Petition for Writ of Certiorari — Niece v. United States
Supreme Court brief1995
Ask Donna
What actually matters in this document.
Text
94175 8 ur ods
GERCE OF THE CLERK
In The
Supreme Court of the United States
—>
October Term, 1994
WILFORD HENRY NIECE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
BENNETT E. BAYER
Counsel of Record
EMERSON & BAYER
Attorneys for Petitioner
301 East Main Street
Suite 1100
Lexington, Kentucky 40507
(606) 254-3805
E pgeuse (800) 3 APPEAL * (800) 5 APPEAL * (800) BRIEF 21
QUESTION PRESENTED
Whether the Federal Sentencing Guidelines in effect at the
time of a re-sentencing must be applied when a Defendant’s
previous sentence has been vacated in its entirety?
1
TABLE OF CONTENTS
Page
CRESTOR INNUIOS «5s 5 cksadcvacensd iaieencnsaines i
Pe ins svc dcvadendckseieeeaaee il
SEC IR oie sc cnnveassaveearnessaseeneee ill
CARR O o inch doe cedsseee ieee ]
DURIUEMC OF FUTISGICUOR «ow ccc ccc cc ecescusevesess ]
Oy FOIE i560 cnc cendddbnenesenceles ]
gg Pe re re l
A. TREE a occkcinkvaenderecsseeeeuss ]
. WOCUMSOND «ccecusnsncenccenes (ae weeds 2
Reasons for Granting the Petition ................... 9
I. The failure by the District Court to apply the
Federal Sentencing Guidelines in effect on the date
of resentencing, circumvents the plain meaning of
18 U.S.C. § 3553(a)(4) and the decisions of nine
PT ere rece 9
II. The Sixth Circuit’s decision conflicts with the
decisions of other federal circuits as to the nature
and scope of the proceeding after an appellate
court has vacated an original sentence in its
entirety and remanded for resentencing. ........ 16
CORIO onc ce cccnsnscenteveneundaeesweunseaen 23
ul
Contents
Page
TABLE OF CITATIONS
Cases Cited:
Stinson v. United States, _ U.S. __, 113 S. Ct. 1913 (1993)
SEER GUeGd Gs wwA es oes 04 00006060 aun dae ae i 15
United States v. Apple, 962 F.2d 335 (4th Cir. 1992) ..... 22
United States v. Atkinson, 979 F.2d 1219 (7th Cir. 1992)
SE I ee re ee 16
United States v. Barnes, 948 F.2d 325 (7thCir. 1991) .... 17
United States v. Bell, 5 F.3d 64 (4th Cir. 1993) .......... 22
United States v. Bermudez, 974 F.2d 12 (2d Cir. 1992) ... 10
United States v. Bush, 28 F.3d 1084 (11th Cir. 1994) ..... 13
United States v. Camacho, 40 F.3d 349 (1994) ......... 13
United States v. Caterino, 29 F.3d 1390 (9th Cir. 1994)
eda dk babu ad Washoe eRe 0 0084 16,17, 18
United States v. Cornelius, 968 F.2d 703 (8th Cir. 1992) .. 16
United States v. Doe, 18 F.3d 41 (ist Cir. 1994) ......... 10
United States v. Duso, WL 131940 (6th Cir. April 27, 1993)
iv
Contents
Page
United States v. Duso, 42 F.3d 365 (6th Cir. 1994) ....... 19,21
United States v. Edgar, 971 F.2d 89 (8th Cir. 1992) ...... 10
United States v. Ekhator, 853 F. Supp. 630 (E.D.N.Y. 1994)
sd aaihule hb de Sh N ESO Oa © ok h ee eee 12, 13, 16
United States v. Ekwonoh, 1994 WL 702035 (E.D.N.Y.
SOIC I ec Se ok Se ee 13
United States v. Fagan, 996 F.2d 1009 (9th Cir. 1993) ... 10,14
United States v. Garcia-Cruz, 40 F.3d 986 (9th Cir. 1994)
Seeded dé onde ban bck ewe aes 14,15
United States v. Gross, 979 F.2d 1048 (Sth Cir. 1992) .... 10
United States v. Hicks, 978 F.2d 722 (D.C. Cir. 1992) .... 10
United States v. Johnson, 1995 WL 32001 (7th Cir. January
PR 2d pi kek hagwe bees ks nk eeeeneescksewnees 17
United States v. Kopp, 951 F.2d 521 (3d Cir. 1991) ...... 10
United States v. Maldonado, 996 F.2d 598 (2nd Cir. 1993)
coe Mea eee ka ea ek nea eee 16
United States v. Moored, 38 F.3d 1419 (6th Cir. 1994) ... 21,22
United States v. Moree, 928 F.2d 654 (Sth Cir. 1991) ..... 16,17
Vv
Contents
Page
United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir.
BEPC EL ET EC SER CT TT EE TST OTe EET Pe rere 10, 13,14
United States v. Ortiz, 25 F.3d 934 (10th Cir. 1994) ...... 18
United States v. Smith, 930 F.2d 1450 (10th Cir.), cert.
Gonted, ., UB. 0s URS.CR. TAGLIGGA) cn ccccewens 16,18
United States v. Veteto, 980 F.2d 697 (11th Cir. 1993) ..... 16, 18,19
United States v. Ziegler, 39 F.3d 1058 (10th Cir. 1994)
ETT LECT eT OTE ETT COLT EC TTT ETT 10, 11,12, 18
Statutes Cited:
co Ca Pe ee ery TTT eee ree ee re te 3
Pe ade ROOD 8k 00 8s bad Ki eeevicnnda 1,5,9, 11, 15,22
Pe rs 4 6 vc eS 0s dR deco Ke seen ee eadeeee, 13
gw Se ere er Pere ey rye ern l
Se a OPM + 08 es cand e inne seceauseeneaaens l
Fas EE 6850 ae kK on nes 9
pg Re ere er err re ry rere 9
pe Sa Se er re Perr l
vi
Contents
Page
Rules Cited:
Federal Rules of Criminal Procedure:
+d inn wS catnsneaceande ts bveubeueseuuys 16
a ch i a al ad ]
Other Authorities Cited:
United States Sentencing Guidelines:
IE 5 640004 S64 ce ba hakeeenseeaebeds eres 1,10,11,15
RED indyikscasckeus anda eee eaeeeerkedn 10
EE aks vees 055 044.04 cade ae deaede Ceaneakehes 7,8
ES eis cahu Rods ued ane ed beueanedut ees 8
| A ee err eres See 3,4,7,8
UD 6 ie Sis a vase eadaeeeakaeseewanees 3,4,35,7
EE sv sdinoedhe suse ceeayes che bsaewaen 3,7
TTC eer TT rere errr 7,8
EDs oka sdb aa + aueeaeeen Reb eaeneN sh 7,8
vil
Contents
| EP oe Ee ree ann ing ay ts mma eer ie RNG a Sl
UE See DUS Sak a aa fun Gee ar ase eee
IE Wo ih Wek ee ete er ee Cet
APPENDIX
Appendix A — Order Denying Rehearing of the United
States Court of Appeals for the Sixth Circuit Filed
Te ne
Appendix B — Opinion of the United States Court of
Appeals for the Sixth Circuit Filed December 7, 1994 .
Appendix C — Modified Judgment of the United States
District Court, Eastern District of Kentucky, Pikeville
ee ee
Appendix D — Opinion of the United States Court of
Appeals for the Sixth Circuit Filed October 19, 1993 ..
Appendix E — Relevant Portions of Original Judgment of
United States District Court, Eastern District of
Kentucky-Pikevill Filed December 22, 1992 ........
Appendix F — Relevant Statutory Text ...............
1
OPINIONS BELOW
Wilford Niece seeks review of his re-sentencing from
December 7, 1993, as affirmed by the Sixth Circuit Court of
Appeals in United States v. Niece, No. 93-6636 (6th Cir.
December 7, 1994) (Per Curiam). [R. 144]. Acopy of this opinion
is attached as Appendix B and is hereafter referred to as “Niece
IT’. The judgment of the United States District Court for the
Eastern District of Kentucky, including the modification
following resentencing [R. 130], is attached as Appendix C. The
first opinion of the court of appeals, which remanded for
resentencing, United States v. Niece, No. 93-5011, (6th Cir.
October 19,1993) (Per Curiam) [R. 126], is attached as Appendix
D and is hereafter referred to as “Niece I’. The opinion of the
Sixth Circuit Court of Appeals denying the Petition for Re-
hearing is attached as Appendix A. The original judgment of the
United States District Court is attached as Appendix E.
STATEMENT OF JURISDICTION
The judgment of the Sixth Circuit Court of Appeals, which
forms the basis for this Petition for Certiorari, was entered on
December 7, 1994. The Petition for Rehearing was denied on
January 19, 1995. This Court has jurisdiction pursuant to 28
U.S.C. § 1254(1).
STATUTORY PROVISIONS
Title 18, U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.11; Title 18
U.S.C. § 3742(e), (f); Federal Rule of Criminal Procedure 35(a),
attached as Appendix F.
STATEMENT OF THE CASE
A. Judicial History
The Petitioner Wilford H. Niece maintains that all applicable
2
law requires that in every resentencing proceeding, the district
courts, absent some limited exceptions, must apply the
sentencing guidelines in effect on the date of the resentencing.
This case concerns the district court’s failure to apply the
appropriate sentencing law at a resentencing following a
complete vacation of the previous sentence.
Wilford H. Niece, appealed his original sentence, which
resulted in the sentence being vacated in its entirety. In its
opinion, The United States Court of Appeals for the Sixth Circuit
stated: “We shall vacate the sentence in its entirety ....”
Appendix, 30a-31a. Upon remand, the district court refused to
use the guidelines in effect on the date of resentencing. Instead,
the district court judge followed those guidelines in effect at the
time of the first sentencing. The outdated guidelines required the
calculation of a sentence more punitive to Mr. Niece than the
guidelines in effect on the date of his resentencing.
Mr. Niece appealed his sentence for a second time,
specifically challenging the district court’s use of a guideline
which had been amended by the Sentencing Commission. The
Sixth Circuit rejected Mr. Niece’s appeal, stating that its previous
decision to “vacate the sentence in its entirety,” was ambiguous,
reasoning that the district court could apply the outdated
guidelines.
Mr. Niece now petitions this Court for relief, asking this
Court to remand this case to the Sixth Circuit, with directions to
vacate his sentence in its entirety yet again, and order
resentencing under the Federal Sentencing Guidelines in effect
on the date of resentencing.
B. Factual History
On October 2, 1992, Wilford Niece was convicted of
transporting a minor interstate with intent to engage in sexual
3
activity, in violation of 18 U.S.C. § 2423. Following the jury trial
conducted before the Honorable Judge Joseph Hood, United
States District Judge for the Eastern District of Kentucky, Judge
Hood sentenced Mr. Niece on December 22, 1992, to a sentence
of seventy-two (72) months and imposed a fine of $75,000.00.
