United States v. Austin
United States v. Austin
Opinion of the Court
Near the end of his jury trial, Keith Austin pleaded guilty to three counts of bank fraud, aggravated identity theft, and obstruction of justice. Austin now protests that his plea was not knowing and voluntary because the district court did not adequately discuss the Sentencing Guidelines and did not mention forfeiture. He also takes issue with the court's denial of the reduction for acceptance of responsibility and the use of the incorrect Guidelines range, as well as the sufficiency of the evidence supporting the district court's loss calculation, restitution amount, and forfeiture order. For the reasons below, we affirm the court's acceptance of Austin's guilty plea, but we vacate Austin's sentence and remand for resentencing.
I. Background
A. Indictment and Plea of Guilty
In September 2013, the government indicted defendant Keith Austin, along with nine codefendants, for his role in an eight-year mortgage-fraud scheme. The indictment charged Austin with three counts of bank fraud, in violation of
Austin was the only member of the scheme to go to trial; his nine codefendants pleaded guilty. On April 22, 2015, the sixth day of the jury trial, Austin informed the court that he wished to change his plea. Austin did not have a written plea agreement or a plea declaration; rather, the district court confirmed with Austin's counsel that it would be "an oral blind plea" to counts IX, X, and XI of the indictment for bank fraud, aggravated identity theft, and obstruction of justice, respectively, and that the government would dismiss the remaining counts. As part of the plea colloquy, the court first asked the government to indicate the maximum penalties and fines applicable to the three offenses and confirmed Austin's understanding of those penalties. The court then asked questions to determine Austin's competence to knowingly change his plea and explained Austin's trial rights and what he would be waiving by pleading guilty. Next, the court questioned Austin about having sufficient time to discuss the trial and his decision to plead guilty with his attorney.
The government presented, and Austin admitted, the factual basis for his plea to Counts IX, X, and XI. The court then turned to the Federal Sentencing Guidelines, inquiring:
Are you also aware that at the time of the sentencing the [c]ourt will be looking at the Federal Sentencing Guidelines? They serve as guides to the [c]ourt, but *997are not mandatory. Do you understand that? ... Has [your attorney] explained to you the issues and application involving the Federal Sentencing Guidelines?
Austin confirmed that he had spoken to his attorney about the Guidelines: "I asked several questions. He explained it to me." Finally, after confirming Austin had not been threatened or coerced into pleading guilty, the court accepted Austin's guilty plea to Counts XI, X, and XI. At no point did the court discuss forfeiture; neither Austin's counsel nor the government informed the court that it overlooked any portions of the colloquy.
B. Sentencing
Austin appeared for sentencing on August 15, 2016, with new counsel who had not submitted a sentencing memorandum. The probation office had submitted a presentence report ("PSR") in June 2015 calculating a Guidelines sentencing range of 188-235 months, based on the 2014 Guidelines manual. The PSR included an offense level of 35, calculated from a base offense level of 7 under U.S.S.G. § 2B1.1(a)(1), a two-level enhancement for the number of victims, a four-level enhancement for role in the offense, a two-level enhancement for obstruction of justice, and a twenty-level enhancement for the loss amount of over $8.6 million per the 2014 version of U.S.S.G. § 2B1.1(b)(1)(K). The PSR did not recommend an adjustment for acceptance of responsibility. Based on his prior convictions for burglary in 1995 and misdemeanor battery in 1999, Austin was in criminal history category II.
Although the PSR added a twenty-level enhancement for loss amount based on the 2014 Guidelines, a new Guidelines manual took effect on November 1, 2015, after the probation department submitted the PSR but prior to sentencing. Under the 2015 manual, a loss of $8.6 million requires an eighteen-level adjustment, not a twenty-level one. The parties agree the 2015 manual that was in effect at the time of sentencing is the applicable manual. However, no one caught the error at the time of sentencing.
After denying Austin's motion for a competency evaluation and request to postpone the sentencing, the court began the sentencing hearing by reviewing the character letters submitted on Austin's behalf. The court considered objections to the PSR, the only one being the government's request for an enhancement for use of sophisticated means, which the court overruled. Next, the parties presented argument under the
Although the PSR did not recommend the two-level reduction for acceptance of responsibility, Austin's counsel argued that Austin had accepted responsibility by pleading guilty prior to the jury's verdict. However, because Austin "put the government through its task," and "the case was merely at the point of concluding when the defendant then decided to enter a ... plea *998of guilty," the court determined Austin's acceptance "was not extraordinary, and certainly [it] is not appropriate in this case to give him two points for acceptance of responsibility."
In weighing the § 3553(a) factors in mitigation, the court noted the lengthy period of time since Austin's last conviction and the support of his friends and family. In aggravation, however, the court observed that there was "evidence in this case, in which as many as 50 or 52 transactions occurred for which the defendant is responsible" as well as the "extremely large" restitution amount of over $9.1 million. The court concluded a sentence within the Guidelines range of 188-235 months was too "heavy" but that it still must "impose a sentence that does not denigrate the seriousness of what [ ] Austin has done." It then imposed a sentence of 120 months on Counts IX and XI, to be served concurrently, and 24 months on Count X, to be served consecutively, for a total of 144 months' imprisonment. As for supervised release, the court imposed 2 years on Counts IX and X and 1 year on count XI, all to be served concurrently. The court did not impose a fine due to Austin's inability to pay, but the court imposed the mandatory special assessment of $300, $100 per each count of conviction.
