Former DA Paulus' sentence affirmed

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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."

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 no
t 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.

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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.