[R. 96]. This sentence was imposed under the Federal Sentencing
Guidelines effective November 1, 1990, which were the
guidelines in effect at the time of the offense. The district court
judge, the assistant United States Attorney, the probation officer,
and the Defendant had all incorrectly agreed that application of
the 1992 version of the Federal Sentencing Guidelines would
create an ex post facto problem and therefore the court applied the
guidelines in effect at the time of the charged offense.
At sentencing, the court fixed the base offense level at
sixteen (16) using U.S.S.G. § 2G1.2. This base offense level was
adjusted upwards by two (2) points under U.S.S.G. § 2G1.2(b)(3),
because the victim was under sixteen “but over twelve” years of
age. An additional upward adjustment of four (4) points was
made under U.S.S.G. § 2G1.2(b)(1), due to the use of “economic”
coercion. The court then added two (2) points under U.S.S.G.
§ 3Al.1 for victim vulnerability and, finally two (2) points were
added under U.S.S.G. § 3C1.1 for obstruction of justice.
After all adjustments the court arrived at a total offense level
of twenty-six (26). Using the guidelines range of a criminal
history category of I, this resulted in a possible sentence of sixty-
three (63) to seventy-eight (78) months of imprisonment. Within
this range, the court imposed a prison sentence of seventy-two
(72) months and a fine of $75,000.00. [R. 96].
On December 29, 1992, Mr. Niece filed his Notice of Appeal
and he appealed both his conviction and sentence’ to the United
1. Mr. Niece does not challenge the affirmance of his conviction or the
resolution of sentencing issues not implicated in this appeal.
4
States Court of Appeals for the Sixth Circuit. No. 93-5011. [R.
99]. He challenged his sentence on five grounds, three of which
are relevant to this petition:
(1) that the district court should not have applied the 1990
version of the Sentencing Guidelines, but rather the 1992 version
which was in effect at the time of sentencing;
(2) the upward adjustment of four (4) levels under U.S.S.G.
§ 2G1.2(b)(1) for “economic coercion” was improper; and
(3) the fine was imposed without proper findings by the
court.
The Sixth Circuit affirmed Mr. Niece’s conviction but
vacated his sentence, stating explicitely that Mr. Niece’s sentence
was vacated in its entirety. Niece ], Appendix, 30a-31a.
Specifically, the court found that the four-point enhancement for
economic coercion under U.S.S.G. § 2G].2 was inappropriate.
The court found it unnecessary to resolve issues connected with
the calculation of the fine, because the court concluded “in view
of the fact that a resentencing is required in any event, we need
not address this claim”. Niece J, Appendix, 30a.
Because Mr. Niece did not specifically object to the use of
the 1990 version of the guidelines at the time of sentencing, Mr.
Niece was deemed to have waived any objection to the use of the
that version. However, the court’s opinion in Niece / states clearly
and in more than one place that the original sentence was set aside
completely.
On page one (1) of the opinion, Appendix, 11a, the panel
wrote:
the Appellant’s offense level was
eee ee
5
miscalculated, . . . [and] we shall remand the
case for resentencing.
On page twenty (20), Appendix, 30a-31a, while discussing
the fine, the opinion states:
In view of the fact that a resentencing is
required in any event, we need not address
this claim. We shal! vacate the sentence in its
entirety,....
The Opinion concludes with this sentence:
The conviction is AFFIRMED, the sentence
is VACATED, and the case is REMANDED
for resentencing.
Niece I, Appendix, 31a.
The district court resentenced Mr. Niece on December 7,
1993. The court calculated the sentence under the same 1990
edition of the Sentencing Guidelines, but without the four-point
upward adjustment under U.S.S.G. § 2G1.2(b)(1). The new
offense level of twenty-two (22), rather than the original level
twenty-six (26), called for a range of imprisonment of forty-one
(41) to fifty-one (51) months, and the court set Mr. Niece’s
sentence at the maximum of fifty-one (51) months and imposed a
fine of $60,000. This Modified Judgment was entered on
December 9, 1993 [R. 130] and, on December 16, 1993, Mr.
Niece timely filed his notice for his second appeal. [R. 133].
In his second appeal, Mr. Niece argued that when a sentence
is vacated in its entirety, any subsequent resentencing is de novo.
Following the command of 18 U.S.C. § 3553(a)(4), the resentencing
court must use the guidelines in effect at the time of resentencing,
6
unless they present ex post facto problems. In an opinion dated
December 7, 1994, a different panel of the United States Court of
Appeals for the Sixth Circuit rejected Mr. Niece’s appeal and
affirmed the resentencing. Niece II.
The panel in Niece I] acknowledged that resentencing is
normally done under the Federal Sentencing Guidelines in effect
on the date of resentencing, Appendix, 6a, and that resentencing
after a vacated sentence is normally a de novo sentencing. Jd. The
court noted that there is an exception “where the resentencing
court’s authority is explicitly limited by the appellate court’s
mandate,” and that “the appellate court may limit such authority
by specific instruction.” /d. (emphasis added).
However, in almost complete disregard of its own reasoning,
the circuit court then held that the clear and express language of
vacatur was ambiguous and that the district court “understood”
the resentencing mandate as requiring only a mathematical
recalculation under the 1990 version of the guidelines.
During oral arguments before the court of appeals, Judge
Guy admonished counsel that by reading between the lines in
Niece I, he was able to understand that opinion. This “logic” was
carried over into the court’s opinion in Niece J] when the court
reasoned that the mandate from Niece / was
admittedly ambiguous. It contains language
explicitly upholding portions of the sentence,
language vacating it in its entirety, and
specific instruction, impliedly based on the
1990 version of the guidelines, concerning
the appropriate offense level and guideline
range to be employed and fact findings to
be made .... Although the remand order
does not expressly direct the district court to
7
apply the 1990 version of the guidelines, it
contains implied limitation to this effect.
Niece II, Appendix, 6a-7a.
In response to the opinion in Niece IJ, Mr. Niece filed a
Petition for Rehearing In Banc on December 21, 1994. By the
January 19, 1995 order, the court denied the request for rehearing
in banc, treating it as well as a request for rehearing before the
same panel and denying same.
The district court’s failure to conduct resentencing under the
correct guidelines resulted in a sentence of imprisonment for Mr.
Niece which was as least five (5) but up to twenty-one (21)
months too high.
Under the guidelines used at his first sentencing, Mr. Niece’s
base offense level was sixteen (16), according to U.S.S.G.
§ 2G1.2. This was enhanced two levels due to age (U.S.S.G.
§ 2G1.2(b)(3)), and four levels for economic coercion (U.S.S.G.
§ 2G1.2(b)(1)), two levels for victim vulnerability (U.S.S.G.
§ 3Al1.1) and two levels for obstruction of justice (U.S.S.G.
§ 3C1.1), for a total offense level of twenty-six (26).
At resentencing, under the same guidelines but without the
economic coercion enhancement, the court calculated a total
offense level of twenty-two (22).
However, had the version of the guidelines in effect at the
time of resentencing been followed, Mr. Niece would have been
entitled to apply U.S.S.G. § 2G1.2(c)(3)’s cross-reference to
U.S.S.G. § 2A3.2. This would have resulted in reducing the base
offense from a level of sixteen (16) toa level fifteen (15).
At the original sentencing hearing, the mistake in
interpreting U.S.S.G. § 2GI.2 came as result of the (b)(4)
8
provision added to the 1992 version, which appeared to cause an
ex post facto enhancement. However, all concerned failed to
recognize that the application of the added new cross reference of
(c)(3) within that same version, would have negated the
impermissible increase.
Therefore at the December 7, 1993 resentencing the correct
guidelines would have been the November 1, 1993 version.
Within that version, U.S.S.G. § 2GI].2 contains the cross-
reference under subsection (c)(3) to U.S.S.G. § 2A3.2. U.S.S.G.
§ 2A3.2 has a base offense level of 15, one point lower than the
base offense level under U.S.S.G. § 2GI1.2.
Even if, for argument sake, the base offense level set under
U.S.S.G. § 2A3.2 were adjusted upward under U.S.S.G. § 3C1.]
and U.S.S.G. § 3Al.1, as applied at his previous sentencing, the
resulting offense level is 19. At that offense level, the range of
imprisonment is thirty (30) to thirty- seven (37) months. Under
U.S.S.G. § 2A3.2(b)(1) is a specific offense characteristic which
effectively mirrors the U.S.S.G. § 2G1.2(b)(4) offense
characteristic which had been mistakenly construed as ex post
facto.?Then, even if this two (2) point adjustment under U.S.S.G.
§ 2A3.2(b)(1) applies, where the victim was in the custody, care,
or supervisory control of the defendant, the offense level would
be 21, with a range of imprisonment of thirty-seven (37) to forty-
six (46) months. Thus, Mr. Niece’s sentence was anywhere from
five (5) to twenty-one (21) months too high, depending on the
offense level used and the sentence imposed within those ranges.
However, upon resentencing, if the district court would reject the
application of the U.S.S.G. § 2G1.2(c)(3) cross reference, it is
admittedly possible that Mr. Niece would receive precisely the
same sentence he is currently serving. But at least the
resentencing would be done according to law.
2. However, under U.S.S.G. § 2A3.2 application this would not have
been an ex post facto issue, in that the section 2A3.2(b)(1) provision was also
present in the offense date version of the guidelines.
ee
9
REASONS FOR GRANTING THE PETITIOW
I.
THE FAILURE BY THE DISTRICT COURT TO
APPLY THE FEDERAL SENTENCING GUIDELINES IN
EFFECT ON THE DATE OF RESENTENCING,
CIRCUMVENTS THE PLAIN MEANING OF 18 U.S.C.
§ 3553(a)(4) AND THE DECISIONS OF NINE OTHER
FEDERAL CIRCUITS.
The Sentencing Reform Act of 1984, Public Law 98-473,
codified at 28 U.S.C § 991, established the United States
Sentencing Commission and set forth its purposes. Section
991(b)(1)(B) states that the motives include “provid[ing]
certainty and fairness in meeting the purposes of sentencing,
avoiding unwarranted sentencing disparities among defendants
with similar records who have been found guilty of similar
criminal conduct while maintaining sufficient flexibility to
permit. individualized sentences .. . .” With these principles in
mind, the significance of resentencing after a vacated sentence
comes into focus.
The same motivation for uniformity must apply equally as
well to resentencing as to the original sentencing. If there is no
uniformity in how sentences are calculated, with resentences
varying within a circuit and from circuit to circuit, then the
guidelines will fail to achieve the stated purpose. Sentences will
not be fair and certain, with the vagaries of each circuit
determining how a defendant will be resentenced. The incorrect
application of the guidelines is anathema to a constitutional
application of the guidelines and would render the entire
sentencing system as unjust.
