Petition for Writ of Certiorari — Lessner v. United States (No. 07-1009)

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reme Court, U.S.

Sup Co U.S

Gy) *' DB

671009 JAN 31 2008

No. QFFICE OF THE CLERK

In THE

Supreme Court of the United States

BARBARA LESSNER

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari tc the United States

Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Ian M. Comisky

Counsel of Record

Matthew D. Lee

Jordana Cooper

BLANK ROME LLP

One Logan Square

Philadelphia, Pennsylvania 19103

(215) 569-5500

Counsel for Petitioner

Barbara Lessner

QUESTIONS PRESENTED

1. Whether North Carolina v. Alford, 400 U.S. 25

(1970), which most circuits have limited to

circumstances where there is strong evidence of

actual guilt and the defendant benefits from a plea

bargain, may be applied (as the Third Circuit held

below, joining the Ninth Circuit) to allow a defendant

claiming innocence to enter a plea of guilty even

without any benefit, so long as there is some factual

basis for the plea.

2. Whether, and to what extent, a district court

advised by the defendant entering a guilty plea that

she suffers from mental illness and has recently taken

medications to treat the mental illness has a duty to

make further inquiry concerning the effects of that

medication and the defendant’s ability to understand

the proceedings, an issue on which the courts of

appeal are divided.

3. Whether a sentence rendered by a district judge

who mistakenly perceived (post-Booker) that his

“hands [were] significantly tied in reference to

alternatives” to incarceration, who treated major

sentencing issues such as the defendant’s undisputed

mental illness only as a means to test defendant’s

eligibility for a Guidelines departure, and whose

“explicit discussion of the [Section] 3553(a) factors

was, admittedly, scant” may be deemed an adequate

exercise of sentencing discretion in light of Gall v.

United States, 128 S.Ct. 586 (2007).

LIST OF ALL PARTIES AND CORPORATE

DISCLOSURE STATEMENT

There are no parties to this proceeding other than

Petitioner, Barbara Lessner, and the United States of

America.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED.................... i

LIST OF ALL PARTIES AND CORPORATE

DISCLOSURE STATEMENT .................. ii

TABLE OF AUTHORITIES.................... Vv

PRONE 65 6H eddie ceccnaKueesesesen 1

eer re er ree re 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..................... 1

STATEMENT OF THE CASE .................. 4

1. Proceedings in the District Court .......... 4

2. Proceedings in the Court of Appeals ....... 10

REASONS FOR GRANTING THE WRIT........ 12

I. The Court Should Grant the Writ to

Address the Conflict Between the Circuits

Concerning the Requirements for Alford

PRE oo ine ek ek oe eee a ee ce 12

II. The Court Should Grant the Writ to Settle

a Conflict About Whether, and to What

Extent, Specific Inquiry Into Mental

Capacity Is Required at a Guilty Plea

Hearing When a Defendant Indicates

Recent Ingestion of Drugs and a History of

NS TIES ok cov cea eee eee 20

Ill. This Court Shouid Grant the Writ and

Vacate and Remand in Light of Gall v.

United States to Correct the Court of

Appeals’ Inadequate Review of a

Sentencing Proceeding Where the District

Judge Erroneously Perceived That His

“Hands [Were] Significantly Tied” on Key

Sentencing Considerations and Paid Only

“Scant” Attention to Non-Guideline

Be, 24

Cees 055 G veh ed vee ae canes wes 30

APPENDIX

A. Opinion of the United States Court of Appeals

for the Third Circuit (August 8, 2007)........ la

B. Judgment of the United States Court of

Appeals for the Third Circuit (August 8, 2007). 40a

C. Order on Petition for Rehearing En Banc

(Bantommber G, BIGOT) onc ve ccc ccwween 42a

D. Provisions of Rule 11, Fed. R. Crim. P....... 44a

TABLE OF AUTHORITIES

Federal Cases

Gall v. United States,

128 S.Ct. 586 (2007).......... 12, 24, 25, 26, 28

Joyner v. Vacco, 23 Fed. Appx. 25,

2001 WL 1168326 (2d Cir. Sept. 21, 2001) ....14

Kimbrough v. United States,

128 B.C. 566 (2007)... ....... 12, 24, 26, 28, 30

McCarthy v. United States, 394 U.S. 459 (1969) . . 20

Miranda-Gonzalez v. United States,

181 F.3d 164 (1st Cir. 1999) ................ 21

North Carolina v. Alford,

Me A PTs ooo in ec Seca eases passim

Oppel v. Meachum, 851 F.2d 34 (2d Cir. 1988)... . 14

Poe v. Caspari, 39 F.3d 204 (8th Cir. 1994)... . 14, 15

Rita v. United States, 127 S.Ct. 2456 (2007) .. 12, 24

United States v. Arana-Ascencio,

230 Fed. Appx. 442, 2007 WL 1655264

(5th Cir. June 6, 2007), vacated, _S.Ct. _,

2008 WL 114006 (Jan. 14, 2008) ............ 26

United States v. Barajas, 243 Fed. Appx. 802,

2007 WL 1725443 (5th Cir. June 13, 2007),

vacated, _ S.Ct. __, 2008 WL 59268 (Jan. 7,

United States v. Bonilla-Lemus,

243 Fed. Appx. 798, 2007 WL 1725427

(5th Cir. June 13, 2007), vacated, __ S.Ct. __,

2008 WL 59274 (Jan. 7, 2008) .............. 26

United States v. Booker,

543 U.S. 220 (2005) ........ 8, 24, 26, 28, 29, 30

United States v. Buckley,

S47 F.2a 981 (ist Cir. 1968)... ... 2... 2c cccee 15

United States v. Buonocore,

416 F.3d 1124 (10th Cir. 2005).............. 13

United States v. Byrd, 238 Fed. Appx. 948,

2007 WL 2046743 (4th Cir. July 13, 2007),

vacated, _ S.Ct. __, 2008 WL 114013

I ica Wadi Wek Neale occ es sc eas 25

United States v. Cody, 241 Fed. Appx. 111,

2007 WL 2022060 (4th Cir. July 12, 2007),

vacated, _ §.Ct. __, 2008 WL 114009

et a nS oe kee 25

United States v. Cole,

813 F.2d 43 (3d Cir. 1987)............ 20, 21, 22

United States v. Dalman,

994 F.2d 537 (8th Cir. 1993)................ 22

United States v. Damon,

191 F.3d 561 (4th Cir. 1999)............. 21, 22

United States v. Davis,

516 F.2d 574 (7th Cir. 1975)............. 16, 17

United States v. Garcia, 239 Fed. Appx. 78,

2007 WL 2032842 (5th Cir. July 11, 2007),

vacated, _ §.Ct. __, 2008 WL 114011

a ee ok kb eee kececs wed 25

United States v. Garcia-Ramirez,

229 Fed. Appx. 341, 2007 WL 1598738

(5th Cir. June 4, 2007), vacated, _ S.Ct. __,

2008 WL 59267 (Jan. 7, 2008) .............. 26

United States v. Goldsmith, 486 F.3d 404

(8th Cir. 2007), vacated, _ S.Ct. __, 2008 WL

gS | eee 26

United States v. Jerry,

487 ¥.2d 600 (3d. Cir. 1973) ..........,..... 14

United States v. Jones, 221 F.3d 1339,

2000 WL 975170 (7th Cir. July 11, 2000) ..... 22

United States v. King,

257 F.3d 1013 (9th Cir. 2001)............ 15, 19

United States v. Labovitz,

GO 7.26 3 (iat Coe: 1906) .. ccc cc cece 17

United States v. Mastrapa,

509 F.3d 652 (4th Cir. 2007)............. 15, 17

United States v. Medina-Flores,

2008 WL 94777 (11th Cir. Jan. 10, 2008) ..... 15

United States v. Montalvo-Franco,

234 Fed. Appx. 321, 2007 WL 2051976 (5th Cir.

July 18, 2007), vacated, _ S.Ct. __, 2008 WL

I aly oo mo 25

United States v. Morrisette,

429 F.3d 318 (ist Cir. 2006) ................ 22

United States v. Newkirk, 240 Fed. Appx. 591,

2007 WL 2025207 (4th Cir. July 11, 2007),

vacated, _ S.Ct. __, 2008 WL 114010

SN I oc Sark ee ae es en awl 25

United States v. Orozco, 243 Fed. Appx. 861, 2007

WL 2201287 (5th Cir. Aug. 1, 2007), vacated, __

S.Ct. __, 2008 WL 169412 (Jan. 22, 2008)..... 25

United States v. Parra-Ibanez,

936 F.2d 588 (ist Cir. 1991) ................ 21

United States v. Rashad,

396 F.3d 396 (D.C. Cir. 2005)............... 17

United States v. Roberts, 2007 WL 1223993

(5th Cir. April 25, 2007), vacated__ S.Ct. .

2008 WL 59257 (Jan. 7, 2008) .............. 26

Vill

United States v. Rodriguez-Rodriguez, 238 Fed.

Appx. 16, 2007 WL 1725534 (5th Cir. June 14,

2007), vacated, __ S.Ct. __, 2008 WL 59273

CE is cock sicdigsd ene 26

United States v. Romero-Candelaria,

225 Fed. Appx. 122, 2007 WL 1302965 (4th Cir.

May 3, 2007), vacated, ___ S.Ct. __, 2008 WL

Se A i ID k's ai ncaeessenweswkaes 26

United States v. Rossillo,

853 F.2d 1062 (2nd Cir. 1988)............... 21

United States v. Savinon-Acosta,

232 F.20 966 Ciet Cir. BOO)... oe cence 21

United States v. Sharpe, 241 Fed. Appx. 131,

2007 WL 2046742 (4th Cir. July 13, 2007),

vacated, __ 8.Ct. __, 2008 WL 59275 (Jan. 7,

United States v. Szucko,

9 F.3d 103, 1993 WL 481583 (5th Cir. Nov. 3,

United States v. Tillman,

157 Fed. Appx. 28 (9th Cir. Nov. 29, 2005) .... 15

United States v. Valle, 230 Fed. Appx. 434,

2007 WL 1655241 (5th Cir. June 6, 2007),

vacated, _ S.Ct. __, 2008 WL 114007

eS Ss ee.) |) ne ree 26

United States v. Wilkinson, 225 Fed.Appx. 413,

2007 WL 1531595 (8th Cir. May 29, 2007),

vacated, __ S.Ct. __, 2008 WL 114005

(RO. DE Pe: be eke ae ee ee 26

State Cases

In the Matter of Herman Silmon,

OG FN. Vee SIU, F. Bs ook en Ss bee caeess 18

Ross v. State, 456 N.E.2d 420 (Ind. 1983)........ 13

State v. Barboza, 558 A.2d 1303 (N.J. 1989)... ... 13

State v. Brown, 477 P.2d 930 (Wash. App. 1970) . . 19

State v. Frazier, 153 P.3d 18 (Mont. 2007) ....... 18

State v. Nachtigall, 741 N.W.2d 216 (S.D. 2007) . . 18

State v. Theis, 742 N.W.2d 643 (Minn. 2007)... . . 18

Federal Statutes

PE ERED cc cc ccc cc cccccccccccccececcss 4

BREA. BIDID 2... ccc ccc ccc cc cece ccccce: 4,6

18 U.S.C. §2232(a) ... 2... ee eee 4

18 U.S.C. §3553(a) .. 2 oo eee passim

28 U.S.C. §1254(1) .. 2.2 ee eee 1

Al ULB.C. $428 0. cc ccc ccc cc cc ccc ccc cccccces 4

Rule 11, Fed. R. Crim. P.............. 4, 16,17, 18

Articles

A. Alschuler, “Straining at Gnats and Swallowing

Camels: The Selective Morality of Professor

Bibas,” 88 Cornell L. Rev. 1412 (July,

S. Bibas, “Harmonizing Substantive-Criminal-

Law Values and Criminal Procedure: The Case

of Alford and Nolo Contendere Pleas,” 88

Cornell L. Rev. 1361 (July, 2003) ......... 13, 14

A. Leipold, “How the Pretrial Process Contributes

to Wrongful Convictions,” 42 Am. Crim. L. Rev.

1123 (Fall, 2005)... 2.2 eee. 16

E. Penrod, “The Guilty Plea Process in Indiana: A

Proposal To Strengthen The Diminishing

Factual Basis Requirement,” 34 Ind. L. Rev.

I cn 506 bs ods 0004845 5004S eee 19

C. Shipley, “The Alford Plea: A Necessary But

Unpredictable Tool for the Criminal

Defendant,” 72 Iowa L. Rev. 1063 (May,

Petitioner, Barbara Lessner, prays that a writ of

certiorari issue to review the opinion and judgment of

the court of appeals rendered in these proceedings on

August 8, 2007.

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Third Circuit, rendered on August 8, 2007, is

reported at 498 F.3d 185 and is reprinted at App. la.

The court of appeals’ ruling denying petitioner’s

request for rehearing and rehearing en banc is dated

September 5, 2007 and appears at App. 42a.

JURISDICTION

The jurisdiction of this Court to review the Third

Circuit’s judgment is invoked under 28 U.S.C. §

1254(1). Petitioner sought an extension of time to file

her petition for a writ of certiorari, docketed at

07A412. Justice Souter granted that application,

extending petitioner’s time to file until February 2,

2008.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in pertinent part:

No person shall be . . . deprived of life, liberty,

or property, without due process of law ....

The Sixth Amendment to the United States

Constitution provides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed. .. .

18 U.S.C. § 3553(a) provides:

§ 3553. Imposition of a sentence.

(a) Factors to be considered in imposing a

sentence.--The court shall impose a sentence

sufficient, but not greater than necessary, to

comply with the purposes set forth in

paragraph (2) of this subsection. The court, in

determining the particular sentence to be

imposed, shall consider—

(1) the nature and circumstances of the offense

and the history and characteristics of the

defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide just

punishment for the offense;

(B) to afford adequate deterrence to criminal

conduct;

the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical

care, or other correctional treatment in the

most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing

range established for--

(A) the applicable category of offense

committed by the applicable category of

defendant as set forth in the guidelines--

(i) issued by the Sentencing Commission

pursuant to section 994(a)(1) of title 28, United

States Code, subject to any amendments made

to such guidelines by act of Congress

(regardless of whether such amendments have

yet to be incorporated by the Sentencing

Commission into amendments issued under

section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g),

are in effect on the date the defendant is

sentenced; or

(B) in the case of a violation of probation or

supervised release, the applicable guidelines or

policy statements issued by the Sentencing

Commission pursuant to section 994(aX3) of

title 28, United States Code, taking into

account any amendments made to such

guidelines or policy statements by act of

Congress (regardless of whether such

amendments have yet to be incorporated by

the Sentencing Commission into amendments

issued under section 994(p) of title 28);

(5) any pertinent policy statement--

(A) issued by the Sentencing Commission

pursuant to section 994(a)(2) of title 28, United

States Code, subject to any amendments made

to such policy statement by act of Congress

(regardless of whether such amendments have

yet to be incorporated by the Sentencing

Commission into amendments issued under

section 994(p) of title 28); and

(B) that, except as provided in section 3742(g),

is in effect on the date the defendant is

sentenced.

