(a)(5)(B), challenging a sentence 24 of 90 months’ imprisonment, entered in the United States District 25 Court for the Southern District of New York (Stephen C. Robinson, 26 Judge). Because it is unclear to what extent the district court 27 based its sentencing enhancement on unsubstantiated charged 28 conduct, we hold that the sentence was procedurally unreasonable. 29 VACATED AND REMANDED. 30 MALVINA NATHANSON, New York, 31 N.Y., for Defendant-Appellant. 32 33 EUGENE INGOGLIA, Assistant 34 United States Attorney, of 35 counsel, (Katherine Polk -1- 1 Failla, Assistant United 2 States Attorney, of counsel, 3 on the brief), for Michael J. 4 Garcia, United States Attorney 5 for the Southern District of 6 New York, New York, N.Y., for 7 Appellee. 8 JOHN M. WALKER, JR., Circuit Judge: 9 Defendant-Appellant Arthur Juwa, who pled guilty to one 10 count of possession of child pornography, asks us to vacate and 11 remand his sentence of 90 months’ imprisonment because it was 12 procedurally and substantively unreasonable. In this case, the 13 recommended Sentencing Guidelines range was 24 to 30 months’ 14 imprisonment, which both parties agreed would be reasonable. The 15 district court (Stephen C. Robinson, Judge), however, imposed a 16 sentence of 90 months based, at least in part, on pending state 17 charges against Juwa for sexual abuse of a minor. In declaring 18 its reasons for the upward departure, the district court cited 19 the fact that Juwa had engaged in sexual conduct with a minor 20 child “on repeated occasions.” Yet Juwa had indicated his intent 21 to plead guilty only to one count of felony sexual abuse in the 22 state case. Because it is unclear to what extent the district 23 court impermissibly based its sentencing enhancement on 24 unsubstantiated charged conduct, we hold that the sentence was 25 procedurally unreasonable, and we vacate and remand for 26 resentencing. 27 -2- 1 BACKGROUND 2 On February 16, 2005, while investigating allegations of 3 sexual abuse of a minor in Rockland County, New York, state law 4 enforcement officers conducted a search of Juwa’s home and car. 5 In his car, they found a laptop computer containing images of 6 child pornography, at least one of which had been downloaded from 7 the Internet. Juwa was charged federally with one count of 8 receiving and distributing images containing child pornography, 9 in violation of 18 U.S.C. § 2252A(a)(2)(B), and one count of 10 possessing child pornography, in violation of18 U.S.C. § 11
2252A(a)(5)(B). 12 On October 19, 2005, Juwa agreed to plead guilty in federal 13 court to possession of child pornography. In calculating the 14 applicable Sentencing Guidelines range, the parties and the 15 Probation Office determined that under U.S.S.G. § 2G2.2, Juwa’s 16 base offense level was 18. A two-level increase for the use of a 17 computer and a three-level decrease for acceptance of 18 responsibility produced an adjusted offense level of 17. With a 19 Criminal History Category of I, the resulting Guidelines range 20 was 24 to 30 months’ imprisonment. In the plea agreement, Juwa 21 and the government agreed that they would not seek any downward 22 or upward departures, respectively, and that a sentence within 23 this range would be reasonable. 24 The Presentence Report (“PSR”) prepared by the Probation -3- 1 Office on December 20, 2005, noted that Juwa’s laptop had been 2 seized during the Rockland County investigation into charges of, 3 inter alia, sexual abuse and sexual misconduct against a child 4 (“the Rockland County case”). The PSR further noted that Juwa 5 had been arrested on March 22, 2005, on the following state 6 charges: course of sexual conduct against a child in the first 7 degree (one count); criminal sexual act in the first degree (four 8 counts); sexual abuse in the first degree (three counts); and 9 endangering the welfare of a child (one count). The state 10 indictment alleged that, on various dates between December 25, 11 2001 and December 31, 2004, Juwa had engaged in oral sexual 12 conduct with his nephew, who was eight years old at the time of 13 Juwa’s arrest. According to the PSR, however, Juwa had not 14 admitted to those allegations. The Probation Office ultimately 15 recommended a term of 24 months’ imprisonment, at the bottom of 16 the Guidelines range, followed by three years’ supervised 17 release. 18 On January 26, 2006, Juwa appeared before the district court 19 for sentencing. The district judge indicated that he had 20 received and read defense counsel’s submissions, which included 21 letters in support of Juwa, as well as two “victim impact 22 statements” submitted by Juwa’s nephew and the nephew’s mother 23 through the U.S. Attorney’s Office. Defense counsel objected to 24 consideration of these letters because Juwa’s nephew was not a -4- 1 victim of the federal offense. The district judge stated that he 2 would hear from both the defense and the prosecution, as well as 3 from the nephew and the nephew’s mother. If he decided to 4 consider the latter’s statements or to consider an upward 5 departure, or both, he would adjourn the sentencing proceeding to 6 give defense counsel an opportunity to respond. 