USA v. Sanjay Kumar and Stephen Richards (USA), No. 06-5482 (2d Cir. 2010)
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06-5482-cr, 06-5654-cr USA v. Sanjay Kumar and Stephen Richards (USA) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 (Argued: September 19, 2008 Decided: August 12, 2010) Docket Nos. 06-5482-cr(L), 06-5654-cr(CON) ----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -SANJAY KUMAR and STEPHEN RICHARDS, Defendants-Appellants. -----------------------------------------------------x B e f o r e : WALKER, SACK, LIVINGSTON, Circuit Judges. Appeal by Defendants from separate judgments entered in the 24 United States District Court for the Eastern District of New York 25 (I. Leo Glasser, Judge), following guilty pleas by Defendants to 26 several counts of conspiracy, securities and wire fraud, 27 obstruction of justice, and perjury. 28 guilty plea was not constitutionally infirm and that he was 29 properly charged with, and convicted on his guilty plea to, 30 obstruction of justice. 31 of conviction in all respects. 32 of the Sentencing Guidelines in effect at the time of sentencing 33 to calculate Defendants Guidelines ranges for their fraud 34 offenses, rather than the Guidelines in effect at the time of the We hold that Richards s We therefore AFFIRM Richards s judgment We further conclude that the use -1- 1 commission of those offenses, did not violate the Ex Post Facto 2 clause. 3 calculated the loss amount underlying Defendants monetary fines 4 and that the district court did not abuse its discretion by 5 denying Kumar an acceptance of responsibility credit in 6 determining his Guidelines range. 7 district court erroneously failed to award Richards a two-point 8 reduction for acceptance of responsibility. 9 Kumar s sentence in all respects and VACATE Richards s sentence 10 We further conclude that the district court properly We further conclude that the Thus, we AFFIRM and REMAND for resentencing. 11 AFFIRMED in part, VACATED in part, and REMANDED. 12 Judge Sack dissents in part in a separate opinion. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 ERIC R. KOMITEE, Assistant United States Attorney (David C. James, Jason A. Jones, of counsel), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee. PAUL SHECHTMAN (Nathaniel Z. Marmur and Kathryn Moore Martin, on the brief), Stillman, Friedman & Shechtman, P.C., New York, N.Y., for Defendant-Appellant Sanjay Kumar. CHRISTOPHER J. GUNTHER (David M. Zornow, on the brief), Skadden, Arps, Slate, Meagher & Flom LLP, New York, N.Y., for Defendant-Appellant Stephen Richards. -2- 1 JOHN M. WALKER, JR., Circuit Judge: 2 Defendants-Appellants Sanjay Kumar and Stephen Richards 3 appeal from separate judgments of conviction by the district 4 court (I. Leo Glasser, Judge), pursuant to their guilty pleas to 5 several counts of conspiracy, securities and wire fraud, 6 obstruction of justice, and perjury. 7 pleas, the district court calculated defendants Guidelines 8 ranges for their fraud and obstruction offenses pursuant to the 9 Sentencing Guidelines Manual ( Guidelines ) in effect at the time After accepting their 10 of their sentencings, and sentenced Kumar and Richards to non- 11 Guidelines sentences of imprisonment of 144 months and 84 months, 12 respectively, and ordered restitution payments of $800 million 13 and $29 million, respectively. 14 On appeal, Richards challenges his conviction for 15 obstruction of justice, arguing that the indictment failed to 16 properly charge him with that offense. 17 attacks his guilty plea to all counts as constitutionally infirm 18 because it resulted from undue coercion by the government. 19 defendants argue that, by calculating their Guidelines range 20 according to the Guidelines in effect at sentencing, instead of 21 at the time the fraud offenses were committed, the district court 22 sentenced them in violation of the Ex Post Facto clause. 23 also claim that the district court improperly denied them 24 acceptance of responsibility credit, and that its orders of -3- In addition, Richards Both They 1 restitution were based on erroneous loss calculations. 2 We find no infirmity in Richards s conviction, in the 3 district court s application of the 2005 version of the 4 Guidelines,1 in the district court s loss determination, or in 5 the denial of Kumar s request for acceptance of responsibility 6 credit at sentencing. 7 court erroneously denied Richards a reduction on the basis of his 8 acceptance of responsibility and remand for resentencing on that 9 basis. We conclude, however, that the district BACKGROUND 10 11 The following facts are material to this appeal. 12 Kumar joined Computer Associates ( CA ), a publicly traded 13 corporation, in August 1987 and was elevated to CEO in August of 14 2000 and to Chairman of the Board of Directors in 2002. 15 joined CA in 1988 and became Head of North American Sales in 16 1999. 17 fraudulent accounting practice known as the 35-day month, 18 whereby CA backdated contracts executed in the first few days of 19 a financial quarter to recognize that revenue in the prior 20 quarter. 21 in the 1980s under Kumar s predecessor, was to deceive investors 22 into believing that the company had met or exceeded its quarterly 23 earnings estimates. 1 Richards During the tenure of both defendants, CA engaged in a The purpose of the 35-day month practice, which began Judge Sack dissents as to this portion of our opinion. -4- 1 In February 2002, the United States Attorney s Office 2 ( USAO ) and Securities and Exchange Commission ( SEC ) began a 3 joint investigation into the 35-day month practice as 4 contravening both accounting principles and federal securities 5 law. 6 sought witness statements from CA personnel. 7 the USAO and SEC requested that CA conduct its own internal 8 investigation into the practice and give the USAO and SEC direct 9 access to company employees. 10 11 As part of its investigation, government investigators On June 9, 2003, CA s outside counsel advised CA to comply fully with the investigation. On August 25, 2003, the SEC subpoenaed the testimony of ten 12 individuals associated with CA, including Kumar and Richards. 13 The SEC interviews were held at the USAO office in Central Islip, 14 New York. 15 Richards s counsel that Richards was a target of their criminal 16 investigation, and the SEC reiterated its demand that Richards 17 comply with the subpoena for his testimony. 18 2003, CA told Richards that he would be terminated if he didn t 19 comply with the subpoena. 20 counsel interviewed Richards, and the following day, Richards 21 testified before the SEC. 22 the 35-day month practice during both meetings and in his 23 testimony. 24 On September 22, 2003, prosecutors and SEC staff told In early October On October 22, 2003, CA s outside Richards falsely denied knowledge of On September 22, 2004, CA entered into a deferred -5- 1 prosecution agreement with the USAO and a civil settlement with 2 the SEC. 3 Kumar was unsealed. 4 17, 2005. 5 conspiracy to commit, and substantive counts of, securities and 6 wire fraud, as well as filing false public statements with the 7 SEC and perjury. 8 1512(c) with obstruction of justice arising out of his false 9 exculpatory statements to CA s counsel and the SEC. 10 The following day, an indictment charging Richards and A superceding indictment was filed on May By this indictment, Richards was charged with both Richards was also charged under 18 U.S.C. § The superceding indictment charged Kumar with both 11 conspiracy to commit, and substantive counts of, securities and 12 wire fraud, as well as filing false public statements with the 13 SEC and making false statements to the FBI. 14 charged with obstruction of justice. 15 obstruction charge (also brought pursuant to 18 U.S.C. § 1512(c)) 16 arose out of different conduct from that of Richards. 17 Specifically, the government alleged that Kumar, in an effort to 18 cover up the existence of the 35-day month practice, lied to CA s 19 outside counsel, instructed CA s general counsel to coach CA 20 employees to lie, authorized CA s general counsel to pay a $3.7 21 million bribe to an individual to procure his silence, and lied 22 to FBI agents and others during his interview at the USAO s 23 office. 24 Kumar was also However, Kumar s Both Richards and Kumar made various motions to dismiss the -6- 1 charges against them. Relevant to this appeal, first they 2 unsuccessfully moved to dismiss the obstruction charges, arguing 3 that their oral statements to government investigators were 4 beyond the reach of 18 U.S.C. § 1512(c), which they claimed was 5 confined to documentary evidence. 6 Next, Richards moved to suppress his false statements to 7 CA s outside counsel and the SEC, claiming that they were coerced 8 in violation of the Fifth Amendment. 9 merits, the district court denied the motion on the basis that 10 Richards had not shown good cause for failing to timely file 11 the motion to suppress pursuant to the court-ordered deadline. 12 In April 2006, both defendants pled guilty to all charges Without addressing the 13 and the Probation Department prepared a Presentence Report 14 ( PSR ) for each defendant. 15 Guidelines ranges based on the instructions provided in the 2005 16 Sentencing Guidelines, notwithstanding the fact that the 35-day 17 month practice the basis for the securities fraud charges 18 ended in 2000. 19 and a Guidelines range of life imprisonment, and Kumar s PSR 20 recommended an offense level of 51 and a Guidelines range of life 21 imprisonment. 22 resulting from the 35-day month practice to exceed $400 million. 23 24 Both PSRs calculated defendants Richards s PSR arrived at an offense level of 50 Both PSRs calculated losses to the public In August 2006, the defendants submitted objections to the Guidelines calculations in the PSR. -7- The defendants argued that 1 application of the 2005 Sentencing Guidelines (effective November 2 2005) to the securities fraud offenses instead of the 1998 3 Sentencing Guidelines (effective November 1998) would violate the 4 Ex Post Facto clause because the 2005 Guidelines contained 5 several significant enhancements for securities fraud that were 6 not in effect when the fraud offenses were committed.2 7 defendants further objected to the $400 million victim loss 8 calculation as overinflated.3 9 The In November 2006, the district court sentenced both 10 defendants under the 2005 Guidelines. 11 district court rejected both defendants objections to their 12 PSRs, finding that (1) because the Guidelines were advisory, the 13 Ex Post Facto clause was not implicated by sentencing decisions, 1 2 3 4 5 6 7 8 9 2 1 2 3 4 5 6 7 8 9 10 3 At sentencing, the According to Kumar, the 35-day month practice ended in October 2000, when [CA s] New Business Model brought [it to] an end. Kumar Br. 16. The government does not dispute that the 35-day month practice ended in October 2000, and the indictment cites no overt acts of securities fraud by either defendant after May 2000. Accordingly, the 1998 Guidelines Manual, which was effective between November 1, 1998, and November 1, 2000, was the version of the Manual in effect at the time the defendants fraud offenses were completed. Individually, and unlike Richards, Kumar also objected to the PSR s recitation of his offense conduct, insofar as it alleged that he had erased data from his computer and engaged in fraudulent transactions as CA s CEO. On October 23, 2006, the district court held a separate Fatico hearing to consider Kumar s individual objections. After two days of testimony, Kumar withdrew all of his individual objections to the PSR before the district court could rule on them (although he maintained objections that he held jointly with Richards and the government agreed to withdraw one contested allegation in the PSR). -8- 1 and (2) the $400 million figure was not erroneous, as it was 2 based on the persuasive testimony of the government s expert 3 witness. 4 defendants for a two-level reduction to the Guidelines base 5 offense level for acceptance of responsibility. 6 court found that Kumar had not sufficiently accepted 7 responsibility for his crimes to warrant the departure and that 8 Richards s acceptance of responsibility was [un]timely because 9 he pled guilty just . . . two weeks before the trial was to The district court also rejected an application by both The district 10 begin. See Richards Sentencing Tr. 15:14, 16:1-2, Nov. 14, 11 2006; see also Richards Sentencing Tr. 16:5-6 (noting that, in 12 light of Richards s non-Guidelines sentence, rejection of the 13 two-level reduction ma[de] very little difference insofar as 14 what [his] sentence [was] going to be ).4 15 The district court then decided to impose non-Guidelines 16 sentences for both defendants, sentencing downwardly from the 17 Guidelines calculation of life imprisonment. 18 that [t]o impose th[e] sentence[s] [recommended by the 1 2 3 4 5 6 7 8 9 10 11 4 The court found The district court also rejected a two-level enhancement for obstruction of justice, concluding that the defendants had pl[ed] guilty to that crime in other counts and this enhancement is superfluous and may even be regarded as double counting. See Kumar Sentencing Tr. 65:18-20, Nov. 2, 2006; see also Richards Sentencing Tr. 16:8-13. It appears that the court erred in not adding two points for obstruction, see, e.g., United States v. Fiore, 381 F.3d 89, 95 (2d Cir. 2004); Kumar even concedes the error. However, the government has not cross-appealed this issue and, thus, has waived the issue on appeal. See Norton v. Sam s Club, 145 F.3d 114, 117 (2d Cir. 1998). -9- 1 Guidelines] in this case would shock the conscience of this Court 2 . . . [and] the conscience of the reasonable person. 3 Sentencing Tr. 65:24-66:1, Nov. 2, 2006; see also Richards 4 Sentencing Tr. 25:5-9. 5 and Richards to imprisonment terms of twelve years and seven 6 years, respectively. 7 Accordingly, the court sentenced Kumar Defendants appealed. DISCUSSION 8 9 Kumar I. Was Richards Properly Convicted Of Obstruction Of Justice? 10 Richards claims that he was erroneously convicted of 11 obstruction of justice because 18 U.S.C. § 1512(c),5 the statute 12 under which he was charged, only covers the destruction of 13 physical evidence, and not the charged conduct of providing 14 false oral responses under oral questioning from CA s outside 15 counsel and the SEC. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 5 1 2 6 Richards Br. 18. The government argues Section 1512(c) provides: Whoever corruptly (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. The government s brief repeatedly refers to defendants statutory argument, thus implying that both Kumar and Richards -10- 1 that Richards s challenge is barred by his guilty plea, and that, 2 in any event, § 1512(c)(2) covers all obstructive conduct, not 3 just destruction of physical evidence. 4 be correct that § 1512(c)(2) applies to testimonial evidence, we 5 need not reach this issue of first impression in this circuit, 6 because we find that any defect asserted is non-jurisdictional 7 and was waived by the guilty plea. 8 9 While the government may A plea of guilty waive[s] any and all non-jurisdictional defects in the indictment. United States v. Moloney, 287 F.3d 10 236, 239 (2d Cir. 2002). 11 the defendant who has pleaded guilty must establish that the 12 face of the indictment discloses that the count or counts to 13 which he pleaded guilty failed to charge a federal offense. 14 Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987). 15 to attack a conviction post-plea, a defendant must establish that 16 the district court lacked the power to entertain the 17 prosecution. 18 625, 630 (2002) (defining jurisdiction as the courts 19 statutory or constitutional power to adjudicate the case ). 20 To challenge the court s jurisdiction, Thus, Id. at 882; see United States v. Cotton, 535 U.S. Richards claims that he has met this burden by showing that 21 § 1512(c)(2) does not proscribe false testimony, thereby 22 establishing that he did not violate a federal statute. 23 regardless of whether Richards s false testimony violated § 1 2 challenge their convictions for obstruction of justice. only Richards challenges his conviction on this basis. -11- However, However, 1 1512(c)(2), it plainly violated § 1503(a), and the indictment 2 charges at least that offense. 3 federal jurisdiction under § 1503(a), Richards s claim has no 4 jurisdictional significance and thus is waived by his guilty 5 plea. 6 Because the indictment created Section 1503(a) provides, in relevant part, that [w]hoever 7 corruptly . . . influences, obstructs, or impedes, or endeavors 8 to influence, obstruct, or impede, the due administration of 9 justice is guilty of a criminal violation. 