Title 18 U.S.C. § 3553(a)(4) mandates that district courts use
10
the version of the Sentencing Guidelines “that are in effect on the
date the defendant is sentenced.” U.S.S.G. § 1B1.11 enacts this
requirement, with the provision that ex post facto problems be
avoided. That is to say, the guidelines in effect at sentencing
should not be more severe than those in effect on the date of the
offense of conviction. U.S.S.G. § 1Bl.11(b)(1). Neither the
statute nor the Guidelines distinguish between sentencing and a
resentencing of any kind, let alone a remand for resentencing
following a complete vacation of a pric~ sentence. Therefore, a
resentencing must be considered the same as an original
sentencing hearing when using the guidelines.
Following the logic of this requirement, nine circuits
explicitly have held that resentencings are to be carried out under
the guidelines in effect on the date of resentencing, absent any ex
post facto concerns. See, e.g., United States. v. Doe, 18 F.3d 41,
43 (Ist Cir. 1994); United States v. Bermudez, 974 F.2d 12, 14 (2d
Cir. 1992); United States v. Kopp, 951 F.2d 521, 531, n. 16 (3rd
Cir. 1991); United States v. Gross, 979 F.2d 1048, 1052 (Sth Cir.
1992); United States v. Edgar, 971 F.2d 89, 93 n.4 (8th Cir. 1992);
United States v. Fagan, 996 F.2d 1009, 1018 (9th Cir. 1993);
United States v. Ziegler, 39 F.3d 1058, 1063-1064 (10th Cir.
1994); United States v. Munoz-Realpe, 21 F.3d 375, 377 0.4,
(11th Cir. 1994); United States v. Hicks, 978 F.2d 722, 726 (D.C.
Cir. 1992).
In the case before the Court, the Sixth Circuit acknowledged
this rule, citing Fagan, but recognized an exception when the
resentencing court’s authority is explicitly limited by the
appellate court’s mandate. Niece II], Appendix, 6a. The mandate
from Mr. Niece’s first appeal did not contain an explicit limitation
of the resentencing to be conducted by the district court. Instead,
the Sixth Circuit’s opinion stated, and restated, that the original
sentence was vacated. This should have resulted in a de novo
resentencing.
a
11
At resentencing, the district court permitted Mr. Ni’ <e to be
present, but would not consider any arguments regarding the
appropriate guidelines to be applied, nor would the court allow
any testimony to be taken. In fashioning the “new” sentence, the
district court discarded its own previous economic coercion
enhancement, pursuant to the Sixth Circuit’s decision and arrived
at the final sentence through a mere arithmetical calculation.
Then, the district court considered the matter of a fine, ordering a
lesser fine than had been initially imposed, and changed the
payment terms.
In other words, the court of appeals allowed the district court
to treat Mr. Niece’s resentencing in part as a de novo sentencing,
and in part as merely a sentence modification. The district court’s
actions clearly violated the commands of 18 U.S.C. § 3553(a)(4)
and U.S.S.G. § 1B1.11. This hybrid procedure was neither ordered
by the Sixth Circuit in Niece J nor implied by the nature of its
remand, which expressly stated that the first sentence was
vacated in its entirety.
To date nine circuits have held that resentencing is to be had
under the guidelines in effect at resentencing and the following
examples clearly detail the logic involved.
United States v. Ziegler, 39 F.3d 1058 (10th Cir. 1994), most
Squarely addresses the issues presented in Niece IJ. In Ziegler, the
Tenth Circuit reversed, for a second time, the district court’s
downward departure.
Because we are remanding for resentencing,
the district court will be governed by the
guidelines in effect at the time of resentence
.... This result would be different if this
court's remand was “a narrowly confined
request for an explanation of the court’s
12
reasons for imposing [a] sentence,” rather
than “an order direct[ing] the sentencing
court to begin anew.” In the former case, the
sentencing court would apply the guidelines
in effect at the time of initial sentencing,
presuming no ex post facto problems, because
the district court is being asked “merely to
clarify the record of the initial sentencing
proceeding.” In the latter case, in contrast,
when a sentence is ordered vacated and the
matter is remanded for resentencing, “the
defendant reappear[s] before the court ...
with a ‘clean slate,’ ” being “‘placed in the
same position as if he had never been
sentenced.’ ”
Id. at 1063-64 and n.2 (citations omitted).
With this language, the Tenth Circuit succinctly stated the
approach Mr. Niece has advocated. That approach may be
divided into a three-part procedure:
(1) there is a difference between a remand with instructions
and a complete vacation of a sentence;
(2) when a sentence is vacated in its entirety, resentencing
proceeds de novo; and
(3) resentencing is conducted under the guidelines in effect
on the date of resentencing.
A district court opinion, cited in Ziegler, also follows this
approach. In United States v. Ekhator, 853 F.Supp. 630 (E.D.N.Y.
1994), the district court had to consider a remand specifically
instructing it to indicate on the record whether it understood its
13
authority to depart downward. The opinion discusses at some
length “the legal significance of the Circuit Court’s order
vacating the judgment and remanding for sentencing,” /d. at 634,
and compares cases which remanded for reconsideration. The
court concluded that in a case following the entire vacation of a
sentence, “the defendant is regarded as standing before the
court with a clean slate.” /d. at 636 (emphasis added). See also,
United States v. Ekwunoh, 1994 WL 702035 (E.D.N.Y. Dec. 9
1994) (on remand after vacated sentence, sentencing is de novo,
and guidelines in effect on date of resentencing apply, making
newly enacted 18 U.S.C. § 3553(f) a “safety valve” available to
defendant).
A decision of the Eleventh Circuit, United States v. Munoz-
Realpe, 21 F.3d 375 (11th Cir. 1994), also addressed the twin
issues of the scope of a sentencing proceeding after a vacation
and remand, and which edition of the Guidelines to apply. The
Eleventh Circuit took it for granted that a remand on a downward
departure issue alone called for a complete resentencing, and that
the resentencing court would apply the guidelines in effect on the
date of resentencing. Similar to the reduction in sentence
afforded in Ekhator, the Eleventh Circuit found a reduction
appropriate when it wrote:
In this case, a successful appeal by the
government on this issue would require
resentencing, and under these circumstances
we think it is clear any such resentencing
should employ the now effective lenient
definition of cocaine base.
Id. at 377, 377 n.4. See also, United States v. Camacho, 40 F.3d
349, 354 (1994); United States v. Bush, 28 F.3d 1084, 1087-1088
(11th Cir. 1994).
14
In Munoz-Realpe, the Eleventh Circuit reached the only
conclusion logical under the Federal Sentencing Guidelines and
the rules applicable to resentencing following a complete
vacation of sentence: resentencing after a vacated sentence is to
be de novo, and employs the guidelines in effect on the date of
resentencing.
The Sixth Circuit opinion in Niece I] side-stepped the body
of case law, statutory and Sentencing Guidelines authority which
requires application of guidelines in effect on date of
resentencing. The Sixth Circuit let stand the decision of the
district court to sentence Mr. Niece in a quasi de novo proceeding,
without vegard to the guidelines in effect on the date of his
resentencing. This decision by the Sixth Circuit, is in direct
conflict with the growing body of law on this issue, not yet ruled
upon by this Supreme Court.
Interestingly, even among the circuits that have held clearly
that upon remand for resentencing, a district court must use the
version of the Guidelines in effect on the date of resentencing,
there remains some confusion. In United States v. Garcia-Cruz,
40 F.3d 986 (9th Cir. 1994), the defendant appealed the sentence
he received upon resentencing from an earlier remand. The
appellant complained that the district court had resentenced him
under the Guidelines in effect on the date of his original
sentencing, instead of the guidelines in effect on the date of the
offense. The Ninth Circuit, citing Fagan, discussed the issue as
follows:
We have three choices here: the 1988
Guidelines in effect at the time of the offense;
the 1990 Guidelines in effect at the time of the
original sentencing; and the 1992 Guidelines
in effect at the time of the resentencing.
Sa ee ee ET
15
Id. at 987-988 (footnote omitted). The case turned on the proper
construction of U.S.S.G. § 4Bl.1, the effect of subsequent
amendments and the decision in Stinson v. United States, __ U.S.
113 S. Ct. 1913 (1993).
The fact that the Garcia-Cruz court even entertained the
comparison of three versions of the Guidelines is disturbing. 18
U.S.C. § 3553(a)(4) and U.S.S.G. § IBI.11 require the use of the
Guidelines in effect on the date of sentencing, absent ex post facto
concerns, whether it be a resentencing or initial sentencing. If, in
fact, the second sentencing of Garcia-Cruz was truly de novo, the
district court should have only compared the version in effect on
the date of resentencing to the version in effect on the date the
offense was committed.’ There appears to be no authority for the
third option, the Guidelines in effect on the date of the first
sentencing. Garcia-Cruz demonstrates the confusion and lack of
uniformity which can arise from remand and resentencing under
the ever-changing Sentencing Guidelines.
3. Cf, U.S.S.G. §1B1.11, comment (backg’d):
Consequently, even in a complex case involving
multiple counts that occurred under several different
versions of the Guidelines Manual, it will not be
necessary tO compare more than two manuals to
determine the applicable guideline range — the
manual in effect at the time the last offense of
conviction was completed and the manual in effect at
the time of sentencing.
16
Ii.
THE SIXTH CIRCUIT’S DECISION CONFLICTS
WITH THE DECISIONS OF OTHER FEDERAL
CIRCUITS AS TO THE NATURE AND SCOPE OF THE
PROCEEDING AFTER AN APPELLATE COURT HAS
VACATED AN ORIGINAL SENTENCE IN ITS
ENTIRETY AND REMANDED FOR RESENTENCING.
The opinion of the Sixth Circuit in Niece I] considered the
meaning and effect of its earlier opinion which vacated Mr.
Niece’s sentence and remanded for resentencing. Niece I]
concluded that, despite language in Niece / that explicitly vacated
the original sentence in its entirety, other language in Niece /
might be construed as permitting the district court to apply the
1990 version of the Guidelines. This construction of the Sixth
Circuit’s mandate in Niece / creates confusion where there was
clarity, and conflicts with the practice in other federal circuits,
which is that resentencing after a vacated sentence is de novo. See
United States v. Maldonado, 996 F.2d 598, 599 (2nd Cir. 1993);
United States v. Moree, 928 F.2d 654 (Sth Cir. 1991); United
States v. Atkinson, 979 F.2d 1219, 1223 (7th Cir. 1992); United
States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992); United
States v. Caterino, 29 F.3d 1390, 1395 (9th Cir. 1994); United
States v. Smith, 930 F.2d 1450, 1456 (10th Cir.), cert. denied, __
U.S. __, 112 S. Ct. 225 (1991); United States v. Veteto, 980 F.2d
697, 698 (1! th Cir. 1993).
However the issue has arisen, the rule is that a resentencing
following vacation of sentence is de novo. For example, in
Maldonado, the Second Circuit addressed the right of the
defendant to be present and allocute at a resentencing following
vacation, under Rule of Criminal Procedure 32. Ekhator, 853 F.
