US v. Evan Foreman, No. 13-4022 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4022 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EVAN FOREMAN, Defendant Appellant. No. 13-4028 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL FOREMAN, Defendant Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:11-cr-00398-JKB-3; 1:11-cr-00398-JKB-1) Argued: January 29, 2014 Decided: Before MOTZ, KING, and DIAZ, Circuit Judges. March 12, 2014 Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Motz and Judge King joined. ARGUED: Amy Lee Copeland, ROUSE & COPELAND, LLC, Savannah, Georgia; Michael Scotland Morris, SIMMS SHOWERS, LLP, Baltimore, Maryland, for Appellants. Benjamin M. Block, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 DIAZ, Circuit Judge: Evan and Michael Foreman pleaded guilty to conspiracy to commit Hobbs Act robbery. Evan also pleaded guilty to possession of a firearm in furtherance of a crime of violence. The district court sentenced Evan to 294 months imprisonment and Michael to 144 months imprisonment. that the district to government their for move respective acceptance of § 3E1.1(b). erred court in § 4B1.1. erred an offense in failing additional levels responsibility under On appeal, they argue in to one-level compel the reduction in recognition U.S. of Sentencing their Guideline Michael contends separately that the district court sentencing him as a career offender under U.S.S.G. For the reasons that follow, we affirm. I. On August 3, 2011, a grand jury returned a fifteen-count indictment against Evan and Michael, charging them with multiple Hobbs Act robberies, conspiracy to commit Hobbs Act robbery, and bank larceny. 1 The indictment also charged Evan with possessing and brandishing a firearm in furtherance of a crime of violence. The district court set a trial date of October 17, 2011. 1 Evan was originally charged by criminal complaint on June 20, 2011, and he made his initial appearance the same day. 3 The Foremans initial plea negotiations with the government proved unfruitful. Over the course of the next year, a grand jury returned second and third superseding indictments against them, adding seven new counts and charging them with numerous additional pushed robberies. back to In September the meantime, 10, 2012. the On trial May 15, date was 2012, the district court conducted a pretrial hearing on the Foremans numerous evidentiary and procedural motions. Trial was delayed a third time and set for November 26, 2012. On May 30, 2012, Michael signed a written plea agreement with the government, conspiracy to commit U.S.C. § 1951(a). August 24, commit Hobbs 2012, Act wherein Hobbs he Act Evan signed agreeing to robbery agreed to plead robbery, in violation a written plead and to guilty guilty to of 18 plea agreement on to conspiracy to a in possessing firearm furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Their respective plea hearings were held on July 2, 2012, and September 12, 2012. A presentence investigation report ( PSR ) was subsequently prepared for each defendant. The PSRs noted that each defendant had an adjusted offense level of 30, reflecting, among other things, a two-level reduction for acceptance of responsibility 4 under U.S.S.G. § 3E1.1(a) (2012). 2 Foremans were criminal history Guidelines months also both career categories range for imprisonment. both of According to the PSRs, the offenders, so VI. resultant Michael Evan faced The and an Evan they was additional each had advisory 168 to 210 mandatory, consecutive 84-month sentence for his firearm offense under 18 U.S.C. § 924(c). The district court conducted a joint sentencing hearing. Both Michael and Evan objected to not receiving an additional one-point reduction for their acceptance of responsibility under U.S.S.G. § 3E1.1(b). They also both objected to being sentenced as career offenders. The court overruled both objections as to each defendant. The district recommendations modification. court with adopted respect to the Evan PSR s with findings only and minor After considering each of the 18 U.S.C. § 3553(a) factors, the court sentenced Evan at the top of the Guidelines range, to 210 months for his conspiracy conviction and 84 months 2 We apply the 2012 version of the Guidelines, which was in effect at the time of the Foremans sentencing. See United States v. Lewis, 606 F.3d 193, 198-99 (4th Cir. 2010); see also U.S.S.G. § 1B1.11(a) ( The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced. ). The 2013 version of the Guidelines Manual amends the commentary associated with U.S.S.G. § 3E1.1 but does not alter the text of that provision. 5 for the firearm imprisonment. offense, for a total of 294 months The court noted that even if the guidelines were to compute in such a way as to cause [Evan] to not be considered a career offender, and therefore the guideline range to be substantially lower . . . I would nonetheless impose . . . a total sentence[] of 294 months under the § 3553(a) factors. J.A. 451. With respect findings, but to Michael, determined the that court accepted Michael s category overstated his criminal history. the criminal PSR s history It therefore adjusted Michael s criminal history category to V, resulting in a revised Guidelines Michael range to imprisonment. the of 151 to 188 below-Guidelines After thoroughly months. It sentence addressing then of 144 the sentenced months § 3553(a) factors, the court noted that it would sentence Michael to 144 months imprisonment even if he were not a career offender. The Foremans timely appealed their sentences. 