18 U.S.C. § 1503(a). 10 In United States v. Aguilar, 515 U.S. 593, 598 (1995), the 11 Supreme Court interpreted this subsection as a catchall 12 intended to prohibit all obstructive behavior. 13 (referring to subdivision four of § 1503(a) as far more general 14 in scope than the remainder of the subsection). 15 circuit have likewise given § 1503 s omnibus clause a generally 16 non-restrictive reading. 17 F. Supp. 915, 919 (S.D.N.Y. 1972) (noting that the omnibus clause 18 embraces the widest variety of conduct that impedes the judicial 19 process ); see also United States v. Solow, 138 F. Supp. 812, 814 20 (S.D.N.Y. 1956) (characterizing the omnibus provision as all- 21 embracing ). 22 have been as broad as, or even broader than, the reading in this 23 circuit.7 1 2 See id. Courts in this See, e.g., United States v. Rosner, 352 Other circuits readings of § 1503 s omnibus clause 7 See, e.g., United States v. Maloney, 71 F.3d 645, 659 (7th Cir. 1995); United States v. Kenny, 973 F.2d 339, 342-43 (4th -12- 1 However, § 1503(a) only prohibits false testimony that has a 2 direct nexus to an official government proceeding. 3 515 U.S. at 600. Aguilar, In endorsing a nexus test, the Supreme Court 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 stated that 19 Id. at 599 (internal citations and quotation marks omitted). 20 nexus limitation is best understood as an articulation of the 21 proof of wrongful intent that will satisfy the mens rea 22 requirement of corruptly obstructing or endeavoring to 23 obstruct. 24 Cir. 2006). 25 might or might not testify before a grand jury are insufficient 26 to violate § 1503(a), because false testimony given in 27 anticipation of a purely hypothetical judicial proceeding is not 28 covered by § 1503(a). 1 2 3 4 5 [t]he action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court s or grand jury s authority. . . . [T]he act must have a relationship in time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the natural and probable effect of interfering with the due administration of justice. . . . [I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct. The United States v. Quattrone, 441 F.3d 153, 170 (2d Thus, statements made to investigating agents who See United States v. Bruno, 383 F.3d 65, Cir. 1992); United States v. London, 714 F.2d 1558, 1566-67 (11th Cir. 1983); United States v. Faudman, 640 F.2d 20, 23 (6th Cir. 1981); United States v. Howard, 569 F.2d 1331, 1333 (5th Cir. 1978); United States v. Walasek, 527 F.2d 676, 679 n.11 (3d Cir. 1975). -13- 1 87-88 (2d Cir. 2004); see also United States v. Schwarz, 283 F.3d 2 76, 109 (2d Cir. 2002). 3 to know with certainty that his conduct would affect judicial 4 proceedings, nor does his conduct need to actually obstruct 5 justice. 6 natural and probable effect of interfering with the due 7 administration of justice. 8 quotation marks omitted). 9 defendant inten[ds] to obstruct justice but is foiled in some 10 11 way. Nevertheless, a defendant does not need Instead, the defendant s conduct must only have the Aguilar, 515 U.S. at 599 (internal Section 1503(a) applies where a Id. at 601-02. Here, Richards s conduct easily falls within the ambit of § 12 1503(a). Richards lied to the SEC in an attempt to impede the 13 SEC s ongoing investigation, which Richards knew was not simply 14 an agency fishing expedition or an ancillary proceeding that 15 might or might not result in criminal proceedings. 16 Richards concedes that he knew that criminal proceedings were not 17 merely possible when he made his false statements, but that the 18 government predicted that criminal charges would be brought 19 against him prior to his SEC interview. 20 also Post-Argument Letter from Stephen Richards to the Court, 21 dated Sept. 26, 2008 ( Richards Letter ), at 1 ( Richards 22 testified . . . at the [USAO] under the . . . belief that 23 admitting knowledge of the 35 Day Month would incriminate him in 24 securities fraud. ). Id. at 599. See Richards Br. 10; see Richards thus plainly entertained . . . -14- 1 expectations during his interview at the USAO that his false 2 statements to the SEC would impede impending criminal proceedings 3 brought against him. 4 v. Cueto, 151 F.3d 620, 634 (7th Cir. 1998) (finding nexus to 5 exist where defendant s conduct, which pre-date[d] the 6 empaneling of the grand jury, . . . corruptly endeavored to 7 obstruct the due administration of justice ).8 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 30 31 32 33 34 Schwarz, 283 F.3d at 109; see United States 8 [I]t is clear Although § 1503 s application typically begins after the commencement of formal judicial proceedings, United States v. Novak, 217 F.3d 566, 572 (8th Cir. 2000) (internal quotation marks and emphasis omitted), in this case, Richards concedes that, when he lied, he knew that formal judicial proceedings were not only possible or likely, but that the government intended to bring them. Such obstructive behavior during a federal investigation whether that investigation is conducted by a grand jury, or by a federal agency like the SEC where there is also a quite strong, perhaps inescapable inference that the witness s statements would be presented to [a] grand jury is covered by § 1503(a). See United States v. Triumph Capital Group, Inc., 544 F.3d 149, 169 (2d Cir. 2008); see, e.g., United States v. Giovanelli, 464 F.3d 346, 350-51 (2d Cir. 2006) (per curiam) (obstructive behavior during a grand jury investigation but before indictment sufficient to trigger application of § 1503(a)); see also United States v. Macari, 453 F.3d 926, 939-40 (7th Cir. 2006) (noting that the Aguilar court did not draw a line between subpoenaed or actual and non-subpoenaed or potential witnesses, but instead focused on the defendant s intent . . . when he performed the alleged act of lying to investigating FBI agents ); United States v. Davis, 183 F.3d 231, 243 n.3 (3d Cir. 1999) (nexus requirement satisfied where conspirators knew of or anticipated a grand jury investigation (emphasis added)); United States v. Vaghela, 169 F.3d 729, 734-35 (11th Cir. 1999) (holding that a conviction for conspiracy to obstruct justice under § 1503 does not require a judicial proceeding [to] exist[] at the time of the offense, but only that the defendant directly intended to prevent or otherwise obstruct the processes of a specific judicial proceeding in a way that is more than merely speculative (quoting Aguilar, 515 U.S. at 601)); Cueto, 151 F.3d at 634 ( It is well established that investigations undertaken with the intention of presenting evidence before a grand jury are sufficient t constitute the due -15- 1 that if the representations made by Richards had been believed, 2 the grand jury would have been thrown completely off the trail 3 that it was pursuing with respect to Richards. 4 Jespersen, 65 F.3d 993, 1001 (2d Cir. 1995). 5 was a sufficiently close relationship in time, causation, [and] 6 logic between Richards s conduct and likely judicial proceedings 7 to satisfy § 1503(a) s nexus requirement. 8 Reich, 479 F.3d 179, 186 (2d Cir. 2007) (internal quotation marks 9 omitted). 10 United States v. Therefore, there United States v. In addition, the indictment fully apprised Richards of the 11 elements of his offense under § 1503(a). 12 Specifically, the indictment stated that 13 14 15 16 17 18 19 20 21 22 23 As the government correctly notes, [t]he citation of a statutory 24 section number . . . is not a part of the offense, and . . . an 25 allegedly erroneous statutory citation is not a jurisdictional 26 defect. 1 2 3 4 5 6 Richards well knew and believed that certain of the statements he made during the interviews were false and that he otherwise concealed during the interviews information which he knew to be material to the Government Investigations. Richards further well knew, and in fact intended, that his false statements and concealment of material information would have the effect of obstructing and impeding the Government Investigations. Gov t Br. 11; see Fed. R. Crim. P. 7(c)(3) ( Unless the administration of justice under § 1503.") (internal citation and quotation marks omitted)). Cf. United States v. Brenson, 104 F.3d 1267, 1280 (11th Cir. 1997) ( Section 1503 employs the term due administration of justice to provide a protective cloak over all judicial proceedings, irrespective of at what stage in the judicial process the improper activity occurs. ). -16- 1 defendant was misled and thereby prejudiced, neither an error in 2 a citation nor a citation s omission is a ground . . . to reverse 3 a conviction. ). 4 1503(a), as opposed to § 1512(c)(2), is therefore not grounds for 5 vacating Richards s guilty plea.9 6 The failure of the indictment to specify § Richards s remaining arguments, the government also 7 correctly notes, are mere corollaries of [his] . . . claim that 8 [he] pleaded to a non-offense. 9 Richards argues that his guilty plea should be vacated because he Gov t Br. 13-14. For example, 10 was misinformed of the elements of [his] crime, since, 11 according to Richards, § 1512(c)(2) does not reach testimonial 12 evidence. 13 U.S. 614, 618 (1998)). 14 flawed premise that the indictment charged him with a non- 15 offense. 16 have been brought under § 1503(a) instead of § 1512(c)(2), and 17 the indictment fully stated the elements of an offense under that 1 2 3 4 5 6 7 8 9 10 11 12 13 9 Richards Br. 19 (citing Bousley v. United States, 523 But Richards s argument rests on the That is not the case here; at most, the charge should The government may have charged Richards with violating § 1512(c)(2) instead of § 1503(a) due to its concern that a § 1503(a) charge would raise a Masterpol issue. See Gov t Br. 22 n.8 (citing United States v. Masterpol, 940 F.2d 760 (2d Cir. 1991)). In Masterpol, we held that witness tampering is prohibited only by § 1512, and is not covered by § 1503 s omnibus clause. 940 F.2d at 763. The government s concern with respect to Richards s obstruction charge was misplaced. While Masterpol might have presented an obstacle for indicting Kumar, who attempted to bribe a witness, as previously noted, Kumar is not appealing his obstruction of justice conviction. Unlike Kumar, Richards did not engage in witness tampering. Thus, Masterpol is not implicated here. -17- 1 section. 2 Richards does not stand[] convicted of an act that the law does 3 not make criminal. 4 marks omitted). 5 jurisdictional defect in Richards s obstruction charge, his 6 guilty plea waived any ancillary claims based on that charge. 7 II. 8 9 Vacating Richards s plea is therefore unnecessary, as Bousley, 523 U.S. at 620 (internal quotation In any event, because there was no Does Richards s Guilty Plea Bar His Coercion Claim? Next, Richards argues that the government violated the Fifth Amendment s prohibition on government-compelled testimony by 10 placing improper pressure on CA to cooperate in the government s 11 investigation that resulted in CA s insistence that Richards 12 either testify before the SEC or be terminated. 13 court rejected Richards s motion to suppress his testimony, which 14 was admittedly false and became the basis for the obstruction of 15 justice charge to which Richards pled guilty, as untimely in 16 light of the district court s schedule for motions. 17 Richards argues that his guilty plea should not bar his coercion 18 claim because review of his claim is necessary to preserve the 19 integrity of the judicial process. 20 coercion claim is easily resolved because the Fifth Amendment 21 does not protect false testimony. 22 The district Richards Br. 32. On appeal, Richards s As previously noted, a plea of guilty waive[s] any and all 23 non-jurisdictional defects in the indictment. 24 at 239. Moloney, 287 F.3d However, this court may overturn a guilty plea on -18- 1 involuntariness grounds when the defendant shows that his plea 2 was substantially motivated by a coerced confession. 3 States ex rel. Ross v. McMann, 409 F.2d 1016, 1023 (2d Cir. 1969) 4 (en banc), vacated on other grounds sub nom. McMann v. 5 Richardson, 397 U.S. 759 (1970). 6 is otherwise voluntary and intelligent may be overturned if it 7 contains constitutional violations that are logically 8 inconsistent with the valid establishment of factual guilt. 9 Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam). 10 United In addition, a guilty plea that Richards s coercion claim is not viable, because it is based 11 on a fatally flawed premise: that false statements whether or 12 not made under coercive circumstances are protected by the 13 Fifth Amendment. 14 repeatedly held that the Fifth Amendment does not confer[] a 15 privilege to lie. 16 (1998). 17 against compulsory self-incrimination allows a witness to remain 18 silent, but not to swear falsely . . . . 19 Apfelbaum, 445 U.S. 115, 117 (1980); see also United States v. 20 Wong, 431 U.S. 174, 180 (1977); Bryson v. United States, 396 U.S. 21 64, 72 (1969). 22 perjured testimony, and thus, is unsupportable. 23 v. Nat l Ass n of Sec. Dealers, Inc., 386 F. Supp. 2d 402, 409 24 (S.D.N.Y. 2005) (finding plaintiff could not state a claim for To the contrary, the Supreme Court has Brogan v. United States, 522 U.S. 398, 404 [P]roper invocation of the Fifth Amendment privilege United States v. Richards s coercion claim is based entirely on -19- See, e.g., Scher 1 supposed deprivation of her constitutional rights where she had 2 perjured herself before the National Association of Securities 3 Dealers); see also United States v. Nanni, 59 F.3d 1425, 1431 (2d 4 Cir. 1995) (negative inferences may not be drawn from immunized 5 exculpatory testimony except to the extent that the testimony 6 amounts to perjury ). 7 Richards is attempting to turn the dilemma faced by 8 individuals who are improperly coerced into incriminating 9 themselves or who risk a negative inference from their silence, 10 into a trilemma whereby an individual feels he must either 11 testify truthfully, risk the inference, or lie under oath. 12 Brogan, 522 U.S. at 404. 13 trilemma, which is wholly of the guilty suspect s own making, 14 as insufficient to implicate the Fifth Amendment s protection. 15 Id. 16 secure [Richards s] guilty plea by Richards s lies, see Richards 17 Reply Br. 25, but Richards s attempt to draw a sort of 18 constitutional equivalency between a coerced confession and a 19 coerced lie, see Richards Reply Br. 13 (quoting Higazy v. 20 Templeton, 505 F.3d 161, 171 (2d Cir. 2007)), is exactly the type 21 of compassion inflation that the Supreme Court has declared 22 outside the purview of the Fifth Amendment, Brogan, 522 U.S. at 23 404. 24 Richards s false statements in its obstruction charge against See The Supreme Court rejected this The government may have been provided the leverage to Thus, it was not ironic that the government used -20- 1 him, see Richards Reply Br. 25, but simply a predictable 2 consequence of his mendacity. 3 Richards argues that the rule denying constitutional 4 protection to coerced false testimony does not apply to this case 5 because the government acted covert[ly] in securing his 6 testimony, by compell[ing] [him] to speak without disclosing . . 7 . its role in his dilemma to speak or be fired. 8 at 1. 9 covert acts by not revealing its role in CA s investigation, Richards Letter But even assuming that the government engaged in such 10 see id. a curious claim given that Richards was interviewed at 11 the United States Attorney s Office, and now concedes on appeal 12 that he knew at his interview that he was a target of a 13 securities fraud investigation Richards cites no case law 14 supporting his argument, nor can he because, as he concedes, even 15 [o]utside the immunity context, courts often have repeated that 16 the Fifth Amendment grants no right to lie, id. at 2. 17 While circumstances may provide a duress defense due to 18 improper government pressure, see, e.g., United States v. Knox, 19 396 U.S. 77, 82-83 (1969), nothing about the circumstances under 20 which Richards was interviewed rendered his false statements 21 immune or otherwise afforded him Fifth Amendment protection, see 22 United States v. Jacobs, 547 F.2d 772, 777 (2d Cir. 1976) ( [A] 23 constitutional claim may not be asserted as a defense to a 24 perjury charge. ). Thus, Richards s indictment was neither -21- 1 jurisdictionally deficient nor motivated by a coerced 2 confession, McMann,409 F.2d at 1023, and his coercion claim is 3 therefore barred by his guilty plea, see Hayle v. United States, 4 815 F.2d 879, 881 (2d Cir. 1987). 