Supp. 630, found no reason to treat a sentence vacated on any
other ground differently. /d. at 634, citing Maldonado, 996 F.2d at
599.
il i iii aa i
17
In Moree, the Fifth Circuit considered the appeal of a
defendant who was resentenced in abstentia. In ruling that the
defendant had a right to be present at his resentencing, the court
found that the mandate of the first appeal, which vacated the
sentence and remanded for further proceedings, left no sentence
in effect. In other words, the district court was not free to modify
or reduce the defendant’s sentence by the two-level enhancement
found improper by the appellate court. Since no sentence was in
effect, there was nothing for the district court to modify. 928 F.2d
at 655.
In United States v. Barnes, 948 F.2d 325 (7th Cir. 1991), the
Seventh Circuit, in finding that a defendant has right of allocution
at resentencing, explained that at a resentencing, a new
sentencing determination was to be made and that a defendant
appeared at resentencing with a clean slate. /d. at 330. In
Atkinson, the Seventh Circuit again used the “clean slate”
language, and held that at a resentencing following a vacated
sentence, the district court “may entertain any and all objections,
even those not raised at the earlier sentencing.” 979 F.2d at 1223.
See also, United States v. Johnson, 1995 WL 32001 (7th Cir.
January 30, 1995) (upon vacating sentence and remanding for
resentencing to explain enhancement under U.S.S.G. § 3A1.3, district
court free to begin sentencing anew, including upward departure).
In Caterino, 29 F.3d 1390 (9th Cir. 1994), the defendant’s
first sentence was vacated because of improper application of
multiple vulnerable victim adjustments. In the second appeal, the
court noted that the remand order, which read simply “we
therefore VACATE .. . Caterino[’s] sentence[ ] and REMAND
for resentencing,”
did not expressly limit the district court to
correcting the vulnerable victim adjustment.
The only question was whether there was any
18
implied limitation, given that no other error
was deemed sufficient to warrant a remand
... But neither Caterino, the government, nor
the district court has adopted such a limited
interpretation of the remand order. Rather,
everyone has interpreted the order broadly
enough to authorize a de novo review of the
sentencing factors.
Id. at 1394-95.
Thus, even though the original sentence was remanded on
the sole issue of the propriety of vulnerable victim adjustments,
the Ninth Circuit interpreted a resentencing after a vacated
sentence to be de novo, permitting the defendant to raise issues
that were not part of the reason for reversal.
In Smith, 930 F.2d 1450, the Tenth Circuit held that an order
vacating a sentence and remanding for resentencing directs the
lower court to begin anew. In that circumstance, a de novo
resentencing is appropriate. In United States v. Ortiz, 25 F.3d 934
(10th Cir. 1994), the court explained that the de novo
resentencing contemplates the introduction of any relevant
evidence the court could have heard at the first sentencing
hearing. /d. at 935. See also, Ziegler.
In Veteto, 980 F.2d 697, the defendant’s first appeal resulted
in a vacated sentence and remand because the district court had
imposed a sentence without stating its reason for choosing a
specific point within the guideline range. /d. at 698. At
resentencing, the district court proceeded de novo.
We could have left the sentence in effect and
remanded for the limited purpose of the trial
court’s giving a statement of reasons. But we
19
did not do that. We vacated the sentence,
which left no sentence in effect, and
remanded for “resentencing consistent with
this opinion.” We recognize the arguable
ambiguity in the phrase “consistent with this
opinion,” since the opinion had been devoted
to statement of reasons. The fact remains that
the sentence was vacated and defendant was
to be resentenced with sufficient statements
of reason given.
980 F.2d at 698. Thus, in Veteto, the only reason for the remand
for resentencing was that the court had not stated its foundation
for choosing a point withir the Guideline range. The Eleventh
Circuit held that absent an express limitation on the scope of
resentencing, the resentencing must be de novo.
The relevant published decisions of the Sixth Circuit seem to
follow the majority of the other federal circuits, but the panel’s
decision in Niece /I/ is in direct conflict. On December 14, 1994,
seven days after its decision in Niece I], the same panel of the
Court of Appeals for the Sixth Circuit decided United States v.
Duso, 42 F.3d 365 (6th Cir. 1994). Duso’s first appeal resultedina
remand for resentencing, because the district court used an
improper method to calculate the defendant’s criminal history
category. In the first paragraph of the opinion, the panel in the
first appeal announced its intention to “vacate the sentence
imposed on Lawrence Duso and remand for resentencing.”
United States v. Duso, 1993 WL 131940 (6th Cir. April 27, 1993),
at *1. The court concluded its discussion of the criminal history
category issue as follows:
Upon remand, the court may consider
whether the facts recited warrant an upward
adjustment under § 4AI.3 or any other
20
Guidelines provision (e.g., § 3Cl.1 for
obstruction of justice for subornation of
perjury). Because of the improper method
used to calculate the “accurate” criminal
history category and its inseparability from
the other bases for the adjustment, we remand
Lawrence Duso’s case to the district court for
resentencing.
Id. at *8. The opinion’s concluding paragraph included the phrase
“Lawrence Duso’s conviction is AFFIRMED but his sentence is
VACATED and REMANDED for resentencing...” Jd. at *11.
At resentencing, the district court decided to recompute the
base offense level of the defendant. The defendant objected, but
after a total of three resentencing hearings, the court sentenced
the defendant to a sentence longer than that to which he was
originally sentenced. The defendant appealed, arguing that the
trial judge increased his sentence out of vindictiveness. In
upholding the district court’s sentence, the Sixth Circuit wrote:
If the defendant convinces the court on appeal
that the sentence was wrongly computed and
the court remands for resentencing, there
appears to be no prohibition in the
guidelines, or in the case law interpreting the
guidelines, keeping a district judge from
revisiting the entire sentencing procedure
unless restricted by the remand order. It is
possible, as occurs in many cases, that the
remand would be a limited one which would
not allow the district judge to make a de novo
review of the sentencing procedure. In this
case, however, there was no such language in
the opinion limiting the district judge’s
i ii i ae es amet
21
review .... This case 1s relatively typical,
however, in that this court’s earlier holding
left room for the district judge to revisit the
entire sentencing procedure.
42 F.3d at 368 (emphasis added).
The sole reason for the remand and resentencing was the
district court’s improper method used to calculate the defendant’s
criminal history category. Even though the case was remanded
for resolution of a limited issue, the Sixth Circuit recognized that
resentencing must be de novo.
In another Sixth Circuit case, United States v. Moored, 38
F.3d 1419 (6th Cir. 1994), the defendant appealed his
resentencing because the district court took the opportunity
offered by the resentencing to recalculate the amount of loss
attributable to the fraud for which he was convicted. The issue of
the amount of loss had not been appealed by either the defendant
or the government in the first appeal. The Sixth Circuit held that
the mandate of the first appeal, which vacated the judgment of the
district court and remanded for resentencing,
did not prohibit the district court from
reconsidering the loss issue in reversing its
earlier decision regarding same. . . Where, as
here, the district court felt constrained to
reconsider the loss issue to sentence
Defendant in accordance with the law, we fee]
that this court’s interest in truth, justice and
fair sentencing, requires that the district
court’s decision to reopen the loss issue be
upheld.
22
Id. at 1422-23. Moored was decided after orai argument in Niece
/I, and is cited in the panel’s per curiam opinion in Niece //.
It is obvious that the decision in Niece I] conflicts with the
Sixth Circuit’s own practice, as well as that of other federal
circuits.
In contrast to the majority of federal circuits and adding to
the confusion on this issue, the Fourth Circuit takes a more
restrictive view of proceedings following a remand for
resentencing. See United States v. Apple, 962 F.2d 335 (4th Cir.
1992); United States v. Bell, 5 F.3d 64 (4th Cir. 1993) (district
court cannot sua sponte vacate judgement in order to depart
downward).
The variety of procedures followed in sentencing
proceedings after a remand, have resulted in a lack of uniformity
for a minority of the circuits and has created uncertainty in the
sentencing calculus. While the majority of circuits treat a
resentencing after a vacated sentence as de novo, the Sixth Circuit
in particular, seems inconsistent and out of step in its handling of
the issue.
CONCLUSION
The relationship among the sentencing statutes and
guidelines, the sentencing power of the district courts, and the
instructions from appellate decisions remanding for
resentencing, has not been addressed by this court. With the
continued amendments to the Sentencing Guidelines, the
growing number of sentencing proceedings conducted after
remands, and the developing case law, the question of the proper
interplay between appellate court mandates, the Sentencing
Guidelines, and 18 U.S.C. § 3553(a)(4) is ripe for review.
ee
23
In this case, Wilford H. Niece has never been sentenced
under the correct guidelines. He is petitioning this court, to rule
that the sentencing laws must be uniformly applied across the
land, in order to insure that the sentencing system has any
credibility and constitutional validity.
THEREFORE, the petitioner prays that this court accept his
Petition for Certiorari to ultimately reverse the opinion of the
Sixth Circuit Court of Appeals, remanding with instructions that
Wilford H. Niece be afforded a correct sentence under the Federal
Sentencing Guidelines in effect on the date of his resentencing.
Respectfully submitted,
BENNETTE. BAYER
Counsel of Record
EMERSON & BAYER
Attorneys for Petitioner
301 East Main Street
Suite 1100
Lexington, Kentucky 40507
(606) 254-3805
la
APPENDIX A — ORDER DENYING REHEARING OF
THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCU!T FILED JANUARY 19,1995
UNITED STATES COURT OFAPPEALS
FOR THE SIXTH CIRCUIT
No. 93-6636
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILFORD HENRY NIECE,
Defendant-Appellant.
ORDER
BEFORE: GUY and BATCHELDER, Circuit Judges; and
McKEAGUE, ’ District Judge.
The court having received a petition for rehearing en banc,
and the petition having been circulated not only to the original
panel members but also to all other active judges of this court, and
no judge of this court having requested a vote on the suggestion
for rehearing en banc, the petition for rehearing has been referred
to the original hearing panel.
The panel has further reviewed the petition for rehearing and
* Hon. David W. McKeague, United States District Judge for the Western
District of Michigan, sitting by designation
2a
Appendix A
concludes that the issues raised in the petition were fully
considered upon the original submission and decision of the case.
Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
s/ Leonard Green
Leonard Green, Clerk se
3a
APPENDIX B — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED
DECEMBER 7, 1994
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 93-6636
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILFORD HENRY NIECE,
Defendant-Appellant.
On Appeal from the United States District Court for the
Eastern District of Kentucky
Before: GUY and BATCHELDER, Circuit Judges; and
McKEAGUE, District Judge.*
PER CURIAM. This is the second appeal in this case. In the
first appeal, this Court affirmed defendant Wilford Henry Niece’s
conviction for having transported a minor in interstate commerce
for illicit sexual purposes, in violation of 18 U.S.C. § 2423.