(6) the need to avoid unwarranted sentence

disparities among defendants with similar

records who have been found guilty of similar

conduct; and

(7) the need to provide restitution to any

victims of the offense.

The pertinent provisions of Federal Rule of

Criminal Procedure 11 are set forth at App. 44a.

STATEMENT OF THE CASE

1. Proceedings in the District Court

A grand jury indicted Barbara Lessner on ten

counts of wire fraud (18 U.S.C. §1343), eight counts of

defense procurement fraud (41 U.S.C. §423), two

counts of obstruction of a federal agency investigation

(18 U.S.C. §1519), and one count of destruction and

removal of property to prevent seizure (18 U.S.C.

§2232(a)). Mrs. Lessner had been a Procurement

Contracting Officer at the Defense Supply Center in

Philadelphia. The indictment charged that after Mrs.

Lessner became personally acquainted with a man

named Scott Watanyar, whose mother owned a

company called Pamir Electronics Corp., Mrs.

Lessner awarded 163 government contracts to Pamir

inappropriately (Pamir did not offer the lowest price),

resulting in a $938,965.59 loss to the United States.

In addition to these primary fraud charges, the

indictment further charged Mrs. Lessner with acts of

obstructive conduct based upon Mrs. Lessner’s

actions when she was confronted by government

investigators. In plain view of investigators before

being escorted from her office, Mrs. Lessner threw an

item in the trash can (a day planner) which contained

the home address of Mr. Watanyar. She also used her

cell phone from just outside the workplace to call an

employee and, in a hysterical state, implored the co-

worker to remove a folder from her office. (The co-

worker did so; that night, during the co-worker’s own

panic, the co-worker destroyed the folder.)

On September 21, 2005, without the benefit of a

written plea agreement, Mrs. Lessner entered an

“open” plea of guilty, pleading guilty to every charge

contained in the indictment.

At the plea hearing, Mrs. Lessner advised the

district judge that she was being aggressively treated

for mental illness by three mental health professionals

several times a week.’ She also advised the district

judge that she was taking “ten pills a day,” including

“Lexapro, Buspar, Ativan, Ambien and Lorazepam.”?

The only follow-up inquiry performed by the district

court was asking which medications Mrs. Lessner took

that morning. When the defendant answered that

she had taken two Ativan pills that morning (dosages

undisclosed), the district judge asked whether this

affected the defendant’s ability to understand and

appreciate the proceedings, and Mrs. Lessner

responded that the Ativan “puts me in perspective, I

understand” and “calms me down” without directly

answering the question.* The district judge asked

neither follow-up questions about the other medicines

taken daily (the other eight pills) nor further questions

about the medicines ingested that morning.

1 App. 12a.

2 Id.

3 Td.

“Id.

The district judge explored the factual basis for

the plea. After detailing the issues specific to the wire

and defense procurement fraud counts, the district

judge reached counts 19 and 20 of the indictment,

which charged obstruction under 18 U.S.C. §1519.

This statute requires “intent to impede, obstruct, or

influence[.}” With respect to count 19, Mrs. Lessner

admitted that she threw away her day planner in the

presence of investigators. But she stated that when

she was being walked out of her office, “I just threw it

in the trash because I knew I was not coming back. I

didn’t realize his [Watanyar’s] number was in there

either.”” The district court responded: “My question

to you, ma’am is, did you commit this offense?”° Mrs.

Lessner responded only: “I put it in the trash can.”

Defense counsel then intervened, saying he had been

having a slight “problem. . . with this day planner,”

but providing his view that throwing the planner in

the trash was enough.® There was no additional

questioning of Mrs. Lessner on that charge.

With respect to a second charge of Section 1519

obstruction (count 20), Mrs. Lessner admitted that

she telephoned a co-worker immediately upon being

escorted off the office premises. But she qualified her

response, saying she “committed it [the offense] but

not the way it was said there [in the indictment]. I

didn’t ask anyone to destroy[ ] anything.”” When the

district court began further questioning on the point,

defense counsel again attempted to override his

5 App. 20a.

* i.

"Id.

®°C.A. App. 61-62.

°C.A. App. 60.

client and to provide the necessary factual basis

himself, saying that the “acts were done” and that he

“submit[s] to her they were done at her request. . . .”'°

Again, no follow-up questioning by the court

occurred.

The district court accepted counsel’s assessment of

Mrs. Lessner’s conduct and adjudged the defendant

guilty on all counts. Later in the proceedings, after

the court had accepted Mrs. Lessner’s guilty plea,

defense counsel indicated that he would be filing a

motion for a determination of diminished mental

capacity. In light of this somewhat startling

statement, the court asked defense counsel to confirm

the defendant’s capacity to plead guilty, and defense

counsel (without response from the defendant herself)

so affirmed.“ The matter was continued for

presentencing investigation and sentencing.

Before sentencing, Mrs. Lessner filed her motion

for a determination of diminished mental capacity.

The medical evidence presented at the hearing was

uncontested that Mrs. Lessner was suffering from a

major depressive disorder at the time of her

evaluations and, indeed, during the investigation,

with the only disagreement being whether the illness

had afflicted Mrs. Lessner at the time the offenses

were committed. Ruling on diminished capacity was

continued until sentencing.

On December 19, 2006, the district court held the

sentencing hearing. With respect to the Guidelines

factors, the court rejected defendant’s application for

a diminished capacity departure, finding that the

10 C_A. App. 61.

" C.A. App. 65-66.

standard for such a departure was not satisfied.!2 As

urged by the government despite Mrs. Lessner’s plea

of guilty to every count as charged in the indictment,

the court also rejected the defense’s contention that

Mrs. Lessner was entitled to a two-point Guidelines

adjustment for acceptance of responsibility."

Apart from these Guidelines issues, in light of

Booker,'* defense counsel urged the district judge to

“consider all of those considerations” that either he or

the probation officer outlined. The district judge

acknowledged his understanding that the Guidelines

were “advisory,” but he did not address the non-

Guidelines factors outlined by defense counsel or by

the probation officer in the presentence report. For

example, the presentence report highlighted that the

court could consider a variance based upon the

required mandatory restitution where the defendant

had limited monthly income and obtained no

economic gain from the offense. The presentence

report also noted the defendant’s previously

unblemished twenty-seven year employment

history,'® but the district court did not address these

issues (and did not even make findings concerning

defendant’s financial ability to make restitution). Nor

did the district court address other individual

sentencing considerations pressed by defense counsel,

including the defendant’s seriously impaired mental

health and her previously exemplary prior record as a

citizen and family circumstances. The district court

12 App. Ya.

af 3

4 United States v. Booker, 543 U.S. 220 (2005).

16 App. 34a.

16 C.A App. 524.

expressed the view that such matters were “common

factors that the Sentencing Commission considered

when they sat down and created the Sentencing

Guidelines[.]”?” The issues specific to Mrs. Lessner

had already been considered by the Sentencing

Commission and therefore did not require further

treatment, according to the district court: “[T]his is

not something that is unique to your client that this

Court should consider for purposes of a departure or

treating her as special.””®

Mrs. Lessner’s husband implored the district

judge to “please consider some type of alternative

method to punish her[.]”% The district judge

responded: “I can appreciate your position, Mr.

Lessner, but my hands are significantly tied in

reference to alternatives. Thank you, sir.””

Other sentencing factors were treated in a similar

fashion. The district judge acknowledged that Mrs.

Lessner “clearly” had “mental issues” that “at least, in

some form or fashion, cause her to have the inability

to make those type of rational decisions.”*! He stated

that “in this case we clearly have conduct that shows

that there are mental issues, depression, not rising up

to, quote, maybe the diminished capacity, but we have

issues that at least, in some form or fashion, cause her

to have the inability to make those type of rational

decisions, and have her do those rational things along

the way.” But having determined that these clear

17 C.A. App. 454.

18 C_A. App. 455.

19C_A. App. 422.

* id.

21.C.A. App. 473.

™ ia.

“mental issues” did not rise to the level of diminished

capacity necessary for a Guidelines departure under

U.S.S.G. § 5K2.13, the district judge otherwise did not

take into account Mrs. Lessner’s mental health in the

sentencing analysis.

Instead, the district judge simply explained the

Guidelines sentence. The district judge noted the

need for “uniformity” represented by the Guidelines,

which he believed reflected a “thorough and adequate

job” by the Sentencing Commission “in considering all

of the potential [elffects that a sentence like this

would have, not only on those who commit these types

of offenses, but also, more directly, to those who stand

before the Court today, specifically Mrs. Lessner.””

The court did not consider whether the Guidelines

sentence was sufficient, but not greater than

necessary, to accomplish the goals of sentencing and

to protect the public from further crimes by the

defendant, nor did the court mention consideration of

alternatives to incarceration. On the contrary, the

court labored under the belief that its “hands [were]

significantly tied in reference to alternatives.”™

The court sentenced Mrs. Lessner to a term of

imprisonment of 51 months (the low end of the

applicable Guidelines range), together with

supervised release for a period of three years

thereafter and almost a million dollars in restitution.

2. Proceedings in the Court of Appeals

Mrs. Lessner timely appealed her conviction to the

United States Court of Appeals for the Third Circuit

* App. 35a.

* App. 34a.

raising a variety of challenges to her conviction and

her sentence. Although Mrs. Lessner’s guilty plea

was neither entered nor accepted pursuant to North

Carolina v. Alford, 400 U.S. 25 (1970), the

government urged the court of appeals to affirm the

guilty plea by applying Alford to overcome the

problems presented by Mrs. Lessner’s protestations of

factual innocence on the obstruction charges at the

plea hearing. The government did not contend that

the plea had proceeded on an Alford basis below (it

had not, and no mention of Alford was made). Rather,

the plea proceeded in the district court as a

traditional guilty plea. Mrs. Lessner pleaded guilty to

all counts as charged with no plea agreement, with no

special colloquy to treat an alleged Alford plea, and

without a strong factual basis to support guilt (which

was precluded by the defendant’s disavowal of the

requisite specific mental intent to impede or

obstruct).

The government’s position prevailed. The court of

appeals cited Alford for the sweeping proposition that

it “permit([s] [a] court to accept defendant’s guilty plea

over protestations of innocence.” The twin pillars of

Alford — (1) that the defendant have intelligently

concluded that her interests would be served by entry

of a guilty plea, and (2) that there be “strong

evidence” of actual guilt — were not discussed by the

court of appeals.

The court of appeals also rejected Mrs. Lessner’s

challenge to the plea colloquy based on the district

court’s failure to make adequate further inquiry upon

being apprised of Mrs. Lessner’s compromised mental

2 App. 21a.

health and acknowledgement of a very significant

medication regimen. The Third Circuit distinguished

its own prior precedents and attempted to distinguish

that of other courts of appeal, holding that the modest

inquiry by the district court (which did not illuminate

the dosages of the drugs Mrs. Lessner indicated she

had ingested that morning) was sufficient.”

Finally, purporting to rely on this Court’s then-

recently-announced ruling in Rita v. United States,”"

but without the benefit of this Court’s later rulings in

Gall v. United States* and Kimbrough v. United

States,” the court of appeals affirmed Mrs. Lessner’s

within-Guidelines sentence on reasonableness review,

although it acknowledged that the district court’s

“explicit discussion of the §3553(a) factors was,

admittedly, scant.”*°

REASONS FOR GRANTING THE WRIT

I. The Court Should Grant the Writ to Address

the Conflict Between the Circuits

Concerning the Requirements for Alford

Pleas.

More than thirty-five years ago, this Court held in

Alford that there were circumstances under which

due process would not be offended by the district

court’s acceptance of a guilty plea despite a

defendant’s protestations of innocence. Alford was a

watershed ruling that, even these many decades later,

stimulates controversy. Two states, Indiana and New

6 App. 15a-16a.

27 127 S.Ct. 2465 (2007).

* 128 S.Ct. 586 (2007).

128 S.Ct. 556 (2007).

3° App. 34a.

Jersey, forbid Alford pleas entirely.*' The Department

of Justice requires explicit Department of Justice

approval before a prosecutor may seek such a plea

(which did not occur here), and this approval may

only be granted by specified high-level officials.** The

Antitrust Division and the Tax Division of the

Department of Justice oppose all Alford pleas.*

There are also examples of judges who, as a matter of

individual policy, will not accept Alford pleas.*

When this Court in Alford held that a negotiated

guilty plea entered over protestations of factual

innocence comported with due process of law and the

intelligence and voluntariness required to waive the

right to trial by jury, it was because refusal to allow a

court to accept a plea of guilty to a lesser charge in

the face of overwhelming evidence would not serve

the interests of the defendant. Alford’s plea contained

protestations of innocence but he “intelligently

conclude[d] that his interests require[d] entry of a

guilty plea and the record before him contain[ed]

strong evidence of actual guilt{.)” This Court held

that where such “strong evidence of actual guilt”

31 See Ross uv. State, 456 N.E.2d 420, 423 (Ind. 1983) (defendant

cannot plead guilty and maintain his innocence); State v.

Barboza, 558 A.2d 1303 (N.J. 1989) (“In New Jersey, except in

capital cases, the trial court must be ‘satisfied from the lips of

the defendant that he committed the acts which constitute the

crime”).

32 See United States Attorneys’ Manual 9-16.015.

33 See S. Bibas, “Harmonizing Substantive-Criminal-Law Values

and Criminal Procedure: The Case of Alford and Nolo

Contendere Pleas,” 88 Cornell L. Rev. 1361, 1380 (July, 2003).

4 See, e.g., United States v. Buonocore, 416 F.3d 1124, 1131 (10%

Cir. 2005).

3% Alford, 400 U.S. at 37.

significantly negated Alford’s claim of innocence so

that the defendant intelligently concluded that he

should plead guilty to second-degree murder rather

than be tried (on threat of death) for first-degree

murder, there was no constitutional error in

accepting the guilty plea. Alford is a “way to

empower defendants within a flawed system,”

allowing an innocent defendant to be “free to use

these pleas to enter advantageous plea bargains

without lying.”*

Tactical advantage is the defining characteristic of

an Alford plea: An “Alford plea is a plea of guilty

entered by the defendant in order to take advantage

of a plea bargain.”’ Thus, in the years immediately

following Alford, the Third Circuit carefully applied

the doctrine in cases where there was both strong

evidence of actual guilt and charge-bargaining by the

defendant.” Other courts of appeal have remained

vigilant over the decades in the absence of further

guidance from this Court, never decoupling Alford

from the fact-pattern that reflects an intelligent

choice among alternatives. While the case law rarely

dwells on this feature, the Second Circuit has

described the intelligent choice among alternatives as

the second “requirement of Alford.” The First

Circuit defines Alford pleas as pleas made without an

* S. Bibas, 88 Cornell L. Rev. at 1363 (attribution to Professor

Albert Alschuler, author of “Straining at Gnats and Swallowing

Camels: The Selective Morality of Professor Bibas,” 88 Cornell

L. Rev. 1412, 1412 (July, 2003)).

* Poe v. Caspari, 39 F.3d 204, 206 n.5 (8th Cir. 1994).

