Unpublished Disposition, 904 F.2d 42 (9th Cir. 1990)

MEMORANDUM^** 

Defendant William F. Miller alleges that the Government's failure to advise him of information concerning his co-defendant's sentencing resulted in a misapplication of the Sentencing Guidelines ("Guidelines"). He also contends that the Government's unilateral reassessment of his case violated due process. We affirm.

BACKGROUND

Defendant, William F. Miller, and co-defendant, Brian Best, were indicted for wire fraud and aiding and abetting wire fraud. The two were charged with taking part in a fraudulent loan scheme. Miller placed advertisements for loans. The advertisements listed a telephone number. Miller arranged for a telephone answering machine to receive calls to that number. Miller returned the calls and introduced himself as "Lyle Reddick." He said that he owned a business and employed a "Rudy Lukage," who was actually Best. Miller stated that he could make loans from a source in New York. In return, he asked that the customers pay loan fees. In reality, Miller and Best would collect those fees and fail to make any loans.

Miller and Best managed to extract $60,500 in fees from Todd Woodrum. Woodrum made payments by American Express Money Grams, and Best collected the fees.

Miller pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. Best pleaded guilty to one count of aiding and abetting wire fraud. Both of their plea agreements stipulated that the amount of loss was $60,500 and that the scheme involved more than minimal planning.

Both defendants received the same Guideline assessments in their Pre-Sentence Reports (PSRs), except that Miller received upward adjustments of four offense levels for planning activity and role in the offense. Miller was subject to a Guideline range of fifteen to twenty-one months, while Best was subject to a range of six to twelve months. Miller was sentenced before Best. He requested a downward departure from the Guideline range of one offense level. The court declined to depart, but observed that the sentence it would impose would be in the part of the range that overlapped the range to which Miller sought departure. It imposed a term of imprisonment of sixteen months. Best was sentenced to a term of ten months.

The court conducted a restitution hearing for Miller on the same date that Best was sentenced. Miller contended that he and Best were being treated in a disparate manner. The court observed that "there's a disparity in the conduct that invites the disparity of the sentence." After Miller made a statement, in which he admitted that he was the "salesman," the court told him that he was "dishonest, and I don't have any difficulty with the difference. If Mr. Best received a benefit that's troubling to you, I think there's a difference that justifies that. But I certainly don't think that you're being abused, Mr. Miller." Miller filed his notice of appeal on the same date.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. The Government contends that we lack jurisdiction. We reject that contention and conclude that we have jurisdiction. Miller argues that the Government should have provided him with its view of Miller's criminal liability. He claims that his sentence was illegal because of this deprivation. We have jurisdiction over that claim under 18 U.S.C. § 3742(a) (1). Miller, in essence, argues that there was no basis for the court to assess him four offense levels for planning activity and role in the offense. That is, as a result of the alleged incorrect or incomplete information, the district court misapplied the Guidelines to his case. We have jurisdiction under 18 U.S.C. § 3742(a) (2). We note that while disparity language was used, this is not truly a disparity case. Miller's actual claim is that the Best sentencing somehow shows that the facts used in his sentencing were not reliable.

The Government also contends that Miller did not raise his objection at his sentencing. Miller could not have raised his argument until he knew how Best had been treated under the Guidelines. Miller learned of this treatment at the time of Best's sentencing. He then made his challenge to his sentence at the time of the restitution hearing. We therefore have jurisdiction.

We review application of the Sentencing Guidelines de novo. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989). Factual findings are reviewed for clear error. 18 U.S.C. § 3742(e). We review issues of constitutionality de novo. United States v. Belgard, 894 F.2d 1092, 1095 (9th Cir. 1990).

DISCUSSION

Miller argues that the Government should have provided its view of the case to him before his sentencing. To be entitled to this information, Miller must show that the information would result in a "reasonable probability" that the outcome of his sentencing would be different. See United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).

There is not a reasonable probability that the outcome of Miller's sentencing would be different if Miller had the information he sought. How the Government viewed the facts in Miller's case was immaterial to his sentencing. It is the sentencing court which determines the facts and sentences the defendant. United States v. Belgard, 894 F.2d 1092, 1099 (9th Cir. 1990). Miller did not file objections to the PSR, but he did seek a downward departure at his sentencing hearing. No evidence was withheld from Miller. He was fully aware of the facts concerning his offense.

Irrespective of the way in which the Government viewed the case, the court had ample reason to assess Miller with the upward adjustments in offense level for planning activity and role in the offense. Miller placed the advertisements for the scheme, he established the telephone line, and he answered the calls. These activities are evidence of planning. As for Miller's role in the offense, he had direct contact with Woodrum and induced Woodrum to make payments. In contrast, Best served as a "runner." The court was justified in treating Miller differently from Best. By any reasonable measure, he was the most culpable of the two, and nothing developed at the Best sentencing changes that fact.

Miller also argues that his cooperation should have resulted in more favorable treatment. To the extent that Miller attacks the upward adjustment in offense level, we have already addressed the argument. In any event, the sentencing court considered Miller's cooperation when it granted him a credit for acceptance of responsibility and sentenced him toward the lower end of the Guideline range.

Miller finally contends that the Government exercised independent discretion as to his case, which deprived him of due process. He alleges that after his sentencing the Government changed its view of the case. However, the record shows that the Government did not change its perception of the case. As discussed above, Miller and Best were differently situated defendants. Moreover, Miller received all of the process he was due. He received a copy of his PSR before sentencing. As discussed above, he knew all of the facts. He had knowledge of the Government's position, both from the plea agreement and the Government's failure to file objections to the PSR. He also had an opportunity to object under Fed. R. Crim. P. 32(c) (3) (A). Indeed, Miller sought a downward departure at his sentencing hearing. Finally, Miller raised his objections at the restitution hearing, albeit in an elliptical manner. The district court addressed these objections and informed Miller that there was an adequate basis for the sentence.

AFFIRMED.