USA v. Eberhard, No. 05-3431 (2d Cir. 2008)

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05-3431-cr USA v. Eberhard 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: February 22, 2008 Decided: May 5, 2008) Docket Nos. 05-3431-cr(L), 05-5248-cr(Con), 06-2913-cr(Con) - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.TODD M. EBERHARD, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges. Appeal from a judgment of conviction and a restitution 30 order entered in the United States District Court for the 31 Southern District of New York (Sweet, J.). 32 challenges the application of newly-enacted 18 U.S.C. § 33 3771(a) on Ex Post Facto and Due Process grounds. 34 The defendant Affirmed. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 RICHARD A. GREENBERG, Newman & Greenberg. New York, NY, (Steven Y. Yurowitz, on the brief), for Defendant-Appellant. JONATHAN R. STREETER, Assistant United States Attorney (Alexander H. Southwell, Assistant United States Attorney, on the brief) for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee. DENNIS JACOBS, Chief Judge: Defendant-Appellant Todd Eberhard appeals the sentence 20 imposed by the United States District Court for the Southern 21 District of New York (Sweet, J.), upon his guilty plea to 22 conspiracy (18 U.S.C. § 371), investment advisor fraud (15 23 U.S.C. §§ 80b-6, 80b-17), mail and wire fraud (18 U.S.C. §§ 24 1341, 1343), and obstruction of justice (18 U.S.C. § 1512). 25 The facts bearing on this appeal are as follows: 26 September 14, 2004, Eberhard entered into a plea agreement 27 under which the parties stipulated to an Offense Level of 30 28 and Criminal History Category of I resulting in a Guidelines 29 range of 97-121 months imprisonment (plus a fine). 30 parties agreed not to seek any departure or adjustment 31 unless it was specifically set forth in the agreement, or to 2 On The 1 suggest that the Probation Department consider such a 2 departure or adjustment, or suggest that the Court sua 3 sponte consider such a departure or adjustment. 4 pled guilty on September 14, 2004. 5 Eberhard The Presentence Report ( PSR ) recommended a four-level 6 enhancement for Eberhard s leadership role, see U.S.S.G. § 7 3B1.1, an enhancement to which the parties had not 8 stipulated. 9 Category of I, the PSR s calculated Guidelines sentence was At an Offense Level of 34 and Criminal History 10 151-188 months imprisonment. The PSR recommended a (below- 11 Guidelines) prison sentence of 96 months. 12 The Justice for All Act of 2004 became effective on 13 October 30, 2004, between Eberhard s guilty plea and his 14 sentencing. 15 crime victims have the right to be reasonably heard at any 16 public proceeding in the district court involving . . . 17 sentencing. See 18 U.S.C. § 3771 (2004). Under the Act, 18 U.S.C. § 3771(a)(4). 18 Prior to the sentencing on June 7, 2005, Judge Sweet 19 issued a written sentencing opinion which (1) adopted the 20 PSR s Guidelines calculation, (2) considered the other § 21 3553(a) factors, and (3) imposed a sentence of 151 months 22 imprisonment (along with a term of supervised release, a 3 1 fine, and restitution), subject to modification at the 2 sentencing hearing. 3 4 5 At that sentencing hearing, Judge Sweet heard from several victims, who urged a draconian sentence. After hearing from victims, the government, and 6 Eberhard, Judge Sweet calculated a Guidelines range of 151 7 to 188 months, and expressed an inclination to sentence at 8 the bottom of that range, in order to allow Eberhard an 9 opportunity to make restitution once his prison term had 10 ended. 11 nine months longer than foreshadowed in the written 12 sentencing opinion. 13 Judge Sweet then imposed a sentence of 160 months-- On appeal, Eberhard challenges his sentence on three 14 grounds: (A) that 18 U.S.C. § 3771(a) is unconstitutional as 15 applied to him, (B) that the record does not support a four- 16 level role enhancement under the Sentencing Guidelines, and 17 (C) that his sentence is substantively unreasonable. 18 19 20 A Eberhard contends that, as a consequence of § 3771(a) s 21 requirement that his victims be allowed the right to be 22 reasonably heard at his sentencing (and of their vindictive 4 1 statements), he received a sentence nine months longer than 2 otherwise, and that § 3771(a) thus violated his rights under 3 both the Ex Post Facto and Due Process Clauses. 4 5 Ex Post Facto Clause. Sentencing courts had access to 6 victim statements long before the Justice for All Act. We 7 noted in 1989 that [t]he sentencing court s discretion is 8 largely unlimited either as to the kind of information [it] 9 may consider, or the source from which it may come. 10 United States v. Carmona, 873 F.2d 569, 574 (2d Cir. 1989) 11 (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)) 12 (emphasis added). 13 in 1948, provides that [n]o limitation shall be placed on 14 the information concerning the background, character, and 15 conduct of a person convicted of an offense which a court of 16 the United States may receive and consider for the purpose 17 of imposing an appropriate sentence. 18 district courts were required to allow victims of violence 19 and sexual abuse to speak at sentencing, see Fed. R. Crim. 20 P. 32(i)(4)(B) (2004), and were permitted to allow any other 21 victim to speak, see Fed. R. Crim. P. 32 advisory comm. 22 note, 1994 amendments, sub. (e). And 18 U.S.C. § 3661, which was enacted 5 By the end of 1994, 1 But even if we assumed (as we do not) both that (1) the 2 longer sentence was attributable to the victim statements 3 and (2) the court was barred from considering victim impact 4 statements prior to enactment of § 3771(a), Eberhard s Ex 5 Post Facto rights would still be unimpaired. 6 Facto Clause does not prohibit all retroactive laws that 7 disadvantage defendants, as Eberhard suggests. 