* See United States v. Jerry, 487 F.2d 600 (3d. Cir. 1973).

%® Joyner v. Vacco, 23 Fed. Appx. 25, 2001 WL 1168326 *4 (2d Cir.

Sept. 21, 2001). See also Oppel v. Meachum, 851 F.2d 34, 35 n.2

(2d Cir. 1988).

admission of guilt “in order to receive the benefits of

[a] plea agreement.”° The Eleventh and Eighth

Circuits likewise define Alford pleas by virtue of the

defendant’s best interests to take advantage of a plea

bargain.*’ The Fourth Circuit only allows Alford pleas

when the defendant “intelligently concludes that his

interests require entry of a guilty plea.”

But the Ninth Circuit has moved to a position

where the absence of a plea agreement is no

impediment to affirming a guilty plea entered by a

defendant who continues to assert his innocence to a

charge.* The Fifth Circuit has rejected a defendant’s

challenge to an Alford plea based on the lack of any

benefit from a plea bargain.“ In the Fifth Circuit,

there are only two requirements for Alford pleas to be

constitutionally valid: (1) there must be a factual

basis for the plea, and (2) the court must inquire at

the plea hearing into the conflict that arises from the

defendant pleading guilty while maintaining his

innocence. Going farther still, the Third Circuit

below invoked Alford to approve a guilty plea by a

defendant who, while contesting critical elements of

the obstruction charges against her, pleaded guilty to

every charge with no plea agreement and with no

“ United States v. Buckley, 847 F.2d 991, 994 (1* Cir. 1988).

*! United States v. Medina-Flores, 2008 WL 94777 *2 n.2. (11

Cir. Jan. 10, 2008) (unpublished); Caspari, 39 F.3d at 206 n.5.

“ United States v. Mastrapa, 509 F.3d 652, 659 (4% Cir. 2007)

(quoting Alford).

“ See United States v. Tillman, 157 Fed.Appx. 28, 31 (9 Cir.

Nov. 29, 2005) (citing United States v. King, 257 F.3d 1013, 1022

(9 Cir. 2001)).

“ United States v. Szucko, 9 F.3d 103, 1993 WL 481583 *1 (5

Cir. Nov. 3, 1993) (unpublished).

“ Id.

special plea colloquy addressing the Alford issues.

The only requirement was a Rule 11 factual basis for

the plea -- the same requirement that applies to all

guilty pleas. Respectfully, the Third Circuit’s ruling

below has left the Alford doctrine unrecognizable.

Even where Alford is properly applied, there

remains a further circuit division (again sharpened by

the Third Circuit's ruling below) about whether

Alford pleas necessarily require the “strong evidence

of actual guilt” that was present in Alford. This is an

issue of fundamental importance, because “[w]hen a

defendant seeks to plead guilty while protesting his

innocence, the trial judge is confronted with a danger

signal,[ ] and he must be especially careful in

discharging his duties under Rule 11.6 “An Alford

plea, where the defendant pleads guilty but

simultaneously denies having committed the crime,

clearly puts the court on notice that this guilty plea is

problematic,” and the “risks of a false conviction are

plain.”*’ A finding of “strong evidence of actual guilt”

serves to alleviate these risks, and it was not by

happenstance that such evidence was highlighted by

this Court in Alford. “Yet courts apparently are

divided on whether they must find more in the way of

a factual basis [than otherwise required under Rule

11, Fed. R. Crim. P.] when the defendant denies guilt

than when he admits it.”

Most of the lower courts have been faithful to the

6 United States v. Davis, 516 F.2d 574, 578 (7 Cir. 1975)

(internal quotation omitted).

“7 A. Leipold, “How the Pretrial Process Contributes to Wrongful

Convictions,” 42 Am. Crim. L. Rev. 1123, 1156 (Fall, 2005)

(internal footnote omitted).

Jd. at 1157.

“strong evidence of actual guilt” prong of Alford. The

Seventh Circuit has long taken the view that Alford

pleas are acceptable “despite the defendant’s denial of

guilt, if the judge determines from the prosecutor’s

recital of the evidence the government will offer that

proof of guilt is strong.”*? The District of Columbia

Circuit likewise will not accept a minimal “factual

basis” in Alford cases: “If the defendant proclaims his

innocence, however, the court must go further [than

Rule 11’s requirement of a ‘factual basis’] and

determine that there is a high probability of

conviction before accepting his guilty plea.”° The

First Circuit has been rigorous in its requirement of

“strong evidence in the record of the defendant’s

actual guilt.” Most recently, the Fourth Circuit

reversed a district court’s acceptance of a guilty plea

that had not proceeded as an A/ford plea before the

Magistrate, but that the district judge on review of

the plea treated as an Alford plea when it became

apparent that the defendant contested the element of

knowledge essential for the conspiracy charge. The

district court neither explained the concept of an

Alford plea to the defendant nor enlisted his

agreement to enter into such a plea, yet it permitted

the plea. The Fourth Circuit vacated the plea on plain

error review for an insufficient factual basis,

reiterating that for an Alford plea to be properly

accepted, “the record before the judge [must] contain{[ /

strong evidence of actual guilt.”**

9 Davis, 516 F.2d at 578.

5° United States v. Rashad, 396 F.3d 398, 402 (D.C. Cir. 2005)

(internal quotation omitted).

5! United States v. Labovitz, 50 F.3d 1, 2 (1% Cir. 1995).

52 Mastrapa, 509 F.3d at 659 (quoting Alford, 400 U.S. at 37)

(emphasis original to Mastrapa).

Numerous state courts have likewise been

emphatic enforcers of the “strong evidence of actual

guilt” requirement for Alford pleas. “In New York, [an

Alford) plea is allowed only when, as in Alford itself,

it is the product of a voluntary and rational choice and

the record before the court contains strong evidence of

actual guilt.”°* South Dakota is also strict, requiring

that when a defendant proclaims innocence while

pleading guilty, the “factual basis to support such

pleas must be ‘strong,” and that when “a defendant

equivocates while pleading guilty, the court must take

extra care to ensure that the record demonstrates a

clear factual basis.” Montana mandates “strong

evidence of guilt” in cases where the defendant is

unwilling to admit to any of the elements of the

offense. Minnesota will not tolerate entry of an

Alford plea unless the record illuminated at the plea

hearing demonstrates a “strong probability that the

defendant would be found guilty,” and as a further

protective measure requires that the defendant

confirm on the record his belief that the evidence

proffered would be likely to result in a jury finding of

guilt.°®

Yet the Third Circuit below affirmed Mrs.

Lessner’s plea on an Alford basis without “strong

factual basis” review at all. The Third Circuit tested

the plea only against the generally-applicable Rule 11

53 In the Matter of Herman Silmon, 95 N.Y.2d 470, 475 (N.Y.

2000).

4 State v. Nachtigall, 741 N.W.2d 216 (S.D. 2007).

55 MCA §46-12-212(2) (Commission Comments). See State uv.

Frazier, 153 P.3d 18 (Mont. 2007).

66 State v. Theis, 742 N.W.2d 643, 649 (Minn. 2007) (emphasis

original).

factual basis requirement. The Third Circuit is not

alone in this minimal factual basis review of supposed

Alford pleas. The Third Circuit below looked to

United States v. King,®’ where the Ninth Circuit

recited Alford’s holding (including the language of

“strong evidence of actual guilt”) but simultaneously

invoked the Rule 11 “factual basis” standard and

settled on the notion that “[slufficient evidence

indicating guilt” would be adequate. There are also

examples from state court jurisprudence of simple

affirmances of equivocal guilty pleas under Alford

principles without any discussion of the strength of

the factual basis for the plea.*? As one scholar has

lamented, “the factual basis requirement is

inconsistently implemented in the trial and appellate

courts to the point of constituting a threat both to the

due process rights of individual defendants and the

interests of the fair and efficient administration of

justice.”©

Guilty pleas are a staple of our system of criminal

justice. But our justice system does not countenance

guilty pleas from persons who declare their innocence

except in closely circumscribed situations defined in

Alford. With statistics reflecting that a full 6.5% of

defendants in state courts and 3% of defendants in

57 257 F.3d 1013 (9 Cir. 2001).

58 Id. at 1022.

59 See, e.g., State v. Brown, 477 P.2d 930, 931 (Wash. App. 1970).

Strengthen The Diminishing Factual Basis Requirement,” 34

Ind. L. Rev. 1127, 1128 (2001). See also C. Shipley, “The Alford

Plea: A Necessary But Unpredictable Tool for the Criminal

Defendant,” 72 Iowa L. Rev. 1063, 1071 (May, 1987) (courts

“vary in the standards used to evaluate the adequacy of the

factual bases”).

federal courts use Alford pleas,* this is necessarily a

matter of great importance; with courts increasingly

importing Alford principles into a wider swath of

cases, the controversial issues that had always been

posed in Alford cases are expanding their reach into

general guilty plea practice. Petitioner urges this

Court to grant the writ to consider whether this

supremely important exception to the normal

limitations on acceptance of guilty pleas, as sweepingly

applied by the Third Circuit below in conflict with

other circuits, exceeds permissible bounds.

il. The Court Should Grant the Writ to Settle a

Conflict About Whether, and to What

Extent, Specific Inquiry Into Mental

Capacity Is Required at a Guilty Plea

Hearing When a Defendant Indicates

Recent Ingestion of Drugs and a History of

Mental Illness.

In McCarthy v. United States, 394 U.S. 459, 465

(1969), this Court explained that Rule 11 is “intended

to produce a complete record at the time the plea is

entered of the factors relevant to [the] voluntariness

determination” — an exercise of utmost importance in

light of the waiver of fundamental constitutional

rights that occurs at a guilty plea hearing. The Third

Circuit established specific standards for review of

plea colloquies where the defendant indicates recent

ingestion of drugs capable of impairing the

defendant’s ability to make a knowing and intelligent

waiver of constitutional rights. In United States v.

Cole, the Third Circuit held that where “significant

6! See S. Bibas, 88 Cornell L. Rev. at 1375.

® 813 F.2d 43 (3d Cir. 1987).

evidence does come to the attention of the district

court that defendant has recently taken drugs, the

court has the obligation to inquire further before

determining that a competency hearing is not

necessary.” A district court’s failure, once it is

advised of recent drug use, to “pursue the issue of [the

defendant's] state of mind through further

questioning precludes a finding that [the defendant]

voluntarily and knowingly entered a plea of guilty.”"™

The Second Circuit requires that when there is

“any indication. . . that the defendant is under the

influence of any medication, drug or intoxicant, it is

incumbent upon the district court to explore on the

record defendant’s ability to understand the nature

and consequences of his decision to plead guilty.”*

The First Circuit has held in similar fashion that

where the district court “had reasons to suspect that

the medications [including Ativan] taken by the

accused might impinge upon the accused’s capacity to

enter a voluntary and intelligent plea,” and made

some further inquiry but did not inquire into the

dosages and the effects of the medication, the plea

could not stand without a further evidentiary

hearing. The Fourth Circuit also has adopted this

view,’ although not without dissent on the key point

of the district court’s obligation of further inquiry

where, other than admission of recent drug use, the

63 Td. at 47.

&4 Td. at 46.

6 United States v. Rossillo, 853 F.2d 1062, 1066 (2™ Cir. 1988).

66 United States v. Parra-lbanez, 936 F.2d 588, 595-596 (1% Cir.

1991). See also, Miranda-Gonzalez v. United States, 181 F.3d

164, 166-167 (1* Cir. 1999); United States v. Savinon-Acosta, 232

F.3d 265, 268-269 (1* Cir. 2000).

67 United States v. Damon, 191 F.3d 561, 564-565 (4 Cir. 1999).

record does not indicate that the defendant was not in

full possession of his or her faculties.™

But the Eighth Circuit has rejected the notion that

a district court has an obligation of further inquiry

upon learning that the defendant proffering a guilty

plea has been using medications.© This position is no

longer an aberration. The First Circuit has

interpreted its prior decisions to suggest that “any”

questioning by the district court about the

medication’s potential effect on competence is

adequate.” The Seventh Circuit has noted the

divergence of views among the circuits but has not

found it necessary to weigh in on the controversy.”

The Third Circuit below did not invoke the Eighth

Circuit’s ruling, which would have been in conflict

with its own prior ruling in Cole. The Third Circuit

below instead purported to distinguish its prior ruling

in Cole on the ground that the district court in this

case “did inquire into the medications that Lessner

had taken on the day of the change-of-plea hearing, as

well as their effect on her ability to understand the

proceedings,”’* even though the information gleaned

in response was at best minimally illuminating, with

the defendant never confirming her clear-headedness

and never indicating the dosages of the Ativan

medication recently ingested. Moreover, the Third

Circuit did not treat with the fact that there was also

other record evidence to show that Mrs. Lessner could

8 Jd., 191 F.3d at 568 (Williams, J., dissenting).

& United States v. Dalman, 994 F.2d 537, 538-539 (8% Cir. 1993).

7 United States v. Morrisette, 429 F.3d 318, 322 (1" Cir. 2005).

! United States v. Jones, 221 F.3d 1339, 2000 WL 975170 *3 (7%

Cir. July 11, 2000) (unpublished).

2 App. 14a.

not follow the plea colloquy, evidenced, for example, in

this exchange:

Q. Do you understand that you have the right

to plead not guilty to any offense charged

against you and to persist in that plea?

A. Yes, sir.

Q. What did I just say to you?

A. That I won’t be able to withdraw the plea

if—

Q: You have the right to plead not guilty is

what I’m saying to you...”

These issues of competence and voluntariness are

of critical importance. When, as occurred below, a

defendant appears to enter a guilty plea and indicates

recent ingestion of potentially mind-altering

medication, the district court confronts a situation

that implicates the requirement that a guilty plea be

entered only intelligently and voluntarily. In the

absence of this Court’s guidance, the lower courts,

having repeatedly grappled with this recurring fact-

pattern for more than twenty years, stand in conflict,

taking fundamentally divergent and_ shifting

approaches. The scope of the inquiry required by

district judges taking guilty pleas from defendants

who acknowledge recent ingestion of drugs or

medication is a matter of fundamental constitutional

consequence. This Court should grant the writ of

certiorari and resolve the conflict.

3 C.A App. 55.

Ill. This Court Should Grant the Writ and

Vacate and Remand in Light of Gall v.

United States to Correct the Court of

Appeals’ Inadequate Review of a

Sentencing Proceeding Where the District

Judge Erroneously Perceived That His

“Hands [Were] Significantly Tied” on Key

Sentencing Considerations and Paid Only

“Scant” Attention to Non-Guideline

Sentencing Factors.