United States v. Niece, 9 F.3d 110 (table), No. 93-5011, slip op.,
1993 WL 424960 (6th Cir. 1993) (per curiam). Because we found
that one of five assignments of error was meritorious, however,
* Honorable David W. McKeague, United States District Court for the
Western District of Michigan, sitting by designation.
4a
Appendix B
we vacated the sentence and remanded for resentencing.
Defendant-Appellant now contends the district court erred on
resentencing by refusing to apply the sentencing guidelines then
in effect, as required by 18 U.S.C. § 3553(a)(4). For the reasons
that follow, we affirm the sentence of the district court.
The threshold and, indeed, dispositive question concerns the
meaning and effect of this Court’s order vacating and remanding.
When the district court originally sentenced defendant on
December 22, 1992, it applied the version of the guidelines that
became effective on November 1, 1990, instead of the 1992
revised version, to avoid violating tie ex post facto clause of the
Constitution. Miller v. Florida, 482 U.S. 423, 431 (1987); United
States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir. 1993).
Defendant did not object to this determination at the time and he
was deemed to have waived his right to raise the objection for the
first time on appeal. Niece, supra, slip op. at 14. We also found no
error in the district court’s decision to increase the offense level
based on “victim vulnerability” under U.S.S.G. § 3A1.1. /d. at
18-19,
We concluded the district court had erred, however, when it
increased the offense level by four levels based on “economic
coercion” under U.S.S.G. § 2G1.2. Specifically, we stated:
Without the four-level increase under
§ 2G1.2, Mr. Niece’s offense level would
have been 22. The guideline range for this
level, in the case of a person in Criminal
History Category I, is imprisonment for 41-
51 months. Mr. Niece having been sentenced
to a term of 72 months, it appears that his
sentence was at least 21 months too high.
Sa
Appendix B
Id. at 18. It was on this basis alone that we vacated the sentence.
We refrained from addressing appellant’s challenge to the fine
imposed as unnecessary:
In view of the fact that a resentencing is
required in any event, we need not address
this claim. We shall vacate the sentence in its
entirety, including the fine, and give the
district court an opportunity to revisit the
question of a fine under the newly-set offense
level.
Id. at 20.
On resentencing, the district court construed our mandate
narrowly, as essentiaHy requiring resentencing within the
guideline range of 41 to 51 months, as dictated by an offense level
of 22 and criminal history category of I, pursuant to the 1990
version of the guidelines. The district court further understood
that it was required, given the established offense level of 22, to
make formal fact findings regarding defendant’s ability to pay
before imposing an appropriate fine. The district court
understood that all other aspects of the Original sentencing had
been affirmed and considered it unnecessary and inappropriate to
revisit any other aspects. The district court thus denied
defendant’s request to apply the 1993 version of the guidelines.
Appellant contends the district court’s application of incorrect
guidelines is reviewable error per se.
Under 18 U.S.C. § 3553(a)(4), a sentencing court is
generally required to apply the sentencing guidelines in effect at
the time of sentencing. See also U.S.S.G. § 1B1.11(a); United
States v. Clemons, 999 F.2d 154, 158 (6th Cir. 1993). This rule has
6a
Appendix B
generally been held to apply on resentencing as well. See United
States v. Fagan, 996 F.2d 1009, 1018 (9th Cir. 1993) (collecting
cases). As the district court held at the original sentencing, and we
affirmed, an exception to this rule is recognized where
amendments to the guidelines made after commission of a crime
would result in punishment more severe than that provided for at
the time the crime was committed. Another exception is
recognized where the resentencing court’s authority is explicitly
limited by the appellate court’s mandate. The “mandate rule”
requires lower courts to adhere to the commands of a superior
court. United States v. Moored, __ F.3d __, No. 93-2230, slip. op.
at 4-5, 1994 WL 592105 (6th Cir. Nov. 9, 1994). “The trial court
must implement both the letter and the spirit of the mandate,
taking into account the appellate court’s opinion and the
circumstances it embraces.” /d., p.5, quoting United States v.
Kikumura, 947 F.2d 72, 76 (3rd Cir. 1991).
Thus, although many circuits have held that an order
vacating a sentence and remanding for resentencing authorizes
fully de novo resentencing, see Moored, collecting cases at p. 6,
the appellate court may limit such authority by specific
instruction. See e.g., United States v. Pimentel, 34 F.3d 799, 800
(9th Cir. 1994); United States v. Badaracco, 954 F.2d 928, 943-44
(3rd Cir. 1992).
Here, the mandate returned to the district court is admittedly
ambiguous. It contains language explicitly upholding portions of
the sentence, language vacating it in its entirety, and specific
instruction, impliedly based on the 1990 version of the
guidelines, concerning the appropriate offense level and
guideline range to be employed and fact findings to be made.
After careful review of this Court’s earlier ruling, we
ii a i
Ta
Appendix B
conclude that the district court’s construction of it is reasonable
and proper. Although the remand order does not expressly direct
the district court to apply the 1990 version of the guidelines, it
contains implied limitation to this effect. Cf. United States v.
Caterino, 29 F.3d 1390, 1394-95 (9th Cir. 1994). In viewing its
resentencing authority to have been narrowly circumscribed, the
district court conscientiously considered the circumstances
embraced by the opinion and appropriately implemented the
letter and the spirit of the mandate. We find no error in the
decision to apply the 1990 version of the guidelines under the
circumstances of this case.
Accordingly, the judgment of sentence is AFFIRMED.
8a
A’PENDIX C — MODIFIED JUDGMENT OF THE
UNITED STATES DISTRICT COURT, EASTERN
DISTRICT OF KENTUCKY, PIKEVILLE FILED
DECEMBER 9, 1993
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
PIKEVILLE
CRIMINALACTION NO. 92-22-1
UNITED STATES OF AMERICA,
PLAINTIFF,
VS:
WILFORD HENRY NIECE,
DEFENDANT.
MODIFIED
JUDGMENT
Pursuant to the United States Sixth Circuit Court of Appeals’
Mandate issued November 10, 1993, remanding the matter for re-
sentencing, proceedings were held on December 7, 1993, with
Assistant United States Attorney, David P. Grise, being present on
behalf of the United States. The defendant was present, in
custody, with his attorneys, Bennett Bayer and L.M. Michael
Caudill. The proceedings were recorded by Court Reporter,
Margaret Varney. Accordingly, it is
ORDERED AND ADJUDGED that on Page 2 of the
judgment of December 22, 1992, same being Imprisonment be,
and hereby is, MODIFIED as follows:
a a
9a
Appendix C
IMPRISONMENT: FIFTY-ONE (51) MONTHS
IT IS FURTHER ORDERED that on Page 4 of the
judgment of December 22, 1992, same being Fine be, and hereby
is, MODIFIED as follows:
FINE: SIXTY THOUSAND ($60,000.00) DOLLARS
Said fine to be paid in installments of $15,000.00 per year. The
first payment shall be due and Owing One-year from the date of
this date. Payments shall be paid under the provisions of the
Bureau of Prisons Inmate Financial Responsibility Program
during the period of incarceration. Upon release, payments shall
be paid in installments until paid in full. Payments should be
made to the U.S. District Clerk, P.O. Box 3074, Lexington,
Kentucky 40596 and please include your case number.
IT IS FURTHER ORDERED that on Page S of the above
said judgment, same being Statement of Reasons be, and hereby
is, MODIFIED as follows:
STATEMENT OF REASONS:
Total Offense Level: 22
Imprisonment Range: 4] to 51 months
Fine Range: $7,500. to $75,000.
IT IS FURTHER ORDERED that all other aspects of said
judgment remain unchanged.
This the 9th day of December, 1993.
i
10a
Appendix C
s/ Joseph M. Hood
JOSEPH M. HOOD, JUDGE
UNITED STATES DISTRICT COURT
Date of Entry and Service: DEC 09 1993
lla
APPENDIX D — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED OCTOBER 19, 1993
No. 93-5011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILFORD H. NIECE,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF KENTUCKY
Decided and Filed
BEFORE: MILBURN and NELSON, Circuit Judges, and
GILMORE, Senior District Judge.*
PER CURIAM. A jury found the appellant in this case
guilty of having violated 18 U.S.C. §2423, a statute that prohibits
the transportation of minors in interstate commerce for illicit
sexual purposes. Pointing to alleged evidentiary errors at trial and
alleged mistakes in the application of the sentencing guidelines,
* The Honorable Horace W. Gilmore, Senior United States District Judge for
the Eastern District of Michigan, sitting by designation.
12a
Appendix D
the appellant challenges both his conviction and his sentence. We
shall affirm the conviction. Concluding that the appellant’s
offense level was miscalculated, however, we shall remand the
case for resentencing.
A two-count indictment was returned against the appellant,
Wilford H. Niece, in May of 1992. The first count charged that
between May 26 and July 25, 1991, Niece violated 18 U.S.C.
§2423 by transporting a 14-year-old girl from Kentucky to
Virginia with the intent that she engage in sexual activity in
violation of §18.2-63 of the Virginia Code.’ The second count
charged him with having violated 18 U.S.C. §924(c) by carrying
or using a handgun during and in relation to a crime of violence
(i.e., the crime charged in the first count). Mr. Niece pleaded not
guilty to both charges.
When the case was submitted to the jury following trial, Mr.
Niece was convicted on the first count and acquitted on the
second. Applying the version of the United States Sentencing
Guidelines that became effective on November 1, 1990, the
1. Section 18.2-63 makes it a crime for any person to “carnally know{],
without the use of force, achild 13 years of age or older but under 15 years of age.” 18
U.S.C. §2423 reads as follows:
“Whoever knowingly transports any individual under
the age of 18 years in interstate of foreign commerce,
or in any Territory or Possession of the United States,
with intent that such individual engage in prostitution,
or in any sexual activity for which any person can be
charged with a criminal offense, shall be fined under
this title or imprisoned not more than t>n years, or
both.”
13a
Appendix D
district court sentenced him to imprisonment for six vears and
imposed a fine of $75,000.
II
A
Both defendant Niece and his young victim lived in Letcher
County, Kentucky, which borders on the Commonwealth of
Virginia. Mr. Niece was a half-owner of the “Poverty House”
restaurant, located in Wise County, Virginia, a few miles over the
border. He and his family and the girl and her family attended a
church situated on the state line.
The families became acquainted through their church
activities, and Niece’s stepdaughter befriended the victim and her
sister. Beginning in 1990, the two girls (then 14 and 15 years old
respectively) were routinely invited to visit the Niece home on
Sundays after church. It seems to have been an attractive place;
Mr. Niece, who had business interests that included coal mining
and trucking, owned a large house witha swimming pool, a tennis
court, an exercise room, a collection of antique cars, and a stable
of riding horses.
The victim testified at trial thaton November 4, 1990, during
one of her Sunday visits, she began a sexual relationship with Mr.