7 After giving all relevant parties a chance to speak, the 8 district judge stated that he would not consider the victim 9 impact statements but that he would consider an upward departure. 10 In particular, he was interested in the status and timeline of 11 the Rockland County case, whether Juwa was going to plead guilty 12 to those charges, and if and when he would be sentenced in that 13 case. After asking the defense and the government “to contact 14 their corresponding parties in the Rockland County case” and 15 clarify these issues, the district judge adjourned the 16 proceeding. 17 Sentencing resumed on May 9, 2006. The district judge began 18 by noting that, in the interim, he had received a letter from the 19 government indicating its understanding that the Rockland County 20 case would not be resolved until after Juwa’s federal sentencing; 21 that Juwa intended to plead guilty to one count of felony sexual 22 abuse; and that the anticipated sentence was five years’ 23 imprisonment, to run concurrently with his federal sentence. 24 Defense counsel indicated that he had no objections to the -5- 1 contents of the government’s letter. 2 The defense then asked the district court to impose a 3 sentence within the Guidelines range, citing the nature of the 4 crime and Juwa’s lack of criminal history, and stating that, 5 “apart from the Rockland County matter, there is nothing that 6 would warrant either a departure or stepping outside the 7 guidelines in applying the sentence.” The district court, 8 however, stated that it could not look past the Rockland County 9 case. In response, the defense argued that if the Rockland 10 County case was taken into account, the district court should 11 apply U.S.S.G. § 2G2.2(b)(5), which states: “If the defendant 12 engaged in a pattern of activity involving the sexual abuse or 13 exploitation of a minor, increase by 5 levels.” U.S.S.G. § 14 2G2.2(b)(5). A five-level increase would result in a Guidelines 15 range of 41 to 51 months. The defense also acknowledged 16 Application Note 6, which provides for an unspecified upward 17 departure “[i]f the defendant engaged in the sexual abuse or 18 exploitation of a minor at any time (whether or not such abuse or 19 exploitation occurred during the course of the offense or 20 resulted in a conviction for such conduct),” but argued that even 21 under this provision, a five-level increase would be sufficient. 22 U.S.S.G. § 2G2.2 Application Note 6. 23 The district judge then indicated that although he would not 24 consider the disposition of the Rockland County case, he would -6- 1 consider the underlying misconduct and would sentence “based on 2 the information before me.” Prior to imposing the sentence, the 3 district judge noted the relevant factors before him, including 4 the recommended Guidelines range, the pending state charges, and 5 the representation that Juwa would plead guilty to one count of 6 felony sexual abuse. He then discussed the factors that he was 7 directed to consider pursuant to18 U.S.C. § 3553
(a), as well as 8 the upward departure provisions of U.S.S.G. § 2G2.2(b)(5) and 9 Application Note 6. Regarding the Rockland County conduct, the 10 district judge stated that “[t]his Court is permitted to consider 11 this abuse, even though Mr. Juwa has not yet pled guilty in state 12 court. Considering this conduct, then, the Court imposes a 13 guidelines sentence of 90 months,” pursuant to Application Note 14 6. 15 In the alternative, the district judge stated that he would 16 impose a non-Guidelines sentence of 90 months, given that there 17 were no restrictions on the type of information a sentencing 18 court could consider in arriving at an appropriate sentence. But 19 in describing his reasons for imposing this non-Guidelines 20 sentence, the district judge stated that “Mr. Juwa has engaged in 21 sexual conduct with a minor child. He has done so on repeated 22 occasions.” In addition to the term of imprisonment, the 23 district judge ordered a three-year term of supervised release 24 and a mandatory special assessment of $100. -7- 1 Defense counsel objected to the sentence as excessive and 2 pointed out that Juwa had not agreed to plead guilty to every 3 count of the Rockland County indictment. To this, the district 4 court replied, ”I said he intended to plead to one count. . . . 