In its recent decisions in Gall v. United States,”

and Kimbrough v. United States,” this Court

addressed the important procedural requirements for

sentencings post-Booker. These companion rulings to

Rita v. United States" expounded upon the district

court’s required exercise of sentencing discretion and

the indispensable nature of the district court’s record

of consideration of all of the sentencing factors.

“(Alfter giving both parties an opportunity to argue

for whatever sentence they deem appropriate, the

district judge should then consider all of the §3553(a)

factors to determine whether they support the

sentence requested by a party.” The district judge

“must make an individualized assessment based on

the facts presented.” The district judge may not, in

making his or her initial evaluation of all the

sentencing factors, “presume that the Guidelines

range is reasonable.”””

™ 128 S.Ct. 586 (2007).

% 128 S. Ct. 558 (2007).

% 127 S.Ct. 2456 (2007).

7 Gall, 128 S.Ct. at 596.

%8 Id. at 597 (emphasis supplied).

” id.

This Court in Gall explained that the court of

appeals reviewing a district court’s sentencing ruling

must “first ensure that the district court committed no

significant procedural error.” Procedural error by the

district court would include “treating the Guidelines

as mandatory” or “failing to consider the §3553(a)

factors[.]”*' Only after satisfying itself that the district

court’s sentencing decision is “procedurally sound”

does the court of appeals turn to substantive

reasonableness review.®* A within-Guidelines result

may be afforded a presumption of reasonableness, but

only at this second stage, after the sentencing has

passed muster for procedural correctness.® In light of

Gall, this Court has vacated and remanded for further

consideration numerous within-Guidelines sentences

that (as occurred in Mrs. Lessner’s case) had been

affirmed as reasonable by the courts of appeal on a

record of limited district court treatment of non-

Guidelines sentencing factors.”

89 Td.

= ig.

82 Td.

* id.

84 See, e.g., United States v. Orozco, 243 Fed. Appx. 861, 2007 WL

2201287 (5% Cir. Aug. 1, 2007), vacated, __ S.Ct. __, 2008 WL

169412 (Jan. 22, 2008); United States v. Byrd, 238 Fed. Appx.

948, 2007 WL 2046743 (4 Cir. July 13, 2007), vacated, __ S.Ct.

__, 2008 WL 114013 (Jan. 14, 2008); United States v. Montalvo-

Franco, 234 Fed. Appx. 321, 2007 WL 2051976 (5” Cir. July 18,

2007), vacated, __ S.Ct. __, 2008 WL 114012 (Jan. 14, 2008);

United States v. Garcia, 239 Fed. Appx. 78, 2007 WL 2032842 (5"

Cir. July 11, 2007), vacated, __ S.Ct. __, 2008 WL 114011 (Jan.

14, 2008); United States v. Newkirk, 240 Fed. Appx. 591, 2007

WL 2025207 (4 Cir. July 11, 2007), vacated, __ S.Ct. __, 2008

WL 114010 (Jan. 14, 2008); United States v. Cody, 241 Fed.

Appx. 111, 2007 WL 2022060 (4 Cir. July 12, 2007), vacated,

(footnote continues)

Proceeding without the benefit of Gall, Kimbrough

and other post-Booker clarifications, the district judge

in this case clearly was confused about how to

approach sentencing under the advisory Guidelines

regime. Other than the district court’s reference to

the advisory nature of the Guidelines, the sentencing

proceeded in fashion virtually indistinguishable from

that in which a pre-Booker Guidelines sentencing

would have occurred, with the district judge rejecting

Guidelines departures and adjustments after hearing

(footnote continued)

__ S.Ct. __, 2008 WL 114009 (Jan. 14, 2008); United States v.

Wilkinson, 225 Fed. Appx. 413, 2007 WL 1531595 (8 Cir. May

29, 2007), vacated, __ S.Ct. __, 2008 WL 114005 (Jan. 14, 2008);

United States v. Arana-Ascencio, 230 Fed. Appx. 442, 2007 WL

1655264 (5" Cir. June 6, 2007), vacated, __ S.Ct. __, 2008 WL

114006 (Jan. 14, 2008); United States v. Valle, 230 Fed. Appx.

434, 2007 WL 1655241 (5 Cir. June 6, 2007), vacated, __ S.Ct.

__, 2008 WL 114007 (Jan. 14, 2008); United States v. Roberts,

2007 WL 1223993 (5% Cir. April 25, 2007), vacated__ S.Ct. _,

2008 WL 59257 (Jan. 7, 2008); United States v. Romero-

Candelaria, 225 Fed. Appx. 122, 2007 WL 1302965 (4% Cir. May

3, 2007), vacated, __ S.Ct. __, 2008 WL 59262 (Jan. 7, 2008);

United States v. Garcia-Ramirez, 229 Fed. Appx. 341, 2007 WL

1598738 (5® Cir. June 4, 2007), vacated, __ S.Ct. __, 2008 WL

59267 (Jan. 7, 2008); United States v. Barajas, 243 Fed. Appx.

802, 2007 WL 1725443 (5” Cir. June 13, 2007), vacated, __ S.Ct.

__, 2008 WL 59268 (Jan. 7, 2008); United States v. Rodriguez-

Rodriguez, 238 Fed. Appx. 16, 2007 WL 1725534 (5” Cir. June

14, 2007), vacated, __ S.Ct. __, 2008 WL 59273 (Jan. 7, 2008);

United States v. Bonilla-Lemus, 243 Fed. Appx. 798, 2007 WL

1725427 (5% Cir. June 13, 2007), vacated, _ S.Ct. __, 2008 WL

59274 (Jan. 7, 2008); United States v. Sharpe, 241 Fed. Appx.

131, 2007 WL 2046742 (4% Cir. July 13, 2007), vacated, __ S.Ct.

__, 2008 WL 59275 (Jan. 7, 2008); United States v. Goldsmith,

486 F.3d 404 (8 Cir. 2007), vacated, __ S.Ct. __, 2008 WL 59281

(Jan. 7, 2008).

evidence pertinent to those issues,® rejecting the

notion that the court should consider evidence of

mental illness and other features of the individual

defendant’s circumstances “for purposes of a

departure or treating her as_ special,” and

erroneously believing his hands were “significantly

tied in references to alternative[ ]” methods of

punishment.*’ The district judge understood and

acknowledged Mrs. Lessner’s undisputed severe

mental depression at the time of sentencing, noting

that “in this case we clearly have conduct that shows

that there are mental issues, depression,” but he

believed that somehow considerations of mental

illness that fail to measure up to the standards

applicable to a Guidelines departure for diminished

capacity were not otherwise to be taken into account.

The district judge was provided evidence about Mrs.

Lessner’s prior exemplary record of behavior, her

family history, as well as about her strong work

history and the fact that she received no financial

gain from her crimes (which the presentence report

noted for possible Guidelines variance), but none of

this information was discussed by the court at

sentencing. Rather, the district court noted that all of

these issues were “common factors that the

Sentencing Commission considered when they sat

down and created the Sentencing Guidelines[.]”” The

district court’s view was that the Sentencing

Commission “said, look, a person that commits a first

offense that’s here before a court for wire fraud,

8 App. 35a.

8° C.A. App. 455.

87 App. 34a.

® C.A. App. 473.

8 C.A. App. 454.

defense procurement fraud, destruction of records in a

federal investigation, that person is going to prison,

first and foremost, because we find these offenses are

such that it affects the course of conduct that we

cannot allow to be _ affected, government

contractors." But the Sentencing Commission’s

general analysis is only a “starting point” for the

Section 3553(a) inquiry.”

The district court misunderstood that after

Booker, consideration of the individual is an essential

feature of sentencing and not a prohibited matter of

treating the defendant, in the words of the district

court, “as special.”

The court of appeals reviewed the sentence

without the benefit of Gall and Kimbrough. The

court of appeals immediately acknowledged that the

district court’s “explicit discussion of the §3553(a)

factors was, admittedly, scant.”* It searched for

evidence of consideration of the pertinent Section

3553(a) factors in the record. It expressed the

surprising view that the district court evidenced

consideration of the “history and characteristics of the

defendant” by acting, as it did, to deny a two-point

adjustment for acceptance of responsibility and by

rejecting a departure for diminished mental capacity

(both Guidelines inquiries).*%* The court of appeals

also noted its belief that the district court had given a

“nod to avoiding unwarranted sentencing disparities”

by finding “that the Sentencing Commission did a

thorough and adequate job in considering all of the

* C. A. App. 454 — 455.

* Kimbrough, 128 S.Ct. at 574 (quoting Gall).

* App. 34a.

8 App. 35a.

potential affects [sic.] that a sentence like this would

have, not only on those who commit these type[s] of

offenses, but also, more directly, to those who stand

before the Court today, specifically, Mrs. Lessner.”™*

The court of appeals found it important that the

district court commented that the Guidelines were

“advisory, no question about it at this point in time,”

but on the other hand, the court of appeals

acknowledged, the district court “ambiguously

indicated that its ‘hands are significantly tied’ with

respect to imposing alternative punishments.” The

court of appeals concluded that this record sufficed to

show that the district court “took the pertinent

§3553(a) factors into account[.]””

Respectfully, such “scant” consideration of the

Section 3553(a) factors did not satisfy the procedural

requirements for post-Booker sentencing. Nor were

the district judge’s statements that his “hands [were]

significantly tied” and that the Sentencing

Commission did a “thorough and adequate job in

considering all of the potential affects a sentence like

this would have...” “ambiguous” statements; they

undermined the entire Section 3553(a) exercise.

These errors were acutely troubling in a case with a

mentally ill defendant whose need for psychiatric

treatment was uncontested. Also deeply troubling

was the lack of any consideration by the district court

of what this Court in Kimbrough called the

“overarching provision” of Section 3553(a) instructing

district courts to impose a sentence that is “sufficient,

* Td.

% App. 34a.

> id.

” App. 36a.

but not greater than necessary to accomplish the

goals of sentencing” and “to protect the public from

further crimes of the defendant.”*%* These gaping

omissions were not addressed by the court of appeals

on review. Respectfully, as has occurred in so many

post-Booker appeals, the court of appeals was overly

influenced by the within-Guidelines result of the

sentencing and, proceeding without the benefit of

Gall, required far too little from the district court.

This Court should grant the writ, vacate the decision

below, and remand for further consideration in light

of Gall.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Ian M. Comisky

Counsel of Record

Matthew D. Lee

Jordana Cooper

BLANK ROME LLP

One Logan Square

Philadelphia, PA 19103

(215) 569-5500

% Kimbrough, 128 S.Ct. at 570 (quoting 18 U.S.C. § 3553(a)).

Appendix

Westlaw

498 F.3d 185

(Cite as: 498 F.3d 185)

U.S. v. Lessner

C.A.3 (Pa.),2007.

United States Court of Appeals,Third Circuit.

UNITED STATES of America

¥.

Barbara LESSNER, Appellant.

No. 06-1030.

Argued: May 21, 2007.

Opinion Filed: Aug. 8, 2007.

Ian M. Comisky, Esq. (Argued), Matthew D. Lee, Esq.,

Blank Rome, Philadelphia, PA, Counsel for Appellant.

Nancy B. Winter, Esq. (Argued), Office of the United

States Attorney, Philadelphia, PA, Counsel for

Appellee.

Before: BARRY, CHAGARES, and TASHIMA,™™*

Circuit Judges.

FN* The Honorable A. Wallace Tashima, Senior

Circuit Judge, United States Court of Appeals

for the Ninth Circuit, sitting by designation.

OPINION OF THE COURT

BARRY, Circuit Judge.

This appeal arises from a 51-month sentence and a

$938,965.59 order of restitution imposed on appellant

Barbara Lessner following her pleas of guilty to 21

counts of wire fraud, defense procurement fraud, and

obstruction of justice. For the reasons that follow, we

will affirm.

I. Factual and Procedural Background

From 1995 until 2002, Lessner was a Procurement

Contracting Officer, Team Leader, at the Defense

Supply Center in Philadelphia (“DSCP”). The DSCP is

one of several field offices of the Defense Logistics

Agency (“DLA”), a federal agency whose mission is to

procure supplies for the military. As a “warranted”

contracting officer with authority to sign contracts on

behalf of the DLA, Lessner oversaw a team of nine

buyers in a group responsible for awarding contracts

of less than $100,000 for the purchase of biomedical

and hospital equipment.

The DSCP’s competitive bid process is highly

regulated. Upon receiving a request for supplies,

DSCP personnel solicit *189 quotes from contractors

and compare those quotes against pre-established

prices in Federal Supply Schedule Price Lists and on

the Medical Electronic Catalog system (““ECAT”).*™? If

the DSCP cannot obtain a quote lower than the price

listed in the Federal Supply Schedule, it must use the

Federal Supply Schedule contract. Similarly, if all

quotes exceed the price listed on ECAT, the DSCP

must obtain the product from the ECAT distributor.

When the lowest bid has been identified, the

warranted contracting officer will sign a contract and

fax it to the winning distributor.

FN1. A Federal Supply Schedule Price List is a

contract between the government and a

manufacturer or distributor establishing fixed

prices for certain goods over a set time period,

typically one year. ECAT, by comparison,

provides DSCP personnel with information

about current market prices and discounts

offered by manufacturers of medical products.

Authority to award DLA contracts is limited to

warranted contracting officers, such as Lessner.

“Buyers” lack authority to sign contracts that commit

government funds, but are otherwise fully engaged in

the procurement process. As the supervisor of nine

buyers, Lessner personally received all requests for

supplies and distributed them among her buyers. The

buyers then solicited bids by telephone, documented

the quotes, and reported their findings to Lessner.

Lessner completed the process by reviewing the

buyers’ research and signing contracts.

In August 2001, at a bar in King of Prussia,

Pennsylvania, Lessner met and struck up a

conversation with another patron named Scott

Watanyar. Lessner told Watanyar about her job at the

DSCP, and Watanyar told her that he worked for a

small distributor of electronics equipment, Pamir

Electronics Corporation (“Pamir”), which was owned

by his mother. Pamir did not manufacture any of the

products it sold, and Watanyar had no previous

experience with federal government contracts.

Nonetheless, he told Lessner, he would like the

opportunity to do contract work for the Department of

Defense.

That same month, Lessner told her team of buyers

about Pamir. She identified Watanyar as Pamir’s point

of contact and urged her buyers to use him. None of

the buyers had previously heard of Pamir. They

quickly noticed, however, that Lessner was engaging

in whispered conversations with someone from Pamir,

perhaps Watanyar, and observed that she was

unusually involved in and knowledgeable about the

details of Pamir’s tramsactions.

In September 2001, one of Lessner’s buyers, “K.T.,”

noticed that Lessner had awarded contracts to Pamir

even though it had not tendered the lowest bid and

despite the fact that the products could have been

obtained at a lower price if purchased directly from the

manufacturers. K.T. reported the Pamir contracts to

DSCP supervisors and began to question Lessner as to

why Pamir was being awarded the contracts. Lessner,

in response, stopped distributing work to KT. for a

period of time. Meanwhile, she continued to award

contracts to Pamir, forging K.T.’s signature on contract

folders when, in fact, K.T. had done no work on those

contracts.