8 prohibits Congress from passing laws that (1) make[] an 9 action, done before the passing of the law, and which was The Ex Post The Clause 10 innocent when done, criminal; and punish[] such action, (2) 11 aggravate[] a crime, making it greater than when 12 committed, (3) increase the punishment beyond that 13 prescribed when the action was done, or (4) alter[] the 14 legal rules of evidence, [to] receive[] less, or different, 15 testimony, than the law required at the time of the 16 commission of the offence, in order to convict the 17 offender. 18 (1798); see also Carmell v. Texas, 529 U.S. 513, 530 (2000). 19 A law requiring that victims be reasonably heard (if they 20 request) after the defendant has already been convicted does 21 not implicate the Ex Post Facto clause. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 22 6 1 Due Process Clause. A defendant is deprived of due 2 process when the government breaches a plea-agreement 3 provision on which the defendant relied in any significant 4 degree when entering the guilty plea. 5 York, 404 U.S. 257, 262 (1971). 6 district court s application of § 3771(a) allowed or 7 compelled the government to circumvent the agreement through 8 victim-surrogates, and thereby deprived Eberhard of the 9 benefit of his plea agreement.1 10 Santobello v. New Eberhard argues that the Eberhard relies on Tenth Circuit dicta expressing 11 concern[] when the district court had allowed victims 12 counsel to present (as amicus) a Guidelines argument that 13 the plea agreement barred the government from making 14 itself. 15 Cir. 2001). 16 United States v. Fortier, 242 F.3d 1224, 1230 (10th Fortier questions (without deciding) whether the 17 government may advance by proxy legal arguments it has 18 disclaimed by contract. Here, nothing in the contract 1 We elect to discuss Eberhard s Due Process argument even though we could deem the argument waived. The government disclosed all victim impact letters to Eberhard in advance of the sentencing hearing, and Eberhard lodged no objection either to the number of victims or to their identity. 7 1 precluded the government from presenting victim impact 2 testimony. 3 limitations on the government s legal arguments: the 4 victims pleas for a harsh sentence were incidental to 5 presentation of facts. 6 amici curiae, as in Fortier. 7 whether the misgivings expressed in Fortier would be 8 entertained in this Circuit. 9 Circuit held that any error d[id] not warrant reversal 10 under the plain error standard, id. at 1231, which is the 11 standard of review here as well. 12 There was no evasion of the contractual They were not allowed to argue as We therefore need not consider In any event, the Tenth Eberhard also complains that he received insufficient 13 notice both of the identity of the victims who would address 14 the sentencing court and of the nature of their statements. 15 But the court afforded Eberhard an opportunity to respond 16 after hearing from the victims. 17 to the victim statements nor requested additional time to 18 prepare a more thorough response. 19 for the district court to impose sentence immediately 20 thereafter. 21 22 8 Eberhard neither objected It was not plain error Eighth Amendment. 1 Eberhard contends in passing that 2 allowing victims to address the court at sentencing has 3 Eighth Amendment implications. 4 Supreme Court s now-overturned prohibition on victim-impact 5 evidence, but elides the fact that the prohibition was 6 limited to death penalty cases. 7 U.S. 496, 504 (1987) ( While the full range of foreseeable 8 consequences of a defendant s actions may be relevant in 9 other criminal and civil contexts, we cannot agree that it Eberhard invokes the See Booth v. Maryland, 482 10 is relevant in the unique circumstance of a capital 11 sentencing hearing. ), overruled in part, Payne v. 12 Tennessee, 501 U.S. 808, 830 (1991). 13 B 14 15 The district court enhanced Eberhard s offense level by 16 four levels because Eberhard was the organizer or leader of 17 a criminal activity that involved five or more participants 18 or was otherwise extensive. U.S.S.G. § 3B1.1(a). Eberhard challenged the role enhancement in a motion 19 20 for reconsideration and resentencing. However, Eberhard 21 failed to object when the enhancement was recommended in the 22 PSR. We therefore deem his challenge waived and decline to 9 1 consider it on appeal. See, e.g., United States v. Soliman, 2 889 F.2d 441, 445 (2d Cir. 1989) (holding that defendant 3 forfeited his right to challenge the PSR s contents on 4 appeal when he failed to object to it at sentencing). 5 C 6 7 Eberhard argues that his prison sentence of 160 months 8 is substantively unreasonable in light of the Probation 9 Office s recommendation of 96 months. 10 Reasonableness review does not entail the substitution 11 of our judgment for that of the sentencing judge. 12 the standard is akin to review for abuse of discretion. 13 United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). 14 Although we do not presume that a Guidelines sentence is 15 reasonable, we have recognized that in the overwhelming 16 majority of cases, a Guidelines sentence will fall 17 comfortably within the broad range of sentences that would 18 be reasonable in the particular circumstances. 19 Rita v. United States, 127 S. Ct. 2456, 2464-65 (2007). 20 see no reason to conclude that Eberhard s sentence--which 21 fell within the bottom half of the court s calculated 22 Guidelines range--lies outside the scope of what is 23 reasonable. 10 Rather, Id.; cf. We 1 2 Conclusion We have considered Eberhard s remaining arguments and 3 find them to be without merit. 4 the judgments of the district court are affirmed. 11 For the foregoing reasons,

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