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Greetings:
Enclosures ~-------/
cc Eb F. Luckel
U. S. Attorney's Office
Criminal Division, Suite 215
450 Golden Gate Avenue
San Francisco, CA 94102
\
No. 00-10399
Plaintiff-Appellee,
v.
Defendant-Appellant.
III. ARGUMENT
IV . CONCLUS I ON-· . • . • . • . . . . . . . . . . . . . . . . . . . . . . . • . . . . . • • • • . . . . • . . 15
V. CERTIFICATE OF SERVICE • . . • . . • • . • . . . . . . • . . . • . • . • • . • . . . . . • 15
ii
TABLE OF AUTHORITIES
CASES
( 9 th e i r. 19 9 3) ..••..••.•.•.••••.•.•..•..•........•. 5
United States ·V. Dior, 671 F.2d 351 (9th eire 1982) 6
iii
United States v. Godinez-Rabadan, No. 01-10455,
u.s. App. LEXIS 8589 (9th eir. May 3, 2002) ..... 0 ••• 9
iv
STATUTES
U . S . S • G . § 1. 1B 12
U . S . S . G. § 5G1. 2 . . . . . • • • • . . . . . . . . . • . . . . . • . . . . . . • . . . . . . 2/ 14
U . S . S . G . § 5Gl. 3 . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . .. 5
U . S . S . G. § 7Bl. 3 (f) . . • • • • . . . • • . • • • • . . . . • . . . . . . • . . . . • • • • • . 5
RULES
v
:I. STATEMENT OF PET:IT:IONER
April 15, 2002 and attached as Appendix pp. 1-2. 1 The panel has
1
order in which multiple counts are sentenced in the context of
D.S.S.G. § 5G1.2.
III. ARGUMENT
tence was less than the statutory maximum, we find this conten-
2
tion unavailing. See 18 u.s.c. § 2314 (prescribing a maximum
tion under § 2314; rather, the issue is his sentence for a con-
months. See ida Armstrong was sentenced to 108 months for this
4-6.
violations. 952 F.2d 1090 (9th Cir. 1991). The opinion noted
that the
rd. at 1097-98.
3
consecutive sentence l the case was remanded for resentencing.
must also state the reasons for that imposition. See United
4
'retains discretion under 18 U.S.C. § 3584(a) to sen-
tence either concurrently or consecutively despite the
guidelines.") (citing United States v. Wills, 881 F.2d
823, 826-27 (9th eire 1989». Therefore, the district
court is required to consider the factors listed in §
3553(a) regardless of statements in U.S.S.G. §§ 5G1.3
and 7B1.3(f) that on their face appear to dictate a
decision without consideration of those factors.
1993).
States.
Chandler, 586 F.2d 593 (5th Cir. 1978); United States v. Whet-
zel, 589 F.2d 707 (D.C. Cir. 1978); United States v. Atherton,
561 F.2d 747 (9th Cir. 1977). The Ninth Circuit has adopted the
351, 357-58 (9th Cir. 1982) (Noting that the effect of the $5,000
6
See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th
fails to ensure that [the defendant] was prosecuted only \on the
1178- (quoting uni ted States v. Rosi, 27 F. 3d 409, 41.4 (9th Cir.
Id. (citing United States v. Hooker, 841 F.2d· 1225, 1230 (4-th
Cir. 198 8) ) .
7
Failing to enforce this requirement would allow a
court to guess as to what was in the minds of the
grand jury at the time they returned the indictment.
Such guessing would deprive the defendant of a basic
protection that the grand jury was designed to secure,
by allowing a defendant to be convicted on the basis
of facts not found by, and perhaps not even presented
to, the grand jury that indicted him. We may only
guess whether the grand jury received evidence of, and
actually passed on, [the missing element] . . . . Re-
fusing to reverse in such a situation would impermis-
sibly allow conviction on a charge never considered by
the grand jury.
536 F.2d 286, 289 (9th Cir. 1976); see also United States v.
1994) .
F.2d 462, 464 (9th Cir-. 1979), because a "completely -missing. es-
8
sential element" leaves ~nothing for a petit jury to ratify,"
United States v. Hooker, 841 F.2d 1225, 1232 (4th Cir. 1988).
grand jury would have indicted Armstrong for the crime proved.
See United States v. Reese, 2 F.3d 870, 891 (9th Cir. 1993).
error. See United States v. Pisello, 877 F.2d 762, 765 (9th
fective indictment for the first time on appeal under the legal
tion. u.s. LEXIS 3565 at *10. See, e.g., united States -v.