The government moved for an order of forfeiture for $4,374,070, including Austin's assets seized in a search-a 2007 Lexus LS460 sedan and $6,800 in cash. Austin did not object, and the court entered the forfeiture order for the assets. The court also ordered restitution in the amount of loss-$9,134,900-imposed jointly and severally with Austin's codefendants. At the end of the sentencing hearing, the government prompted the court to accept and adopt the findings in the PSR. The court then formally "accept[ed] the findings [of] fact [and] the conclusions of law presented in the probation department's presentence investigation report."
II. Discussion
A. Rule 11 Colloquy
Because Austin did not object to the adequacy of the Rule 11 plea colloquy or move to withdraw his guilty plea as involuntary at the time of his sentencing, the parties agree that this Court reviews for plain error. United States v. Vonn ,
"As a practical matter, it is incredibly difficult for a defendant to prove that a district court plainly erred when accepting a guilty plea." United States v. Villarreal-Tamayo ,
Here, the court informed Austin that "at the time of the sentencing" it would "be *999looking at the Federal Sentencing Guidelines" and that "[t]hey serve as guides to the [c]ourt, but are not mandatory." After checking that Austin understood, the court confirmed that Austin had asked questions of his counsel regarding the "issues and application" of the Guidelines and that Austin's counsel "explained it to [him]." The court stated it would look to the Guidelines in determining Austin's sentence, but the Guidelines were not mandatory. And the court made sure that Austin had the chance to discuss the "issues and application involving" the Guidelines with his counsel prior to entering his guilty plea. Moreover, the court reviewed and made sure Austin understood the statutory maximums-30 years on Count IX, 2 years mandatory to run consecutively to any other term on Count X, and 20 years on Count XI. "His decision to enter a plea despite this warning demonstrates that [Austin] contemplated the possibility of a sentence exceeding the applicable guideline range ... Therefore, because the 'total circumstances surrounding the plea [demonstrate] that the defendant was informed of his rights and understood the consequences of his plea,' " we conclude the court's discussion of the Sentencing Guidelines was sufficient under Rule 11, and it did not plainly err. See United States v. Parker ,
During the plea colloquy, the district court is also required to inform the defendant of "any applicable forfeiture." Fed. R. Crim. P. 11(b)(l)(J). There is no dispute that the court did not mention forfeiture during the plea colloquy and that neither counsel for Austin nor the government alerted the court to its omission. Regardless, courts are not required to strictly comply with Rule 11 to ensure that a defendant has knowingly and voluntarily pleaded guilty; as we have noted, " 'plain error' is not an automatic synonym for 'no error.' " United States v. Sura ,
Austin argues the totality of circumstances indicate he would not have pleaded guilty had the court explained that he faced forfeiture. See Parker ,
Austin's argument that he lacked a benefit fares no better. Indicating a lack of proper process, Austin argues that he "gained nothing from pleading guilty to only three of the eleven counts; all of the other counts would have been grouped with Counts Nine and Eleven at sentencing pursuant to U.S.S.G. § 3D1.2(d), leaving his ultimate Guidelines range essentially unaffected." However, we have held that a dismissal of counts can be a benefit to a defendant. See Phillips v. United States ,
B. Sentencing Issues
Austin raises several issues with his sentence, including the district court's use of the wrong Guidelines range and errors in the district court's calculation of restitution, loss amount, and forfeiture, among others.
The parties agree that remand is necessary to correct the restitution order; however, the parties present different theories regarding the appropriate restitution calculation. At sentencing, the government presented a loss chart including fifty properties for which the government contended Austin was responsible, totaling $9,134,900. The government now admits that its chart included financial institutions as "victims" that the bank fraud statute at the time of Austin's conduct did not define as "financial institutions." See
Austin, on the other hand, presents a different approach regarding the proper calculation of the restitution award: He *1001argues that he should only be required to pay restitution for losses caused by the counts to which he pleaded guilty, Counts IX, X, and XI, not all of the properties on the government's loss chart. Austin claims that the bank fraud "scheme" to which he pleaded guilty only involved one property and one financial institution and that he cannot be ordered to pay restitution for all of the loans described in the indictment (or, under the government's current position, for all of the loans with lenders that qualified as financial institutions at the time of Austin's offense conduct). In light of the parties' recognition of the need for remand, we do not address the issue.
With a remand necessary for the recalculation of restitution, the other issues Austin raises can be revisited upon resentencing.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court's acceptance of Austin's guilty plea and VACATE Austin's sentence and REMAND for resentencing.
The loss chart is available at ECF No. 315 on the district court's docket.
Because Austin did not move to withdraw his guilty plea in the sentencing court, we do not have the benefit of an affidavit from Austin affirming that he would not have pleaded guilty had the court properly advised him of potential forfeiture. All we have are counsel's arguments, which are not evidence. United States v. Useni ,
Reference
- Full Case Name
- United States v. Keith AUSTIN
- Cited By
- 14 cases
- Status
- Published