5 Sexual abuse.” In the written judgment of conviction, the 6 district court provided the following explanation for imposing a 7 sentence outside the advisory Guidelines range: “The defendant, 8 through his attorney, and the gov’t informed the Court that the 9 defendant was going to enter a plea of guilt to an aggravated 10 sexual assault charge in State Ct. That charge was for molesting 11 his nephew for 3 years from the ages of . 7-10.” 12 Juwa ultimately pled guilty to count six of the Rockland 13 County indictment (“sexual abuse in the first degree”), in that 14 he “subjected another person who was less than eleven years old . 15 . . to sexual contact on December 25, 2001" in violation of New 16 York Penal Law § 130.65. This appeal followed. 17 DISCUSSION 18 We review a district court’s sentencing determination for 19 reasonableness. United States v. Booker,543 U.S. 220
, 260-62 20 (2005). Reasonableness review has both a procedural and a 21 substantive component; it involves “consideration not only of the 22 sentence itself, but also of the procedures employed in arriving 23 at the sentence.” United States v. Fernandez,443 F.3d 19
, 26 24 (2d Cir. 2006); see also United States v. Rattoballi, 452 F.3d -8- 1 127, 131-32 (2d Cir. 2006). “If a sentencing judge committed a 2 procedural error by selecting a sentence in violation of 3 applicable law, and that error is not harmless and is properly 4 preserved . . . for review . . . , the sentence will not be found 5 reasonable.” United States v. Crosby,397 F.3d 103
, 114 (2d Cir. 6 2005) (citation omitted). 7 Juwa challenges his sentence on both procedural and 8 substantive grounds. He argues that the district court committed 9 procedural error when it did not adequately explain the reasoning 10 behind its sentence, as required by18 U.S.C. § 3553
(c)(2), and 11 when it relied on a fact concerning Juwa’s other misconduct that 12 had not been established by admission or by a preponderance of 13 the evidence. Juwa further argues that the sentence was 14 substantively unreasonable in light of his favorable background 15 and the relatively minor nature of his offense. Because we agree 16 that the sentence was procedurally unreasonable, we need not 17 answer the question of substantive reasonableness. Seeid.
at 18 114 (“[A] sentence would not be ‘reasonable,’ regardless of 19 length, if legal errors, properly to be considered on appeal, led 20 to its imposition.”). 21 I. The District Court’s Statement of Reasons 22 Section 3553(c)(2) of Title 18 requires a sentencing judge 23 to state in open court the reasons for imposing a particular 24 sentence. If the sentence is outside the applicable Guidelines -9- 1 range, the district court must state its reasons for deviating 2 from the Guidelines “with specificity” in the written order of 3 judgment.18 U.S.C. § 3553
(c)(2). As we have noted, the writing 4 and specificity requirements serve the important purpose of 5 facilitating effective review in the courts of appeals. See 6 United States v. Jones,460 F.3d 191
, 197 (2d Cir. 2006) (“[I]t 7 will generally be helpful to the reviewing court . . . to have 8 the judge’s statement of reasons for a sentence outside an 9 applicable guideline conveniently set forth in the written order 10 of judgment and commitment.”). 11 In this case, the district judge discussed in open court the 12 § 3553(a) factors that every sentencing judge must consider, 13 including the nature and circumstances of the offense, the 14 history and characteristics of the defendant, the applicable 15 Guidelines range, and the need for the sentence to serve the 16 goals of retribution, deterrence, and incapacitation. See 1817 U.S.C. § 3553
(a). In the written order of judgment, the district 18 court identified the following reasons for imposing a non- 19 Guidelines sentence: “the nature and circumstances of the offense 20 and the history and characteristics of the defendant”; “to 21 reflect the seriousness of the offense, to promote respect for 22 the law, and to provide just punishment for the offense”; “to 23 afford adequate deterrence to criminal conduct”; and “to protect 24 the public from further crimes of the defendant.” To this point -10- 1 the district judge’s recitation of the sentencing reasons set 2 forth in § 3553(a) was not objectionable, even though we have 3 stated our preference that the reasons be tied to the facts of 4 the case. See Rattoballi, 452 F.3d at 133, 138. 5 The problem arose when the district judge discussed the 6 Rockland County conduct that figured into his decision to depart 7 upwardly from the Guidelines. He stated that he was applying 8 U.S.S.G. § 2G2.2 Application Note 6, which permits an upward 9 departure if the defendant engaged in sexual abuse of a minor at 10 any time. And twice, after noting Juwa’s sexual misconduct with 11 a minor, the district judge declared, “Considering this conduct, 12 then, the Court imposes a . . . sentence of 90 months.” 