3 3 The government has chosen not to enforce the Foremans respective appellate waivers. Accordingly, we have no reason to reconsider our earlier denial of the government s motion to dismiss the appeal. 6 II. We review criminal sentences for reasonableness. United States, 552 U.S. 38, 46 (2007). requires us to significant ensure that procedural the error, the Guidelines range. Reasonableness review district such Id. at 51. as Gall v. court committed improperly no calculating In assessing a challenge to a sentencing court s application of the Guidelines, we review the court s factual findings conclusions de novo. for clear error and its legal United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010) (internal quotation marks omitted). A. Section certain 3E1.1 of offense-level responsibility authorizes a for his two-level the Sentencing reductions criminal reduction if Guidelines authorizes a defendant accepts conduct. Section 3E1.1(a) defendant clearly [i]f the demonstrates acceptance of responsibility for his offense. noted above, both Foremans received this reduction. As They take issue with the government s refusal to move for an additional one-level reduction under § 3E1.1(b), which provides: If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the 7 government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level. The § 3E1.1(b) reduction should only be granted by the district court upon motion of the government, but a court may compel the government to file such a motion if it is withheld on improper grounds. See United States v. Divens, 650 F.3d 343, 350 (4th Cir. 2011). the government purposes of to Here the district court declined to order move § 3E1.1(b) for were the not reduction, finding that the fulfilled because lots of resources had to be marshaled with respect to the Foremans case. We J.A. 250. begin § 3E1.1(b). our See analysis Stinson with v. the United commentary States, 508 accompanying U.S. 36, 38 (1993) ( [C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline. ). The commentary states that the conduct qualifying for a decrease in offense level under subsection (b) will occur particularly early in the case. U.S.S.G. § 3E1.1 cmt. n.6. We hardly think the Foremans acceptance of responsibility came early in this case, as Michael pleaded guilty eleven months after he was indicted and four months before the scheduled trial date. 8 Evan waited fourteen months after he was first charged to plead guilty, just two months before trial. 4 Despite this delay, the Foremans argue that they are nonetheless entitled to the reduction because they entered early plea negotiations and would have pleaded guilty immediately had they been able to reach an agreement with the government. Appellants Br. at 16. But a mere willingness to engage in negotiations definitively does not signal a defendant s readiness to accept responsibility in the manner contemplated by the Guideline. Cf. Divens, 650 F.3d at 348 (noting that § 3E1.1(b) is concerned with the timely entry of a plea of guilty, which entails . . . an unqualified confession of guilt in open court (internal quotation marks omitted)). 5 The facts of this case make the distinction clear. As became evident at the sentencing hearing, the Foremans plea negotiations with the government broke down because they were 4 Even if we were to use the dates the Foremans signed their written plea agreements, rather than the dates of their formal plea hearings, we would still consider the delay too long. 5 The government does not, of course, have unlimited discretion to withhold the motion. See Divens, 650 F.3d at 34546. If a defendant were to clearly demonstrate a willingness to plead guilty to the government s satisfaction but, through no fault of the defendant s, was unable to plead guilty for some time, the government could not properly withhold a motion for the reduction simply because the defendant had not yet had a formal plea hearing. 9 unwilling to admit to the full scope of the conspiracy as [the government] understood it. is only appropriate J.A. 251. when a The § 3E1.1(b) reduction defendant has accepted responsibility in a way that ensures the certainty of his just punishment in background. a timely The negotiations may manner. Foremans have U.S.S.G. willingness signaled some § 3E1.1 cmt. enter plea to readiness to accept responsibility, but we agree with the district court that the resulting guilty pleas were not sufficiently timely so as to warrant the additional one-level reduction under § 3E1.1(b). In that regard, the Foremans delay in entering guilty pleas failed to save the government time or expense. their The government filed successive motions to exclude time under the Speedy Trial Act in this case, in part because it needed more time to prepare motions, interview witnesses, review produced discovery, and otherwise prepare for trial. 