May 3, 2002) i Uni ted States v-. Geiger, 263 F. 3d 1034, 103.9 (9th
9
Cir. 2001); and United States v. Ross, 206 F.3d 896, 899 (9th
this context, the fact that an error existed and that it was
plain was not in dispute. See id. at *14. The third element,
8738 (9th Cir. January 18, 2002). Under the law in effect at
tion was too allow the district court to shoehorn a wire fraud
10
million (approximately two percent) was even arguably attributed
to travel fraud. For this reason, the error affected the dis-
rights.
peal. They were not a mere adjunct to the broader wire fraud
tion of any travel fraud violation to the total loss amount, the
hearing that the fraud was uin the inducement" and in the so-
evidence.
nine years. The Court should have no little doubt that this is-
sue meets the high s-tandard of a plain error analysis. For this
11
D. The district court improperly applied U.S.S.G § 5Gl.2
py failing to determine and assess the sentence for
the count carrying the highest statutory maximum.
125 F.3d 687 (9th Cir. 1997). The Guidelines set forth the
The error is minor when the count offering the longest sentence
12
statutory maximum is not the count with the highest calculated
United States v. Archdale, 229 F.3d 861, 870-71 (9th Cir. 2000).
must first impose the sentence calculated for the count with the
13
the inapplicability of certain enhancements, would proscribe a
would have the judge first sentencing on the count with the
14
:IV. CONCLUSiON
Respectfully submitted,
".-.....-L---:-........iIA~·
~-~
+ ~,~7J
Connie C. Armstrong, Jr.
v• CERTIFICATE OF SERVICE
sian, 450 Golden Gate Ave, Suite 215, San Francisco, CA 94102.
15
APPENDiX
v.
No. 00-10399
April 8, 2002 **, Submitted ** This panel unanimously fmds this case suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOTICE: [*1] RULES OF THE NIN1H CIRCUIT COURT OF APPEALS MAY LIMIT CI-
TATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE
UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY: Appeal from the United States District Court for the Northern District of
California. D.C. No. CR-94-00276-CAL. Charles A. Legge, District Judge, Presiding.
DISPOSITION: AFFIRlVIED.
For CONNIE ARMSTRONG, JR., Defendant - Appellant: David A. Nickerson, Esq., San
Rafael, CA.
OPINION: MEMORANDUM *
- - - - - - - - - - - - - - - - - -Footn.otes- - - - - - - - - - - - - - - - - -
* This disposition is not appropriate for publication and may not be cited to or by the courts of
_-this circuit except as may be-provided by Ninth Circuit Rule 36-3.
Appendix 1
- - - - - - - - - - - - - - - - -End Foomotes- - - - ":' - - - - - - - - - - - -
Connie Armstrong, Jr. appeals his 108-month sentence imposed by the district court at resentenc-
ing for his conviction on multiple counts of inducing others to travel [*2] in interstate com-
merce as a part of a scheme to defraud in violation of 18 U.S. C. § 2314 and wire fraud in
violation of 18 U.S.C. § 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We review the district court's interpretation and application of the Sentencing Guide-
lines de novo, and its factual findings regarding the calculation of loss for clear error. United
States v. West Coast Aluminum Heat Treating Co. 265 F.3d 986, 990 (9th Cir. 2001). We affrrm.
Armstrong fust contends that the district court miscalculated the amount of loss upon which it
based a 17-level upward adjustment to his sentence pursuant to U.8.S.G. § 2Fl.l(b)(1)(R). Based
on the evidence before it, the district court did not clearly err by fmding that the amount of loss
to Armstrong's victims exceeded $ 40 million. See id. at 991-92 (stating the court need only
make a reasonable estimate of the loss, given the available information).
Armstrong further contends that the district court violated Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) [*3] by failing to submit the amount of loss to
the jury. Because Armstrong's 108-month sentence was less than the statutory maximum, we frod
this contention unavailing. See 18 U.S.C. § 2314 (prescribing a maximum sentence often years);
West Coast Aluminum Heat Treating Co., 265 F.3d at 994.
AFFIRMED.
Appendix 2
DAVID A. NICKERSON
A1j'ORNJiY AT l-AW
454 las Gall in"" Ave. Suite 183
SAN RAFAEL. CALlFORN1A 94903-J6t8
(415) 507·9097
I:AX: (415) 507·9098
Chip Armstrong
Reg. # 88762-011 t 8-5
F.C. 1. Seagoville
P.O. Box 9000
Seagoville, Texas, 75159-9000
Dear Chip:
I have received in today's mail a copy of the enclosed opinion from the Ninth
Circuit. As you can see, the court dumped the case without mlJch trouble. This is
another example of the court having decided that it wasn't going to do any for you and.
therefore, saying as little as possible in an unpublished opinion. I don't understand why
it took them almost one year to write this three paragraph opinion.
