Former
DA Paulus' sentence affirmed
By
David Ziemer
Wisconsin Law Journal
 |
Joseph
F. Paulus |
The
Seventh Circuit on Aug. 22 issued two decisions affirming sentences imposed shortly
after Blakely v. Washington struck down a state's sentencing guidelines, but before
U.S. v. Booker extended it to the federal guidelines, including the sentence of
former Winnebago County District Attorney Joseph F. Paulus.
Paulus
pleaded guilty to one count of using the mail and interstate facilities to promote
bribery and one count of filing a false tax return.
According
to the decision, from June 1998 to June 2000, Paulus abused his position by taking
bribes from a particular defense attorney. Paulus gave the attorney's clients
favorable treatment (without their knowledge) in exchange for half the legal fees
paid in each case.
In
all, Paulus accepted bribes relating to 22 cases: 16 in connection with drunk
driving and traffic violations, and six in connection with criminal cases, collecting
a total of $48,050 in bribe money.
Paulus
and the government entered a plea agreement agreeing that the appropriate guideline
range was 27-33 months, and that neither party would seek an upward or downward
departure. However, the agreement acknowledged that the court was not bound by
it.
U.S.
District Court Judge William C. Griesbach issued a notice of possible upward departure
for disruption of government function. Paulus made a timely objection based on
Blakely v. Washington, 542 U.S. 296 (2004), and the Seventh Circuit's decision
in U.S. v. Booker, 375 F.3d 508, aff'd, 125 S.Ct. 738 (2005), but the court ultimately
granted a departure and imposed a 58-month sentence.
Paulus
appealed, but the court of appeals affirmed in a decision by Judge Michael S.
Kanne.
The
court first held that the sentence did not violate the Ex Post Facto Clause, which
prohibits application of laws inflicting greater punishment than the law prescribed
when the crime was committed.
Finding
that the relevant question is "whether Paulus had fair warning at the time
he engaged in the bribery scheme that the court could sentence him to 58 months
for that conduct," the court concluded that he did.
The
court reasoned, "the district court painstakingly calculated the 58-month
sentence pursuant to the Guidelines, even as it noted that, should Blakely preclude
mandatory application of the Guidelines, the court 'would still be free to look
to them as guidance in fashioning a fair and just sentence[.]' The court's sentence
was based on provisions of the Guidelines authorizing upward departures for the
number of bribes accepted, the amount of money received, and a significant disruption
of a governmental function. Concerning the latter, under the mandatory guideline
regime, the court was allowed to take judicial notice of the fact that public
confidence in Wisconsin's justice system had been undermined. The facts underlying
the former two grounds for departure — 22 bribes in all, and $48,050 in total
bribe money — were admitted in Paulus's Factual Basis for Plea. This undercuts
Paulus's argument that Blakely capped his sentence at 33 months under the Guidelines,
but that argument fails for an even more obvious reason: decided in 2004, Blakely
is simply irrelevant to this due process analysis. As we have said, the question
of whether Paulus had 'fair notice' of the punishment his conduct would merit
must necessarily be focused on the state of sentencing law from 1998-2000, the
time Paulus's crimes were committed. At that time, the departure could have been
made based on judge-found facts under the preponderance of the evidence standard
(cites omitted)."
The court also rejected Paulus' argument that the facts
he admitted in pleading guilty were insufficient to support an enhancement, because
he "did not intend to admit any facts for purposes of sentence enhancement
under Blakely/ Booker."
| What
the court held Case:
U.S. v. Joseph F. Paulus, No. 04-3092 & U.S. v. Bryant, No. 04-2850. Issue:
Does it violate the ex post facto clause for the court to make judicial findings
and enhance a sentence, when the conduct occurred before the U.S. Supreme Court
decision in Blakely?
Does Booker require courts to make findings of fact at sentencing beyond a reasonable
doubt? Holding:
No. The sentence imposed could have been imposed under mandatory guidelines, and
the clause is therefore not implicated. No.