Niece. (Mr. Niece was then about 50 years old.) The following
summer, while the victim was out of school for vacation, she and
Mr. Niece began meeting twice a week. Niece would pick her up
in a pickup truck and drive her across the state line to the Poverty
House. There, in an apartment attached to the restaurant, they
would engage in sexual intercourse.
l4a
Appendix D
As far as the period covered by the indictment is concerned,
it is clear that the relationship was consensual in nature. It was
generally the girl who called Mr. Niece to arrange their meetings,
and she knew the purpose of the Poverty House visits in advance.
She did not resist going there. She testified further that Niece said
he loved her and promised to give her a house and a Mercedes
automobile when she turned 18.
There was evidence that Mr. Niece carried a pistol in the cab
of his pickup truck. The prosecution did not contend that the
victim was threatened with the weapon, but Niece did once tell
her, according to her testimony, that the gun was to “take care of
... bigmouthed women.”
The victim’s mother learned of the trysts in mid-July of
1991. The trips to Virginia ended at that point, and the FBI was
informed of the case. There is evidence that when Niece learned
that the FBI had been called, he asked his stepdaughter and
another friend of hers not to cooperate with the authorities. He
told the stepdaughter that he would be angry if she got him in
trouble, but that if she did not cooperate with the FBI she could
“have anything [she] wanted.” He asked the friend not to tell the
grand jury what she had told the FBI. If she helped him, Niece
told her, “then maybe later on down the road I can help you or I
can do a favor for you.”
At trial the government introduced tape recordings of
telephone conversations between Mr. Niece and the victim. In
these recordings, made by the victim in 1992, Niece appeared to
acknowledge the sexual misconduct and implored the girl not to
cooperate with the FBI investigation.
1Sa
Appendix D
B
The United States gave notice prior to trial that it intended to
offer “other bad act” evidence under Federal Rule of Evidence
404(b).? Mr. Niece moved that such evidence be suppressed.
After in camera consideration of the proposed evidence, the trial
court denied the motion: “The alleged prior bad acts are relevant
as to the defendant’s modus operandi,” the court wrote, “and the
probative weight of such evidence would outwei gh the
prejudicial effect to the defendant.”
At trial, over a renewed objection by Mr. Niece, the
government called as witnesses the victim’s sister and a young
female to whom we shall refer as “L.A.” The latter testified that
when she was “anywhere from 15 to 17” years old, the defendant
told her that “he had heard that [she] was good in bed” and offered
to pay her $500 if she would meet him at a motel in Virginia. The
victim’s sister testified that Niece made explicit sexual advances
toward her when she was fifteen years old, inviting her to have
sex with him at the Poverty House and elsewhere. The sister
testified that Niece offered in return to let her drive his Corvette
whenever she wanted to, once she had her driver’s license.
2. Fed. R. Evid. 404(b) provides as follows: “Evidence of other crimes,
wrongs, Or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.” The prosecution
provided the appropriate pretrial notice here.
l6a
Appendix D
At the time the sister’s testimony was given, the trial judge
admonished the jury as follows:
“You may not consider this evidence to
prove the defendant did the acts he is on trial
for now. You may consider the other acts only
for determination that they occurred for
proof of intent or plan on his part and no other
reason.
Remember, the defendant is on trial here
for the acts charged in the indictment, not for
these other acts. Do not convict him if the
government has failed to prove these charges
beyond a reasonable doubt.”
The court gave no similar admonition in connection with
L.A.’s testimony. In its instructions to the jury at the close of the
trial, however, the court gave this charge:
“You’ve heard testimony that the
defendant’s committed some acts other than
the ones charged in the indictment. You
cannot consider this testimony as evidence
that the defendant committed the crimes that
he is on trial for now. Instead, you can only
consider it in deciding whether the defendant
had the intent to commit the charge in Count 1
(the §2423 charge). Do not consider it for any
other purpose. Remember that the defendant
is here on trial only for transporting [the
victim] across the state line for the purpose of
illegal sexual conduct and for using or
17a
Appendix D
Carrying a firearm in relation to that crime,
not for the other acts. Do not return a guilty
verdict unless the government proves the
crimes charged beyond a reasonable doubt.”
Following his conviction on the charge of having violated
§2423, Mr. Niece was sentenced under the version of the
sentencing guidelines that became effective on November 1,
1990. The court determined that use of a later edition would result
in a sentence greater than that allowable at the time of the offense,
in violation of the Constitution’s ex post facto clause. U.S. Const.
Art. I, §9.
Applying §2G1.2 of the guidelines, the court fixed Niece’s
base offense level at 16. The court then added two levels under
U.S.S.G. §2G1.2(b)(3) because the victim was twelve to fifteen
years old. An additional increase of four levels was imposed
under §2G1.2(b)(1), the court having determined the offense
involved the use of “economic coercion.” Two further increases
of two levels each were imposed, one under §3A1.1 (based on a
finding that the victim was unusually vulnerable because of
Niece’s “father figure” relationship to her), and the other under
§3C1.1 (based on findings that Niece committed perjury during
the trial and attempted to influence two prosecution witnesses in
advance of trial). The total offense level thus came to 26. Mr.
Niece had no prior criminal history of any significance, and the
absence of such a history resulted in his being placed in Criminal
History Category I.
The sentence range prescribed by the guidelines for these
variables was imprisonment for a period of 63-78 months. The
court imposed a sentence of 72 months and a fine of $75,000.
18a
Appendix D
Ill
A
Mr. Niece contends first that the “other act” evidence
presented through the testimony of L.A. and the victim’s sister
was inadmissible under Fed. R. Evid. 404(b). Because this
evidence was relevant to the issue of the defendant’s intent,
however, and because the trial court was entitled to conclude that
the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice, see Fed. R. Evid.
403, we find no reversible error.
Under the principle embodied in Rule 404(b), as Justice
Jackson explained in Michelson v. United States, 335 U.S. 469,
475-76 (1948).
“The state may not show the defendant’s prior
trouble with the law, specific criminal acts, or
ill name among his neighbors, even though
facts might logically be persuasive that he is
by propensity a probable perpetrator of the
crime. The inquiry is not rejected because
character is irrelevant; on the contrary, it is
said to weigh too much with the jury and to so
overpersuade them as to prejudge one witha
bad general record and deny him a fair
opportunity to defend against a particular
charge.”
Rule 404(b) is primarily a rule of inclusion, however, rather
than a rule of exclusion; by its terms, evidence of other acts “may
... be admissible for other purposes, such as proof of motive,
19a
Appendix D
Opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Evidence admitted for such
purposes is not admitted to show the defendant’s character.
Before admitting “other act” evidence under Rule 404(b),
the court must undertake a two-step analysis. First, it must
determine whether the evidence is admissible for a proper
purpose. United States v. Feinman, 930 F.2d 495, 499 (6th Cir.
1991). “The evidence must relate to a matter which is in issue and
must deal with conduct substantially similar and reasonably near
in time to the offenses for which the defendant is being tried.” /d.
The proffered evidence meets the test of admissibility for a
proper purpose if the “evidence is probative of a material issue
other than character.” Jd. (quoting Huddleston v. United States,
485 U.S. 681, 686 (1988)).
The second step of the analysis requires the court to balance
the probative weight of the evidence against the dangers referred
to in Fed. R. Evid. 403. Rule 403 provides as follows: “Although
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” If the unfairly prejudicial
effect of the “other act” evidence predominates over its probative
value, then the trial court must reject it. United States v.
Rodriguez 882 F.2d 1059, 1064 (6th Cir. 1989), cert. denied, 493
U.S. 1084 (1990). We review the district court’s rulings on such
questions under an abuse of discretion standard. United States v.
Blakeney, 942 F.2d 1001 (6th Cir. 1991), cert. denied, 112 S. Ct.
881 (1992).
Mr. Niece argues that the “other act” evidence presented
20a
Appendix D
through the testimony of L.A. and the victim’s sister was not
admissible for a proper purpose. Focusing on the pretrial order
denying the motion to suppress the girls’ testimony, he points to
the fact that the order said the evidence was admissible to prove
Niece’s “modus operandi.” A prosecutor is only allowed to
introduce modus operandi evidence, Mr. Niece argues, to
identify the accused as the perpetrator of a crime; by showing a
similar pattern, the prosecutor attempts to show that the same
person was involved in each instance. Identity was not at issue
here, of course, so Mr. Niece says that modus operandi evidence
was inadmissible. See United States v. Fountain, 1993 U.S. App.
LEXIS 20219 at *33-34 (6th Cir. Aug. 9, 1993) (holding “modus
operandi” evidence inadmissible where identity not at issue).
The problem with this argument is that the instructions given
to the jury did not deal with modus operandi. The jury was
repeatedly instructed that the evidence was to be considered only
in connection with the question of plan or intent. As far as the jury
was concerned, the testimony of the two girls was admitted only
as proof that Niece intended or planned to take the victim to
Virginia for the purpose of committing illegal sexual acts with her
there.
18 U.S.C. §2423 is a specific intent offense. The prosecution
had the burden of proving beyond a reasonable doubt that when
Niece crossed the state line with the victim in his truck, he did so
intending that she engage in proscribed sexual activity with him
on the other side of the line. See United States v. Vik, 655 F.2d
878, 881-82 (8th Cir. 1981). Where specific intent is a necessary
element of the crime charged, a general plea of not guilty places
intent at issue and makes intent a “proper purpose” for which
extrinsic act evidence can be offered. United States v. French,
974 F.2d 687, 695 (6th Cir. 1992), cert. denied, 113 S. Ct. 1012
2la
Appendix D
(1993); United States v. Hamilton, 684 F.2d 380, 384 (6th Cir.),
cert. denied, 459 U.S. 976 (1982); United States v. Smith, 995
F.2d 662, 672 (7th Cir. 1993).
The prior acts recounted by the two girls here were
sufficiently similar in nature and near in time to the alleged
criminal conduct to be admissible under Rule 404(b). “[W]here
evidence of prior bad acts is admitted for the purpose of showing
intent, the prior acts need not duplicate exactly the instant charge,
but need only be sufficiently analogous to support an inference of
criminal intent.” United States v. Benton, 852 F.2d 1456, 1468
(6th Cir.), cert. denied, 488 U.S. 993 (1988). Both L.A. and the
victim’s sister described instances where Niece had proposed
having sexual intercourse in the Commonwealth of Virginia with
minor females who were friends of his family. Like the conduct
covered by the indictment, the sexual favors allegedly solicited
from the witnesses would have violated Virginia law. The
incidents described by the two girls tended to prove that Mr.
Niece’s conduct with the victim was not simply fortuitous — that
when he transported her into Virginia, he did so with the intent
that she go to bed with him there. See Uniied States v. Drury, 582
F.2d 1181, 1184-85 (8th Cir. 1978) (“in order to establish the
intent required for a [violation of the] Mann Act [a statute
identical to §2423 except for the age requirement], the
prosecution may admit into evidence testimony that the
defendant had solicited girls on prior occasions”). Cf. United
States v. Jarrett, 956 F.2d 864, 867 (8th Cir. 1992) (same).