13 But there is uncertainty from both the sentencing transcript 14 and the written order surrounding whether and to what extent the 15 district judge based his sentencing enhancement on the assumption 16 that Juwa had engaged in multiple instances of sexual abuse, as 17 opposed to the single instance to which Juwa had anticipated 18 pleading guilty in state court. Indeed, there is evidence in the 19 record that the district judge was aware that Juwa intended to 20 plead guilty to just one count in the indictment, but there is 21 also evidence that he believed that Juwa had engaged in multiple 22 instances of sexual abuse. In describing the circumstances 23 relevant to sentencing, the district judge stated: 24 [T]he government has informed me by letter dated February 25 27, 2006, a letter which defense counsel has received and -11- 1 agrees with, that the defendant’s case in Rockland County is 2 expected to be resolved with a guilty plea by the defendant 3 to one count of felony sexual abuse after my sentencing 4 today. 5 But immediately afterward, he stated, “Mr. Juwa’s counsel has 6 represented to this Court that Mr. Juwa will plead guilty to 7 those charges.” The district judge later reiterated, “Mr. Juwa 8 has been charged with engaging in sexual conduct with a minor 9 child, and will plead guilty to that offense when he is before 10 another judge.” But he went on to say, “Mr. Juwa has engaged in 11 sexual conduct with a minor child. He has done so on repeated 12 occasions. Considering this conduct, this Court imposes a 13 nonguidelines sentence of 90 months.” When defense counsel 14 attempted to clarify that Juwa had not agreed to plead to every 15 count in the Rockland County indictment, the district court 16 indicated that it understood: “I said he intended to plead to one 17 count.” However, in the written statement of reasons, the 18 district judge cited as a reason for his departure the fact that 19 Juwa “was going to enter a plea of guilt to an aggravated sexual 20 assault charge . . . for molesting his nephew for 3 years.” In 21 fact, consistent with his stated intention, Juwa ultimately pled 22 guilty to just one instance of sexual contact with his nephew, on 23 December 25, 2001. Thus, it is insufficiently clear whether the 24 district court based its sentence on charged conduct that had 25 neither been sufficiently established nor admitted to by the 26 defendant. The confusion surrounding the basis for the district -12- 1 court’s determination rendered the sentence procedurally 2 unreasonable, and a remand is necessary to resolve that 3 uncertainty. 4 II. Reliance on an Unsubstantiated Fact 5 If, as Juwa argues, the district court sentenced him in 6 reliance on the assumption that Juwa had sexually abused a minor 7 on more than one occasion, this reliance was improper on the 8 record before us. Because Juwa agreed to admit only to a single 9 incident charged in the Rockland County indictment, and because 10 the district court had ruled out reliance on the oral and written 11 testimony of Juwa’s nephew and the nephew’s mother, the district 12 court, as far as we can tell, was not presented with reliable 13 substantiation for the remaining charges in the state indictment. 14 Under such circumstances, a sentence enhancement based solely on 15 unproven charges in an indictment would be improper. 16 A sentencing court is not limited to considering only 17 evidence of the convicted offense; it may take into account other 18 relevant conduct, see U.S.S.G. § 1B1.3 cmt. (“Conduct that is not 19 formally charged or is not an element of the offense of 20 conviction may enter into the determination of the applicable 21 guideline sentencing range.”), and even acquitted conduct, see 22 United States v. Vaughn,430 F.3d 518
, 521 (2d Cir. 2005); see 23 also Wasman v. United States,468 U.S. 559
, 563 (1984) 24 (describing sentencing court’s discretion to “consider any and -13- 1 all information that reasonably might bear on the proper sentence 2 for the particular defendant”). 3 Nevertheless, there are distinct limits to this discretion, 4 and they include a defendant’s due process right to be sentenced 5 based on accurate information. See United States v. Tucker, 4046 U.S. 443
, 447 (1972); see also Townsend v. Burke,334 U.S. 736
, 7 740-41 (1948) (noting that “whether caused by carelessness or 8 design, [it] is inconsistent with due process of law” for a 9 defendant to be sentenced based on assumptions concerning his 10 criminal record that were materially untrue, when the defendant’s 11 sentence had been influenced by other criminal charges to which 12 he had not pled guilty). As the Third Circuit stated in United 13 States v. Matthews, “[f]actual matters considered as a basis for 14 sentence must have ‘some minimal indicium of reliability beyond 15 mere allegation.’”773 F.2d 48