On May 11, 2002, Special Agents from the Defense

Criminal Investigative Service (“DCIS”) obtained

copies of all Pamir contracts from DSCP files. Between

August 2001 and April 17, 2002, Pamir was awarded

163 contracts having a total value of approximately

$3.3 million. DCIS investigators confirmed that

contracts were consistently awarded to Pamir when it

was not offering the lowest price. A cost-impact

analysis performed on 119 of the 163 *190 contracts

revealed that Pamir, with Lessner’s approval,

overcharged the government by $938,965.59.

The DCIS investigation revealed a pattern of

contracts awarded to Pamir for products that Lessner

knew or should have known were available at lower

prices from the manufacturers. Among those contracts

were 33 contracts for products manufactured by

Telectro-Mek, Inc., a regular distributor to the DSCP

whose prices were significantly lower than those

offered by Pamir; 35 contracts for a product

manufactured by Brenner Metal Products Corporation

that the DSCP could have obtained for less than half

of Pamir’s price; 16 contracts for products

manufactured by Nonin Metal, Inc. that the DSCP

could have obtained at a lower price from Government

Marketing International, Inc., Nonin’s authorized

distributor, who advertised its lower price on the

Federal Supply Schedule Price List; 17 contracts for

products manufactured by Allied Healthcare Products,

Inc., whose lower price for eight of those contracts was

featured on the Federal Supply Schedule Price List;

and two contracts for products manufactured by

Kendro Laboratory Products, Inc., a company

historically willing to quote directly to the government

at established, lower government prices. As a

Procurement Contracting Officer, Lessner was

knowledgeable about the Federal Supply Schedule

Price List and was responsible for identifying a

distributor’s past pricing history. In at least one

instance, when Brenner Metal’s president phoned

Lessner to point out that the DSCP could realize

significant savings by ordering directly from Brenner

Metal, Lessner reportedly stated, “You receive enough

Government contracts, don’t look over my shoulder.”

In July 2002, Lessner’s supervisor reviewed the

Pamir files and confirmed that Lessner had awarded

contracts to Pamir for products that she could have

purchased at lower prices on ECAT. One such award

came just days after that same supervisor had advised

Lessner that the product in question was available

through ECAT.

On August 16, 2002, agents from the DCIS and the

FBI executed a warrant authorizing the seizure from

Pamir’s offices of documents and computer files

relating to Department of Defense contracts. The

search revealed that Lessner had, on several

occasions, faxed documents to Watanyar describing

the prices that Pamir’s competitors were bidding for

certain products. Some of the documents bore

handwritten notes from Lessner to Watanyar

specifying the price he should bid to receive a

particular contract, or advising him to submit a lower

bid. Lessner also sent Watanyar copies of the Federal

Supply Schedule Price List, which showed the prices of

competing suppliers.

Lessner’s buyers subsequently reviewed DSCP

files for Pamir contracts. They discovered that, while

each of the Pamir files appeared to bear the signature

of the buyer who purportedly worked on the contract,

Lessner had in fact forged the buyers’ signatures on 64

of the 163 files. For several of the remaining 99 files,

Lessner had simply presented the file to the buyer

with Pamir’s quote and instructed the buyer to

designate Pamir as the winning bidder.

For each of the 163 Pamir contracts, funds were

wired from a United States government account in

Columbus, Ohio, to Pamir’s bank account in Exton,

Pennsylvania, via the Federal Reserve Bank’s Federal

Automated Clearing House in Atlanta, Georgia.

Lessner was able to circumvent the more stringent

procedures governing the award of contracts worth

more than $100,000 by improperly awarding multiple

contracts to Pamir on the same day for the same item.

She also placed fraudulent *191 justifications in some

of the files to conceal the fact that the items in

question could be obtained elsewhere at lower cost.

On August 16, 2002, the same day that agents

conducted their search of Pamir’s offices, DCIS Special

Agents interviewed Lessner at work. They escorted

her to her workstation, advised her that they were

about to conduct a lawful and authorized search, and

instructed her to remove only personal items from her

work space. As she was gathering her personal effects,

agents saw Lessner throw a current 2002 United

States Government Appointment Book in the trash

can. She also removed a stack of files from a locked file

cabinet and placed them on her desk. The agents then

escorted her off the DSCP compound.

As she was leaving, the agents saw Lessner place a

call on her cell phone. When they returned to her

workstation to conduct their search, they found two of

Lessner’s buyers at her desk. Although both buyers

denied having received a call from Lessner asking

them to remove items from her desk, one of the buyers,

Cynthia Verderame, was not truthful. As it turned out,

Lessner had in fact called Verderame and instructed

her to remove a folder from Lessner’s desk and destroy

it, adding that “they are accusing me of doing

something wrong.” Verderame retrieved the folder as

requested, handed it to a fellow employee, and

instructed that employee to place it in the trunk of

Verderame’s car. Later that evening, Verderame

reviewed the folder, which contained copies of

Lessner’s emails, faxes, handwritten notes, and

customer letters, and tore the contents into pieces.

Verderame subsequently pled guilty to one count of

destruction and removal of property to prevent

seizure.

During the August 16, 2002 interview and in

subsequent interviews, Lessner attempted to conceal

the extent of her relationship with Watanyar. Initially,

she denied having met Watanyar or knowing him in a

personal capacity, and denied knowing how he came to

do business with the DSCP. After agents escorted her

from the DCIS compound, however, they discovered

Watanyar’s home address in the appointment book

that Lessner had discarded. At a subsequent

interview, Lessner again denied having met Watanyar

or providing contract information to him. When agents

then confronted her with documents they had

recovered in their searches, she claimed to have met

Watanyar once, but denied a personal relationship.

During a November 2003 interview, Lessner admitted

that she sent bid information to promote a woman-

owned business, but again denied any personal

relationship. When shown phone records evidencing

nearly 200 calls between her and Watanyar, including

calls to and from her home and personal cell phone,

she admitted a personal friendship, but denied any

romantic involvement. Agents independently learned

that Lessner and Watanyar had gone out socially on

several occasions.

On April 19, 2005, a federal grand jury returned a

21-count indictment charging Lessner with ten counts

of wire fraud, in violation of 18 U.S.C. § 1343; eight

counts of defense procurement fraud, in violation of 41

U.S.C. § 423(a) and (e); two counts of destruction of

records in a federal investigation, in violation of 18

U.S.C. § 1519; and one count of destruction and

removal of property to prevent seizure, in violation of

18 U.S.C. § 2232(a). On September 21, 2005, Lessner

pled guilty to all counts.

Defense counsel thereafter moved for a downward

departure under U.S.S.G. § 5K2.13.based on Lessner’s

diminished capacity. At the December 14, 2005

hearing on the motion, Lessner proffered expert

testimony that she suffered from major depressive

disorder at the time of the offenses. She also cited

anxiety resulting *192 from her husband’s heart

attack and the September 11th terrorist attacks. The

government, through its own expert witness, conceded

that Lessner suffered from present depression as a

result of the criminal proceedings, but maintained

that she did not exhibit any symptoms of mental

illness at the time of her offenses which, we note, were

well underway both before the heart attack and

September 11th. The District Court also heard

testimony from a DCIS Special Agent and several of

Lessner’s co-workers. It subsequently denied the

motion.

At the December 19, 2005 sentencing hearing, the

District Court found, as had the Presentence Report

(“PSR”), that Lessner’s total offense level was 24,

which included a_ two-level enhancement for

obstruction of justice pursuant to U.S.S.G. § 3C1.1.

The Court denied Lessner’s request for a reduction in

the offense level for acceptance of responsibility under

U.S.S.G. § 3E1.1, finding that her case was not among

the class of “extraordinary cases” in which

adjustments under both §§ 3C1.1 and 3E1.1 may

apply. Finding a criminal history category of I, and

noting the advisory Guidelines range of 51 to 63

months, the Court imposed a bottom-of-the-range

sentence of 51 months’ incarceration, followed by three

years of supervised release. The Court also ordered

mandatory restitution of $938,965.59 and a

mandatory special assessment of $2,100. This appeal

followed.

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. We have jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and (2).

II. Discussion

Lessner raises numerous issues on appeal, four of

which were not raised before the District Court. We

10a

will discuss each of the issues in turn.

A. Whether the District Court Committed Plain

Error When it Accepted Lessner’s Guilty Plea

Lessner argues that the District Court should not

have accepted her guilty plea before questioning her

on her statements to the Court that she was under the

care of mental health professionals and taking “10

pills a day.” (J.A. at 50.) Because no contemporaneous

objection was raised, we review the adequacy of the

plea colloquy for plain error. Fed R.Crim. P. 52(b);

United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct.

1043, 152 L.Ed.2d 90 (2002).

[1)[2] Plain error exists only when (1) an error was

committed (2) that was plain, and (3) that affected the

defendant's substantial rights. United States v.

Stevens, 223 F.3d 239, 242 (3d Cir.2000). Even then,

the decision to correct the error is discretionary.

United States v. Campbell, 295 F.3d 398, 404 (3d

Cir.2002). A court of appeals should exercise its

discretion “only if the error ‘seriously affect{s] the

fairness, integrity, or public reputation of judicial

proceedings.” ” Stevens, 223 F.3d at 242 (quoting

United States v. Olano, 507 U.S. 725, 732, 113 S.Ct.

1770, 123 L.Ed.2d 508 (1993)).

(3)[4)(5) By entering a plea of guilty, a criminal

defendant waives his or her constitutional rights to be

tried by a jury, to confront his or her accusers, and to

exercise the privilege against self-incrimination. Parke

v. Raley, 506 U.S. 20, 29, 113 S.Ct. 517, 121 L.Ed.2d

391 (1992). Like all waivers of constitutional rights, a

guilty plea must be made “voluntarily, knowingly, and

intelligently, ‘with sufficient awareness of the relevant

circumstances and likely consequences.’” Bradshaw v.

Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162

lla

L.Ed.2d 143 (2005) (quoting *193Brady v. United

States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d

747 (1970)). A district court commits reversible error

by accepting a defendant’s guilty plea without creating

a record to show that the plea was knowing and

voluntary. Boykin v. Alabama, 395 U.S. 238, 242-43,

89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

[6JRule 11 of the Federal Rules of Criminal

Procedure sets forth the standards governing the

acceptance of guilty pleas. It does not, in itself, embody

a constitutional directive. See United States v.

Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 60

L.Ed.2d 634 (1979) (noting that a violation of Rule 11

“is neither constitutional nor jurisdictional”). Rather,

“it is designed to assist the district judge in making

the constitutionally required determination that a

defendant’s guilty plea is truly voluntary,” and in

producing “a complete record at the time the plea is

entered of the factors relevant to this voluntariness

determination.” McCarthy v. United States, 394 U.S.

459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). A

district court may not accept a plea of guilty without

first personally addressing the defendant, under oath

and in open court, and ascertaining that the plea is

voluntary. Fed.R.Crim.P. 11(b)(1), (2). The court must

also ascertain that the defendant understands the

rights that he or she is waiving by pleading guilty, and

that there is a factual basis for the plea. Fed.R.Crim.P.

11(bX1), (3). Even if a court deviates from these

requirements, the error is harmless if it does not affect

substantial rights. Fed.R.Crim.P. 11(h).

[7] At the change-of-plea hearing, defense counsel

advised the District Court that his client was

presently seeing three mental-health professionals. In

response to the Court’s questioning, Lessner testified

12a

that she was seeing “Dr. Glass once a week; Miriam

Adler twice a week and Dr. Pierce once every two

weeks.” (J.A. at 49.) The Court then inquired whether

Lessner was taking any medication, prompting the

following exchange:

A. 10 pills a day.

Q. And what type of pills are they?

A. I'm taking Lexapro, Buspar, Ativan, Ambien and

Lorazepam.

Q. And did you take any of these medications this

morning?

A. I took two.

Q. What two did you take?

A. Ativan.

Q. Two Ativan. And what if any- well let me ask you

this way. Does the taking of this medication affect your

ability to understand and appreciate what is taking

place in this courtroom this morning?

A. It just puts me in perspective, I understand.

Q. When you say, “Puts you in perspective”—

A. Calms me down.

Q. So that you can deal with the circumstances?

A. Yes, your honor.

Q. Very well. Are you presently under the influence

of any drugs or medication or alcoholic beverage of any

kind other than the two that you have indicated that

you have taken this morning?

A. No, sir.

(Id. at 50.) The standard Rule 11 plea colloquy

followed, at the conclusion of which the Court found

that Lessner was “fully competent and capable of

entering an informed plea” and that her guilty plea

was “a knowing and voluntary plea supported by an

independent basis in fact containing each of the

essential elements of the offense.” (Jd. at 64.)

13a

Lessner argues that the District Court “made only

a limited and superficial inquiry”*194 into the

medications that she was taking while failing to

ascertain their dosages or whether she had taken any

of them “the prior day, week or month.” (Lessner’s Br.

29.) She urges us to take judicial notice of the

“significance” and “possible effects” of her medications

(id. n. 7), and contends that the Court accepted a non-

responsive answer when it inquired whether she could

understand and appreciate the proceedings. The

government maintains that the Court’s questioning

was sufficient to establish the knowing, intelligent,

and voluntary nature of the guilty plea.

Having carefully reviewed the transcript of the

plea colloquy, we conclude that the District Court

developed an adequate record to satisfy not only the

procedural requirements of Rule 11, but also the

constitutional requirement that a guilty plea be

knowing, voluntary, and intelligent. The Court

inquired into the medications that Lessner was taking

and those she had taken that morning. It asked

whether the medications she had taken that morning

affected her ability to understand the proceedings, and

posed several follow-up questions to elicit further

information. It also inquired whether Lessner was

presently under the influence of any other medications

or controlled substances. We are satisfied that

Lessner’s answers to those questions were responsive.

We are likewise satisfied, as was the Court, that

Lessner’s conduct and demeanor throughout the

change-of-plea hearing amply demonstrated the

voluntariness of her plea.

The cases on which Lessner relies to the contrary

are unavailing. In United States v. Cole, 813 F.2d 43

(3d Cir.1987), the defendant testified at his change-of-

l4a

plea hearing that he “had some drugs last night,” but

the District Court, seemingly unfazed by this

revelation, inquired only whether the defendant

understood what the Court had said. Jd. at 45;see also

id. at 46 (finding the record ambiguous as to whether

the district court even noted the defendant’s

admission of recent drug use). Had the Court

specifically inquired into the defendant’s drug use, it

would have iearned that the defendant had ingested

$400 of heroin and $250 of cocaine between 5:00 P.M.

the previous evening and 6:00 A.M. that morning. /d.

at 44. Under such circumstances, we held, the Court

owed a duty of further inquiry, and the absence of

such inquiry precluded a finding that the defendant’s

guilty plea was knowing and voluntary. Id. at 46, 47.