The preponderance of the evidence standard still applies at sentencing. |
The court
reasoned, "As Paulus no doubt knows from his extensive experience negotiating
plea agreements from the prosecution's side, such agreements are contractual in
nature. He may not have foreseen Booker, 'but that does not alter the effect of
the plea bargain.' Paulus admitted having taken 22 bribes and $48,050 for purposes
of a conviction and certain benefits from the government. He is stuck with the
consequences of admitting those facts for purposes of sentencing as well (cites
omitted)."
Finally,
the court rejected Paulus' argument that the sentence did not meet the Booker
standard because the district court sentenced him under pre-guideline law.
The
court found no error in the district court's methodology, stating, "We find
Paulus's argument to be misleading because the court clearly did not ignore the
Guidelines. As we have already recounted, it undertook the calculation of Paulus's
sentence under the Guidelines, and then explicitly stated that, where Blakely
precludes application of the Guidelines, they may nevertheless be considered as
'a guide, as opposed to a mandate[.]' Although Paulus's sentence was imposed prior
to the Supreme Court's Booker decision, the court anticipated Booker's framework
and took the Guidelines into account. The court did not cite [U.S. v. Croxford,
324 F.Supp.2d 1230 (D.Utah 2004)] as support for sentencing Paulus as it would
have in 1987, as Paulus claims, but rather for the proposition that even if 'the
court is not bound by the Guidelines, [it] may determine an appropriate sentence
considering the sentencing factors set forth in 18 U.S.C. 3553(a) based on the
credible evidence before it.'"
The
court also found that, even if there was error in the methodology, the error was
harmless, because the district court indicated it would impose the same 58 month
sentence regardless of whether the guidelines are mandatory or advisory.
Accordingly,
the court affirmed.
U.S.
v. Bryant
In
the second case, Darryl Bryant pleaded guilty to being a felon in possession of
a firearm in Indiana federal court, prior to Blakely. The plea agreement left
two factual issues open: whether one of the weapons was a semiautomatic assault
weapon, and whether Bryant possessed the firearms in connection with another felony
offense.
Prior
to sentencing, Blakely was decided, and the Seventh Circuit decided Booker. The
parties filed memorandum on the effect of those decisions.
At
sentencing, the court concluded that she was not required to make any findings
of fact, let alone find facts beyond a reasonable doubt, because she was not adhering
to the guidelines.
Nevertheless,
the court made findings, because of the uncertainty, and the findings were adverse
to Bryant.
After
making both findings of fact, the court stated, "I'm not legally bound by
the guidelines, but I will take the guidelines into account as I fashion a sentence."
The court imposed a sentence of 84 months, after noting that, had the guidelines
been applicable, the appropriate range would have been 84-105 months.
Bryant
appealed, but the Seventh Circuit affirmed in a decision also written by Judge
Kanne.
After
finding no Booker error, because the 84 month sentence was below the ten year
maximum, the court rejected Bryant's argument that the sentencing court was required
to make its factual findings beyond a reasonable doubt.
The
court reasoned, "The judge treated the guidelines as advisory, and Bryant's
sentence was well below the statutory maximum sentence he could have received
on the basis of facts he admitted in his plea agreement. We also note that the
judge properly followed the procedure to calculate a guidelines sentence, thus
indicating that she took the guidelines into account in fashioning a sentence.
Although the judge indicated her belief that she did not have to conduct factfinding
when treating the guidelines as advisory, she prudently did so anyway. See Fed.
R. Crim. P. 32(i)(3)(B); U.S.S.G. 6A1.3. This case, therefore, does not present
a situation like that in [U.S. v. Dean, 414 F.3d 725 (7th Cir. 2005)], where we
remanded for resentencing because the district court failed to resolve factual
disputes in the PSR — a requirement that survives even under an advisory
guideline scheme."
After
holding that there was no clear error in the district court's factual findings,
and finding the sentence reasonable, the court affirmed.
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David
Ziemer can be reached by email.