5 6 7 8 III. Do The Defendants Sentences Violate The Ex Post Facto Clause? 9 2005 Guidelines to their fraud offenses, which were completed in Next, Kumar and Richards contend that application of the 10 2000, violated the Ex Post Facto clause. 11 § 9, cl. 3; see also art. I, § 10, cl. 1 (prohibiting states from 12 passing any ex post facto law). 13 merit. 14 See U.S. Const. art. I, We believe this claim is without A sentencing court must generally apply the version of the 15 Guidelines that is in effect at the time of sentencing, unless 16 there is an ex post facto problem with such application. 17 States v. Rodriguez, 989 F.2d 583, 587 (2d Cir. 1993) (internal 18 citation omitted); see also U.S.S.G. § 1B1.11(a) (2008) ( The 19 court shall use the Guidelines Manual in effect on the date that 20 the defendant is sentenced. ). 21 Post Facto clause, two critical elements must be present: 22 First, the law must be retrospective, that is, it must apply to 23 events occurring before its enactment; and second, it must 24 disadvantage the offender affected by it. 25 482 U.S. 423, 430 (1987) (internal quotation marks omitted); see 26 United States v. Kilkenny, 493 F.3d 122, 126 (2d Cir. 2007) United For a law to contravene the Ex -22- Miller v. Florida, 1 ( [T]he Ex Post Facto Clause enshrines in the Constitution a 2 basic presumption of our law, that is, legislation in the 3 criminal law is not to be applied retroactively. (internal 4 quotation marks omitted)). 5 The defendants contend that application of the 2005 6 Guidelines to their fraud offenses was both disadvantage[ous] 7 and retrospective. 8 their fraud offenses were completed . . . in October 2000, when 9 the New Business Model brought an end to the 35-day month Miller, 482 U.S. at 430. They argue that 10 practice, Kumar Br. 16, and therefore, that application of the 11 2005 Guidelines to their securities fraud offenses, which 12 substantially increased their sentences, violated the Ex Post 13 Facto clause. 14 rule, in effect prior to the time of the defendants commission 15 of fraud, which provides that [i]f the defendant is convicted of 16 two offenses, the first committed before, and the second after, a 17 revised edition of the Guidelines Manual became effective, the 18 revised edition of the Guidelines Manual is to be applied to both 19 offenses. The government responds by citing the one-book See U.S.S.G. § 1B1.11(b)(3). 20 Here, there is no question that application of the 2005 21 Guidelines disadvantaged the defendants by subjecting them to the 22 higher ranges of the 2005 Guidelines compared to the 1998 version 23 of the Guidelines in effect when the 35-day month practice was -23- 1 discontinued in October 2000.10 2 convicted of fraud and obstruction. 3 § 3D1.2(c), these crimes were grouped together for sentencing 4 under the higher of the two applicable offense levels, which 5 groups the separate offenses of fraud and obstruction into a 6 single group because one of the counts, here, obstruction, 7 embodies conduct that is treated as a[n] . . . adjustment to the 8 guideline applicable to [the other] count[], here, fraud. 9 U.S.S.G. § 3C1.1. Both Kumar and Richards were In accordance with U.S.S.G. See The effect of the aforementioned revisions to 10 the 1998 Guidelines, see supra n.9, resulted in a 20-level 11 enhancement for both Kumar and Richards, from offense levels of 12 30, calling for a range of 97 to 121 months imprisonment, to 13 offense levels of 50, calling for life imprisonment.11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 10 1 2 11 The The relevant changes to the Guidelines occurred in 2001, 2002 and 2003. In November 2001, the Sentencing Commission (the Commission ) revised the fraud guidelines to provide for an increase based upon the loss for most loss amounts. Kumar Br. 17 (quoting Thomas W. Hutchinson, Highlights of the 2001 Amendments, Federal Sentencing Guidelines Manual, 2001 edition, XII (West 2001 ed.)) (internal quotation marks omitted). In January of 2003, in response to the Sarbanes-Oxley Act, the Commission further expanded the loss table by adding two new categories more than $200 million and more than $400 million with the latter calling for a 30-level enhancement in sentence under the Guidelines. See U.S.S.G. § 2B1.1(b)(1) (Supp. 2002). In January of 2003, the Commission also created enhancements for the number of victims, so that a six-level increase is now required for frauds involving 250 or more victims. See id. § 2B1.1(b)(2). At the same time, the Commission added a new fourlevel enhancement if the offense involved a violation of the securities laws and the defendant was an officer or director of a publicly traded company. See id. § 2B1.1(b)(13). Regardless of whether the 1998 or the 2005 Guidelines are applied to the defendants fraud offense, the grouping rules -24- 1 differences between the application of the 1998 and the 2005 2 version of the Guidelines is decidedly detrimental to the 3 defendants. 4 2005 Guidelines to the defendants sentences was retrospective 5 within the meaning of the Ex Post Facto clause. 6 U.S. at 430.12 Thus, our only inquiry is whether application of the See Miller, 482 7 We previously reserved ruling on this question. See United 8 States v. Santopietro, 166 F.3d 88, 96-97 (2d Cir. 1999), 9 abrogated on other grounds, Sabri v. United States, 541 U.S. 600 10 (2004). In Santopietro, we noted that [t]he Commission has 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 would require the sentencing court to impose the highest offense level of the counts in the Group. U.S.S.G. § 3D1.3(a). As the defendants recognize, the offense level attributed to the defendants fraud counts would be higher than that attributed to the obstruction count irrespective of the Guidelines version applied. Therefore, the government s assertion that the sentences do not violate the Ex Post Facto clause because the[] counts were properly grouped pursuant to § 3D1.2 is misplaced. If the sentences do not offend the Ex Post Facto clause, it is only because the application of the one-book rule is not retrospective. See U.S.S.G. § 1B1.11 cmt. background (1998) ( Moreover, the approach set forth in subsection (b)(3) should be followed regardless of whether the offenses of conviction are the type in which the conduct is grouped under § 3D1.2(d). ); U.S.S.G. § 1B1.11 cmt. background (2005). 1 2 3 4 5 6 7 8 9 10 11 12 12 The district court found that the one-book rule did not raise an ex post facto issue in this case, based on its conclusion that, after United States v. Booker, 543 U.S. 220 (2005), the Ex Post Facto clause does not apply to the previously mandatory, now advisory, Guidelines. The government has disclaimed reliance on the district court s analysis in its opening brief, see Gov t Br. 45 n.15; see also Kumar Reply Br. 12 (noting that the government abandoned the argument it had advanced to the district court that the Ex Post Facto clause does not apply to sentences post-Booker), and we therefore proceed with consideration of this appeal on the assumption that the Ex Post Facto clause applies to the advisory Guidelines. -25- 1 issued a policy statement specifying that where some offenses 2 occur before and some occur after a revised Guidelines version, 3 the later version is to be applied to all offenses. 4 accord U.S.S.G. § 1B1.11(b)(3) (1998). 5 policy statement does not mark the end of the inquiry, because 6 an agency s interpretation of its own regulations is only given 7 controlling weight where its interpretation does not violate 8 the Constitution or a federal statute. 9 States, 508 U.S. 36, 45 (1993) (internal quotation marks Id. at 96; However, the Commission s Stinson v. United 10 omitted); accord United States v. Stephens, 347 F.3d 427, 430 (2d 11 Cir. 2003). 12 one-book rule violates the Ex Post Facto clause. 13 Thus, we must independently consider whether the A majority of circuit courts has held that the one-book rule 14 does not contravene the Ex Post Facto clause, at least as 15 applied . . . to a series of similar offenses. 16 F.3d at 96. 17 that the enactment of the grouping rules [under U.S.S.G. § 18 3D1.2] provides fair notice such that the application of § 19 1B1.11(b)(3) and 3D1.2 does not violate the Ex Post Facto 20 Clause. 21 Seventh Circuit, the combination of the grouping rules and the 22 one-book rule puts a defendant on notice that the version of the 23 sentencing guidelines in effect at the time he committed the last 24 of a series of grouped offenses will apply to the entire group. Santopietro, 166 In United States v. Vivit, the Seventh Circuit held 214 F.3d 908, 919 (7th Cir. 2000). -26- According to the 1 Id. at 918 (internal quotation marks omitted). The Fourth, 2 Fifth, Eighth, Tenth, and Eleventh Circuits agree. 3 States v. Bailey, 123 F.3d 1381, 1404-05 (11th Cir. 1997) ( [T]he 4 one book rule, together with the Guidelines grouping rules and 5 relevant conduct, provide that related offenses committed in a 6 series will be sentenced together under the . . . Manual in 7 effect at the end of the series. ) (footnotes omitted); see also 8 United States v. Sullivan, 255 F.3d 1256, 1262-63 (10th Cir. 9 2001); United States v. Lewis, 235 F.3d 215, 218 (4th Cir. 2000); See United 10 United States v. Kimler, 167 F.3d 889, 893-95 (5th Cir. 1999); 11 United States v. Cooper, 35 F.3d 1248, 1254-55 (8th Cir. 1994), 12 vacated, 514 U.S. 1094 (1995), reinstated, 63 F.3d 761, 762 (8th 13 Cir. 1995) (per curiam), cert. denied, 517 U.S. 1158 (1996).13 14 The Third and Ninth circuits, however, have rejected the 15 Commission s position as incompatible with the Ex Post Facto 16 clause. 17 with five identical counts of mail fraud. 18 Cir. 1997). 19 prior to November 1, 1989, when the relevant Guidelines section In United States v. Ortland, the defendant was charged 109 F.3d 539, 547 (9th The offenses charged in four of the counts occurred 13 In its recent opinion in United States v. Anderson, 570 F.3d 1025, 1033-34 (8th Cir. 2009), the Eighth Circuit applied the one-book rule to overcome an ex post facto challenge in the case of a defendant s convictions for wire fraud and failure to appear for trial. Although the crimes at issue were potentially subject to grouping under Guidelines section 2J1.6 and 3D1.2(c), Anderson s ex post facto analysis makes no mention of the Guidelines grouping rules and bases its holding entirely on the application of the one-book rule. Id. -27- 1 for calculating loss in a fraud case was amended, and the fifth 2 count covered conduct that took place in December 1989, after the 3 amendment. 4 facto problem, applied the amended Guidelines section to all five 5 counts resulting in an enhanced sentence for the first four 6 counts. 7 Id. at 546. The district court, finding no ex post Id. The Ninth Circuit viewed each count as a completed 8 offense, and concluded that [a]pplication of the [Commission s] 9 policy statement in this case would violate the Constitution; its 10 application would cause Ortland s sentence on earlier, completed 11 counts to be increased by a later Guideline. 12 Ortland court further questioned the logic[] behind the one- 13 book rule, opining that Id. at 547. The 14 15 16 17 18 19 20 21 22 23 24 25 26 [t]he harm caused by the earlier offenses can be counted in sentencing the later one. That does not mean that the punishment for the earlier offenses themselves can be increased, simply because the punishment for the later one can be. In fact, were the later count to fall at some time after sentencing, all that would remain would be the earlier sentences, which would be too long. There are, in fact, five separate crimes; each carries its own punishment, even if the sentences are all run concurrently to the extent that they overlap. Id. (emphasis in original) (internal citation omitted). 27 Ortland court effectively found that application of the one-book 28 rule under the circumstances would be akin to the tail wagging 29 the dog. 30 1404 n.17 (3d Cir. 1994) (concluding that, while the one-book The See, e.g., United States v. Bertoli, 40 F.3d 1384, -28- 1 rule . . . certainly can compel application of the earlier 2 Manual, the Ex Post Facto clause may apply so as to prohibit the 3 application of the later Manual to all counts); see also 4 Santopietro, 166 F.3d at 96 (discussing the related problem, left 5 by Ortland and Bertoli, of whether the grouping rules of the 6 earlier or later versions are to be applied, after each version 7 has been used to determine the adjusted base offense level for 8 each count ). 9 In Santopietro we declined to reach this issue, in part 10 because of the circuit conflict, and in part because it was 11 possible that the defendant s sentence in that case would not be 12 affected by the difference in the two Guidelines versions. 13 at 96-97.14 14 defendants Guidelines calculations under the later version had 15 an unequivocally negative impact on their recommended sentences. 16 In addition, in the decade since Santopietro was decided, courts 17 within this circuit have repeatedly wrestled with, and are 18 divided on, the issue. 19 07CR66, 2008 WL 2323376, at *4-5 (W.D.N.Y. June 2, 2008) (finding 20 no ex post facto problem where defendant was on notice that any 21 tax offense committed after November 2001 would face the more 22 stringent tax table ), with United States v. Johnson, Nos. 97-CR- Id. In this case, we must face the issue because the Compare United States v. Weisberg, No. 14 Nor did this circuit s ruling in United States v. Meeks resolve the issue currently before us. 25 F.3d 1117 (2d Cir. 1994), abrogated by Johnson v. United States, 529 U.S. 694 (2000). See infra note 17. -29- 1 206, 98-CR-160, 1999 WL 395381, at *9-11 (N.D.N.Y. June 4, 1999) 2 (concluding that the most appropriate way to handle . . . 3 multiple counts in light of the [E]x [P]ost [F]acto clause is to 4 apply the earlier Sentencing Manual to those counts as to which 5 the underlying conduct was completed before the later version 6 became effective . . . and apply the current version to counts 7 involving subsequent conduct ). 8 appropriate opportunity to provide[] definitive instructions on 9 how to handle such a situation. 10 Thus, this case presents the Johnson, 1999 WL 395381, at *10. 11 We conclude that the one-book rule set forth in § 12 1B1.11(b)(3) does not violate the Ex Post Facto clause when 13 applied to the sentencing of offenses committed both before and 14 after the publication of a revised version of the Guidelines. 15 [C]entral to the ex post facto prohibition is a concern for the 16 lack of fair notice and governmental restraint when the 17 legislature increases punishment beyond what was prescribed when 18 the crime was consummated. 19 Weaver v. Graham, 450 U.S. 24, 30 (1981)). 20 ex post facto violation turns on whether an individual was 21 deprived of fair notice, not [on] an individual s right to less 22 punishment. 23 requiring such notice was to assure that legislative Acts give 24 fair warning of their effect and permit individuals to rely on Miller, 482 U.S. at 430 (quoting Weaver, 450 U.S. at 30. -30- The existence of an The Framers intent in 1 their meaning until explicitly changed. 2 Id. at 28-29. Applying these principles to § 1B1.11(b)(3), we hold that 3 the adoption of the one-book rule prior to the commission of the 4 defendants obstruction offense had placed them on notice of the 5 consequences of committing that second offense. 6 consequences of the second offense included the application of 7 the post-amendment Guidelines to all offenses considered at the 8 defendants sentencing was fully apparent prior to the commission 9 of the crimes that triggered those consequences. That the When the 10 defendants committed their obstruction offenses, it was not the 11 amendments to the Sentencing Guidelines that disadvantaged [the 12 defendants], it was [their] election to continue [their] criminal 13 activity. 14 919. 15 Cooper, 35 F.3d at 1250; accord Vivit, 214 F.3d at Our affirmance of the defendants sentences on this ground 16 offends neither of the fundamental concerns - notice and 17 governmental restraint - protected by the Ex Post Facto clause. 18 As to notice, we observe that prior to the commission of their 19 obstruction offenses the defendants could have altered their 20 conduct so as to avoid any heightened punishment imposed on the 21 basis of the one-book rule by choosing not to obstruct the 22 government s investigation of their prior fraud. 