United States v. Juwa, No. 06-2716 (2d Cir. 2007)

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06-2716-cr United States v. Juwa 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 (Argued: September 5, 2007 Decided: November 28, 2007) Docket No. 06-2716-cr -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -ARTHUR JUWA, Defendant-Appellant. -----------------------------------------------------x 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). 27 based its sentencing enhancement on unsubstantiated charged 28 conduct, we hold that the sentence was procedurally unreasonable. 29 Because it is unclear to what extent the district court VACATED AND REMANDED. 30 31 32 33 34 35 MALVINA NATHANSON, New York, N.Y., for Defendant-Appellant. EUGENE INGOGLIA, Assistant United States Attorney, of counsel, (Katherine Polk -1- 1 2 3 4 5 6 7 8 9 Failla, Assistant United States Attorney, of counsel, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee. JOHN M. WALKER, JR., Circuit Judge: 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. 13 recommended Sentencing Guidelines range was 24 to 30 months 14 imprisonment, which both parties agreed would be reasonable. 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. 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. 21 to plead guilty only to one count of felony sexual abuse in the 22 state case. 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. In this case, the The In declaring Yet Juwa had indicated his intent Because it is unclear to what extent the district 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. 8 receiving and distributing images containing child pornography, 9 in violation of 18 U.S.C. § 2252A(a)(2)(B), and one count of Juwa was charged federally with one count of 10 possessing child pornography, in violation of 18 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. 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. 17 computer and a three-level decrease for acceptance of 18 responsibility produced an adjusted offense level of 17. 19 Criminal History Category of I, the resulting Guidelines range 20 was 24 to 30 months imprisonment. 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 In calculating the A two-level increase for the use of a With a In the plea agreement, Juwa 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 ). 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 PSR further noted that Juwa 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. 14 admitted to those allegations. 15 recommended a term of 24 months imprisonment, at the bottom of 16 the Guidelines range, followed by three years supervised 17 release. 18 According to the PSR, however, Juwa had not The Probation Office ultimately 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. 24 consideration of these letters because Juwa s nephew was not a -4- Defense counsel objected to 1 victim of the federal offense. 2 would hear from both the defense and the prosecution, as well as 3 from the nephew and the nephew s mother. 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 The district judge stated that he If he decided to 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. 14 their corresponding parties in the Rockland County case and 15 clarify these issues, the district judge adjourned the 16 proceeding. 17 After asking the defense and the government to contact 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. 8 however, stated that it could not look past the Rockland County 9 case. The district court, 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. 14 2G2.2(b)(5). 15 range of 41 to 51 months. 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 24 U.S.S.G. § A five-level increase would result in a Guidelines The defense also acknowledged The district judge then indicated that although he would not 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. 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. 7 directed to consider pursuant to 18 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. Prior to imposing the sentence, the He then discussed the factors that he was 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. 13 guidelines sentence of 90 months, pursuant to Application Note 14 6. 15 Considering this conduct, then, the Court imposes a 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. 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. 22 occasions. 23 district judge ordered a three-year term of supervised release 24 and a mandatory special assessment of $100. But He has done so on repeated In addition to the term of imprisonment, the -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. 4 court replied, I said he intended to plead to one count. . . . 5 Sexual abuse. 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 To this, the district In the written judgment of conviction, the 10 sexual assault charge in State Ct. 11 his nephew for 3 years from the ages of . 7-10. 12 That charge was for molesting 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. DISCUSSION 17 18 This appeal followed. We review a district court s sentencing determination for 19 reasonableness. United States v. Booker, 543 U.S. 220, 260-62 20 (2005). 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. 24 (2d Cir. 2006); see also United States v. Rattoballi, 452 F.3d Reasonableness review has both a procedural and a United States v. Fernandez, 443 F.3d 19, 26 -8- 1 127, 131-32 (2d Cir. 2006). 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. 6 2005) (citation omitted). 7 If a sentencing judge committed a United States v. Crosby, 397 F.3d 103, 114 (2d Cir. 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 by 18 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. 14 substantively unreasonable in light of his favorable background 15 and the relatively minor nature of his offense. 16 that the sentence was procedurally unreasonable, we need not 17 answer the question of substantive reasonableness. 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. 22 Juwa further argues that the sentence was Because we agree See id. at The District Court s Statement of Reasons 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. 4 and specificity requirements serve the important purpose of 5 facilitating effective review in the courts of appeals. 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 11 18 U.S.C. § 3553(c)(2). As we have noted, the writing See of judgment and commitment. ). 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. 17 U.S.C. § 3553(a). 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. See 18 In the written order of judgment, the district -10- To this point 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. 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 He stated that he was applying 10 any time. 11 a minor, the district judge declared, Considering this conduct, 12 then, the Court imposes a . . . sentence of 90 months. 13 And twice, after noting Juwa s sexual misconduct with 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. 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. 23 relevant to sentencing, the district judge stated: 24 25 Indeed, there is evidence in the In describing the circumstances [T]he government has informed me by letter dated February 27, 2006, a letter which defense counsel has received and -11- 1 2 3 4 5 agrees with, that the defendant s case in Rockland County is expected to be resolved with a guilty plea by the defendant to one count of felony sexual abuse after my sentencing today. 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. 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 The district judge later reiterated, Mr. Juwa 10 another judge. But he went on to say, Mr. Juwa has engaged in 11 sexual conduct with a minor child. 12 occasions. 13 nonguidelines sentence of 90 months. 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. 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. 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. 24 district court based its sentence on charged conduct that had 25 neither been sufficiently established nor admitted to by the 26 defendant. He has done so on repeated Considering this conduct, this Court imposes a When defense counsel However, in the written statement of reasons, the In Thus, it is insufficiently clear whether the 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. 9 incident charged in the Rockland County indictment, and because Because Juwa agreed to admit only to a single 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. 6 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 See United States v. Tucker, 404 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). 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. 16 United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982)). 17 As the Third Circuit stated in United 773 F.2d 48, 51 (3d Cir. 1985) (quoting 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. 23 nonguidelines sentence of 90 months based, at least in part, on 24 the Rockland county conduct. In the alternative, he imposed a 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. 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 9 There was, however, no evidence It is axiomatic that in a criminal trial an indictment is 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). 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. 20 (2d Cir. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 21 (1983)). 22 evidentiary function. 23 defendant with the specific crime with which he is charged, 24 United States v. Berlin, 472 F.2d 1002, 1007 (2d Cir. 1973) While the evidentiary standard at sentencing United States v. Bakhtiari, 913 F.2d 1053, 1062 Moreover, an indictment is not meant to serve an Its primary purpose is to acquaint the -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. 11 information, whether testimonial or documentary, is needed to 12 provide evidentiary support for the charges and their underlying 13 facts. 14 Some additional 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. 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. 24 with instructions to resentence the defendant consistent with As we have discussed, however, it is unclear from Therefore, we remand the case to the district court -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-

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