Here, however, the Court did inquire into the

medications that Lessner had taken on the day of the

change-of-plea hearing, as well as their effect on her

ability to understand the proceedings. Where a

district court has made such an inquiry, the

sufficiency of which is later contested, Cole provides

little guidance.

Lessner also cites the Court of Appeals for the First

Circuit’s decision in United States v. Parra-Ibanez, 936

F.2d 588 (1st Cir.1991), an opinion purporting to follow

Cole. In Parra-Ibanez, a defendant with a known

history of drug use, depression, and attempted suicide

advised the Court at the change-of-plea hearing that

he had taken Ativan, Halcion, and Restoril within the

past 24 hours. The Court then asked, “Ativan, is that

a drug to control your nerves or something?”, and the

defendant responded, “Yes, sir.” No further inquiry

was made into the defendant’s medication; the Court

merely asked whether the defendant understood the

proceedings and the maximum penalty that he faced,

15a

and whether counsel were satisfied that the defendant

was competent to plead guilty. The Court of Appeals

held that

the judge did not inquire what dosages of

Ativan, Halcion and Restoril Parra had

ingested and what effects, if any, such

medications might be likely to have *195 on

Parra’s clear-headedness. The judge, though

plainly making a substantial inquiry, did not

probe deeply enough. We join the Third Circuit

{in Cole ], and hold that the judge was obligated

by Rule 11 to ask further questions.

Id. at 596 (footnote omitted). In a footnote, the Court

observed that “the obligation of further inquiry was

enhanced by Parra’s recital in [a] prior hearing of a

history of drug use, depression and attempted

suicide.” Jd. n. 16.Concluding that Rule 11 had been

violated, the Court reversed and remanded for

findings on whether the error was harmless.

Parra-Ibanez is distinguishable both as to the

severity of the defendant’s history of mental illness

and the brevity of the Court’s inquiry. There, just one

week before the change-of-plea hearing, the Court held

a competency hearing at which the defendant testified

to his drug use, depression, and attempted suicide-

factors that enhanced the Court’s duty of inquiry

under Rule 11. Yet at the change-of-plea hearing, the

Court made only passing inquiry into the purpose of

just one of the three prescription medications that the

defendant admitted to having taken in the previous 24

hours, while failing to inquire whether any of the

medications impaired the defendant’s ability to

understand the implications of his guilty plea.

Here, by comparison, Lessner advised the District

16a

Court that she began seeking counseling for “mental

illness” only after she committed the offenses, and did

not report any history of more serious conditions, such

as drug abuse or attempted suicide.*"? (J.A. at 48.) See

United States v. Stewart, 977 F.2d 81, 84 (3d Cir.1992)

(distinguishing Cole“where nothing about drug abuse

was brought to the attention of the trial judge”). The

Court ascertained that she was only under the

influence of two Ativans at the time of the hearing,

and that that medication did not impair her ability to

understand the proceedings.”™*See United States uv.

Morrisette, 429 F.3d 318, 322 (1st Cir.2005)

(distinguishing Parra-Ibanez on the ground that the

District *196 Court in that case failed to make any

inquiry into whether the medication affected the

defendant’s ability to comprehend); United States v.

Savinon-Acosta, 232 F.3d 265, 268 (1st Cir.2000) (“The

critical question is whether the drugs-if they have a

capacity to impair the defendant’s ability to plead-

have in fact done so on this occasion.”). Lessner clearly

demonstrated her understanding of the proceedings

throughout the hearing, to the satisfaction of both the

Court and defense counsel. (See J.A. at 64, 66.) We

find, therefore, that the Court sufficiently discharged

its duty under Rule 11 to inquire into Lessner’s

capacity to enter a knowing and voluntary plea and, in

fact, found that she did just that.

FN2. Lessner faults the District Court for

failing to make a finding of competency prior to

the change-of-plea hearing. To the extent she

suggests that she was not legally competent to

plead guilty, we reject that argument. She did

not so argue before the District Court, and the

record plainly shows her counsel agreeing

“[a]bsolutely” with the Court’s finding that she

17a

was competent to plead guilty. (J.A. at 66; see

also J.A. at 64.) See United States v. Jones, 336

F.3d 245, 256 (3d Cir.2003) (noting that “an

attorney’s representation about his client's

competency” may be relevant to a court's

evaluation of a defendant’s competency

(internal quotation marks omitted)); United

States v. Vamos, 797 F.2d 1146, 1150 (2d

Cir.1986) (noting that deference is owed to a

district court’s competency determination based

on observations during court proceedings). It is

also significant that when Lessner was later

evaluated for diminished capacity, no mental

health expert found an impairment of her

cognitive functions even approaching the

stringent standard for legal incompetence.

See18 U.S.C. § 4241(a) (requiring that the

defendant be “unable to understand the nature

and consequences of the proceedings against

him or to assist properly in his defense”). (Cf.

J.A. at 94 (finding Lessner’s’ thinking

“organized and goal-directed,” with no evidence

of delusions or hallucinations, an “intact”

memory, and an ability to concentrate); id. at

116 (opining that Lessner “does not suffer from

reduced mental capacity” and “has no impaired

ability to understand the wrongfulness of her

behavior ... nor to exercise the power of

reasoning”); id. at 120-21 (finding no evidence of

hallucinations or delusions, “okay” cognitive

functions, and “adequate” memory).)

FN3. Lessner, arguing that she gave a

“hopelessly ambiguous” response to the Court’s

query whether the medication affected her

ability to understand the proceedings (Reply Br.

18a

4), would have us ignore that portion of her

response in which she affirmed, “I understand”

(J.A. at 50).

B. Whether the District Court Committed Plain

Error by Finding an Adequate Factual Basis for

Lessner’s Pleas of Guilty to the Obstruction

Charges

Lessner argues, next, that the District Court erred

in accepting her guilty pleas to the obstruction charges

because there was not an adequate factual basis for

the pleas. As she did not raise this argument before

the District Court, we review for plain error.

Lessner pled guilty to counts 19 and 20 of the

indictment, charging her with obstruction of justice in

violation of 18 U.S.C. § 1519, the so-called anti-

shredding provision of the Sarbanes-Oxley Act of 2002.

The plain language of the statute requires the

defendant to have destroyed evidence “knowingly” and

with the “intent” to impede an investigation or

case.*“4See United States v. Wortman, 488 F.3d 752,

754 (7th Cir.2007). Count 19 related to Lessner’s

disposal of the appointment book containing

Watanyar’s home address.*™> Count 20, which also

charged aiding and abetting under 18 U.S.C. § 2,

related to Lessner’s cell phone call] to Verderame.

FN4.Section 1519 provides as follows:

Whoever knowingly alters, destroys,

mutilates, conceals, covers up, falsifies,

or makes a false entry in any record,

document, or tangible object with the

intent to impede, obstruct, or influence

the investigation or proper

administration of any matter within the

jurisdiction of any department or agency

19a

of the United States or any case filed

under title 11, or in relation to or

contemplation of any such matter or case,

shall be fined under this title, imprisoned

not more than 20 years, or both.

18 U.S.C. § 1519.

FN5. Lessner argues that her disposal of the

appointment book in the presence of DCIS

Special Agents precluded a finding that she

“destroy[ed], mutilate[d], concealled], [or]

cover[ed] up” a document or tangible record.

Given Congress’s intent that § 1519 apply

broadly, see148 Cong. Rec. $7419 (daily ed. July

26, 2002) (statement of Sen. Leahy), Lessner’s

act of disposal-which seems clearly to be a form

of “destruction”-falls within the proscriptions of

the statute. See Dana E. Hill, Note, Anticipatory

Obstruction of Justice: Pre-Emptive Document

Destruction under the Sarbanes-Oxley Anti-

Shredding Statute, 18 U.S.C. $ 1519, 89 Cornell

L.Rev. 1519, 1559-60 (2004). Moreover, the

pertinent “record”-Watanyar’s contact

information-was not visible to the agents, and

Lessner may not have suspected that they

would retrieve the appointment book and

discover the record. Viewed in this light, the

disposal of the appointment book was also an

attempt to “conceal” and “cover up” a “record.”

At the Rule 11 hearing, after reciting the elements

of § 1519, the District Court questioned Lessner as

follows:

Q. My next question would normally be and is at

this particular point in time, did you commit these

offenses, these two counts, counts 19 and 20?

A. Yes.

20a

Q. Now, I hear encouragement from the back, I

don’t know if that is your mother or your sister or some

*197 relative or friend, whatever the case may be, I

want your response, not theirs.

A. In my day planner, I had everybody’s number

and address in there. When I was being walked out, I

just threw it in the trash because I knew I was not

coming back. I didn’t realize that his [Watanyar’s]

number was in there either.

Q. My question to you, ma’am, is did you commit

this offense.

A. I put it in the trash can.

(J.A. at 59-60.) The Court subsequently asked whether

Lessner and her counsel had reviewed the government

plea memorandum. Defense counsel responded that he

reviewed the memorandum with his client, and that

“[e]verything there is correct.” (Jd. at 63.) The Court

then asked Lessner whether “you likewise will

stipulate to facts that are contained in the guilty plea

memorandum that is stated by the government as to

what they would be prepared to prove against you if

this matter were to proceed to trial,” and Lessner

responded, “Yes, sir.” (Jd.) She then entered her pleas

of guilty.

[8][9] Lessner argues, with regard to count 19,

that her express disclaimer of a critical element of the

crime precluded the District Court from accepting her

guilty plea. Rule 11(b)(3) requires a district court,

before entering judgment on a guilty plea, to

“determine that there is a factual basis for the plea.”

Fed.R.Crim.P. 11(bX3). A district court need not,

however, be convinced beyond a reasonable doubt of a

defendant’s guilt to accept a plea of guilty; it need only

find sufficient evidence in the record as a whole to

justify a conclusion of guilt. United States v. Cefaratti,

21a

221 F.3d 502, 509-10 (3d Cir.2000). See generally

North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct.

160, 27 L.Ed.2d 162 (1970) (permitting court to accept

defendant’s guilty plea over protestations of

innocence). “The court may make that inquiry by

looking to the defendant’s own admissions, the

government’s proffer of evidence, the presentence

report, or ‘whatever means is appropriate in a specific

case-so long as the factual basis is put on the record.”

Cefaratti, 221 F.3d at 509 (quoting United States v.

Smith, 160 F.3d 117, 121 (2d Cir.1998)); see also

United States v. Trott, 779 F.2d 912, 914 n. 1 (3d

Cir.1985) (“Indeed, an otherwise valid guilty plea may

be properly accepted even if the defendant during the

colloquy denies factuai guilt, so long as a factual basis

is adequately provided by other sources.”). Thus,

there is no violation of Rule 11 where a district court

finds a factual basis for the guilty plea from the

evidence in the record, notwithstanding the

defendant’s protestation of factual innocence. See

United States v. King, 257 F.3d 1013, 1022 (9th

Cir.2001) (finding no violation of Rule 11 under such

circumstances).

[10] There was more than sufficient evidence of

Lessner’s guilt to permit the District Court to accept

her guilty plea to count 19 even were we to assume

that she disavowed an intent to impede the DCIS

investigation. Lessner stipulated that DCIS Special

Agents advised her she was under investigation and

was to remove only personal items from her desk. She

falsely denied knowing Watanyar while

contemporaneously discarding the appointment book

containing his home address. Although she also denied

knowing that Watanyar’s information was in the book,

she had no trouble recalling that “everybody’s number

22a

and address [was] in there.” (J.A. at 59.) From the

record before it, the Court could and did find a factual

basis for the plea. (fd. at 64 (expressly finding “an

independent basis in *198 fact containing each of the

essential elements of the offense”).) Lessner’s Rule 11

challenge to her guilty plea on count 19, accordingly,

fails.

Lessner’s challenge to the District Court’s

acceptance of her guilty plea to count 20 also fails.

Lessner entered a guilty plea to count 20; but asserted

that she “didn’t ask anyone to destroy[ ] anything.”

(J.A. at 60.) Even if that assertion were correct (which,

according to Verderame, it was not), it did not

constitute a disavowal of an essential element of the

crime. Lessner’s admission to calling Verderame and

asking her to »emove a folder from her desk, even if

not to destroy the folder, was an admission to

knowingly “conceal[ing]” documents. 18 U.S.C. § 1519.

This admission, coupled with Lessner’s stipulation to

the facts contained in the guilty plea memorandum

and other facts of record, provided an adequate factual

basis to justify the Court’s acceptance of her guilty

plea to count 20.

[11] Lessner also challenges the factual basis of her

guilty plea to count 21, charging her with destruction

or removal of property to prevent seizure in violation

of 18 U.S.C. §§ 2232(a) and 2.*%® As does count 20,

count 21 relates to Lessner’s cell phone call to

Verderame that resulted in the removal and

destruction of the foider from Lessner’s desk.

Conviction under § 2232(a) requires the intent to

prevent seizure, Gasho v. United States, 39 F.3d 1420,

1430 (9th Cir.1994), and Lessner contends that there

was neither a search warrant nor circumstances

providing her with notice that the folder in question

23a

was subject to imminent seizure.

FN6.Section 2232(a) provides as follows:

Whoever, before, during, or after any

search for or seizure of property by any

person authorized to make such search or

seizure, knowingly destroys, damages,

wastes, disposes of, transfers, or

otherwise takes any action, or knowingly

attempts to destroy, damage, waste,

dispose of, transfer, or otherwise take any

action, for the purpose of preventing or

impairing the Government’s lawful

authority to take such property into its

custody or control or to continue holding

such property under its lawful custody

and control, shall be fined under this title

or imprisoned not more than 5 years, or

both.

18 U.S.C. § 2232(a).

There is ample evidence in the record that when

Lessner asked Verderame to remove the folder from

her desk, she knev,: that it could and probably would

be immediately seized. Again, she stipulated that

DCIS Special Agents informed her that they were

about to perform what she concedes was a lawful and

authorized search, and that she was to remove only

personal items from her workstation. She further

stipulated to removing a stack of Pamir files from a

locked filing cabinet and placing them on her desk

before being escorted off the DSCP compound, an act

fully consistent with the expectation of an imminent

search or seizure. She then called Verderame and

asked her to remove a folder from her desk, supplying

context to this request by adding that “they are

accusing me of doing something wrong.” Acting at

24a

Lessner’s behest, Verderame removed the folder, lied

to investigators about doing so, and destroyed it later

that evening. There was a sufficient factual basis for

Lessner’s guilty plea to count 21.