, 51 (3d Cir. 1985) (quoting 16 United States v. Baylin,696 F.2d 1030
, 1040 (3d Cir. 1982)). 17 We have held that facts relevant to sentencing must be found 18 by a preponderance of the evidence. Vaughn,430 F.3d at 525
; 19 United States v. Concepcion,983 F.2d 369
, 388 (2d Cir. 1992). 20 Here, the district judge applied the upward departure provision 21 of U.S.S.G. § 2G2.2 Application Note 6 in imposing “a guidelines 22 sentence of 90 months.” In the alternative, he imposed “a 23 nonguidelines sentence of 90 months” based, at least in part, on 24 the Rockland county conduct. If he imposed this sentence based -14- 1 on a finding that Juwa had sexually abused a minor on multiple 2 occasions, that finding would have to have been substantiated by 3 a preponderance of the evidence. There was, however, no evidence 4 of which we are aware to support that finding apart from the 5 charges contained in the state indictment, and a bare-bones 6 indictment, without more, is insufficient to support a factual 7 underpinning for sentencing purposes. 8 It is axiomatic that in a criminal trial “an indictment is 9 not evidence of guilt,” nor may it alter the presumption of 10 innocence with which every defendant is cloaked; it is “only a 11 finding of probable cause that a crime has been committed.” 12 United States v. Romano,706 F.2d 370
, 374 (2d Cir. 1983) 13 (emphasis added). While the evidentiary standard at sentencing 14 is more relaxed than at trial, and the burden of proof on the 15 government is a preponderance of the evidence and not beyond a 16 reasonable doubt, probable cause is a lower standard than 17 preponderance of the evidence; it “requires only a probability or 18 substantial chance of criminal activity, not an actual showing of 19 such activity.” United States v. Bakhtiari,913 F.2d 1053
, 1062 20 (2d Cir. 1990) (quoting Illinois v. Gates,462 U.S. 213
, 243 n.13 21 (1983)). Moreover, an indictment is not meant to serve an 22 evidentiary function. Its primary purpose is to “acquaint the 23 defendant with the specific crime with which he is charged,” 24 United States v. Berlin,472 F.2d 1002
, 1007 (2d Cir. 1973) -15- 1 (internal quotation marks and citation omitted), allow him to 2 prepare his defense, and protect him from double jeopardy, United 3 States v. Doe,297 F.3d 76
, 87 (2d Cir. 2002); see also United 4 States v. Dhinsa,243 F.3d 635
, 667 (2d Cir. 2001) (describing 5 notice function); United States v. D’Anna,450 F.2d 1201
, 1204 6 (2d Cir. 1971) (notice and protection from double jeopardy). 7 We therefore adhere to the prescription that at sentencing, 8 an indictment or a charge within an indictment, standing alone 9 and without independent substantiation, cannot be the basis upon 10 which a criminal punishment is imposed. Some additional 11 information, whether testimonial or documentary, is needed to 12 provide evidentiary support for the charges and their underlying 13 facts. 14 Given that Juwa intended to plead guilty, and ultimately did 15 plead guilty in state court, to only one instance of sexual 16 abuse, and given the lack of reliable independent information to 17 support the other charges in the state indictment, it was 18 impermissible for the district court to simply assume the 19 multiple charges to be true and to enhance Juwa’s sentence 20 accordingly. As we have discussed, however, it is unclear from 21 the record whether the district court did rely on the assumption 22 that Juwa had engaged in sexual misconduct on more than one 23 occasion. Therefore, we remand the case to the district court 24 with instructions to resentence the defendant consistent with -16- 1 this opinion and to make clear the basis upon which the sentence 2 rests. 3 CONCLUSION 4 For the foregoing reasons, the judgment of sentence is 5 VACATED and the case is REMANDED for resentencing. 6 -17-
Wasman v. United States , 104 S. Ct. 3217 ( 1984 )
United States v. Jerome Crosby , 397 F.3d 103 ( 2005 )
United States v. Gurmeet Singh Dhinsa , 243 F.3d 635 ( 2001 )
United States v. Derek A. Vaughn, Zaza Leslie Lindo , 430 F.3d 518 ( 2005 )
United States v. John A. D'AnnA and Rita D'AnnA , 450 F.2d 1201 ( 1971 )
United States v. Kourosh Bakhtiari , 913 F.2d 1053 ( 1990 )
United States v. Herbert Baylin , 696 F.2d 1030 ( 1982 )
United States v. Matthews, Michael J. , 773 F.2d 48 ( 1985 )
United States v. Matteo Romano and Armando Glorioso , 706 F.2d 370 ( 1983 )
United States v. John Doe , 297 F.3d 76 ( 2002 )
United States v. Milton Berlin , 472 F.2d 1002 ( 1973 )
United States v. Fernandez , 443 F.3d 19 ( 2006 )