23 governmental restraint, our holding continues to prevent the 24 Sentencing Commission and Congress from imposing a heightened -31- As to 1 punishment following the commission of the criminal conduct 2 triggering that punishment. 3 recognize, application of the one-book rule does not, and indeed 4 may not, entail the application of a sentencing range devised 5 after the commission of all of the offenses subject to 6 sentencing. 7 complex case involving multiple counts that occurred under 8 several different versions of the Guidelines Manual, it will not 9 be necessary to compare more than two manuals to determine the As the Guidelines themselves See § 1B1.11 cmt. background (2008) ( [E]ven in a 10 applicable guideline range - the manual in effect at the time the 11 last offense of conviction was completed and the manual in effect 12 at the time of sentencing. (emphasis added)).15 13 The one-book rule, when it leads to a higher sentencing 14 range than would be applied to a single offense, operates in a 15 manner similar to that of the recidivist statutes and three 16 strikes laws upheld by the Supreme Court and our sister circuits 17 in the past. 18 (1948), rejected the defendant s argument that the consideration The Supreme Court in Gryger v. Burke, 334 U.S. 728 15 Contrary to Judge Sack s contention, our ruling does not suggest that legislatures may avoid the restrictions of the Ex Post Facto clause by including in criminal laws some notice that the law might change. See Dissent at 24 (quoting Miller, 482 U.S. at 431). Kumar and Richards at the time of their obstruction offenses, were on notice that the law had changed and would apply to their convictions for fraud if, and only if, they invoked the one-book rule by committing a subsequent offense. Nor was the notice provided to the defendants speculative and incomplete, Dissent at 25; at no point would an examination of the Sentencing Guidelines have left the defendants uncertain as to the sentencing ranges applicable to their conduct. -32- 1 of his past offenses in determining his sentence for a later 2 offense was foreclosed by the Ex Post Facto clause. 3 ( [W]e [do not] think the fact that one of the convictions that 4 entered into the calculations by which petitioner became a fourth 5 offender occurred before the Act was passed, makes the Act 6 invalidly retroactive . . . . ). 7 several occasions upheld such laws. 8 Ahumada-Avalos, 875 F.2d 681, 684 (9th Cir. 1989) (per curiam) 9 (upholding a repeat offender statute); see also United States v. Id. at 732. The Ninth Circuit has on United States v. 10 Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999) (en banc) ( The 11 Supreme Court and this court uniformly have held that recidivist 12 statutes do not violate the Ex Post Facto clause if they are on 13 the books at the time the [present] offense was committed. 14 (alteration in original) (quoting Ahumada-Avalos)). 15 Seventh, Eighth, and Eleventh Circuits have come to this same 16 conclusion. 17 1356 (11th Cir. 1999); United States v. Rasco, 123 F.3d 222, 227 18 (5th Cir. 1997); United States v. Washington, 109 F.3d 335, 338 19 (7th Cir. 1997) ( The three-strikes law was enacted before 20 Washington committed the bank robberies, so he had fair warning 21 of the consequences attached to new violent offenses. ); United 22 States v. Farmer, 73 F.3d 836, 841 (8th Cir. 1996). The Fifth, See United States v. Rosario-Delgado, 198 F.3d 1354, 23 The fact that the impetus for enacting the recidivist 24 statutes was to reflect the greater culpability associated with -33- 1 the latter offenses, whereas the impetus for the enactment of the 2 one-book rule is to avoid piecemeal sentencing, U.S.S.G. § 3 1B1.11 cmt. background (2008), is of no relevance for purposes of 4 determining the retroactivity of the legal consequences of a 5 defendant s actions. 6 statutes impose punishment upon only a single crime, the prior 7 offenses having already been committed and for which the 8 defendant had been sentenced. 9 however, six place no reliance on that potential distinction. It might also be argued that the recidivist Of the seven cases cited above, 10 Only the Eighth Circuit, in Farmer, implies that the sentencing 11 of only the last crime that triggered the consequences of the 12 recidivist statute was a factor supporting the constitutionality 13 of the three strikes law. 73 F.3d at 841 ( [S]o long as the 14 actual crime for which a defendant is being sentenced occurred 15 after the effective date of the new statute, there is no ex post 16 facto violation. (quoting United States v. Allen, 886 F.2d 143, 17 146 (8th Cir. 1989)) (internal quotation marks omitted)). 18 Despite this statement in Farmer, the distinction between the 19 recidivist statutes and the one-book rule makes neither a 20 practical nor a logical difference for purposes of an analysis 21 under the Ex Post Facto clause. 22 becomes the basis for imposing a heightened sentence only upon 23 conviction for a later criminal act.16 In both cases, prior conduct 16 Here, the defendants Judge Sack attempts to distinguish the operation of recidivist statutes from the operation of the one-book rule by -34- 1 obstruction offense is the actual crime triggering the 2 application of the one-book rule, the defendants had prior notice 3 of the consequences of that crime, and therefore the application 4 of the one-book rule is proper.17 noting that recidivist statutes impose a stiffer penalty for the latest crime, but he fails to acknowledge that the stiffer penalty is imposed only because the defendant committed earlier crimes. See Dissent at 28. Judge Sack also states that Congress could rewrite the one-book rule to reflect its concern with the gravity of the subsequent triggering offense and thereby satisfy his reading of the Ex Post Facto clause. Dissent at 28-29. As we previously noted, the motivation for enacting the one-book rule, whether to avoid disjointed sentences or to reflect a crime s severity, is irrelevant to an ex post facto analysis of retroactivity. Contra Dissent at 26 ( [T]here is a crucial difference between the legislative branch deciding that a particular crime is more serious when committed by . . . a person who has a specified level of past criminal behavior than someone who does not, and increasing a penalty for a completed crime triggered by the commission of a subsequent one. ). That a revised one-book rule could satisfy Judge Sack s standard while accomplishing precisely the same results, with only a superficial change to the rule s current language, underscores the dissent s essential formalism. 17 Judge Sack s dissent relies in part on United States v. Meeks, 25 F.3d 1117 (2d Cir. 1994), abrogated by Johnson v. United States, 529 U.S. 694 (2000), in which this circuit found a violation of the Ex Post Facto clause where Congress retroactively altered a previously imposed sentence by changing the consequences of a defendant s violation of the terms his supervised release. In Meeks, the court reasoned that changing the terms of a previously imposed sentence without any subsequent criminal act by the defendant was an unconstitutional alteration of the legal consequences of a defendant s completed acts. 25 F.3d at 1121. The court distinguished Congress s change to the terms of supervised release from the operation of recidivist statutes by noting that the latter simply alter the legal consequences of future criminal conduct. Id. We find the operation of the one-book rule to be similar to the operation of recidivist statutes because both turn on the legal consequences of future criminal conduct prior to the imposition of any sentence. Meeks is silent as to the constitutionality of a law that increases a sentence as a consequence of subsequent criminal -35- 1 Kumar offers a hypothetical situation that, he claims, 2 demonstrates the incorrectness of our ruling. Kumar Br. 25. In 3 his hypothetical, he posits two defendants, A and B, and that the 4 fraud penalties are increased, as here, between 2000 and 2004 in 5 the event of a conviction for both fraud and obstruction of 6 justice. 7 and is found at a Fatico hearing to warrant a sentencing 8 enhancement on the basis of obstruction of justice perpetrated in 9 2004, although he is not tried or convicted of that crime. Defendant A is convicted of committing fraud in 2000 10 Defendant B is convicted of both fraud committed in 2000 and of 11 obstructing justice in 2004. 12 situation, as a result of the one-book rule, B s offense level 13 [for the fraud] would be higher than A s . . . even though their 14 conduct was the same. 15 reasoning, of course, is that the hypothetical defendants face Kumar notes that in such a Kumar Br. 25-26. The error in Kumar s conduct and applies only where all of the relevant crimes are tried and punished simultaneously. Nor does our decision today run counter to the Supreme Court s dicta in Johnson, as Judge Sack implies. Dissent at 14 n.8. The serious constitutional questions to which Johnson alludes did not relate to the Ex Post Facto clause, but to the prospect of criminal punishment for non-criminal conduct and problems of double jeopardy. 529 U.S. at 700. Johnson further states that, since postrevocation penalties relate to the original offense, to sentence Johnson to a further term of supervised release . . . would be to apply this section retroactively. Id. at 701. This dictum, like our circuit s holding in Meeks, was concerned with an increase of a previously rendered sentence that was not triggered by a subsequent crime; the Court did not address the constitutionality of heightened punishment resulting as the consequence of the commission of, and conviction for, a subsequent crime. -36- 1 different consequences as a result of substantially different 2 circumstances. 3 for the fraud if the prosecutor had obtained a conviction for 4 both offenses because Defendant A would have been on notice of 5 the legal consequences of a conviction for the obstruction, which 6 would have triggered the one-book rule and, thus, would have 7 included a higher sentence for fraud than would have been the 8 case without the obstruction conviction. 9 however, only Defendant B s conduct resulted in a conviction for Defendant A could have received a higher sentence In this hypothetical, 10 obstruction. 11 not obtain a conviction for the obstruction, the sentence for the 12 fraud is necessarily lower. 13 an inequity in the guidelines; it is the result of a successful 14 prosecution of Defendant B for obstruction, which triggered the 15 operation of the one-book rule of which Defendant B had notice, 16 and which was absent in the case of Defendant A. 17 hypothetical has no ex post facto implications. 18 Because the prosecutor in Defendant A s case did The difference is not the result of Kumar s In substance, the defendants propose a rule requiring notice 19 before the first offense of the sentencing consequences flowing 20 from subsequent offenses. 21 by the defendants position is obvious. 22 consequences of a subsequent offense, an offense presumably not 23 even contemplated at the time the first offense is committed, 24 would have no bearing on the commission of the first offense. The emptiness of the notice demanded -37- Notice of the 1 The one-book rule only becomes relevant to a defendant at the 2 time of the commission of a subsequent offense, when it puts the 3 defendant on notice that when he commits that subsequent offense 4 the sentence for his first offense will be higher than it would 5 have been otherwise. 6 In rejecting the holdings of the Third and Ninth circuits, 7 we recognize the practical though unlikely risk that applying 8 the one-book rule to offenses that straddle a Guidelines revision 9 could result in a defendant being sentenced for offenses 10 according to the revised Guidelines only to see the second 11 offense, which enabled the application of the one-book rule, fall 12 out after sentencing. 13 hypothetical posed in Ortland is, of course, irrelevant on the 14 facts of this case. 15 two proper convictions, and the application of the one-book rule 16 to their sentencings does not offend the Constitution s Ex Post 17 Facto clause. 18 19 20 IV. 21 determination that their fraudulent conduct resulted in financial 22 losses greater than $400 million was clearly erroneous and, as a 23 result, improperly enhanced their Guidelines level by thirty 24 points. 25 the district court s calculation based on the testimony of the See Ortland, 109 F.3d at 547. The Kumar and Richards were sentenced based on Was The Loss Calculation Clearly Erroneous? Next, the defendants argue that the district court s The government responds that there was ample support for -38- 1 government s expert at the Fatico hearing. 2 government and affirm the district court s loss calculation. 3 We agree with the A sentencing court is not required to compute the loss 4 resulting from a fraud offense with precision. United States 5 v. Jacobs, 117 F.3d 82, 95 (2d Cir. 1997). 6 need only make a reasonable estimate of the loss. 7 2B1.1, cmt. n.3 (1998). 8 occupies a unique position to assess the evidence and estimate 9 the loss based upon that evidence, the court s loss determination Instead, [t]he court U.S.S.G. § Moreover, because the district court 10 is entitled to appropriate deference. 11 Bennett, 252 F.3d 559, 565 (2d Cir. 2001); United States v. 12 Germosen, 139 F.3d 120, 129 (2d Cir. 1998); cf. United States v. 13 Rostoff, 53 F.3d 398, 407 (1st Cir. 1995) ( Calculating the 14 amount of loss for purposes of the sentencing guidelines is more 15 an art than a science. 16 rough estimates. ). 17 fraud must be excluded from the loss calculation, United States 18 v. Ebbers, 458 F.3d 110, 128 (2d Cir. 2006), courts frequently 19 calculate loss in securities fraud cases by relying on the 20 change of market capitalization as a result of the disclosure of 21 the fraud, Gov t Br. 52, in order to prevent perpetrators of 22 [the] fraud from get[ting] a windfall, Ebbers, 458 F.3d at 23 127. 24 See United States v. Courts can, and frequently do, deal with While [l]osses from causes other than the The loss calculation in this case was sharply disputed. -39- The 1 most significant area of disagreement centered on how to properly 2 frame the economic impact of the 35-day month practice. 3 government s expert, Dr. Mukesh Bajaj, framed the loss resulting 4 from the 35-day month practice as an earnings miss, which 5 caused an estimated 10.68% decline in CA s stock price that 6 translated into a loss of $330 million for one quarter of fiscal 7 year 2000 alone. 8 Daniel Fischel, denied that the 35-day month practice caused an 9 earnings miss, whereby the earnings CA reported were completely The Conversely, the defendants expert, Professor 10 fabricate[d], but instead testified that the practice only 11 caused an earnings shift, whereby earnings that were properly 12 attributable to a future quarter were reported in the previous 13 quarter. 14 Fischel did not submit his own loss calculation, but focused only 15 on refuting Bajaj s analysis.18 16 Kumar Br. 29-30 (internal quotation marks omitted). The district court held a Fatico hearing in order to 17 untangle this web. 18 questioned both Bajaj and Fischel on their respective analyses. 19 Specifically, the district court challenged Bajaj s analysis as 20 based on only one quarter s losses, which Fischel argued resulted 21 in an artificially inflated loss calculation. 1 2 3 4 5 During the hearing, the district court 18 In turn, the Bajaj also submitted two alternative scenarios to the district court, calculating loss figures of at least $3.1 billion and at least $3.5 billion. Supplemental Report of Dr. Mukesh Bajaj, at 22-23, Oct. 9, 2006. The district court did not rely on these alternative figures in its loss calculation. -40- 1 district court questioned Fischel s analysis insofar as seeming 2 to imply that the fraudulent conduct caused no economic loss 3 whatsoever. 4 earnings miss nomenclature was inaccurate, there was still an 5 investor loss to be ascertained based not only on the market 6 impact of the 35-day month practice on earnings, but also on the 7 real effect on cash flows resulting from th[e] disclosure of 8 the practice, which led to a drop in confidence in CA s 9 management and market speculation about the extent of the Fischel conceded, however, that, even if Bajaj s 10 fraudulent activity. 11 2006. 12 See Fatico Hr g Tr. 416:13-14, Oct. 25, Ultimately, the district court accepted Bajaj s calculation. 13 The court found that [a]lthough[ the] precise dollar amount of 14 the loss . . . is difficult if not impossible to fix, the 15 testimony of Dr. Bajaj [was convincing] that the loss was in the 16 hundreds of millions of dollars. 