The trial court did not abuse its discretion in determining that
the danger of unfair prejudice or confusion did not substantially
outweigh the probative value of the extrinsic act evidence. As the
Supreme Court has recognized, “[e]xtrinsic acts evidence may be
Critical to the establishment of the truth as to a disputed issue,
22a
Appendix D
especially when that issue involves the actor’s state of mind and
the only means of ascertaining that mental state is by drawing
inferences from conduct.” Huddleston v. United States, 485 U.S.
681, 685 (1988). Such was the case here. We recognize that
evidence of other instances of illegal sexual conduct may have a
greater potential for prejudice that “other acts” evidence of a less
repugnant nature, see 2 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Evidence {404[18] (1992), but the balance struck by
the district court in this case did not represent an abuse of
discretion and the cautionary instructions given the jury tended to
minimize the risk of unfair prejudice. After considering the
record of the trial as a whole, we are not persuaded that the
admission of the “other acts” evidence entitles Mr. Niece to a new
trial.
B
Mr. Niece contends next that the trial court erred in applying
Fed. R. Evid. 412, the federal rape shield rule, to prevent
interrogation of the victim about her prior sexual history. Again
we are not persuaded; we do not think the trial court was required
to let the jury hear the testimony which Mr. Niece wanted to elicit.
Niece sought to show that the victim was not a virgin when
he began his relationship with her. He contended that such
evidence would have a bearing on her credibility, because she had
“stated at least on 2 or 3 other occasions [outside the courtroom]
... that she had never had sex with anyone other than Mr. Niece.”
Niece wanted to impeach the girl’s credibility by showing that
she had not been truthful in her alleged extrajudicial statements.
The trial court sustained the prosecution’s objection on the basis
of Fed. R. Evid. 412.
23a
Appendix D
The text of Rule 412(b), the subsection at issue here, begins
as follows:
“Notwithstanding any other provision of law,
in a criminal case in which a person is
accused of any offense under chapter 109A of
title, 18, United States Code, evidence of a
victim’s past sexual behavior other than
reputation or opinion evidence is also not
admissible. . . .” (Emphasis added.)
Before an amendment that became effective in 1988, the
italicized passage had read “in a criminal case in which a person
is accused of rape or of assault with intent to commit rape.”
By its plain and unambiguous language, Rule 412 now
applies only to prosecutions brought under Chapter 109A of Title
18. The crimes with which Niece was charged are not covered by
that chapter. The section he was found to have violated, 18 U.S.C.
§2423, is part of Chapter 117. The section he was found not to
have violated, 18 U.S.C. §924(c), is codified in Chapter 44.
Regardless of the applicability of Rule 412, however, the
trial court clearly had discretion to exclude the evidence which
Mr. Niece was trying to place before the jury. The victim said
nothing about her sexual history during direct examination.
Niece’s strategy was to ask her on cross-examination whether she
had lost her virginity before Niece came along, elicit a denial, and
then adduce extrinsic evidence to impeach her denial. The trial
court took a dim view of this strategy:
“She might have had sex with 3 or 4 people.
That may well be. But it is simply not relevant
here.”
24a
Appendix D
Although litigants are entitled to introduce extrinsic
evidence to contradict a witness’ testimony on matters that are
material to the merits of a case, they have no right to do so with
respect to collateral or irrelevant matters. Jones v. Southern
Pacific R.R., 962 F.2d 447, 450 (Sth Cir. 1992). Interjection of
such matters may confuse the jury, and if the collateral matters
reflect adversely on the morals of the witness, the jury may be
prejudiced against the witness’ side. 3 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Evidence §607[05] (1992). In
light of the “significant discretion left to the trial court” in
determining the proper scope of impeachment evidence on
collateral matters, we cannot say that the court abused its
discretion in excluding evidence of the victim’s sexual history.
See United States v. Markarian, 967 F.2d 1098, 1103 (6th Cir.
1992), cert. denied, 113 S. Ct. 1344 (1993).
IV
The sentence imposed by the district court is challenged here
on the following grounds: (1) that the district court erred in
applying the 1990 edition of the sentencing guidelines rather than
the version in effect at the time of trial; (2) that the court violated
Niece’s Fifth Amendment rights by treating the imposition of a
prison term as mandatory; (3) that it was improper to increase the
offense level on the basis of “economic coercion;” (4) that the
“vulnerable victim” increase was improper; and (5) that the fine
was imposed improperly.
A
As the government correctly observes, Mr. Niece waived
any argument against the application of the 1990 version of the
sentencing guidelines by failing to make a timely objection to the
25a
Appendix D
use of that version. A presentence report furnished to Mr. Niece
prior to sentencing stated clearly that the 1990 guidelines were to
be applied to avoid possible ex post facto problems. (Under
Miller v. Florida, 482 U.S. 423 (1987), guideline amendments
that have taken effect after the commission of a crime may not be
applied to increase the punishment beyond that provided for at
the time the crime was committed. Subject to that exception, a
court is required to apply the version of the guidelines in effect at
the time of trial. 18 U.S.C. §3553(a)(4).)
Mr. Niece filed six pages of written objections to the report,
but these objections did not extend to use of the 1990 guidelines.
At the sentencing hearing, the judge specifically referred to the
1990 guidelines:
THE COURT: ... The base offense level in
this matter is a level 16 as set forth in the
November 1, 1990 edition of the Sentencing
Guidelines.
There’s no problem with that base offense
level, is there?
MR. GRISE [AUSA]: No. Judge.
MR. BAYER [Defendant’s counsel]: I think
that’s probably appropriate to begin with,
Judge.”
No objection to using the 1990 guidelines was made at any point
in the sentencing hearing. On appeal, however, Mr. Niece
contends for the first time that the 1992 guidelines would have
yielded a lower sentence than the one he received under the 1990
version.
26a
Appendix D
Except where plain error has occurred, it is the general
practice of this court not to consider on appeal issues not raised
before the trial court. United States v. Pickett, 941 F.2d 411,415
(6th Cir. 1991); United States v. Chalkias, 971 F.2d 1206, 1212
(6th Cir.), cert. denied, 113 S. Ct. 351 (1992). Plain error includes
only such errors as “seriously affect the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Young, 470 U.S. 1, 15 (1985). The circumstances of this case are
not such as to trigger the plain error exception.
B
Mr. Niece argues that his Fifth Amendment due process
rights were violated by an application of the sentencing
guidelines that made a prison term mandatory. 18 U.S.C. §2423
provides that a violator is to be “fined under this title or
imprisoned not more than ten years, or both,” and the indictment
reiterated that Mr. Niece was subject to either ten years’
imprisonment, a fine, or both. Mr. Niece says that he was
deprived of his liberty without due process because the
indictment failed to give him notice that conviction would result
in mandatory imprisonment under the guidelines.
Mr. Niece has cited no case, and we know of none, holding
that an indictment must specify the maximum and minimum
penalties to which the accused would be subject upon conviction.
All that is required is that an indictment “first, contains the
elements of the offense charged and fairly informs a defendant of
the charge against which he must defend, and, second, enables
him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United States, 418
U.S. 87, 117 (1974). These requirements were met here.
27a
Appendix D
Rule 7 of the Federal Rules of Criminal Procedure, which
governs indictments, does not require that a penalty be specified.
Mr. Niece was nonetheless informed by the indictment that he
might be imprisoned for up to ten years and fined up to $250,000.
This information was accurate, and we see no constitutional
infirmity in the sentence imposed.
C
Mr. Niece contends next that it was error for the district court
to impose a four-level increase in the offense level under
U.S.S.G. §2G1.2. Section 2G1.2 reads as follows: “If the offense
involved the use of physical force, or coercion by threats or drugs
or in any manner, increase by four levels.”
The theory under which the court found this increase proper
was that Niece had used “economic coercion” against his victim
when he promised to buy her a car and otherwise provide for her
materially after she turned eighteen. The court stated that Niece’s
promises “had an impact on the voluntariness of her conduct”
warranting the increase.
Nicce argues that “economic coercion” of the type discerned
by the trial court does not fall within the scope of §2G1.2. He
points to abundant evidence that the victim’s conduct was not
involuntary, as well as the absence of any evidence that he used
physical threats or force against her. He notes that the supposed
“economic coercion” did not subvert the victim’s ability to say
“yes” or “no,” and he observes that the promises in question were
not made until after the course of illegal conduct had commenced,
and thus were not instrumental in gaining the victim’s consent
thereto.
28a
Appendix D
The official commentary on §2G1.2 lends considerable
weight to Mr. Niece’s argument. What the commentary says is
this:
“ Coercion,’ as used in this guideline,
includes any form of conduct that negates the
voluntariness of the behavior of the person
transported. This factor would apply, for
example, where the ability of the person
being transported to appraise or control
conduct was substantially impaired by drugs
or alcohol.”
The nature of “coercion,” as recognized by the commentary,
is that it deprives an individual of the ability to make choices with
reasonable freedom. This is the meaning of “negat[ing] the
voluntariness” of behavior. The coercer, in essence, leaves the
coerced with but one choice. He does this by threatening an
imminent loss of some kind (as by physical threats), or by use of
substances (alcohol or drugs) that impair the normal psycho-
physical processes of reasoning. Neither drugs nor alcohol
played any role here, and the trial court found — correctly, no
doubt — that Mr. Niece employed no threat of physical force
against the victim.
Mr. Niece did not give the victim to understand that she
would be worse off if she refused him; he promised to make her
better off. Such promises do not foreclose the possibility of
choice, at least in the case of someone as old as fourteen. We are
satisfied that the promises did not deprive the victim of the ability
“to appraise or control” her conduct. There appears to be no
caselaw supporting the conclusion that §2G1.2(b)(1) extends to
promises of future bounty, and based on the age of the victim and
29a
Appendix D
the context and everyday meaning of the terms involved, we hold
that §2G1.2 should not have been invoked here.
Without the four-level increase under §2G1.2, Mr. Niece’s
offense level would have been 22. The guideline range for this
level, in the case of a person in Criminal History Category I, is
imprisonment for 41-51 months. Mr. Niece having been
sentenced to a term of 72 months, it appears that his sentence was
at lease 21 months too high.
D
Mr. Niece contends next that the district court should not
have increased the offense level under §3A1.1. Section 3A1.1
says this “If the defendant knew or should have known that a
victim of the offense was unusually vulnerable due to age,
physical or mental condition, or that a victim was otherwise
particularly susceptible to the criminal conduct, increase by 2
levels.” The district court did not invoke the victim’s age, which
had already been accounted for in the two-level increase under
§2G1.2(b)(3). The court relied, rather, on what it described as the
defendant’s “father figure” relationship to the victim.