C. Whether the District Court Erred by Failing

to Grant a Reduction in the Offense Level for

Acceptance of Responsibility

[12] The District Court, following’ the

recommendation of the PSR, applied a two-level

upward adjustment, pursuant to U.S.S.G. § 3C1.1

(2001), for the obstruction of justice charged in counts

19 *199 through 21. Lessner does not contest this

adjustment. The Court denied, however, Lessner’s

request for a three-level reduction in the offense level

for acceptance of responsibility under U.S.S.G. §

3E1.1. Lessner contests this denial. We review factual

findings underlying the denial of a Sentencing

Guidelines reduction for acceptance of responsibility

for clear error, and reverse only if we are left with a

definite and firm conviction that a mistake has been

committed. United States v. Boone, 279 F.3d 163, 193

(3d Cir.2002); United States v. Felton, 55 F.3d 861, 864

(3d Cir.1995).

Section 3E1.1(a) of the 2001 Guidelines provides

that a district court may grant a two-level reduction in

the offense level “[ilf the defendant clearly

demonstrates acceptance of responsibility for his

offense”; an additional one-level reduction is available

under subsection (b) if certain conditions are met. The

§ 3E1.1(a) reduction contemplates a defendant

“truthfully admitting the conduct comprising the

offense(s) of conviction, and truthfully admitting or

not falsely denying any additional relevant conduct for

which the defendant is accountable under § 1B1.3

25a

(Relevant Conduct).” U.S.S.G. § 3E1.1 cmt. n. 1(a). “[A]

defendant who falsely denies, or frivolously contests,

relevant conduct that the court determines to be true

has acted in a manner inconsistent with acceptance of

responsibility.” Id. Entry of a guilty plea will

constitute “significant evidence” of acceptance of

responsibility, although it will not entitle the

defendant to an adjustment “as a matter of right.” Jd.

cmt. n. 3; see also United States v. McDowell, 888 F.2d

285, 292 n. 2 (3d Cir.1989) (stating that sentencing

court must consider “the totality of the situation”

when determining acceptance of responsibility). Of

significance here, “[clonduct resulting in an

enhancement under § 3C1.1 (Obstructing or Impeding

the Administration of Justice) ordinarily indicates

that the defendant has not accepted responsibility for

his criminal conduct. There may, however, be

extraordinary cases in which adjustments under both

§§ 3C1.1 and 3E1.1 may apply.” § 3E1.1 cmt. n. 4. The

sentencing court’s findings in this regard flow from its

“unique position to evaluate a defendant’s acceptance

of responsibility” and are “entitled to great deference

on review.” Jd. cmt. n. 5.

At the December 19, 2005 sentencing hearing,

following extensive testimony and argument, the

District Court denied the § 3E1.1 adjustment, finding

that Lessner had failed to demonstrate the existence

of an “extraordinary case” warranting adjustments

under both §§ 3C1.1 and 3E1.1. (J.A. at 491.) Lessner

contends that this was error. Citing pre-Booker cases

from the Courts of Appeals for the Sixth and Ninth

Circuits, she posits that when the obstruction is

limited to the very early stages of a criminal

proceeding, and a defendant subsequently accepts

responsibility, the case is “extraordinary” within the

26a

meaning of application note 4. See United States v.

Gregory, 315 F.3d 637 (6th Cir.2003); United States v.

Hopper, 27 F.3d 378 (9th Cir.1994).

[13] One, albeit important, flaw in Lessner’s

argument is that her obstructive conduct continued

well beyond her actions on August 16, 2002. Two

weeks after asking Verderame to remove the folder

from her desk, Lessner called Verderame to confirm

that she had done so. There is also evidence that as

late as November 2003, Lessner continued to mislead

investigators about the extent of her relationship with

Watanyar. Moreover, she made no efforts to inform

authorities of the nature of the information contained

in the folder that Verderame destroyed, and concealed

*200 key information from her own mental health

expert.

But apart from whether and how long her

obstructive conduct continued, even at sentencing

Lessner admitted, at most, to having made a mistake

and failed to demonstrate much if any acceptance of

personal responsibility for her actions.

THE WITNESS: ... I thought it was going to be

something good I would be doing. I didn’t think it was

a criminal act. Believe me, I never did anything wrong

in my whole life, and I never intended to do anything

to myself or hurt anybody like these girls.

THE COURT: Why would you tell your friend to

destroy the documents if you didn’t know it was a

criminal offense?

THE WITNESS: They told me I was going to be-the

industries were blind, and it was the agent. I was

devastated. I went into shock when she showed me the

badge. I didn’t think it was a criminal act. I did not. If

I did, I would have resigned and left, believe me. ’m

not a bad person.

ola

(J.A. at 482.) When the Court pointed out that

Lessner made “[a] number of mistakes, a number of

contracts,” she deflected blame by portraying herself

as a victim of circumstances, even though those

circumstances arose only after she began her

fraudulent activities.

THE WITNESS: I was under stress. We had 9-11. I

was trying to get the work out. I was not thinking

clear. I was not thinking clear, believe me. If I was, I

wouldn’t be sitting here before you, sir. I would not be

sitting here before you if I was thinking clear and

putting myself through this at a perfect time of my life.

I didn’t mean to hurt anybody. I didn’t think it was a

criminal act, believe me. I wouldn’t do something like

this. I wouldn’t do it...

(Id. at 483-84.) “[Y]ou have an explanation for

everything that comes down,” the Court responded,

“[bjut it still doesn’t justify or explain away your

criminal conduct.” Ud. at 486). Lessner continued-and

repeatedly continued-to refer to her conduct as “a

mistake” while refusing to admit that she harmed

anyone other than herself.

THE WITNESS: ... I didn’t kill anybody or hurt

anybody. I hurt myself. I hurt myself. I didn’t want to

hurt anyone else, believe me. I wouldn’t have done

that. I wouldn’t have done that. I don’t want to ever-

I'm not the kind of person that hurts somebody. I

always try to do the best for somebody, and this just

destroyed my life. It has destroyed my life, believe me.

It’s destroyed-I live through a peep hole. I don’t even

want to go out of the house. I don’t want to do

anything....

THE COURT: Ms. Lessner, why didn’t you think

about that before you committed these offenses?

28a

THE WITNESS: I did not think it was a criminal

act. Believe me, believe me. I know it is. I know it was.

I was just rushing. I was under stress. I was worried

about him. When he got sick, my whole life was

ruined.

THE COURT: Why is it that when you were

rushing and under stress, it only related to this one

person, this one contractor, this one person that was-

THE WITNESS: We had so much work at our office

at that time. He was *201 sending confirmations that

the items were shipped and was making my job a little

easier. I did not think I was doing something wrong. I

was getting confirmations. You know, that’s all. I didn’t

mean to hurt anyone. I didn’t. I would never want to

go through this again. Please forgive me. Please,

please forgive me. I beg of you. I beg of you. Please,

please.

(id. at 487-89; cf. id. at 333 (describing harm to

Lessner’s staff).) The Court also noted Lessner’s

apparent lack of contrition at sentencing. (Id. at 495-

96).

Lessner’s ongoing denial of conduct for which the

District Court previously found a factual basis, and

her invocation of the September 11th attacks and her

husband’s December 2001 heart attack as justification

for fraudulent acts that began in August 2001, are

“inconsistent with acceptance of responsibility.” See

U.S.S.G. § 3E1.1 cmt. n. 1(a). According “great

deference” to the Court’s finding that this is not an

“extraordinary case,” id. cmt. nn. 4, 5, it is absolutely

clear that no error was made.

D. Whether the Restitution Order Was Improper

for Lack of Findings

[14] The District Court ordered restitution of

29a

$938,965.59, with $234,741.39 due within six months

of the imposition of sentence, another $234.741.39 due

within twelve months of the imposition of sentence,

and the balance due in $500 monthly installments

upon Lessner’s release from custody. Noting the PSR’s

observation that she lacked the ability to also pay a

fine, Lessner argues that the Court erred by failing to

explore her financial circumstances on the record

before ordering restitution. Although she suggests

that she raised this issue in her “{pjleas for

consideration of § 3553(a) factors” (Lessner’s Br. 3),

the record shows no contemporaneous objection to any

failure to make findings (see J.A. at 493-500). We,

therefore, review for plain error. United States v. Diaz,

245 F.3d 294, 312 (3d Cir.2001).

Under 18 U.S.C. § 3663A, full restitution is

mandatory when an identifiable victim has suffered

pecuniary loss and the defendant is convicted of “an

offense against property” under Title 18, including “an

offense committed by fraud or deceit.” 18 U.S.C. §

3663A(ax(1), (c)(1); see also U.S.S.G. § 5E1.1(a)(1).

Where there has been an award of full restitution, §

3664(f)(2) requires the sentencing court to “specify in

the restitution order the manner in which, and the

schedule according to which, the restitution is to be

paid,” with reference to “the financial resources and

other assets of the defendant, including whether any

of these assets are jointly controlled”; “projected

earnings and other income of the defendant”; and “any

financial obligations of the defendant(,] including

obligations to dependents.” 18 U.S.C. § 3664(f(2). We

have held that a district court commits plain error

when, having ordered full restitution, it fails to state

on the record the manner and schedule of payments

after taking into account the defendant’s financial

30a

resources. United States v. Coates, 178 F.3d 681, 684

(3d Cir.1999). The district court’s obligation to comply

with § 3664(f)(2) may not be delegated to the probation

office. Id. at 684-85.

Here, unlike Coates, the District Court specified a

payment schedule in its restitution order:

[Ylou shall pay a lump sum payment of at least

$234,741.30 within six months of the date of the

imposition of the sentence, and another lump

sum payment of at least [$]234,741.39 within

12 months of the impcsition of this sentence.

After *202 you’re released from custody, you are

to pay the remaining restitution in monthly

installments of $500 to the United States

Defense Logistics Agency.

(J.A. at 494.) The Court did not, however, explicitly

state on the record that it had considered Lessner’s

financial situation. We must decide whether this

omission constitutes plain error.

The plain error that we found in Coates was at

least as much a consequence of the District Court’s

failure to specify a payment schedule as it was of the

Court’s failure to state that it had considered the

defendant’s financial situation. Coates, 178 F.3d at 685

(holding that the district court committed plain error

by failing to satisfy the requirements under §

3664(f)(2) and implicitly delegating responsibility to

fix restitution payments to the probation office). In

Coates, we noted that when ordering full restitution,

“the district court is required to consider the financial

resources, projected earnings, and financial

obligations of the defendant.” 178 F.3d at 683. We did

not expressly hold, however, that a district court must

do so on the record, and we do not so hold now. Rather,

3la

we hold that where, as here, the record evidences a

court’s consideration of the defendant’s financial

situation-albeit without express findings-the

requirements of § 3664(f)(2) are satisfied. See United

States v. Jones, 289 F.3d 1260, 1265-66 (11th Cir.2002)

(holding same). (See also App. at 494 (ordering lump-

sum restitution payments totaling exactly 60% of the

PSR’s unchallenged calculation of Lessner’s net

worth).) Cf: United States v. Pruden, 398 F.3d 241, 249

(3d Cir.2005) (examining record where district court

did not explain the basis for imposing special condition

of supervised release); United States v. Warren, 186

F.3d 358, 366-67 (3d Cir.1999) (stating that in the

absence of express findings on the record, the

imposition of a special condition of probation may be

affirmed if the record contains a “sufficient evidentiary

basis” supporting the condition).

But even if we were to find that the District Court

committed plain error by failing to make the express

findings Lessner suggests it was required to make,

there is no error here that “ ‘seriously affect([s] the

fairness, integrity, or public reputation of judicial

proceedings.’ ” Stevens, 223 F.3d at 242 (quoting

Olano, 507 U.S. at 732, 113 S.Ct. 1770). The record is

clear that Lessner has the ability to make the

restitution payments. The PSR, to which she did not

object, lists assets which include $175,493.41 in cash,

life insurance, stocks, and money owing; $70,000 in

jewelry and art; and $2,568,000 in real estate

holdings, including three rental properties and a

vacation home. Although the PSR also reflects

liabilities of $9,035,818, Lessner’s net worth of

$777,675.41 exceeds the combined lump-sum

payments of $469,482.78. The record also reflects that

Lessner and her husband have a monthly income of

32a

$8,090.00, far exceeding the $500 monthly restitution

payment that she must make upon her release from

prison.

Lessner also did not contest the PSR’s findings that

the government sustained an actual loss of

$938,965.59 on 119 contracts, and that she was

personally involved in each of those contracts. Nor did

she contest the PSR’s findings that “the defendant is

capable of making a lump sum payment,” and that “i]t

is apparent that the liquidation of some real estate

could provide a partial lump sum payment towards

the outstanding restitution amount” and “seem [s] to

provide a tangible solution to the restitution debt.”

(J.A. at 521.) In its Statement of Reasons, the District

Court expressly ‘“adoptied] the presentence

investigation report without change.” ([d. at 558.)

Under these circumstances, and in *203 view of

Lessner’s considerable assets, we find that no error,

much less plain error, was committed by failing to

make findings on the record.

E. Whether Lessner’s Sentence Was

Unreasonable

[15] Lessner argues that the District Court, in

sentencing her to 51 months’ imprisonment, failed to

consider pertinent factors under 18 U.S.C. § 3553(a)

and imposed an unduly harsh sentence. We review a

sentence for reasonableness, evaluating both its

procedural and substantive underpinnings. See United

States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005); United States v. Cooper, 437 F.3d

324, 329-32 (3d Cir.2006).

(16](17][18}] To be procedurally reasonable, a

sentence must reflect a district court’s meaningful

consideration of the factors set forth at 18 U.S.C. §

33a

3553(a).*"" A district court “should set forth enough to

satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.”

Rita v. United States, —- U.S. ——, 127 S.Ct. 2456,

2468, 168 L.Ed.2d 203 (2007). A sentencing court need

not make findings as to each factor if the record

otherwise makes clear that the court took the factors

into account. Cooper, 437 F.3d at 329. Nor must the

court consider arguments that clearly lack merit. Id.

In some instances, a sentencing factor may overlap

with a basis for a potential Guidelines departure.

United States v. King, 454 F.3d 187, 194-95 (3d

Cir.2006).

FN7. The factors that a district court must

consider include:

(1) the nature and circumstances of the

offense and the history and characteristics of

the defendant;

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense,

to promote respect for the law, and to provide

just punishment for the offense;

(B) to afford adequate deterrence to criminal

conduct;

of the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical

care, or other correctional treatment in the

most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing

range established for ... the applicable category

of offense committed by the applicable category

34a

of defendant as set forth in the guidelines ...

(5) any pertinent policy statement ... issued

by the Sentencing Commission ...;

(6) the need to avoid unwarranted sentence

disparities among defendants with similar

records who have been found guilty of similar

conduct; and

(7) the need to provide restitution to any

victims of the offense.

18 U.S.C. § 3553(a).

[19] The District Court’s explicit discussion of the §

3553(a) factors was, admittedly, scant. Nevertheless,

the record, which reflects extensive and thoughtful

questioning by the Court over two days of hearings,

more than adequately demonstrates the Court’s

meaningful consideration of the pertinent factors. By

adopting the PSR and its calculation of the total

offense level and criminal history category, the Court

clearly considered “the sentencing range established

for ... the applicable category of offense committed by

the applicable category of defendant as set forth in the

guidelines.”§ 3553(a)(4). Although the Court

somewhat ambiguously indicated that its “hands are

significantly tied” with respect to imposing alternative

punishments (J.A. at 422), it also acknowledged that

the Guidelines are “advisory, no question about it at

this point in time” (id. at 418; see also id. at 419, 492).

