Metropolitan News-Enterprise


Monday, January 5, 2004


Page 1


Court Overturns Sentence Boost for Defendant Who Won Appeal

Presumption of Vindictiveness Not Overcome as to Portion of Increase, Ninth Circuit Says


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals Wednesday ordered a new sentencing hearing for a former post office supervisor who went to prison for her role in an identity-theft scheme, then won a partial victory on appeal but saw her total sentence increased on remand.

 The latest ruling, by a divided panel, was only a limited victory for Fatima Peyton. In what the dissenting judge said would be an injustice, the San Diego woman may still wind up serving more than the 15-month term she originally drew, if less than the 30 months she received the second time.

Peyton was convicted on eight counts of credit card fraud. Her boyfriend and co-defendant, Michael Lucas, pled guilty before trial to all eight counts and drew a 15-month sentence.

Prosecutors described a scheme in which Peyton used her access to the names and social security numbers of other postal workers to obtain credit cards in their names, which were mailed to the residence shared by Peyton and Lucas. The pair were also accused of making credit card applications over the phone, also using names and social security numbers of postal workers, giving the address of Lucas’ brother, an administrative assistant with the U.S. Navy.

Jurors found Peyton guilty on all eight counts. At sentencing, Senior U.S. District Judge Rudi Brewster of the Southern District of California imposed the 15-month term, which included enhancements for more than minimal planning and abuse of a position of trust.

Brewster rejected the pre-sentence investigator’s recommendations that two additional enhancements be imposed—one for having caused victims to lose more than $60,000 in the scheme, and one for obstruction of justice for having offered a false affidavit by Lucas that would have exculpated Peyton.

  The amount-of-loss enhancement recommendation was based on the conclusion that Peyton knew the full extent of the scheme and should have reasonably foreseen the losses that would result, so that all of the conduct of her co-conspirators—Lucas, his brother, and three others—should be attributed to her for sentencing purposes.

But Brewster rejected that conclusion under the then-recent authority of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi, which dealt with a hate-crimes law, held that the right to trial by jury applies to any allegation of fact, other than that of a prior conviction, that has the effect of increasing a sentence above what would otherwise be the statutory maximum.

Brewster explained that under his reading of Apprendi, an enhancement could only be based on facts found by the jury. As for the obstruction-of-justice claim, Brewster ruled that the enhancement could not be based on a third party’s willingness to give false testimony.

On Peyton’s initial appeal two years ago, the Ninth Circuit panel threw out the convictions on six counts, saying there was a material variance between the charges alleged in the indictment and the evidence offered  to prove them. Since it threw out the convictions, the panel never reached sentencing issues, sending the case back to the District Court.

At the resentencing, which took place eight months after the appellate ruling, Brewster explained that it was clear—under intervening Ninth Circuit cases—that he was wrong about Apprendi and was entitled to consider relevant evidence not presented to the jury, which he agreed established Peyton’s responsibility for the full amount of the losses.

He also reversed himself as to the obstruction-of-justice enhancement, and imposed a new sentence that was double that which he handed down originally.

Peyton’s second appeal was based on U.S. Supreme Court authority holding that there is a rebuttable presumption of vindictiveness when a judge imposes an increased sentence following a successful appeal by the defendant. If the presumption is not rebutted by objective proof, the high court has held, the sentence increase violates the Due Process Clause.

But Judge Richard Tallman, writing for the Ninth Circuit, said the presumption only applies when there is a “reasonable likelihood’ of actual vindictiveness. Otherwise, the burden is on the defendant to show that the sentence was in fact retaliatory.

With respect to the Apprendi issue, Tallman reasoned, there was no reasonable likelihood of vindictiveness. Ninth Circuit precedent, the judge said, makes it clear that the presumption does not apply to correction of a legal error with respect to the prior sentence.

But the presumption does apply to the obstruction-of-justice finding, and was not rebutted, Tallman said. “The Government did not present any facts to show why, on remand, the court found the enhancement to be appropriate when it previously had found that this affidavit was not traditionally the type considered to be an obstruction of justice,” the judge declared.

Judge Johnnie B. Rawlinson joined in Tallman’s opinion. But Senior Judge John Noonan argued in dissent that allowing any increase in the original sentence was “[i]n disregard of the Supreme Court and our own circuit precedent.”

Noonan noted that at the first sentencing, in addition to his discussion of Apprendi, Brewster commented that he didn’t “feel sufficiently apprised as to what that [evidence offered in support of the enhancement] amounts to.” That, the dissenting jurist argued, indicates that the judge’s ruling at the second sentencing amounted to a change in his assessment of the evidence, to which the presumption of vindictiveness applies.

He elaborated:

“In our case, appeal has been discouraged by the action of the district judge given a stamp of approval by this court. ‘Win your appeal and double your sentence.’ That cannot be our motto or that of any judicial body interested in doing justice. The motto is not any better if it reads: ‘Win your appeal and increase your sentence 40 percent.’”

The case is United States v. Peyton, 02-50482.


Copyright 2004, Metropolitan News Company