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United States v. Scott

United States Court of Appeals, First Circuit

December 8, 2017

MICHAEL DAVID SCOTT, Defendant, Appellant.


          Lisa Aidlin for appellant.

          David B. Goodhand, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, with whom William D. Weinreb, Acting U.S. Attorney, Victor A. Wild, Assistant U.S. Attorney, Ryan M. DiSantis, Assistant U.S. Attorney, Kenneth A. Blanco, Acting Assistant Attorney General, U.S. Department of Justice, and Trevor N. McFadden, Acting Principal Deputy Assistant Attorney General, U.S. Department of Justice, were on brief, for appellee.

          Before Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.


         Michael David Scott claims, among other things, that the district court acted improperly in rejecting a plea agreement he had negotiated with the government, in not allowing him to negotiate and submit a new agreement, and in sentencing him before he read the presentence report ("PSR"). Finding no combination of error and prejudice sufficient to set aside Scott's sentence, we affirm.

         I. Background

         In August 2010, the government charged Scott with wire and bank fraud in violation of 18 U.S.C §§ 1343-44 and unlawful monetary transactions in violation of 18 U.S.C. § 1957, all as described in our opinion issued today affirming Scott's conviction on those charges. See United States v. Scott, No. 15-2405. While those charges were pending, the government secured Scott's indictment on additional wire fraud charges arising out of acts committed after his first indictment. Scott was arrested and detained pending trial.

         In May 2015, Scott pled guilty in the first case, without a plea agreement. In November 2015, the district court sentenced him to 135 months' imprisonment in that case. Two months later, Scott and the government entered into a plea agreement in this second case pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). If accepted by the court, the agreement would have bound the court to sentence Scott to six months' imprisonment on the new wire fraud charges, to be served concurrently with the term of imprisonment from the prior case, plus six additional months to be served consecutively to Scott's other sentences in accord with 18 U.S.C. § 3147, which mandates that an individual convicted of a crime committed while on release pending trial serve an additional sentence. The agreement also called for $49, 000 in restitution, an amount that did not include attorneys' fees and interest for the victims, and likewise did not include losses related to certain uncharged conduct. The district court conducted a change-of-plea hearing and conditionally accepted the plea agreement, but noted that it would reserve final acceptance or rejection until it had considered the PSR. Sentencing was set for March 25, 2016.

         On March 23, a group of victims filed a sentencing memorandum, urging the district court to reject the proposed plea agreement and impose, at a minimum, a consecutive prison term of at least twelve months and a restitution award that included attorneys' fees and interest. The next day, the district court docketed a notice stating: "Having considered the presentence report and the Victim's sentencing memorandum . . . the Court hereby notifies the parties . . . of its intention to reject the . . . plea . . . . The Court concludes that any consecutive sentence of incarceration of less than 12 months . . . is insufficient." The next day, counsel for Scott told the district court at the sentencing hearing that he had conferred with the government and prepared "a revised agreement to submit to you with what we interpreted as the considerations within your order." Neither counsel disclosed the terms of the proposed submission, and the district court rejected the effort, saying:

[A]s I understand [Rule 11], . . . the defendant has a choice when the judicial officer rejects a (C) plea: He can withdraw his plea and go to trial. . . . Or he can choose not to withdraw his plea and go forward with the sentencing as of that moment. There is no new plea to be negotiated.

         The record reflects that Scott and his attorney then had a private conversation, following which Scott's attorney, in Scott's presence, told the court that Scott intended to maintain his guilty plea and move forward with sentencing. The district court then proceeded with the sentencing, ultimately imposing a sentence of forty-one months' imprisonment, with twenty-nine months attributed to the wire fraud charge to be served concurrently with Scott's 135-month sentence and twelve months attributed to section 3147 to be served consecutively to both of Scott's other sentences. In short, as a practical matter, this sentence meant that Scott would likely serve six additional months of prison time beyond the amount to which he and the government had conditionally agreed. The court also ordered Scott to pay a total of $265, 535 in restitution to various victims identified by their initials in the PSR.

         At the conclusion of the sentencing hearing, the following exchange occurred:

MR. GLEASON [counsel for Scott]: Judge, [Scott] wants to wish to express to the Court that he did not see the Presentence Report and that he was not aware of initials and people being owed money on initials as being an issue for purposes of the restitution.
THE COURT: Does Probation wish to respond to that?
MS. ROFFO [representative from the probation office]: Your Honor, the Presentence Report was disclosed to counsel, and counsel is to share it with his client.
THE COURT: Mr. Gleason, you got the Presentence Report, ...

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