17 In rejecting Fischel s analysis, the court noted that Fischel was 18 unable to explain why CA executives would engage in the 35-day 19 month practice if it did not, in fact, positively affect CA s 20 stock price. 21 Fischel s testimony during the Fatico hearing as not 22 enlightening ). 23 calculation was enhanced thirty levels (under the 2005 24 Guidelines) for the financial loss. Kumar Sentencing Tr. 64:17-20. See Kumar Sentencing Tr. 64:1 (characterizing Consequently, the defendants Guidelines -41- 1 On appeal, Kumar and Richards claim that the district 2 court s reliance on Bajaj s earnings miss analysis was clearly 3 erroneous, because Fischel showed that the 35-day month practice 4 did not result in earnings misses but instead in earnings shifts 5 whereby any earnings lost in one quarter were made up in the 6 subsequent one. 7 Fischel s objection to the term earnings miss was partly 8 semantic. 9 the 35-day month practice as resulting in an earnings miss, but As an initial matter, the record reveals that As the defendants now concede, Bajaj did not analyze 10 instead his analysis simply removed the earnings associated with 11 each contract from the quarter in which it had been improperly 12 booked and re-booked it in the proper quarter. 13 However, despite this concession, the defendants argue that 14 Bajaj s calculation was nevertheless erroneous because he only 15 calculated the miss part of the shift, and did not take into 16 account that, had CA reported . . . its earnings correctly, . . 17 . it would have reported higher earnings in the third and fourth 18 quarters of fiscal year 2000 than the earnings it actually 19 reported. 20 quotation marks omitted). 21 Bajaj s calculation should have accounted for these higher 22 earnings, which would have significantly or completely offset 23 the earnings miss in the prior quarters. Kumar Br. 27. Kumar Br. 30 (emphasis in original, internal Thus, the defendants argue that -42- 1 We are not persuaded. Taken to its logical conclusion, the 2 defendants argument would also compel the conclusion that CA s 3 investors did not suffer any loss due to the 35-day month 4 practice, since under Fischel s hypothesis, the false gains and 5 the false losses should have effectively canceled each other out. 6 Fischel himself undermined this conclusion during the Fatico 7 hearing when he conceded that the 35-day month practice 8 obviously had a real negative monetary effect on CA s 9 investors, not only by affecting CA s cash flow[], but by 10 injecting speculation into the market and harming investor 11 confidence in CA s management. 12 419:8, 18. 13 entire basis for the Generally Accepted Accounting Principles 14 rule that earnings earned in one quarter must be reported in the 15 same quarter; if merely shifting earnings between quarters had 16 no negative effect on investors, there would be no need for the 17 rule in the first place. 18 firms that missed earnings in a given quarter could also have 19 avoided announcing the miss if they could borrow sufficient 20 earnings from the next quarter to cover their shortfall. 21 Supplemental Report of Dr. Mukesh Bajaj, at 12, Oct. 9, 2006. 22 Thus, the government properly characterizes Fischel s analysis as 23 stretch[ing] credulity. Fatico Hr g Tr. 416:13-14, 23, Accepting Fischel s testimony would cast doubt on the As Bajaj noted in his report, [m]any Gov t Br. 53. -43- 1 In addition, during the Fatico hearing, the government not 2 only provided reasons why Fischel s analysis was wrong, but also 3 provided reasons why Bajaj s analysis was sound. 4 the government showed that re-booked false earnings in one 5 quarter could indeed have caused CA s stock price to decline, by, 6 inter alia, causing loss to investors who purchased CA stock at 7 inflated prices because of fraudulent disclosures and omissions 8 flowing from the 35-day month, then sold after such inflation had 9 seeped out of the stock, as well as losses to investors who sold Specifically, 10 at deflated prices, where the 35-day month caused CA to 11 understate results. 12 In other words, individual sales and purchases of CA stock were 13 singular events thus, even assuming CA came out even in the end 14 (a dubious contention, at best), CA s individual investors did 15 not go unharmed. 16 with CA s claims administrator for their losses resulting from 17 the 35-day month practice reveal that those losses not only 18 existed, but were significantly underestimated by Bajaj, who 19 calculated damages only to an artificially narrow subset of 20 victims: 21 claims for restitution, which is often substantially fewer than 22 all eligible victims. 23 disconnect between the financial health of a corporation and that 24 of individual investors is precisely why the type of event See Fatico Hr g Tr. 234-236, Oct. 25, 2006. Instead, claims filed by individual investors namely, those victims who filled out and submitted Gov t Br. 55 n.22. -44- This potential 1 study undertaken by Bajaj conforms to the most widely accepted 2 practices of economists. Id. at 55. 3 The defendants also claim that Bajaj s loss calculation was 4 erroneous because the sample of earnings misses he used in his 5 study involved firms that had experienced genuine adverse 6 developments . . . such that a stock price decline would be 7 expected. 8 sample firms Bajaj used in his study were not appropriate 9 comparators to CA. Kumar Br. 30. Thus, the defendants argue that the Again, the defendants argument is 10 unpersuasive. 11 court should not analyze the impact of fraud in a vacuum, but 12 instead should recognize that [m]any factors may cause a decline 13 in share price between the time of the fraud and the revelation 14 of the fraud, not all of which will be attributable to 15 fraudulent activity. 16 179 (2d Cir. 2007). 17 In estimating a loss calculation, a sentencing United States v. Rutkoske, 506 F.3d 170, In this case, the district court properly focused on loss 18 attributable to the defendants fraud. 19 established, the 35-day month practice did indeed cause a 20 genuine adverse development to CA s financial health. 21 Moreover, Bajaj s study took other causes for CA s stock decline 22 into account by comparing the earnings misses of CA to those of 23 thirty other similarly-situated companies, and perform[ing] a 24 comprehensive regression analysis in an effort to isolate the -45- As previously 1 event-specific impact of the given firm s earnings-miss 2 disclosure on its stock price, while controlling for market-wide 3 or industry-wide factors. 4 fully entitled to credit Bajaj s assessment of the impact of 5 external causes on CA s stock and reject Fischel s, particularly 6 in light of Fischel s inherently contradictory analysis. 7 Gov t Br. 56. The district court was Finally, in reviewing the district court s loss calculation, 8 we find it particularly telling that CA s stock closed $5.85 9 below what would have been expected on October 10, 2003, two days 10 after CA s public disclosure of the 35-day month practice. 11 Multiplying that undisputed figure by the 200.2 million affected 12 shares would have brought the estimated loss to investors to more 13 than $1 billion, alone. 14 9 and 10, 2003 were tied, not to the actual operation of the 15 fraudulent 35-day month practice, but to the possibility of an 16 open-ended criminal and regulatory investigation that could . . . 17 [have] disastrous effects for the company, Kumar Br. 37 18 (alteration in the original), financial loss caused by 19 speculation that stems from the fraudulent practice and a loss of 20 confidence in management is properly included in the loss 21 calculation, see Ebbers, 458 F.3d at 127. 22 district court s loss calculation of greater than $400 million as 23 not clearly erroneous. 24 25 V. Even assuming that the losses of October Thus, we affirm the Were The Defendants Properly Denied Acceptance Of Responsibility Credit? -46- 1 2 Next, the defendants argue that, [a]lthough [they] pleaded 3 guilty to all the charges against [them], the district court 4 abused its discretion in denying them any credit for acceptance 5 of responsibility. 6 Richards Br. 47-48. 7 Kumar Br. 44 (emphasis in original); see A defendant is entitled to a two-point reduction under 8 U.S.S.G. § 3E1.1(a) if he clearly demonstrates acceptance of 9 responsibility for his offense. A defendant who enters a 10 guilty plea is not entitled to an adjustment under this section 11 as a matter of right. 12 particular, a defendant who engages in [c]onduct resulting in an 13 enhancement under § 3C1.1 (Obstructing or Impeding the 14 Administration of Justice) ordinarily would not be entitled to 15 the reduction, as such conduct indicates that the defendant has 16 not accepted responsibility for his criminal conduct. 17 cmt. n.4. 18 defendant who obstructs justice in some way is also entitled to a 19 reduction for acceptance of responsibility. 20 U.S.S.G. § 3E1.1, cmt. n.3. In Id. at However, there may be extraordinary cases in which a Id. A district court s § 3E1.1 determination is entitled to 21 great deference because the sentencing judge is in a unique 22 position to evaluate a defendant s acceptance of responsibility. 23 Id. at cmt. n.5. 24 acceptance of responsibility, primarily a factual determination, A district court s decision to deny credit for -47- 1 will be upheld unless it is without foundation. 2 United States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994). 3 A. Kumar s Acceptance Of Responsibility 4 At sentencing, the district court denied Kumar s request for 5 an acceptance of responsibility reduction under § 3E1.1, 6 concluding that Kumar had not sufficiently accepted 7 responsibility for his criminal conduct because he had obstructed 8 justice, and because he had waited until the eve of trial to 9 plead guilty. In addition, the district court noted that (1) 10 Kumar s plea allocation was phrased to mute[] the gravity of his 11 complicity in the securities fraud offenses, Sentencing Tr. 12 61:12-13, Nov. 2, 2006, and (2) Kumar s meritless objections to 13 the evidence-tampering and fraudulent transaction allegations in 14 the PSR revealed a lack of acceptance of responsibility, Kumar 15 Sentencing Tr. at 60:18-61:21. 16 On appeal, Kumar claims that the district court s rejection 17 of his acceptance of responsibility request was erroneous. 18 First, Kumar claims that, although an acceptance of 19 responsibility departure is generally unavailable when a 20 defendant engages in obstructive behavior, that exception does 21 not apply to him because his obstructive behavior occurred pre- 22 indictment and the exception only applies to post-indictment 23 obstructive behavior. 24 F.3d 637, 641 (6th Cir. 2003) (granting acceptance points where See, e.g., United States v. Gregory, 315 -48- 1 [a]ll of [the defendant s] obstructive conduct predated [the] 2 indictment ); see also United States v. Teyer, 322 F. Supp. 2d 3 359, 368 (S.D.N.Y. 2004) ( Were courts to hold that any 4 obstructive conduct, however early in the investigation . . . of 5 a case . . . forever disentitled a defendant to credit for later 6 acceptance of responsibility, this incentive would be ill 7 served. ). 8 too much reliance on the lateness of his plea in rejecting his 9 request for an acceptance of responsibility reduction, which he Second, Kumar argues that the district court placed 10 argues is only a basis for denying him a third acceptance point, 11 . . . but [not] . . . for denying the first two. 12 see United States v. Sloley, 464 F.3d 355, 359 (2d Cir. 2006) 13 ( [A] government motion is a necessary prerequisite to the 14 additional one-level decrease [for a timely plea] under 15 Guidelines § 3E1.1(b). ); see also Kumar Br. 49 (noting that 16 this Court has not directly addressed the relationship between 17 the timeliness of a defendant s guilty plea and his receipt of 18 acceptance credit ). 19 Kumar Br. 44; We need not resolve either of these alleged flaws in the 20 district court s reasoning with respect to Kumar, however, 21 because an examination of the record shows that he engaged in 22 sufficient objectionable post-indictment conduct to justify a 23 rejection of his request for acceptance of responsibility credit. 24 Specifically, Kumar, individually and separately from Richards, -49- 1 acted in ways that the district court reasonably found to be 2 inconsistent with a full acceptance of responsibility. 3 example, the district court found that Kumar s carefully worded 4 plea allocution . . . muted the gravity of his complicity in the 5 securities fraud offenses. . . . 6 [his fraudulent conduct] . . . would have affected a prudent 7 investor s decision to buy or sell his company s stock, his 8 response was: 9 Kumar Sentencing Tr. 61:11-13, 17-21. For When asked if he thought that I could see the possibility where it could. Moreover, the district 10 court found it particularly telling that Kumar objected to the 11 PSR on various grounds related to evidence tampering and 12 fraudulent transactions during his tenure at CA, but then 13 withdrew those objections during the course of the Fatico 14 hearing, implicitly acknowledging that his objections lacked 15 merit. 16 objection, the district court expressly found at sentencing that 17 there was clear[] and convincing[] evidence that at least one 18 of Kumar s objections was meritless. 19 See U.S.S.G. § 3E1.1, cmt. n.1(a) ( [A] defendant who falsely 20 denies, or frivolously contests, relevant conduct that the court 21 determines to be true has acted in a manner inconsistent with 22 acceptance of responsibility. ). Indeed, notwithstanding Kumar s withdrawal of his -50- Kumar Sentencing Tr. 61:9. 1 Thus, Kumar s post-indictment conduct provided a reasonable 2 basis for rejecting his request for an acceptance of 3 responsibility reduction. 4 B. Richards s Acceptance Of Responsibility 5 While the district court set forth several reasons why Kumar 6 did not deserve a sentencing reduction for acceptance of 7 responsibility, in denying Richards s same request, the court 8 relied on a single factor: 9 According to the district court, the most significant factor in the lateness of Richards s plea. 10 the acceptance of responsibility scale is the factor of time 11 limits. 12 concluded that, by pleading two weeks before trial, Richards had 13 exceeded those time limits, and therefore, was not entitled to 14 acceptance of responsibility credit. 15 Richards Sentencing Tr. 15:7-9. The district court On this point, we disagree. Timeliness of a defendant s plea is an appropriate 16 consideration in the acceptance of responsibility determination. 17 U.S.S.G. § 3E1.1 cmt. n.1(h). 18 reduction provided for in § 3E1.1(a) is for demonstration of 19 acceptance of responsibility, the Sentencing Guidelines 20 specifically provide that timeliness of a plea is primarily 21 relevant to the reduction of an additional point under § 22 3E1.1(b), ostensibly for helping the authorities save 23 resources. 24 Cir. 2006) (internal quotation marks omitted). However, while the two-level United States v. Ortiz-Torres, 449 F.3d 61, 76 (1st -51- See United States 1 v. Eyler, 67 F.3d 1386, 1390-91 (9th Cir. 1995) ( While the key 2 inquiry for purposes of [§ 3E1.1(a)] is whether the defendant has 3 demonstrated contrition, once this has been determined, then the 4 focus of the section (b) inquiry is on timeliness. (emphasis in 5 original)). As Judge Lynch stated in Teyer: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 322 F. Supp. 2d at 376 (alteration, internal citations, and 20 quotation marks omitted). 21 The Guidelines specifically provide a sanction for belated guilty pleas that fail adequately to save the resources of the Government and the Court. Defendants who plead at an early stage qualify for an additional one-level reduction that is correspondingly unavailable for belated pleas. That a defendant can earn an additional one-level reduction merely by notifying the authorities of his intention to plead early enough to permit the government to avoid preparing for trial strongly implies that defendants may qualify for the basic two-level adjustment for acceptance of responsibility without doing so. Here, the lateness of Richards s plea on its own was not a 22 sufficient foundation for denying him any acceptance of 23 responsibility credit. 24 lateness of a plea might indeed weigh against the defendant, 25 those circumstances are not present in this case. 26 Richards s plea came neither after the [g]overnment . . . 