As the restitution order further made clear, *204 the

Court considered “the need to provide restitution” to

the DLA, the victim of these offenses. § 3553(a)(7).

The District Court also considered “the history and

characteristics of the defendant,”§ 3553(aX1), ruling

on Lessner’s request for a reduction in the offense level

35a

for acceptance of responsibility and her motion for a

departure on the ground of diminished capacity, and

basing the latter ruling on extensive testimony taken

at the December 14, 2005 hearing. (See also J.A. at 417

(acknowledging Lessner’s “exemplary life” prior to

these crimes).) The Court’s pointed questions to

Lessner during her plea allocution, moreover, erased

any doubt as to its studied familiarity with the facts of

the offenses. (See id. at 481-88; see also id. at 495 (“I

have thought about this case for some time.”).) See§

3553(a)X(1) (requiring the court to consider “the nature

and circumstances of the offense”). With regard to the

seriousness of the offense and the need for adequate

deterrence, see§ 3553(a)(2)(A), (B), the Court noted the

“multimillions and millions of dollars” at stake in

government procurement and the imperative not to

“allow people that do these particular typels] of

offenses to walk away.” (J.A. at 455.) The Court also

heard testimony that Verderame lost her job, and that

Lessner’s remaining buyers were required to undergo

retraining and were not promoted. In a nod to avoiding

unwarranted sentencing disparities, see§ 3553(a)(6),

the Court also found “that the Sentencing Commission

did a thorough and adequate job in considering all of

the potential affects [sic] that a sentence like this

would have, not only on those who commit these

type[s] of offenses, but also, more directly, to those who

stand before the Court today, specifically, Ms.

Lessner.”(J.A. at 492.) See Rita, 127 S.Ct. at 2468

(“Circumstances may well make clear that the judge

rests his decision upon the Commission’s own

reasoning that the Guidelines sentence is a proper

sentence (in terms of § 3353(a) and other congressional

mandates) in the typical case, and that the judge has

found that the case before him is typical.”). There can

36a

be no question that the Court acknowledged the

advisory nature of the Guidelines and took the

pertinent § 3553(a) factors into account before

imposing sentence.

[20][21] In addition to being procedurally

reasonable, a sentence must also be substantively

reasonable. For a sentence to be substantively

reasonable, a district court must apply the § 3553(a)

factors reasonably to the circumstances of the case.

Cooper, 437 F.3d at 330. A sentence that falls within

the recommended Guidelines range, while not

presumptively reasonable, is less likely to be

unreasonable than a sentence outside the range. Id. at

330-31. The pertinent inquiry is “whether the final

sentence, wherever it may lie within the permissible

statutory range, was premised upon appropriate and

judicious consideration of the relevant factors.” United

States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006).

The party challenging the sentence bears the ultimate

burden of proving its unreasonableness, Cooper, 437

F.3d at 332, and we accord great deference to a district

court’s choice of final sentence, id. at 330.

Lessner has failed to establish that her bottom-of-

the-range sentence was substantively unreasonable.

She argues that the District Court gave insufficient

weight to such considerations as her lack of profit from

her fraud, her diagnosis of depressive disorder, her

exemplary work record, and the onerous nature of the

restitution order. The decision by the Court, however,

not to give such mitigating factors the weight that

Lessner contends they deserve does not render her

sentence unreasonable. *205United States v. Bungar,

478 F.3d 540, 546 (3d Cir.2007). As is clear from the

record, the Court was influenced by the significance

and extent of Lessner’s fraud, her obstruction, her

37a

supervisory position, her perceived lack of candor and

persistent attempts to justify her conduct while

refusing to accept personal responsibility for her

actions, and the fact that she experienced depression

only after she was confronted with evidence of her

crimes and exposed to the possibility of imprisonment.

At one point, the Court sought the government's views

on a below-range sentence of three years, prompting

the government to object that such a sentence would

give Lessner “an implicit recognition that she accepted

responsibility, because that’s what a 36-month

sentence is, the bottom of the guideline range that

would have applied to the defendant had she accepted

responsibility.” (id. at 471-72.) That we might have

exercised our sentencing discretion differently, and we

do not suggest that we would have done so, is

irrelevant. See Cooper, 437 F.3d at 330. The Court did

not err in concluding that the circumstances of this

case did not mandate a sentence below the bottom of

the properly-calculated Guidelines range.

F. Whether the Restitution Order Violated the

Excessive Fines Clause of the Eighth Amendment

[22] Lessner argues, finally, that the restitution

order violated the Excessive Fines Clause of the

Eighth Amendment because the award was grossly

disproportionate to the gravity of her offense. She

failed to raise this argument before the District Court,

so again we review for plain error. See United States v.

Campbell, 295 F.3d 398, 404 (3d Cir.2002); see also

United States v. King, 414 F.3d 1329, 1330 (11th

Cir.2005).

[23] The Eighth Amendment to the United States

Constitution provides as follows: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel

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and unusual punishments inflicted.” U.S. Const.

amend. VIII. The prohibition on excessive fines “limits

the government’s power to extract payments, whether

in cash or in kind, ‘as punishment for some offense.’ ”

United States v. Bajakajian, 524 US. 321, 328, 118

S.Ct. 2028, 141 L.Ed.2d 314 (1998) (quoting Austin v.

United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801,

125 L.Ed.2d 488 (1993) (emphasis deleted)). In the

context of punitive forfeitures, the Supreme Court has

held that an Eighth Amendment violation occurs when

the forfeiture “is grossly disproportional to the gravity

of a defendant’s offense.” Id. at 334, 118 S.Ct. 2028. At

least one court of appeals has recognized that

restitution imposed under the Mandatory Victims

Restitution Act (“MVRA”), 18 U.S.C. § 3663A, is

punishment within the compass of the Eighth

Amendment. United States v. Dubose, 146 F.3d 1141,

1144 (9th Cir.1998) (noting the remedial, deterrent,

rehabilitative, and retributive purposes of mandatory

restitution, and citing H.R.Rep. No. 104-16, at 5

(1995), and S.Rep. No. 104-179, at 18 (1995), reprinted

in 1996 U.S.C.C.A.N. 924, 931); see also United States

v. Siegel, 153 F.3d 1256, 1259 (llth Cir.1998)

(concluding, for the same reasons, that restitution

under the MVRA is “punishment” for purposes of the

Ex Post Facto Clause).

Even assuming that mandatory restitution

implicates the Eighth Amendment, there clearly was

not, by any reasonable measure, a constitutional

violation here. The District Court ordered restitution

in the amount of the uncontested actual loss that the

government sustained as a direct result of Lessner’s

fraudulent acts. Dubose, 146 F.3d at 1145

(“(P]roportionality is inherent in a MVRA restitution

order.”); see also *206United States v. Graham, 72 F.3d

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352, 358 n. 7 (3d Cir.1995) (dismissing as “without

merit” defendant’s argument that a restitution order

under the Victim and Witness Protection Act, 18

U.S.C. § 3663(a), in the approximate amount of the

actual loss violated the Excessive Fines Clause).

Moreover, the restitution order was . not

disproportionate to the statutory maximum fine of

$250,000 per offense. See United States v. Newsome,

322 F.3d 328, 342 (4th Cir.2003) (finding no Eighth

Amendment violation for restitution order that was

not disproportionate either to the actual loss or to the

statutorily authorized fine). Finally, even if a

defendant’s hardship is a proper consideration, contra

Dubose, 146 F.3d at 1146, neither the lump-sum

payments nor the post-incarceration monthly

payments imposed here exceed Lessner’s ability to

pay. In short, the Constitution does not protect

Lessner from “a less extravagant lifestyle.” (See J.A. at

521.)

V. Conclusion

The judgment of the District Court will be

affirmed.

C.A.3 (Pa.),2007.

U.S. v. Lessner

498 F.3d 185

40a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No.06-1030

UNITED STATES OF AMERICA

BARBARA LESSNER,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

D.C. Crim. No. 05-cr-00225

District Judge: The Honorable J. Curtis Joyner

Argued: May 21, 2007

Before: BARRY, CHAGARES, and TASHIMA,*

Circuit Judges

JUDGMENT

*The Honorable A. Wallace Tashima, Senior Circuit Judge,

United States Court of Appeals for the Ninth Circuit, ee by

designation.

4la

This cause came to be heard on the record from the

United States District Court for the Eastern District of

Pennsylvania and was argued on May 21, 2007.

After consideration of all the contentions raised by

appellant, it is

ADJUDGED and ORDERED that the judgment of

the District Court be and hereby is affirmed. Ali in

accordance with the Opinion of the Court.

ATTEST:

/s/Marcia M.Waldron, Clerk

Dated: August 8, 2007

42a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No.06-1030

UNITED STATES OF AMERICA

BARBARA LESSNER,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

D.C. Crim. No. 05-cr-00225

District Judge: The Honorable J. Curtis Joyner

Present: SCIRICA, Chief Judge, SLOVITER,

McKEE, RENDELL, BARRY, AMBRO, FUENTES,

SMITH, FISHER, CHAGARES, JORDAN,

HARDIMAN and TASHIMA,* Circuit Judges

SUR PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING EN BANC

*The vote of the Honorable A. Wallace Tashima, Senior Circuit

Judge, United States Court of Appeals for the Ninth Circuit,

sitting by designation, is limited to panel rehearing only.

43a

The petition for rehearing en banc filed by

Appellant having been submitted to the judges who

participated in the decision of this Court, and to all the

other available circuit judges in active service, and a

majority of the circuit judges of the circuit in regular

active service not having voted for rehearing by the

court en banc, the petition for rehearing en banc is

DENIED.

BY THE COURT:

ls/ Maryanne Trump Barry _

Circuit Judge

Dated: September 5, 2007

CH/cc: Ian M. Comisky, Esq.

Matthew D. Lee, Esq.

Nancy B. Winter, Esq.

44a

Rule 11, Fed. R. Crim. P. provides, in pertinent part:

(a) Entering a Plea.

(1) In General. A defendant may plead not guilty,

guilty, or (with the court’s consent) nolo contendere.

(2) Conditional Plea. With the consent of the court and

the government, a defendant may enter a conditional

plea of guilty or nolo contendere, reserving in writing

the right to have an appellate court review an adverse

determination of a specified pretrial motion. A

defendant who prevails on appeal may then withdraw

the plea.

(3) Nolo Contendere Plea. Before accepting a plea of

nolo contendere, the court must consider the parties’

views and the public interest in the effective

administration of justice.

(4) Failure to Enter a Plea. If a defendant refuses to

enter a plea or if a defendant organization fails to

appear, the court must enter a plea of not guilty.

(b) Considering and Accepting a Guilty or Nolo

Contendere Plea.

(1) Advising and Questioning the Defendant. Before

the court accepts a plea of guilty or nolo contendere,

the defendant may be placed under oath, and the court

must eddress the defendant personally in open court.

During this address, the court must inform the

defendant of, and determine that the defendant

understands, the following:

(A) the government’s right, in a prosecution for perjury

or false statement, to use against the defendant any

statement that the defendant gives under oath;

(B) the right to plead not guilty, or having already so

pleaded, to persist in that plea;

45a

(D) the right to be represented by counsel—and if

necessary have the court appoint counsel—at trial and

at every other stage of the proceeding;

(E) the right at trial to confront and cross-examine

adverse witnesses, to be protected from compelled self-

incrimination, to testify and present evidence, and to

compel the attendance of witnesses;

(F) the defendant’s waiver of these trial rights if the

court accepts a plea of guilty or nolo contendere;

(G) the nature of each charge to which the defendant

is pleading;

(H) any maximum possible penalty, including

imprisonment, fine, and term of supervised release;

(I) any mandatory minimum penalty;

(J) any applicable forfeiture;

(K) the court’s authority to order restitution;

(L) the court’s obligation to impose a_ special

assessment;

(M) in determining a sentence, the court’s obligation to

calculate the applicable sentencing-guideline range

and to consider that range, possible departures under

the Sentencing Guidelines, and other sentencing

factors under 18 U.S.C. § 3553(a); and

(N) the terms of any plea-agreement provision waiving

the right to appeal or to collaterally attack the

sentence.

(2) Ensuring That a Plea Is Voluntary. Before

accepting a plea of guilty or nolo contendere, the court

must address the defendant personally in open court

46a

and determine that the plea is voluntary and did not

result from force, threats, or promises (other than

promises in a plea agreement).

(3) Determining the Factual Basis for a Plea. Before

entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.

(1) In General. An attorney for the government and

the defendant’s attorney, or the defendant when

proceeding pro se, may discuss and reach a plea

agreement. The court must not participate in these

discussions. If the defendant pleads guilty or nolo

contendere to either a charged offense or a lesser or

related offense, the plea agreement may specify that

an attorney for the government will:

(A) not bring, or will move to dismiss, other charges;

(B) recommend, or agree not to oppose the defendant’s

request, that a particular sentence or sentencing

range is appropriate or that a particular provision of

the Sentencing Guidelines, or policy statement, or

sentencing factor does or does not apply (such a

recommendation or request does not bind the court); or

is the appropriate disposition of the case, or that a

particular provision of the Sentencing Guidelines, or

policy statement, or sentencing factor does or does not

apply (such a recommendation or request binds the

court once the court accepts the plea agreement).

(2) Disclosing a Plea Agreement. The parties must

disclose the plea agreement in open court when the

plea is offered, unless the court for good cause allows

the parties to disclose the plea agreement in camera.

47a

(3) Judicial Consideration of a Plea Agreement.

(A) To the extent the plea agreement is of the type

specified in Rule 11(c)(1)(A) or (C), the court may

accept the agreement, reject it, or defer a decision

until the court has reviewed the presentence report.

(B) To the extent the plea agreement is of the type

specified in Rule 11(c)(1)(B), the court must advise the

defendant that the defendant has no right to withdraw

the plea if the court does not follow the

recommendation or request.

(4) Accepting a Plea Agreement. If the court accepts

the plea agreement, it must inform the defexdant that

to the extent the plea agreement is of the type

specified in Rule 11(c)(1)(A) or (C), the agreed

disposition will be included in the judgment.

(5) Rejecting a Plea Agreement. If the court rejects a

plea agreement containing provisions of the type

specified in Rule 11(c)(1)(A) or (C), the court must do

the following on the record and in open court (or, for

good cause, in camera):

(A) inform the parties that the court rejects the plea

agreement;

(B) advise the defendant personally that the court is

not required to follow the plea agreement and give the

defendant an opportunity to withdraw the plea; and

not withdrawn, the court may dispose of the case less

favorably toward the defendant than the plea

agreement contemplated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.