I think this is the end of the road. At least for me. as court appointed counsel, it
is. There is nothing left to say that hasn't been said and no court to further appeal to
that would care. Certainly the U.S. Supreme Court wouldn't care after the Ninth
Circuit's unpublished opinion of three paragraphs.
If you want to file anything else your only rea~ avenue to a court would be by way
of a section 2255 motion, although off the top of my head I don't see any real 2255
issues. That motion would have to be filed in the district court and l of course, since
Legge is gone now. it would be assigned to another judge at random who would know
nothing about your case and probably care even less. 1hate to be so negative about
things but that is the reality of the situation. I don't know what else to say but IIgood
ll
luck and 1hope that you get out of prison as soon as it possible and that you get on
with your life when you do.
DAVID NICKERSON
Appendix 3
Docket as of February 27 t 20029:12 pm Web PACER (v2.3)
USA v. Armstrong, et al
Filed: 06/27/94
Appendix 4
454 Las Gallinas Ave
183
San Rafael, CA 94903-3618
(415) 507-9097
Chester L. Brown
[term 08/29/97]
[COR LD NTC cja]
2450 Broadway
Ste 550
Santa Monica, CA 90404
(310) 315-6315
Michael H. Murray
[term 06/01/95]
[COR LD NTC ret]
Law Offices of Michael H.
Murray
1989 Santa Rita Road
Ste 238
Pleasanton, CA 94566-4751
925-924-1440
Pending Counts: Disposition
18:2314 & 2 Stolen Property & ON RESENTENCING: Counts 1 and 7
Aiding and Abetting 15 months imprisonment to
(1) run concurrent with counts 2-6,
8-14, and 19-21; 36 months of
TSRj $100.00 SA
(1)
18:2314 & 2 Stolen Property & ON RESENTECING: imprisonment:
Aiding and Abetting 108 months to run concurrent
(2) with counts 1 and 7j 36 months
TSRi SA $750.00 restitution
is $1,000,000.00
(2 )
18:2314 Stolen Property ON RESENTECING: imprisonment:
(3) 108 months to run concurrent
with counts 1 and 7j 36 months
TSRi SA $750.'00 restitution
is $1,000,000.00
(3)
18:1343 & 2 Wire Fraud & ON RESENTECING: imprisonment:
Aiding and Abetting 108 months to run concurrent
(4 - 5) with counts 1 and 7; 36 months
TSR; SA $750.00 restitution
is $1,000,000.00
(4 - 5)
18:1343 Wire Fraud ON RESENTECING: imprisonment:
(6) 108 months to run concurrent
with counts 1 and 7; 36 months
TSR; SA $750.00 restitution
is $1,000,000.00
(-6 )
18:~343 & 2 Wire Fraud & ON RESENTENCING: Counts 1 and 7
Aiding and Abet ting 15 months imprisonment to
(7 ) run concurrent with counts 2-6,
8-14, and 19-21; 36 months of
TSRi $100.00 SA
(7 )
Appendix 5
18:1343 & 2 Wire Fraud & ON RESENTECING: imprisonment:
Aiding and Abetting 108 months to run concurrent
(8 - 10) with counts 1 and 7; 36 months
TSR; SA $750.00 restitution
is $1,000,000.00
(8 - 10)
18:1343 Wire Fraud ON RESENTECING: imprisonment:
(11 - 14) lOB months to run concurrent
with counts 1 and 7; 36 months
TSR; SA $750.00 restitution
is $1,000,000.00
(11 - 14)
18:1343 Wire Fraud ON RESENTECING: imprisonment:
(19 - 21) 108 months to run concurrent
with counts 1 and 7; 36 months
TSRi SA $750.00 restitution
is $1,000,000.00
(19 - 21)
Offense Level (opening): 4
Terminated Counts: Disposition
18:2314 & 2 Stolen Property & ON RESENTENCING: reversed by
Aiding and Abetting the 9th circuit on counts 15,
(15) 16, 17 and 18
(15)
18:2314 Stolen Property ON RESENTENCING: reversed by
(16 - 18) the 9th circuit on counts 15,
16, 17 and 18
(16 - 18)
Offense Level (disposition): 4
Complaints:
NONE
U. S. Attorneys:
Eb F. Luckel
(415) 556-4783
Rm 215
[COR LD NTC]
U S Attorney's Office
Criminal Division
450 Golden Gate Ave
San Francisco, CA 94102
DOCKET PROCEEDINGS
Appendix 6
.J t..i ',I,,-'~ 6·- 9' 4 T U'E 1:3:' :;s,~ 1- Fl. W 0' F F ~:C'E p'. 1":;:
1
2
CQtJN'i' 'oNE' (lO ,U~SIiC.H 2'314., 2)
3"'
:rhe,' Grand' Jutty charges- that·:
..