27 concluded presenting its case, . . . during the jury s 28 deliberations, nor on the morning of trial, and the district 29 court cited no other [relevant] factors that warranted a 30 rejection of Richards s request. 31 Richards s obstruction and culpability was of a different order While under certain circumstances the Id. -52- For example, It is undisputed that 1 than that of Kumar. Richards Sentencing Tr. 25:15-16. Unlike 2 Kumar, Richards appeared to fully accept responsibility both 3 prior to and during sentencing. 4 12:14-16 ( Your Honor, I fully accept responsibility for the 5 actions that I have taken and regret those actions. ). 6 unlike Kumar, who tampered with physical evidence, bribed 7 witnesses, and lied repeatedly during the course of a federal 8 investigation, Richards s obstructive conduct consisted entirely 9 of a single, albeit false, denial of knowledge of the 35-day See Richards Sentencing Tr. Also 10 month practice during an interview and subsequent testimony that 11 predated his guilty plea by three years and was accounted for in 12 the indictment. 13 responsibility solely due to his charged obstructive conduct 14 would effectively raise the Guidelines level for such conduct by 15 foreclosing the opportunity for acceptance of responsibility 16 credit in obstruction cases. 17 Indeed, denying Richards acceptance of Because the paramount factor in determining eligibility for 18 § 3E1.1 credit is whether the defendant truthfully admits the 19 conduct comprising the offense or offenses of conviction, and 20 because Richards did so here in a sufficiently timely manner so 21 as to avoid a lengthy trial and avert the risk of an irrational 22 verdict, Teyer, 322 F. Supp. 2d at 376, his lateness in pleading 23 guilty did not by itself provide a sufficient basis for the 24 denial of more than a one-point reduction for acceptance of -53- 1 responsibility. 2 erroneously failed to award Richards a two-point reduction for 3 acceptance of responsibility that he should have received, 4 Richards s sentence is vacated and the case remanded to the 5 district court for resentencing on this additional basis. 6 VI. 7 Accordingly, because the district court Was Richards s Sentence Substantively Unreasonable? Finally, Richards contends that his non-Guidelines sentence 8 of seven years imprisonment was unreasonably long, despite the 9 PSR s recommendation of a life sentence. However, because we 10 vacate Richards s sentence as procedurally unsound and remand the 11 case for resentencing, there is no need to entertain his 12 substantive reasonableness argument at this time. 13 United States, 128 S. Ct. 586, 597 (2007) ( Assuming that the 14 district court s sentencing decision is procedurally sound, the 15 appellate court should then consider the substantive 16 reasonableness of the sentence imposed under an abuse-of- 17 discretion standard. ) (emphasis added); accord United States v. 18 Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). 19 20 See Gall v. CONCLUSION For the foregoing reasons, the district court s judgment and 21 sentence as to Kumar is AFFIRMED in all respects; the district 22 court s judgment as to Richards is AFFIRMED, but Richards s 23 sentence is VACATED and REMANDED to the district court for 24 resentencing consistent with this opinion. -54- 1 United States v. Kumar; Richards, No. 06-5482-cr 2 3 SACK, Circuit Judge, concurring in part and dissenting in part -------------------------------------------------------------- 4 I join in the majority's conclusions regarding the 5 sufficiency of evidence for Richards's conviction of obstruction 6 of justice, the rejection of Richards's coercion claim, the 7 applicability of 18 U.S.C. § 1512(c) to Richards's conduct, the 8 district court's loss calculation, and the defendants' acceptance 9 of responsibility. I disagree, however, with the majority's 10 conclusion that the defendants' sentencing on securities and wire 11 fraud charges on the basis of the "one book" of the Sentencing 12 Guidelines in effect in 2005, long after those violations had 13 been completed, does not violate the constitutional prohibition 14 against ex post facto laws. 15 subsequent obstruction of justice offenses, though related to the 16 underlying securities and wire fraud charges and committed at a 17 time when the 2005 Guidelines would apply, does not, in my view, 18 render those Guidelines applicable to the securities and wire 19 fraud charges because at the time the defendants committed the 20 securities and wire fraud offenses, they did not have "fair 21 notice" of the severity of the penalties to which they might be 22 subjected for them under the later, harsher Guidelines. 23 extent that the majority conclude otherwise, I respectfully 24 dissent. 25 The defendants' commission of Ex Post Facto Clause To the 1 The Ex Post Facto clause of Article I, Section 9, 2 reads: "No Bill of Attainder or ex post facto Law shall be 3 passed."1 4 after it was adopted as part of the original United States 5 Constitution, Justice Samuel Chase, a President Washington 6 appointee, observed that this "prohibition . . . necessarily 7 requires some explanation; for, naked and without explanation, it 8 is unintelligible, and means nothing." 9 386, 390, 3 Dall. 386 (1798) (Chase, J.). U.S. CONST . ART . I, § 9, cl. 3. Some eleven years Calder v. Bull, 3 U.S. He then established as 10 black letter Constitutional law that, inter alia, "[e]very 11 [criminal] law that changes the punishment, and inflicts a 12 greater punishment, than the law annexed to the crime, when 1 Section 10, which applies to the States as opposed to Congress, contains a similar prohibition against "pass[ing] any Bill of Attainder [or] ex post facto Law. . . ." U.S. CONST . ART . I, § 10, cl. 1. -2- 1 committed," violates the Ex Post Facto clause. 2 Id.2 (emphasis omitted).3 2 Justice Chase's complete enumeration of prohibited ex post facto laws reads: 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Id. (emphasis in original). The continued viability of the fourth category, at least with the breadth suggested by Justice Chase, is in doubt, see Collins v. Youngblood, 497 U.S. 37, 43 n.3 (1990) ("As cases subsequent to Calder make clear, this language was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes."), but that aspect of ex post facto law is not implicated in this appeal. 3 The Supreme Court has consistently and repeatedly held that a law that increases the punishment of a crime after the completion of the offending act violates the Ex Post Facto clause. See, e.g., Garner v. Jones, 529 U.S. 244, 249 (2000) ("One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission."); Collins, 497 U.S. at 43 ("Legislatures may not retroactively . . . increase the punishment for criminal acts."); Weaver v. Graham, 450 U.S. 24, 30 (1981) (finding that the Ex Post Facto clause "forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred"); Calder, 3 U.S. at 397 (Paterson, J.) ("The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty; and therefore they may be classed together."). These decisions recognize no distinction between the scope of -3- 1 2 Nearly two hundred years later, Chief Justice Rehnquist, writing for the Court, explained: 3 4 5 6 7 8 9 10 11 Early opinions of the Court portrayed [the enumeration by Justice Chase in Calder] as an exclusive definition of ex post facto laws [citing three Nineteenth Century Supreme Court decisions]. So well accepted were these principles that the Court in Beazell v. Ohio, 269 U.S. 167 (1925), was able to confidently summarize the meaning of the Clause as follows: 12 13 14 15 16 17 18 19 20 21 22 23 24 "It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." Id., at 169-170. 25 26 See also Dobbert v. Florida, 432 U.S. 282, 292 (1977). 27 28 29 30 31 32 The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts. 33 Collins v. Youngblood, 497 U.S. 37, 42-43 (1990) (holding change 34 in State law allowing reformation of improper criminal verdicts 35 not to violate Ex Post Facto clause) (footnotes omitted). protection under the Ex Post Facto clause for laws that increase a sentence and laws that criminalize conduct after the commission of the relevant act. -4- 1 As we observed in somewhat different circumstances, 2 "the ex post facto doctrine is concerned not just with notice, 3 but with the inherent injustice associated with retroactivity 4 itself." 5 panel rehearing); see also id. (contrasting the ex post facto 6 doctrine and the rule of lenity, which is "more narrowly focused" 7 on the sole issue of notice).4 8 therefore requires not only "notice," but notice that is "fair." 9 See, e.g., Weaver v. Graham, 450 U.S. 24, 30 (1981). Sash v. Zenk, 439 F.3d 61, 64 (2d Cir. 2006) (denial of The ex post facto doctrine 10 The "One-Book Rule" 11 Section 1B1.11 of the United States Sentencing 12 Guidelines provides in pertinent part: Use of Guidelines Manual in Effect on Date of Sentencing (Policy Statement) 13 14 4 We continued: For this reason, the Supreme Court has associated the ex post facto doctrine with the Fifth Amendment's Takings Clause, which "prevents the Legislature . . . from depriving private persons of vested property rights except for a 'public use' and upon payment of 'just compensation,'" and with the "prohibitions on 'Bills of Attainder' in Art. I, §§ 9-10, [which] prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct." Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). Ex post facto is as much a doctrine of retroactivity as it is a doctrine of notice. Id. at 64-65. -5- 1 2 3 (a) The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced. 4 5 6 7 8 9 10 (b)(1) If the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed. 11 12 13 (2) The Guidelines Manual in effect on a particular date shall be applied in its entirety. . . . 14 15 16 17 18 19 (3) If the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses. 20 The notion that only one set of Guidelines should be 21 applied in imposing a single sentence, even where that sentence 22 covers multiple crimes the commission of which straddles the 23 effective dates of two sets of Guidelines, appears to derive from 24 the principle that each set of Guidelines is meant to act as a 25 "cohesive whole." United States v. Bailey, 123 F.3d 1381, 1404 26 (11th Cir. 1997). "'A sentencing court has no authority to pick 27 and choose, taking one provision from an earlier version of the 28 guidelines and another from a later version . . . . 29 book rule] avoids twisting the guidelines, depriving them of 30 uniformity and consistency.'" 31 Keller, 58 F.3d 884, 890 (2d Cir. 1995) (brackets and ellipsis in 32 Bailey)). [The one- Id. (quoting United States v. -6- 1 2 Consistent with that principle, Application Note 2 to Section 1B1.11 provides, in relevant part, that 3 4 5 6 7 8 9 10 11 12 13 the approach set forth in subsection (b)(3) should be followed regardless of whether the offenses of conviction are the type in which the conduct is grouped under § 3D1.2(d). The ex post facto clause does not distinguish between groupable and nongroupable offenses, and unless that clause would be violated, Congress' directive to apply the sentencing guidelines in effect at the time of sentencing must be followed. U.S.S.G. § 1B1.11 App. Note 2. 14 Relevant Facts 15 The facts relevant to the ex post facto issue before us 16 are relatively simple and straightforward. 17 The defendants engaged in securities and wire fraud, 18 and conspired to commit such fraud. 19 conspiracy was committed in May of 2000, and the fraud itself -- 20 the use of a so-called "35-day accounting month" -- ended no 21 later than October 2000. 22 these crimes, the November 1, 1998, edition of the Guidelines was 23 in effect. 24 The last overt act of the At the time the defendants committed Between 2001 and 2003, the Guidelines were revised so 25 as to increase the punishment for crimes of the sort that the 26 defendants had previously committed. 27 an increase in the offense levels applicable to those crimes 28 based upon the amount of money lost by the victims of the crime, 29 and in an expansion of the loss table through the addition of new -7- The revisions resulted in 1 categories for losses of $200 and $400 million, with the latter 2 calling for a 30-level enhancement compared to the 20-level 3 enhancement that would have applied to a $400 million loss under 4 the 1998 version of the Guidelines. 5 created a new 6-level enhancement for fraud involving 250 or more 6 victims, and a 4-level enhancement for violations of securities 7 laws by defendants who were officers or directors of public 8 companies. 9 The revised Guidelines also See U.S.S.G. §§ 2b1.1(b)(2)&(b)(13). Under the Guidelines in effect at the time of the 10 defendants' commission of the fraud and conspiracy crimes, the 11 applicable offense level was 30, which translated into a 12 Guidelines range of 97 to 121 months' imprisonment. 13 of the subsequent revisions, the offense level was raised to 50, 14 resulting in a recommended sentence of life imprisonment. 15 Maj. Op. at [24]. 16 As a result See Beginning in September 2002 and continuing until April 17 2004, the defendants engaged in various acts designed to cover up 18 their previously committed conspiracy and fraud. 19 superseding indictment -- the original indictment had been handed 20 down in 2004 -- the defendants were charged with committing fraud 21 and conspiracy to commit fraud over a period of time ending in 22 2000.5 In a 2005 But the superseding indictment also charged Richards with 5 The indictment purports to charge the frauds as occurring "[o]n or about and between April 1, 1998 and April 6, 2004, both dates being approximate and inclusive," but alleges no overt act -8- 1 committing perjury thereafter, Kumar with making false statements 2 to a Special Agent of the FBI thereafter, and both defendants 3 with filing false SEC filings, obstructing justice and conspiring 4 to obstruct justice thereafter. 5 all of these charges in April 2006, and were sentenced on all of 6 them in November of that year. 7 Guidelines were made between the time of the commission of the 8 coverup crimes and the filing of the superseding indictment, the 9 plea, and the sentencing. 10 Both defendants pled guilty to No relevant changes in the Relying on the one-book rule, the district court 11 sentenced the defendants on all of the charges to which they pled 12 guilty under the 2005 Guidelines. 13 post facto issue was presented by the fact that this version of 14 the Guidelines was not in effect at the time the defendants 15 committed the fraud and conspiracy crimes; it therefore did not 16 apply the exception set forth in subsection (b)(1) that instructs 17 a court not to apply the Guidelines manual in effect on the date 18 of sentencing if so doing would violate the Ex Post Facto clause. 19 Using the 2005 Guidelines, the district court sentenced each The court decided that no ex after May of 2000 and itself describes "The Scheme to Defraud" as occurring "[p]rior to and during CA's fiscal year 2000, which ended March 31, 2000." On appeal, the government does not dispute that the frauds were completed before the revision of the Guidelines in 2001 and 2002 and the subsequent increases in the penalties for securities and wire fraud. See, e.g., Appellees' Br. at 46 ("This case involves the application of a Guidelines manual to two sets of crimes, one occurring before, and one after, a revision of the Guidelines."). -9- 1 defendant to what would appear to be (depending on the actual 2 longevity of each defendant) well below his Guidelines-indicated 3 life sentence: Kumar to 144 months' incarceration, followed by 4 three years of supervised release; Richards to 84 months' 5 incarceration, followed by three years of supervised release. 6 The Majority Opinion 7 There is an inherent tension between the one-book rule 8 and the Ex Post Facto clause -- between a rule prescribing the 9 application of Guidelines that are current as of the day of 10 sentencing with respect to crimes that were committed before 11 those Guidelines went into effect, and a constitutional 12 requirement that "[l]egislatures[6] not retroactively 13 increase . . . the punishment for criminal acts." 14 U.S. at 43. 15 subsection (b)(1) of the one-book rule, quoted above. 16 Easterbrook once remarked on the "gymnastics performed" by the 17 Seventh Circuit in the case there on appeal in resolving that 18 tension in order "to show that a[n] . . . increase in [the 19 defendant's] offense level [was] compatible with the ex post 20 facto clause . . . ." 