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Date: 10-23-2021
Case Style:
United States of America v. RUSSELL DANE REEVES
Case Number: 00-10606
Judge: JERRY E. SMITH
Court: IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant with arguing that the government breached the plea agreement and that the district court improperly enhanced the sentence claim.
Reeves and his codefendants defrauded elderly persons by persuading them to turn over
money to be invested in what were really
sham companies. Reeves pleaded guilty of
mail fraud targeting the elderly, a violation of
18 U.S.C. §§ 2, 1341, and 2326, and securities
fraud in violation of 15 U.S.C. §§ 77q(a)
and 77x.
Reeves and the government signed a
Factual Resume and a “Stipulation of
Applicable Guidelines,” which included, inter
alia, a two level enhancement under § 3B1.3
2
because the offense involved the abuse of a
position of trust, an enhancement that Reeves
reserved the right to challenge. The agreement
stated that “the government recommends that
the defendant be sentenced to a term of
imprisonment of 72 months.”
The presentence report (“PSR”) recommended all of the offense level enhancements
and reductions included in the stipulation and
further recommended that Reeves’s offense
level be increased by two levels pursuant to
U.S.S.G. § 2F1.1(b)(3) because the offense
was committed through mass marketing. Including the mass marketing enhancement, the
PSR calculated a sentencing guidelines range
of 87-108 months’ imprisonment.
At sentencing, the government objected to
the PSR’s application of an enhancement for
mass marketing.1
Reeves objected to the enhancements for mass marketing and abuse of
trust. The court overruled the objections and
sentenced Reeves to 108 months’
imprisonment and three years’ supervised
release for the securities fraud conviction and
60 months’ imprisonment and three years’
supervised release for the mail fraud
conviction, to run concurrently.
II.
Reeves contends the government failed to
abide byits promise to recommend a 72-month
sentence. Whether the government has
breached a plea agreement is a question of law
we review de novo. United States v. Saling,
205 F.3d 764, 766 (5th Cir. 2000). Because
Reevesfailed to object atsentencing, however,
we review only for plain error.2
United States
v. Branam, 231 F.3d 931, 933 (5thCir. 2000).
Although “[t]he Government’s breach of a
plea agreement can constitute plain error,” id.
(quoting United States v. Wilder, 15 F.3d
1292, 1301 (5th Cir. 1994)), “we will not exercise our discretion to correct a forfeited
error unless it seriously affects the fairness,
integrity, or public reputation of judicial
proceedings,” id. (citing United States v.
Olano, 507 U.S. 725, 735-36 (1993)). In
determining whether a plea agreement has
been breached, we inquire whether the
government’s conduct “is consistent with the
defendant’s reasonable understanding of the
agreement.” Saling, 205 F.3d at 766 (quoting
United States v. Valencia, 985 F.2d 758, 761
(5th Cir. 1993)).
A.
Reeves aversthat the government breached
the agreement by failing orally to recommend
a 72-month sentence at the hearing. That contention has no merit.
The only statement that could be construed
even remotely as a promise on the part of the
government isthe plea agreement’sstipulation
1 Without themass marketing enhancement, the
sentencing range would have included the
recommended 72-month term.
2 Reeves argues that he did in fact object at
sentencing. That argument has no merit, however.
To avoid forfeiture, “[a] party must raise a claim
of error with the district court in such a manner so
that the district court may correct itself and thus,
obviate the need for our review.” United States v.
Krout, 66 F.3d 1420, 1434 (5th Cir. 1995) (citing
United States v. Bullard, 13 F.3d 154, 156 (5th
Cir. 1994)). Reeves’s counsel did not object, but
only informed the court that the government had
recommended a sentence of 72 months. That
statement alone is insufficient to preserve the alleged error.
3
that “the government recommendsthat the defendant be sentenced to a term of
imprisonment of 72 months.” On its face,
however, the statement promises nothing. Instead, it anticipates that the plea agreement
would be incorporated into the PSR, which it
was, and thus that the recommendation would
be self-executing, which it also was.
To the extent the recommendationserves as
a promise to recommend, the promise was
satisfied by the plea agreement’s inclusion in
the PSR.3
Under any standardSSand certainly
on plain error reviewSSwe cannot say that the
government breached the plea agreement in
this respect.
B.
Reeves alleges the government breached
the agreement by making the following
statement during the sentencing hearing:
Your honor, the only thing I would add
to his foundation, what he said with respect to Mr. Reeves is true with respect
to his involvement with Mr. Davenport.
The key thing in my mind and before the
Court is the fact that he went out on his
own, formed his own company as a
mirror image of Mr. Davenport’s
company, victimized elderly victims
directly, not as an employee but as the
main man. And then when this Court
entered an order in the civil case, he
disobeyed that order, continued to
victimize people. And with respect to
that, I just want the Court to consider
that. I realize it’s the Court’s call here.
Reeves asserts that the statement functions as
a suggestion to sentence at the upper end of
the guideline range, violating an implicit promise in the plea agreement not to recommend
any sentence greater than 72 months.
The government responds, however, that its
statement must be viewed in context.