On or Dbaut. September' 27, 19:09, 1" the Nor,thern
-S
. D1~,trlc~ of' 'cal1fornl" and' elsevhe~e',
6 'j'
:.'.
Appendix 7
p,~ 1 ~,
1
~ic!, •kl\otJ.1ngiy IlnCl fot, ~h~, purpose ,!~,eKecuUng the sc:hcme,
"
2
, ,cause :sn41nduCcO ,represent'at1ves ()f ,~:. 'R. Donnel~ev ~ _Sons
:3
t;olUpany to traV¢l in in,terstate CODm\erc:e ,~r~ chicago, oiL, 'to
4
: 'Sa" rran,c'1sCQ-, cA, tor ,a ~et,1.n9 YUh, DamUton.:i'at'l:
'S:
,r'epresent::a.t"lv8s concerning B!I1I11ton'1'aft t lii })I,"oposal to ,:prov,i~e
'6 -. . '. .
,~
18
r~arlchcoi:" ,C'AI :for, a meet,ln1ijlth' Haiul,l~,Cri\:,TL'ltt tepresenta~lves
:L9
c'C)~cern11'\9 H8ldi~on, 'la'ft.' S "pr~pos,al to -i)t~ov1,de :pay~oil tax
20
~etvlc.eato, Scott, Pa~'t, ColtlpanY:.
21
21
II
;3 Il-
l/
24 ."
: 1/
tif
26, I N D,t ~ ~ K I'N'~
't:Atms trong & FO....le') .12
,. -.
,;--
.;
l
Appendix 8
_._-~---------,----------" .
,2, ARE STILL, HEARING IS, nMY REAL ,KIS~"1{E, WiLS.1(.ISJtJpsING THE
3 FUN.OS'. n.
6 'PAY., ,THE' TAXES. HE·, tt'OLD ,THEM -- 'KE ,TOLD us "ON THE WI,mESS' 'STAND
7 ~T·HE WAS ,AFRAID THAT .IF HE 'TOLD ·THDi ~HE'TRUTH, THE ,MONEY
B ,WOULD STOP· -'COMI}{G IN 'THE. DOOR 'AND'. THE COMPANY WOUL,D CLOSE.:
1'0. SEPARATE; THE CLIENTS ·FROM 'TRElR MO.NEy. SO I·T'S 'NO.r AaOU'!'
17 'MR. ARMSTRONG DID .DURING 'THE· ,TRIAL" A .·f2 ... MILLION-DO~ .SO~Ih
18 muCH WAS S'tCUREO '·BY' THE: 'CATTr,;E" THE ,gO.-CALLED: ,FEEDER ~TTL.E',
,19 ANt) .$AY., '11I SHOULD' BE GIV.'E:N' .CREDIT, .fOR" THAT, II TO: TAKE.·A
·il REAL· ,ESTA~E' 'THAT HE HAD 'BOUGHT· FOR UNPE~ .A MI,LLION' DOLLAR'S AND,
'~2' SA'Y, 11·1 ~HO~~Jj- ~E GI'VEf( 'CREDIT 'FOR THE, 'WliOlIE, THING,.·' ,IS ~IMPLY
24', MR... ARMST~ONG 'WILL, NOT FACE 'UP' '1'.0 WHAT. HE'S. DONE.
,p....,
t ·2,5 HE: .WILL 'NEV'ER FACE up:, TO WHA'j" HE:. S DONE~ HE AD)fITS PERHAPS
Appendix 9
Smetana: bn-ye~ and,:the, nextD:"lonth thCitswereri1t., In :othci words. when the whole thing
coiIapsesJ some were'paid, some wereri1: because 100% of-the money wasn't used for
tnat purpose. But~, who, got victimized"on a month-.tq-month basis' changed',. or
pllyroIL~,t9,~payr~11' so' thfit. .
Smetana:, That',s correct, It rolled. 'The dUferencejs it's wh~re thejugg~knot stops. Itthe-~itjs:
~~sical cltairs~ Your· Hono'r.
Smetana:
' } ,way.
all
I.: don't .think I cHed. spe.elfie,law to' the Court-but H....it~it's a matter. that. uhi the
U
. rn.briey,taken.~.Wl\S fud,Qc.ed-you know"jt's-it'safrau...:the theory:is.a·fraud.to'tpe
: induceme)Jt ,That· ai,1 th,~ inoney thEit :was brought in:was 'brought'in WJ.der ,·talse
. pretensess,soall the mon~y ...· '
Appendix 10
Docket SummaI)' Page 1 of2
1m.
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