21 (7th Cir. 2000) (Easterbrook, J., concurring); see also id. 22 (opining that such gymnastics were "unnecessary, because the Collins, 497 Indeed, that tension is explicitly acknowledged in Judge United States v. Vivit, 214 F.3d 908, 924 6 We all assume for present purposes that the Guidelines were promulgated by a "legislature." Cf. footnote 7, infra. -10- 1 sentencing guidelines are not 'laws' within the scope of [the Ex 2 Post Facto] clause"). 3 federal courts nationwide since the Guidelines regime began. 4 fear, though, that in the case at bar, the majority have turned 5 from gymnastics to contortions. 6 That might be said of similar attempts by The majority and I begin on common ground. I We first 7 assume that the ex post facto doctrine applies to the Sentencing 8 Guidelines after the Supreme Court decided, in United States v. 9 Booker, 543 U.S. 220, 244-268 (2005), that the Guidelines are 10 advisory.7 11 Post Facto clause, 'two critical elements must be present: 12 First, the law must be retrospective, that is, it must apply to 13 events occurring before its enactment; and second, it must 14 disadvantage the offender affected by it.'" 15 (quoting Miller v. Florida, 482 U.S. 423, 430 (1987)). We then agree that "[f]or a law to contravene the Ex 7 Maj. Op. at 22 We also We have not yet explicitly decided whether the nowadvisory Guidelines can implicate the Ex Post Facto clause, although we implicitly assumed this to be the case in United States v. Kilkenny, 493 F.3d 122 (2d Cir. 2007) where, postBooker, we analyzed the application of revised Sentencing Guidelines in light of the Ex Post Facto. It is the subject of some disagreement among the various circuit courts. Compare, e.g., United States v. Demaree, 459 F.3d 791 (7th Cir. 2007) (Clause not directly applicable after Booker) with, e.g., United States v. Turner, 548 F.3d 1094, 1100 (D.C. Cir. 2008) ("It is enough . . . [for purposes of the Ex Post Facto clause] that using the [post-crime] Guidelines created a substantial risk that [the defendant's] sentence was more severe" than it would have been under the Guidelines in effect at the time of the crime.); and cf. United States v. Thompson, 518 F.3d 832, 870 (10th Cir. 2008) (assuming that the Guidelines may still implicate ex post facto concerns after Booker). -11- 1 agree that the second element is present here: 2 question that application of the 2005 Guidelines disadvantaged 3 the defendants by subjecting them to the higher ranges of the 4 2005 Guidelines compared to the 1998 version of the Guidelines in 5 effect when the 35-day month practice was discontinued in October 6 2000." 7 Guidelines raised the recommended Guidelines range from 97 to 121 8 months' incarceration to life imprisonment. Maj. Op. at 23 (footnote omitted). 9 10 "[T]here is no The use of the 2005 Where I depart from the majority's view is on the question of retroactivity. 11 12 13 14 15 16 17 18 19 20 The majority recognize that "central to the ex post facto prohibition is a concern for 'the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.'" Miller, 482 U.S. at 430 (quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)). The existence of an ex post facto violation [thus] turns on whether an individual was deprived of fair notice . . . . 21 Id. at 30. 22 concluding that 23 24 25 26 27 28 29 30 31 32 33 34 They find sufficient notice to the defendants by the adoption of the one-book rule prior to the commission of the defendants' obstruction offense had placed them on notice of the consequences of committing that second offense. That the consequences of the second offense included the application of the post-amendment Guidelines to all offenses considered at the defendants sentencing was fully apparent prior to the commission of the crimes that triggered those consequences. Id. at 31 (emphasis added). -12- 1 But it seems to me that the notice that the defendants 2 received here was notice as to punishment for the wrong crime: 3 not as to the fraud and conspiracy crimes for which punishment 4 was revised markedly upward, but the subsequent obstruction 5 offenses for which the Guidelines have not changed. 6 was inconsequential because the defendants were not subjected to 7 an increased sentence for obstruction; they were subjected to an 8 increased sentence for already completed frauds. 9 that the majority give insufficient attention to the quality of This notice And I think 10 notice that ex post facto jurisprudence requires. 11 notice simpliciter, but notice that is "fair." 12 Court said in Miller, "The constitutional prohibition against ex 13 post facto laws cannot be avoided merely by adding to a law 14 notice that it might be changed;" in that case the Court found an 15 ex post facto violation because the defendant was not aware of 16 the prescribed range of punishment for his offense at the time he 17 committed it. 18 a doctrine of retroactivity as it is a doctrine of notice," 19 Sash, 439 F.3d at 64-65, and "the inherent injustice associated 20 with retroactivity itself" must guide our analysis, id. at 64. 21 What we said in the related context of the change of 22 23 24 25 26 Miller 482 U.S. at 431. It is not As the Supreme "Ex post facto is as much rules regarding supervised release bears repeating here: We are unpersuaded by the government's argument that the Ex Post Facto Clause is not implicated so long as the penalty for a supervised-release violation is enhanced -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 before the defendant engages in his supervised-release-violative conduct because the violator then has notice and fair warning that that conduct will result in the enhanced penalty. While it is true that a defendant would have notice of that enhancement before he committed his violation of supervised release, it is equally true that he would have had no such notice before he committed the original offense. Indeed, the enhanced punishment of supervised-release revocation simply would not be applicable to him had he not committed his original offense and been sentenced, for that offense, to supervised release. Thus, the government's notice argument is not helpful to resolving the issue presented by this appeal. 18 United States v. Meeks, 25 F.3d 1117, 1122 (2d Cir. 1994), 19 abrogated on other grounds by Johnson v. United States, 529 U.S. 20 694 (2000).8 While it may be true that, in the case at hand, the 8 Although Meeks was subsequently abrogated by Johnson, it was not because the Supreme Court thought our logic on the present score unpersuasive. To the contrary, there are repeated suggestions in the dicta in Johnson that had the issue been properly presented to the Court, it would have ruled the same way this Court did in Meeks. But the government in Johnson specifically "disavow[ed]" the argument that it had made to, and had been endorsed by, the district court in Meeks, and that is made by the majority here: that there is no ex post facto violation because "revocation of supervised release imposes punishment for defendants' new offenses for violating the conditions of their supervised release." Johnson, 529 U.S. at 699-700 (internal quotation marks omitted). The Johnson Court called such a disavowment "wise[] in view of the serious constitutional question that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release." Id. at 700. The Court then expressly noted that "[s]ince postrevocation penalties relate to the original offense, to sentence Johnson to a further term of supervised release under § 3583(h) would be to apply this section retroactively." Id. at 701. It would therefore appear that so long as the punishment for an act taken subsequently to a new law that increases the penalty for an offense relates to the punishment for an earlier offense, and not to the new act, the -14- 1 one-book rule provided Richards and Kumar constructive notice of 2 the enhancement in sentencing before they obstructed justice, "it 3 is equally true that [they] would have had no such notice before 4 [they] committed the original offense[s]" of fraud and 5 conspiracy. 6 307, 323-24 (2d Cir. 1997) (finding, where the government sought 7 to apply a revised version of the Guidelines to a fraud committed 8 before the revision based upon charged but later dismissed 9 conduct that the government alleged to amount to a continuation Id.; see also, United States v. Zagari, 111 F.3d 10 of the fraud after the revision, that use of the revised 11 Guidelines violated the Ex Post Facto clause where the alleged 12 frauds before and after the revision were "not properly subsumed 13 into one huge scheme to defraud, . . . but rather should be 14 thought of as separate schemes . . . ."). 15 Six of our sister circuits that have addressed this 16 issue have limited their conclusion of constitutionality either 17 to cases that involve a continuing course of conduct or to cases 18 in which the offenses are sufficiently similar to be subject to 19 "grouping" under the Guidelines. See United States v. Duane, 533 law is being applied retroactively and creates ex post facto concerns. See also id. at 699 (recognizing that an ex post facto violation arises where a law "raises the penalty from whatever the law provided when [the defendant] acted") (emphasis added). These statements were dicta because the Court concluded that section 3583(h) was not retroactive, and was therefore inapplicable to cases where the original offenses was committed before passage of the law. Id. at 702-03. -15- 1 F.3d 441, 449 (6th Cir. 2008) (concluding the "better argument in 2 favor of § 1B1.11(b)(3)'s constitutionality" to be "that a 3 Guidelines revision, § 1B1.11(b)(3) itself, and the § 3D1.2(d) 4 grouping rules provide a criminal fair warning that committing 5 future similar crimes may subject him to increased penalties for 6 similar prior offenses"); United States v. Sullivan, 255 F.3d 7 1256, 1262-63 (10th Cir. 2001) ("[T]he grouping rules and the 8 relevant conduct provisions gave [the defendant] notice that his 9 three consecutive failures to file would be considered part of 10 the same course of conduct and would collectively determine his 11 sentence."); Vivit, 214 F.3d at 919 (deciding that the 12 Guidelines, including in particular the grouping rules, succeed 13 in provid[ing] notice to criminals that engaging in ongoing 14 fraudulent behavior involving the same type of harm risks 15 grouping of convictions, which because of the one-book rule, will 16 all be sentenced according to the Guidelines in effect when the 17 latest conduct occurred. ); United States v. Kimler, 167 F.3d 18 889, 895 (5th Cir. 1999) ("[The defendant] had proper notice 19 that, if he continued to commit related offenses that would be 20 grouped under § 3D1.2(d), he would be sentenced under the 21 guidelines in use when he committed the last offense in the 22 grouped series."); Bailey, 123 F.3d at 1404-05 ("[T]he one book 23 rule, together with the Guidelines grouping rules and relevant 24 conduct, provide that related offenses committed in a series will -16- 1 be sentenced together under the Sentencing Guidelines Manual in 2 effect at the end of the series. 3 he continues to commit related crimes, that he risks sentencing 4 for all of his offenses under the latest, amended Sentencing 5 Guidelines Manual."); United States v. Regan, 989 F.2d 44, 48 6 (1st Cir. 1993) (deciding, before the establishment of the one- 7 book rule, that it was not an ex post facto violation to use 8 revised Guidelines where offenses committed prior to revision had 9 been grouped with offenses committed after the revision and "were 10 11 Thus, a defendant knows, when manifestly part of the same ongoing scheme of embezzlements"). Two other circuits have found the one-book rule to be 12 constitutional even in cases not involving continuing courses of 13 conduct or grouped offenses. 14 conclusion of constitutionality, however, in cases that involved 15 repeated commission of the same offense before and after the 16 revision of the Guidelines. 17 F.3d 215, 218 (4th Cir. 2000) (finding the application of the 18 one-book rule to be constitutional in a case involving multiple 19 acts of tax evasion before and after a revision of the 20 Guidelines); United States v. Cooper, 35 F.3d 1248, 1251 (8th 21 Cir. 1995) (concluding that the Ex Post Facto clause was not 22 violated where "a series of firearms offenses" straddled a 23 revision of the Guidelines, and comparing series of offenses to a These circuits only reached a See United States v. Lewis, 235 -17- 1 "conspiracy that straddles the Sentencing Guidelines' effective 2 date"). 3 The two remaining circuits that have addressed this 4 issue9 have unequivocally concluded, to the contrary, that the 5 one-book rule is unconstitutional in these circumstances, even 6 where the convictions that straddle a revision of the Guidelines 7 are grouped for sentencing purposes. 8 Ortland, 109 F.3d 539 (9th Cir. 1997); United States v. Bertoli, 9 40 F.3d 1384 (3d Cir. 1994). 10 See United States v. So, it seems, we now stand alone: The panel concludes 11 that any offense that has been committed by a defendant after a 12 revision of the Guidelines may be used as a basis to apply the 13 revised Guidelines to crimes committed before the revision so 14 long as the pre- and post-revision crimes are prosecuted together 15 but irrespective of the relationship, if any, between them.10 9 The D.C. Circuit does not appear yet to have dealt with the situation with which we are faced here. 10 The majority suggest that the Eighth Circuit has a similar rule based on that court's recent decision in United States v. Anderson, 570 F.3d 1025 (8th Cir. 2009), which the majority understands to "base[] its holding entirely on the application of the one-book rule." Maj. Op. at 27 n.13. I am not persuaded that Anderson stands for the proposition that the one-book rule alone is sufficient to overcome ex post facto problems inherent in sentencing a defendant under one version of the Guidelines for crimes committed both before and after that version came into effect. The majority properly note that "the crimes at issue [in Anderson] were potentially subject to grouping under Guidelines section 2J1.6 and 3d1.2(c)." Id. But the crimes at issue in Anderson were not only "potentially" subject to grouping under the named sections; they were in fact -18- 1 The majority take this position in a case in which the two sets 2 of crimes, the substantive crimes and the coverup offenses, are 3 in fact related -- indeed, they have been grouped together for 4 sentencing purposes -- and no such broad holding is required for 5 resolution of this appeal.11 As discussed in more detail below, grouped under those sections. See Appellee's Br., United States v. Anderson, Nos. 08-3402, 08-3436, 2009 WL 2819251 (8th Cir. Feb. 5, 2009) ("Per the grouping rules, the district court properly grouped the underlying wire fraud convictions with the failure-to-appear conviction and then applied the 'one-book rule' to the group."). And while the language in that decision may be broad enough to suggest that the holding is based solely on the one-book rule, see Anderson, 570 F.3d at 1034 ("Pursuant to the one-book rule, because Anderson had been convicted of two offenses, the first -- wire fraud -- committed before, and the second -- failure to appear -- committed after, a revised edition of the guidelines manual became effective, the revised edition of the guidelines should be applied."), the decision was based entirely on case law pertaining to grouped offenses, see id. at 1033 ("We have held that the one-book rule does not violate the Ex Post Facto Clause, even when it results in a higher guidelines range, because defendants have 'fair warning' that the revised guidelines manual will apply to grouped offenses." (emphasis added)). Because the decision in Anderson was rendered in a case involving grouped crimes and relied entirely upon precedent that applied only to grouped offenses, I remain doubtful that such language can be read as an affirmative holding on the ex post facto implications of the one-book rule. 11 It is worth noting that the government repeatedly makes clear that it only argues that there is no ex post facto problem in this case because the crimes straddling the revision of the Guidelines are related. See, e.g., Appellee's Br. at 45 ("[B]ecause the securities fraud and the obstruction constitute 'relevant conduct' vis-a-vis one another, application of the later Guidelines did not violate the Constitution." (citation omitted)); id. at 47 ("The grouping rules, together with the onebook rule, put the defendant on notice . . . ."); id. at 48 ("[T]his Court recognizes obstruction after-the-fact to be 'relevant conduct' to prior fraud."); id. at 50 ("Because these counts were properly grouped pursuant to § 3D1.2, the application of the 2005 Guidelines pursuant to § 1B1.11 did not violate the -19- 1 I do not think the relationship of these offenses to be 2 sufficiently close to conceive of them as groupable continuing 3 offenses and therefore to overcome the ex post facto problem, but 4 such a holding would at least acknowledge that there is a notice 5 problem inherent in allowing a Guideline revised after a crime 6 was committed to be used to sentence for that crime. 