107, 123-24. newly See J.A. We take the government at its word that, during the interim between the Foremans indictment and their pleas, it was preparing for what it expected to be a complex, multi-week trial. the See U.S.S.G. § 3E1.1 cmt. n.6 ( [T]he Government is in best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial . . . . ); see also Divens, 650 F.3d at 346 ( [T]he Government retains discretion to determine 10 whether the defendant s assistance has relieved it of preparing for trial. ). Nor did the Foremans negotiations permit the district court to conserve resources, as it held a full motions hearing in anticipation of their trial. If nothing else, the hearing demonstrates that significant resources needed to be marshaled in this case in contravention of the policy goals of § 3E1.1(b). Contrary to the Foremans assertions, Divens is not inconsistent with our conclusion that the defendants are not entitled to the § 3E1.1(b) reduction. The question in Divens was whether the government could withhold a § 3E1.1(b) motion because the defendant refused to sign a plea agreement containing an appellate waiver, even though he pleaded guilty to the charged offense without a plea statement accepting responsibility. agreement and signed See 650 F.3d at 344. a We held that the government could not withhold the reduction in that instance, because § 3E1.1(b) is concerned only with the preservation of trial resources--not uncertainty attendant to an appeal. however, that the government would the expense Id. at 348. be within its and We noted, rights to withhold the reduction if there were a significant delay between the defendant s indictment and government to prepare for trial. plea, thereby requiring the See id. at 347 n.2; see also United States v. Brown, 26 F. App x 151, 153 (4th Cir. 2001) (finding that a defendant who entered plea negotiations but did 11 not plead guilty until after jury selection was not entitled to the § 3E1.1(b) reduction). Here, the government prepared for trial during the delay between the Foremans indictment and the entry of their plea agreements. The fact that the defendants entered unsuccessful plea negotiations with the government throughout this period did not relieve the government of this burden. that the district court correctly Accordingly, we hold declined to compel the government to move for a one-level reduction for either Foreman under § 3E1.1(b). B. Michael Foreman argues separately that the district court erred when it sentenced him as a career offender pursuant to U.S.S.G. § 4B1.1. Under that provision, a defendant s criminal history category is automatically VI if, among other things, the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). Michael argues that the predicate convictions the district court relied upon to sentence him as a career offender were not valid because he was not represented by counsel when he pleaded guilty to those offenses. submitted the convictions. state To support his contention, Michael court records associated with his He contends that the records are sufficient to 12 raise an inference that his convictions were constitutionally infirm, burden and of that proof such to a the showing is government convictions were, in fact, valid. sufficient to to demonstrate shift the that the The government responds that a defendant collaterally challenging a prior state conviction bears both the burden of production and persuasion, and that Michael has not carried his burden of persuasion. This court has not clearly delineated the burden of proof a defendant bears when collaterally challenging a prior conviction for the purpose of contesting a career-offender classification. However, we do not believe this is the appropriate instance to do so, as it would require constitutional waters. us to wade unnecessarily into See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341 (1936) (Brandeis, J., concurring); see also United States v. Martinez-Cruz, 736 F.3d 999, 1001-02 (D.C. Cir. 2013) (recognizing that the question of who bears the burden of proof when a defendant collaterally challenges conviction raises due process concerns). a prior state Rather, we summarily reject Michael s contention, as we are entitled to do, because, even if we assume that an error occurred[, it] is harmless. United States v. Rivera-Santana, 668 F.3d 95, 102 (4th Cir. 2012) (quoting United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)). 13 Although the district court found that Michael was a career offender, it reduced his criminal history category from VI to V, lowering his advisory Guidelines range from 168 to 210 months imprisonment to 151 to 188 months. It then sentenced him below the Guidelines range, to 144 months imprisonment. that sentence was higher than what Michael Although argued was appropriate, 6 we cannot say that the district court abused its discretion in imposing it. The district court carefully went through the 18 U.S.C. § 3553(a) factors, identifying the reasons it would impose a 144-month sentence even if Michael was not properly classified as a career offender. Among those considerations, it noted that Michael conviction had a prior for armed robbery and had demonstrated a pattern of criminality over a number of years. J.A. 478. It described the seriousness of Michael s present offense, including victims. Id. the horrible harm it inflicted this the The court also discussed the need for a sentence that would deter the defendant and protect the public. of on careful analysis, we 6 are entitled to In light affirm the Michael argues for the first time on appeal that his Guidelines range would be 51 to 63 months imprisonment, which is even lower than what he suggested was appropriate at sentencing--77 to 96 months imprisonment. Even if correct, that fact does not alter our assessment of the reasonableness of Michael s sentence. 14 sentence imposed . . . because any procedural error that may have been made . . . would necessarily be harmless. Rivera- Santana, 668 F.3d at 103; see also Savillon-Matute, 636 F.3d at 123 ( [I]t would make no sense to set aside [a] reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm. (internal quotation marks omitted)). III. For the reasons given, we affirm the district court s judgments. AFFIRMED 15

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