Numerous cases confirm that the vulnerability upon which a
§3A1.1 enhancement is predicated need not be restricted to the
specifically enumerated factors of age or physical or mental
condition. In United States v. Salyer, 893 F.2d 113 (6th Cir. 1989),
this court approved a victim vulnerability enhancement based on
the race of the victims and the location of their residence. In
United States v. Chick, No. 90-2200, 1992 U.S. App. LEXIS 3350
(6th Cir., Feb. 14, 1992), we affirmed such an enhancement based
on a former marital relationship between the defendant and his
victim. In United States v. Williams, No. 91-1989, 1992 U.S. App.
30a
Appendix D
LEXIS 12109 (6th Cir., May 19, 1992), a case involving the
smuggling of illegal aliens, we upheld a vulnerability
enhancement based on “language barriers and cultural
limitations” experienced by the aliens and on their separation
from family members while in transit.
The caselaw teaches that the open-ended language of §3A1.1
can justify enhancement whenever the court is faced with a
victim who: (1) based on the totality of the circumstances, (2)
appears to possess traits that made him or her particularly
susceptible to being victimized, (3) by the kind of criminal
conduct that actually occurred, (4) where the traits in question
played a significant role in the individual’s being singled out for
victimization by the criminal perpetrator. A quasi-familial
“father figure-daughter” relationship does not fall outside the
range of relationships upon which a finding of victim
vulnerability can be predicated, given appropriate evidence and
factual findings.
In the case at bar the district court’s determination that the
victim was particularly susceptible was based on evidence that
Niece held himself out to the family as a kind of surrogate father
and that he was accepted as such by the victim and her sisters; that
in their eyes he occupied a position of trust; and that he enjoyed
unusual access to their company. The court’s finding of victim
vulnerability was not clearly erroneous.
E
Mr. Niece maintains, finally, that the court erred in imposing
a fine without making any formal findings under §5E1.2(d). In
view of the fact that a resentencing is required in any event, we
need not address this claim. We shall vacate the sentence in its
3la
Appendix D
entirety, including the fine, and give the district court an
opportunity to revisit the question of a fine under the newly-set
offense level.
We are confident that any imposition of a fine will be
handled in accordance with the requirements of §5E1.2. That
section requires a district court to consider several factors in
imposing a fine, but creates a presumption is favor of a fine
sufficient to have a punitive impact. In light of this presumption, a
court is to consider such issues as the defendant’s ability to pay,
the burden that a fine would place upon the defendant’s family,
and collateral consequences (such as civil liability) arising from
the criminal conduct. See generally United States v. Hopper, 941
F.2d 419, 423 (6th Cir. 1991).
The conviction is AFFIRMED, the sentence is VACATED,
and the case is REMANDED for resentencing.
A TRUE COPY
Attest:
LEONARD GREEN, Clerk
By s/ Diane Schneer
Deputy Clerk
ISSUED AS MANDATE: 11/10/93
COSTS: No Costs
32a
APPENDIX E —RELEVANT PORTIONS Or ORIGINAL
JUDGMENT OF UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF KENTUCKY - PIKEVILLE
FILED DECEMBER 22, 1992
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY - PIKEVILLE
Case Number: 92-22-1
UNITED STATES OF AMERICA
~
WILFORD HENRY NIECE
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)
Defendant’s Attorney: Bennett Bayer/Mike Caudill
THE DEFENDANT:
X was found guilty on count one (1) of indictment after a plea of
not guilty.
Accordingly, the defendant is adjudged guilty of such
count(s), which involve the following offenses:
Title & Section: 18 USC §2423
Nature of Offense: transported an individual minor in inter-
state commerce with intent that such minor individual engage in
sexual activity.
33a
Appendix E
Date Offense Concluded: 7/25/9]
Count Number(s): /
The defendant is sentenced as provided in pages 2 through 5
of this judgment. The sentence is imposed pursuant to the
Sentencing Reform Act of 1984.
X The defendant has been found not guilty on count two (2) of
indictment and is discharged as to such count(s).
X It is ordered that the defendant shall pay a special assessment
of $50.00 for Count one, which shall be due immediately.
IT IS FURTHER ORDERED that the defendant shall notify
the United States attorney for this district within 30 days of any
change of name, residence, or mailing address unti! all fines,
restitution, costs, and special assessments imposed by this
judgmentare fully paid.
Defendant’s Soc. Sec. No.: 06-58-6662
Defendant’s Date of Birth: /]-27-40
Defendant’s Mailing Address: HC 85, Box 2650
Whitesburg, Kentucky 41858
Date of Imposition of Sentence: December 21, 1992
Signature of Judicial Officer: s/Joseph M. Hood
Name & Title of Judicial Officer: JOSEPH M. HOOD, JUDGE
Date: December 22, 1992
34a
Appendix E
IMPRISONMENT
The defendant is hereby committed to the custody of the
United States Bureau of Prisons to be imprisoned for a term of
SEVENTY-TWO (72) MONTHS.
The court makes the following recommendations to the Bureau of
Prisons:
That the defendant be incarcerated at FCI at Manchester,
Kentucky. It is also recommended that the defendant receive
while incarcerated treatment for his unnatural affinity for young
women.
The defendant shall surrender for service of sentence at the
institution designated by the Bureau of Prisons: before 4:00 p.m.
on January 4, 1993.
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on
supervised release for aterm of THREE (3) YEARS.
While on supervised release, the defendant shall not commit
another federal, state, or local crime and shall not illegally
possess acontrolled substance. The defendant shall comply with
the standard conditions that have been adopted by this court (set
forth below). If this judgment imposes a restitution obligation, it
shall be a condition of supervised release that the defendant pay
any such restitution that remains unpaid at the commencement of
the term of supervised release. The defendant shall comply with
the following additional conditions:
35a
Appendix E
X The defendant shall not possess a firearm or destructive
device.
The defendant shall report in person to the probation
office in the district to which the defendant is released
within 24 hours of release from the custody of the Bureau
of Prisons.
The defendant shall not commit any local, state or federal
crimes.
The defendant shall continue his treatment for his
unnatural affinity for young women.
* * *
FINE
The defendant shall pay a fine of $75,000.00. The fine
includes any costs of incarceration and/or supervision.
* * *
This fine plus any interest required shall be paid: in full
immediately.
* * *
STATEMENT OF REASONS
The court adopts the factual findings and guideline
application in the presentence report except: The Court increases
the offense 4 levels for psychological coercion and increases the
offense 2 levels for vulnerable victim pursuant to 2G1.2(b)(1)
and 3A1.1 of the U.S.S.G.
36a
Appendix E
Guideline Range Determined by the Court:
Total Offense Level: 26
Criminal History Category: /
Imprisonment Range: 63 to 78 months
Supervised Release Range: 2 to 3 years
Fine Range: $12,500. to $125,000.
Fine is waived or is below the guideline range, because of the
defendant’s inability to pay.
Restitution: $none
X The sentence is within the guideline range, that range does
not exceed 24 months, and the court finds no reason to depart
from the sentence called for by application of the guidelines.
Certificate of Mailing w/Notice of Entry & Certification:
U.S. Attorney
U.S.Marshal 2certified and sealed
U.S. Probation
Thomas L. Rasnic
Bennet Bayer
Wilford Niece
37a
APPcNDIX F — RELEVANT STATUTORY TEXT
FEDERAL RULES OF CRIMINAL PROCEDURE
Rule 35. Correction or Reduction of Sentence
(a) Correction of a Sentence on Remand. The court shall
correct a sentence that is determined on appeal under 18 U.S.C.
3742 to have been imposed in violation of law, to have been
imposed as a result of an incorrect application of the sentencing
guidelines, or to be unreasonable, upon remand of the case to the
court —
(1) for imposition of a sentence in accord with the
findings of the court of appeals;
or
(2) for further sentencing proceedings if, after such
proceedings, the court determines that the original
sentence was incorrect.
UNITED STATES CODE
18 U.S.C. § 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 —
(4) the kinds of sentence and the sentencing range
established for the applicable category of offense committed by
the applicable category of defendant as set forth in the guidelines
38a
Appendix F
that are issued by the Sentencing Commission pursuant to 28
U.S.C. 994(a)(1) and that are in effect on the date the defendant is
sentenced;...
18 U.S.C. § 3742 Review of a Sentence
(e) Consideration. — Upon review of the record, the court
of appeals shall determine whether the sentence —
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of
the sentencing guidelines;
(3) is outside of the applicable guideline range, and is
unreasonable, having regard for —
(A) the factors to be considered in imposing
a sentence, as set forth in chapter 227 of this
title; and
(B) the reasons for the imposition of the
particular sentence, as stated by the district
court pursuant to the provisions of section
3553(c); or
(4) was imposed for an offense for which there is no
applicable sentencing guideline and is _ plainly
unreasonable.
The court of appeals shall give due regard to the opportunity of
the district court to judge the credibility of the witnesses, and
shall accept the findings of fact of the district court unless they
39a
Appendix F
are Clearly erroneous and shall give due deference to the district
court’s application of the guidelines to the facts.
(f) Decision and disposition. — If the court of appeals
determines that the sentence —
(1) was imposed in violation of law or
imposed as a result of an incorrect application
of the sentencing guidelines, the court shall
remand the case for further sentencing
proceedings with such instructions as the
court considers appropriate;
(2) is outside the applicable guideline range
and is unreasonable or was imposed for an
offense for which there is no applicable
sentencing guideline and is plainly
unreasonable, it shall state specific reasons
for its conclusions and —
(A) if it determines that the sentence
is too high and the appeal has been
filed under subsection (a), it shall set
aside the sentence and remand the case
for further sentencing proceedings
with such instructions as the court
considers appropriate;
(B) if it determines that the sentence
is too low and the appeal has been filed
under subsection (b), it shall set aside
the sentence and remand the case for
further sentencing proceedings with
40a
Appendix F
such instructions as the court
considers appropriate;
(3) is not described in paragraph (1) or (2), it
shall affirm the sentence.
UNITED STATES SENTENCING GUIDELINES
U.S.S.G. § 1B1.11. Use of Guidelines Manual in Effect on
Date of Sentencing (Policy Statement).
(a) The court shall use the Guidelines Manual in effect on
the date that the defendant is sentenced.
(b)(1) if the court determines that use of the
Guidelines Manual in effect on the
date that the defendant is sentenced
would violate the ex post facto clause
of the United States Constitution, the
court shall use the Guidelines Manual
in effect on the date that the offense of
conviction was committed.
(2) The Guidelines Manual in effect ona
particular date shall be applied in its
entirety. The court shall not apply, for
example, one guideline section from
one edition of the Guidelines Manual
and another guideline section from a
different edition of the Guidelines
manual. However, if a court applies
an earlier addition of the Guidelines
Manual, the court shall consider
(3)
4la
Appendix F
subsequent amendments, to the extent
that such amendments are clarifying
rather than substantive changes.
If the defendant is convicted of two
offenses, the first committed before,
and the second after, a revised edition
of the Guidelines Manual became
effective, the revised edition of the
Guidelines Manual is to be applied to
both offenses.
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.