7 The majority seek to find in the one-book rule a form 8 of constructive notice to defendants as to the consequences of 9 their crimes because they knew at the time they committed any 10 successive crime that the sentence for all prior completed crimes 11 indicted together with the successor crime would be increased as 12 a consequence of that successive crime. 13 clause requires not only notice, but also that the notice be 14 "fair."12 But the Ex Post Facto In the case of Messrs. Kumar and Richards, it was not. Ex Post Facto Clause."). 12 Blackstone illustrates the second purpose of the Ex Post Facto Clause, providing fair warning, by looking to the policies of the Roman despot Caligula. See 1 William Blackstone, Commentaries on the Laws of England 46 (1765). Caligula had laws written in fine print and hung them high up on pillars so that they were not available to nor readable by the Roman citizens affected by such laws. Id. They provided no fair warning and so, like laws made ex post facto, they would not have provided citizens fair notice to refrain from the criminalized conduct. United States v. Kilkenny, 493 F.3d 122, 126 (2d Cir. 2007). -20- 1 I agree with the sentiments of Judge Kelly, of the 2 Tenth Circuit, dissenting under somewhat similar circumstances: 3 "[T]he only notice . . . provide[d to the defendants] at the time 4 of commission of the . . . pre-amendment offenses is that the 5 sentence could be determined in accordance with guideline 6 provisions that may or may not be amended. 7 sufficient to inform a defendant that the last offense could 8 determine the sentence, only a defendant with the prescience of a 9 clairvoyant could anticipate an actual sentence based upon a yet- Even if the notice is 10 to-be amended guideline." United States v. Sullivan, 255 F.3d 11 1256, 1266 (10th Cir. 2001) (Kelly, J., dissenting). 12 Grouping 13 The majority and I agree that grouping is not 14 determinative of whether the sentences here comport with the Due 15 Process Clause. 16 however. 17 facto inquiry, it seems to me, in at least two ways -- each 18 relevant to the case at bar, and only one of which is 19 acknowledged in the majority opinion. 20 We reach this conclusion for different reasons, The issue of grouping of offenses affects the ex post First, there is considerable support for the argument 21 that when offenses are grouped for sentencing purposes because 22 "the behavior is ongoing or continuous in nature and the offense 23 guideline is written to cover such behavior," U.S.S.G. -21- 1 § 3D1.2(d), ex post facto concerns are met. According to the 2 Eighth Circuit, for example, "it has been held that applying the 3 Sentencing Guidelines to a conspiracy that straddles the 4 Sentencing Guidelines' effective date is not violative of the ex 5 post facto clause. 6 other continuing offenses it is the completion date of the 7 offense that controls the version of the Sentencing Guidelines to 8 be applied." 9 omitted). [Courts have] noted that with conspiracy and Cooper, 35 F.3d at 1251 (emphasis added; citations This argument would support a finding of 10 constitutionality despite the fact that the penalty prescribed 11 for the crime is made harsher during the course of the criminal 12 behavior because the defendants at least theoretically made a 13 choice to continue their unlawful activity while the penalties 14 for it were being increased.13 15 This is precisely the argument the government makes 16 here, contending that the obstruction offenses are part of a 17 "continuing course of conduct" with the fraud and conspiracy 18 offenses. 19 argument persuasive in this particular case,14 I recognize that Appellee's Br. at 49. While I do not think this 13 A similar argument, albeit a less convincing one, might be made to justify the use of a revised version of the Guidelines to sentence the repeated commission of the same crime committed both before and after the revision, as the Fourth Circuit did in Lewis and the Eighth Circuit did in Cooper. Such is not the case here. See Lewis, 235 F.3d at 218; Cooper, 35 F.3d at 1251. 14 The argument that continuing offenses do not implicate ex post facto concerns might carry some day, but not this one. I do -22- 1 the argument at least attempts to address the ex post facto 2 problems inherent in applying a revised version of the Guidelines 3 to the sentence of an act completed before the revision. 4 this been the basis of the majority's decision today, our 5 disagreement on the law would seem to me to be a narrow one. Had not think it proper to cast the abortive attempt to cover up the fraud and conspiracy several years later as a continuation of those crimes. They were complete when the defendants' fraudulent and conspiratorial activity ended. When the defendants engaged in fraud they likely hoped, even expected, to escape detection altogether. That they did not, and later engaged in obstruction of justice to try to avoid further exposure and thereby criminal prosecution, does not seem to me to be a part of the original criminal activity. I think it significant in this respect that the obstruction and fraud/conspiracy offenses were grouped together under Section 3D1.2(c), and not 3D1.2(d). (The fraud and conspiracy offenses were in fact grouped with each other under Section 3D1.2(d), but these offenses were then grouped with the obstruction offenses under Section 3D1.2(c)). These two sections govern different kinds of conduct and have distinct implications for ex post facto analysis. Grouping a continuing offense under Section 3D1.2(d) may not cause ex post facto concern where crimes are grouped because "the behavior is ongoing or continuous in nature," and therefore the crimes are arguably not completed until after the Guidelines are revised. But there is no such implication of continuation under Section 3D1.2(c), invoked here, which requires grouping "[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts." U.S.S.G. § 3D1.2(c). That fraud and obstruction offenses share an offense characteristic or may lead to an adjustment to the sentence for one another has no bearing I can see on whether the fraud offenses can be understood as continuing through the time that the Guidelines were revised. In this case, as I have tried to explain, the fraud cannot be so understood. The fact that the two sets of crimes were grouped together under this section of the Guidelines has no implications with respect to the notice the defendants received of the consequences of their conduct committed before the Guidelines were revised. -23- 1 But the majority appear to view the impact of grouping 2 in a second fashion instead, one that has indeed been endorsed by 3 several of our sister circuits. 4 the Seventh Circuit in Vivit: "[T]he adoption of the one-book 5 rule and the grouping rules put[s] criminals on notice that 'the 6 version of the sentencing guidelines in effect at the time he 7 committed the last series of grouped offences will apply to the 8 entire group.'" 9 at 895). It was expressed explicitly by Vivit, 214 F.3d at 918 (quoting Kimler, 167 F.3d Before they violated the securities fraud and 10 conspiracy laws, the defendants "knew" the Guidelines sentence at 11 the time, but they also "knew" that it could be increased if they 12 later committed an offense -- in this case obstruction of justice 13 -- that would be grouped with it. 14 The majority base their unique holding on the one-book 15 rule rather than the grouping theory described here, but the two 16 analyses bear similarities: 17 constitutional because the Guidelines provide notice that the law 18 is subject to change. 19 that change will be at the time an act is committed, they provide 20 such notice before a subsequent act. 21 conducted under the grouping rules or the one-book rule seems 22 largely beside the point to me. 23 notice that is insufficient under the observation in Miller that 24 "[t]he constitutional prohibition against ex post facto laws The one-book rule as applied here is Even if they do not provide notice of what Whether this analysis is In either event it permits -24- 1 cannot be avoided merely by adding to a law notice that it might 2 be changed." 3 Miller 482 U.S. at 431. This sort of compound, abstract notice hardly seems to 4 me to be "fair" notice at the time the fraud and conspiracy 5 crimes were committed of what punishment the defendants might 6 receive if they misbehaved in that manner -- giving notice only 7 that if they did what they did, and later committed another 8 (potentially "groupable") crime, their sentence could be 9 increased by some unknown amount. I am reminded again of Judge 10 Kelly's reference to the "defendant with the prescience of a 11 clairvoyant [who alone] could anticipate an actual sentence based 12 upon a yet-to-be amended guideline." 13 (Kelly, J., dissenting). 14 incomplete notice and therefore not "fair." Sullivan, 255 F.3d at 1266 It is, in short, speculative and 15 Recidivism Cases 16 The majority reason by analogy to decisions, including 17 those of the Supreme Court, upholding recidivism statutes -- 18 those that punish crimes committed by a person with a specified 19 level of criminal record more harshly than those committed by a 20 person without such a record. 21 say, "when it leads to a higher sentencing range than would be 22 applied to a single offense, operates in a manner similar to that 23 of the recidivist statutes and 'three strikes' laws upheld by the 24 Supreme Court and our sister circuits in the past." "The one-book rule," the majority -25- Maj. Op. at 1 32. 2 "rejected the defendant s argument that the consideration of his 3 past offenses in determining his sentence for a later offense was 4 foreclosed by the Ex Post Facto clause. 5 at 32. 6 They cite Gryger v. Burke, 334 U.S. 728 (1948), as having Id. at 732." Maj. Op. The majority then assert that "[t]he fact that the 7 impetus for enacting the recidivist statutes was to reflect the 8 greater culpability associated with the latter offenses, whereas 9 the impetus for the enactment of the one-book rule is to avoid 10 'piecemeal' sentencing is of no relevance for the purposes of 11 determining the retroactivity of the legal consequences of the 12 defendant's actions." 13 majority therefore conclude that "the distinction between the 14 recidivist statutes and the one-book rule makes neither a 15 practical nor a logical difference for purposes of an analysis 16 under the Ex Post Facto clause," because "the defendants' 17 obstruction offense is the 'actual crime' triggering the 18 application of the one-book rule, the defendants had prior notice 19 of the consequences of that crime, and therefore the application 20 of the one-book rule is proper." 21 Maj. Op. at 33 (citation omitted). The Maj. Op. at 34-35. I think, to the contrary, that there is a crucial 22 difference between the legislative branch deciding that a 23 particular crime is more serious when committed by -- and that 24 the public is in need of more protection from -- a person who has -26- 1 a specified level of past criminal behavior than someone who does 2 not, and increasing a penalty for a completed crime "triggered" 3 by the commission of a subsequent one -- indeed, irrespective, in 4 the majority's view, of whether there is a connection between 5 those crimes committed before the change and those committed 6 afterward. 7 it thus: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Justice Jackson, writing for the Court in Gryger, put Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive or subjects the petitioner to double jeopardy. The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one. Gryger, 334 U.S. at 732 (emphasis added). The later crime may, as the majority say, "trigger" the 23 change in the sentence for the earlier crimes, but what it 24 triggers is what the Gryger court said was improper: 25 "additional penalty for the[ir] earlier crimes." 26 trigger, the revisions increased the offense levels applicable to 27 the earlier fraud and conspiracy crimes, not the later 28 obstruction of justice offenses. 29 based upon the amount of money lost by the victims of the fraud 30 and conspiracy crimes; they expanded the loss table for the fraud 31 and conspiracy offenses, not the obstruction of justice offenses, an Whatever the The revisions added an increase -27- 1 by adding new categories for losses of $200 and $400 million; and 2 they created a new 6-level enhancement for fraud, not obstruction 3 of justice, involving 250 or more victims; and added a 4-level 4 enhancement for violations of securities laws, not the 5 obstruction of justice laws, by defendants who were officers or 6 directors of public companies. 7 §§ 2b1.1(b)(2)&(b)(13); cf. Cooper, 35 F.3d 1248, 1251 (8th Cir. 8 1994) ("It is well settled that habitual offender statutes do not 9 offend the ex post facto clause, even though such statutes impact See U.S.S.G. 10 imposition of an instant sentence in consideration of past 11 criminal conduct. [Citing Gryger, 334 U.S. at 732.] 12 sentence is considered to impose a stiffer penalty for the latest 13 crime, which is considered to be an aggravated offense due to its 14 repetitive nature." (emphasis added)). 15 critical difference between recidivist statutes and the 16 circumstances we are faced with here: that while, as the majority 17 point out and as Gryger makes clear, "the consideration of [] 18 past offenses in determining [the] sentence for a later offense" 19 may be permissible for ex post facto purposes, Maj. Op. at [32], 20 it is the consideration of a later offense in determining the 21 sentence for past offenses, as we do here, that runs afoul of ex 22 post facto considerations. 23 24 The enhanced This is, of course, the As a "practical" matter, to be sure, Congress, or perhaps the Sentencing Commission, might have -- and may still -- -28- 1 adopt a permissible recidivism statute to cover a circumstance 2 very much like the present one: 3 obstruction of justice in order to cover up a fraud in which the 4 losses inflicted by the fraud are $ X will receive a Y level 5 increase in offense level. 6 otherwise, that reaching a similar result by the present method 7 -- by retroactively increasing the punishment for fraud -- 8 constitutional. 9 for behavior of which the potential violator would be fully and A person who commits an It does not follow, "logically" or is The hypothetical law would provide punishment 10 fairly warned before engaging in that behavior. 11 the perceived seriousness of future obstruction offenses, 12 publically disseminated before any such offense is committed, and 13 not an attempt to re-punish completed past acts. 14 punishment for fraud and conspiracy after they are completed 15 provides no "fair notice" and evokes "the inherent injustice 16 associated with retroactivity itself." 17 CONCLUSION 18 It would reflect To increase the Sash, 439 F.3d at 64. We have been instructed for more than 200 years that "a 19 law that changes the punishment, and inflicts a greater 20 punishment, than the law annexed to the crime, when committed" 21 violates the Ex Post Facto clause. 22 seems to me to describe the change in the Guidelines that was 23 applied to the defendants' fraud and conspiracy crimes upon 24 sentencing long after those crimes had ended. -29- Calder, 3 U.S. at 390. That 1 Again, I have no reason to doubt that the Guidelines 2 Commission may promulgate obstruction of justice guidelines that 3 take into account the gravity, as it then views the gravity to be 4 in the context of the crime for which punishment is being evaded, 5 so as prospectively to prescribe harsher sanctions for the 6 obstruction. 7 obstruction itself and not to crimes that are over. 8 to be a violation of the Ex Post Facto clause. 9 10 But then it must prescribe those sanctions to the I think that For the foregoing reasons and to the extent indicated, I respectfully dissent. -30-
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