Reeves’s counselhad just finished arguing that
Reeves was not the leader of the scheme and
that the leaders had been given sentences
lighter than those contemplated by the court.
Given the misleading nature of defense
counsel’s argument,4
the government contends
that the statement merely fulfilled the
government’s “duty to insure that the court
has complete and accurate information
concerning the defendant, therebyenabling the
court to impose an appropriate sentence.”
United States v. Block, 660 F.2d 1086, 1091
(5th Cir. Unit B Nov. 1981). Because of this
duty, “[e]fforts by the government to provide
relevant factual information or to correct misstatements are not tantamount to taking a
position on the sentence and will not violate
the plea agreement.” Id.; accord United States
v. Goldfaden, 959 F.2d 1324, 1328 (5th Cir.
1992).
Reeves’s argument has some merit. Block
does not allow the government carte blanche
to argue for a higher sentence under the guise
of correcting factual inaccuracies. See Saling,
205 F.3d at 766-67; Valencia, 985 F.2d at
759. Moreover, the government, when
correcting the factual misstatements, could
have been more explicit in disclaiming any
3 Cf. United States v. Cates, 952 F.2d 149, 153
(5th Cir. 1992) (interpreting the phrase “recommend at sentencing” to mean an oral or written recommendation and finding the provision satisfied by
inclusion of the relevant recommendation in all the
documents that were before the sentencing court).
4 Reeves indeed was the leader of at least one
scheme.
4
recommendation.5
Nonetheless, we cannot say that the
government’s statement falls so far outside its
entitlement under Block as to constitute plain
error. The statement made by Reeves’s
counsel created a palpable danger that the
court would misperceive the relevant facts. In
response, the government accurately restated
the relevant facts, then merely asked the court
to consider those facts, while remarking that
“it is the Court’s call here.” Considering the
absence of any argument by the government
regarding the sentence or of any express
promise in the plea agreement that the
government’s statement plainly violated, the
sentence is not plain error.6
III.
Reeves arguesthat the court improperlyenhanced his sentence under § 3B1.3 for “abus-
[ing] a position of private or public trust . . . in
a manner that significantly facilitated the commission . . . of the offense.” We review the
application of the guideline to the facts for
clear error, United States v. Smith, 203 F.3d
884, 893 (5thCir. 2000), and the district court
need be convinced ofthe relevant facts only by
a preponderance of the evidence, United
States v. Shugart, 117 F.3d 838, 848 (5th Cir.
1997). Application of § 3B1.3 is proper if
“the defendant’s job places the defendant in a
superior position to commit a crime and the
defendant takes advantage ofthat superior position to facilitate a crime.” United States v.
Dahlstrom, 180 F.3d 677, 685 (5th Cir. 1999)
(citing United States v. Brown, 7 F.3d 1155,
1161 (5th Cir. 1993)), cert. denied, 529 U.S.
1036 (2000).
The district court adopted the PSR’s
findings that
[t]he defendant held a position of trust
with the elderly clients with whom he
dealt, gaining that trust through false
and fraudulent pretenses. Numerous
victims indicated that the defendant
gained their trust after selling them a revocable living trust account. After gaining the victims’ trust and learning of
their assets, the defendant defrauded the
elderly victims by convincing them to
invest large sums of money with the
defendant. This “trust” significantly facilitated the commission and
concealment of the offense.
There issufficient evidence to support the factual findings that the defendant held a position
of trust and that the position of trust significantly facilitated the offense.
Reeves and his codefendants presented
5
See Saling, 205 F.3d at 767 n.10 (noting that
even if there was a danger that the court possessed
inaccurate or incomplete information, “the
prosecutor could have so informed the court and
then expressly stated that the government would
not take a position on how [the information]should
affect [the] sentence due to the written plea
agreement.”).
6 Cf. Saling, 205 F.3d at 767 (vacating a
sentencewhere the government promised not to oppose concurrent sentencing but then expressly did
so); Valencia, 985 F.2d at 759-60 (vacating a
sentence where the government promised not to
oppose a sentence reduction for acceptance of responsibility but then expressly did so); Goldfaden,
959 F.2d at 1327 (finding plain error and vacating
a sentence where the government agreed not to
recommend any sentence but then “submitted four
memoranda to the probation department advocating
the use of different guideline sections to calculate
his sentence”).
5
themselves as, inter alia, financial planners, in
which role they advised clients to invest in a
company owned by a codefendant. They also
provided “estate planning services,” including
the preparation of trust documents, an activity
for which the State Bar of Texas obtained an
injunction against Reeves’s codefendant for
the unlawful practice of law. Reeves cannot
seriously argue that he did not occupy a
position of trust.7
Likewise, there is substantial evidence that
Reeves’s position of trust significantly
facilitated the commission of his offenses.
Only after gaining his clients’ trust by posing
as an estate planner did he advise them to
invest in his codefendant’s company. Had he
not occupied the position of trust, the clients
presumably would not have followed his
investment advice. Moreover, there is
substantial evidence that Reeves’s position as
estate planner gave him unique access to
clients’ financial information, facilitating his
fraudulent schemes.
Outcome: The judgment of sentence is AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: