Opinion
No. 03-40029-01-SAC.
May 24, 2004
RULING ON NEW OBJECTIONS TO PRESENTENCE REPORT
The defendant filed on Friday, May 21, 2004, a motion seeking permission to file out of time additional objections to the presentence report or, in the alternative, to permit the argument of these objections in mitigation of her sentence. (Dk. 47. The defendant's current sentencing date is Tuesday, May 25, 2004.
The court has continued the defendant's sentencing on two prior occasions. The court continued the first sentencing date of March 23, 2004, to April 27, 2004, because, in part, defense counsel needed additional time to prepare and submit objections to the presentence report ("PSR"). (Dk. 37). On April 22, 2004, the court filed its order ruling on the defendant's pending objections to the PSR. (Dk. 40). The day before her sentencing, the defendant filed a motion for downward departure. (Dk. 41). On the day of her sentencing, the court presented the parties with its order denying the motion for downward departure. (Dk. 42). During the sentencing hearing, defense counsel asked for the court to continue the sentencing in order that the defendant could arrange for a witness to testify in support of her objections and motion. The court granted the defendant's request after the government indicated it had no objection. (Dk. 43). The court continued the sentence for over one month or until May 25, 2004.
Now, just several days before her third sentencing date, the defendant proposes new objections to the PSR that take aim at sentencing guideline provisions governing relevant conduct and the specific offense characteristic of U.S.S.G. § 2B1.1(b)(7)(C). A sentencing court is not required to hear an objection to the PSR that is not raised within fourteen days of counsel's receipt of the report. The court may allow a party to advance a new objection at any time before sentencing if "good cause" is shown. Fed.R.Crim.P. 32(f)(1) and (i)(1)(D). Absent a showing of good cause, the sentencing court may proceed as if no objection had been made and rely upon the PSR without making additional independent findings of fact. United States v. Overholt, 307 F.3d 1231, 1251-52 (10th Cir. 2002). The defendant's motion does not argue any "good cause" for waiting to present these new objections. See Fed.R.Crim.P. 32(i)(1)(D). There is nothing of record to show diligence and a good faith reason for the delay in presenting these objections. The defendant's relevant conduct objection does not raise any substantial factual or legal issue going to the basic fairness or validity of the PSR's findings and determinations. The defendant's objection to U.S.S.G. § 2B1.1(b)(7)(C), however, raises a substantial legal issue about the validity of its application to this case. Thus, the court denies the defendant's relevant conduct objection as untimely, but it will consider the merits of the defendant's latter objection.
Assuming the defendant's relevant conduct objection had been timely advanced, the defendant would not have benefitted from it. The defendant's new objection to the four-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(C) for loss in the amount of child support owed to the State of California is that the loss calculation is based on conduct for which she was never charged or convicted. This objection ignores the relevant conduct principles underlying the sentencing guidelines. Base offense level and specific offense characteristics are to be determined from "all acts and omissions committed, . . . induced, procured, or willfully caused by the defendant; . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1). The factual basis of the defendant's plea was that she assumed the identity of Diana Lapointe with which she obtained a social security number and that she used these false identifications in Kansas to obtain loans and a state liquor license. The PSR recommends a finding that the defendant used her alias in Kansas and elsewhere during the same time period to avoid paying child support in the amount of $17,724 to the State of California. After assuming the alias, the defendant did not pay any further support, and the defendant's alias frustrated the State of California's efforts to collect the child support. By filing income tax returns using her alias, the defendant avoided having any federal income tax refunds garnished for child support owed. Thus, the defendant's failure to pay California child support is related criminal activity insofar as the defendant used the same false identity to frustrate the collection of this child support. By the terms of her plea agreement, the defendant agreed that other "uncharged related criminal activity" would be "relevant conduct for purposes of calculating the offense level." The defendant's first untimely objection is without merit.
The defendant's new objection to the two-level increase pursuant to U.S.S.G. § 2B1.1(b)(7)(C) for violation of an administrative child support order is that this adjustment cannot be imposed when the amount of the child support order is also being used to determine offense level. For support of her argument, the defendant misconstrues the language found in application note six which states that the different adjustments in (b)(7), of which there are four defined categories, "are alternative rather than cumulative." U.S.S.G. § 2B1.1, comment. (n. 6). This language is inapplicable here, because the defendant's PSR does not apply more than one adjustment from (b)(7). Later language in application note six, however, indicates that an enhancement for contravening a judicial or administrative order is not to be applied "if the same conduct resulted in an enhancement pursuant to a provision found elsewhere in the guidelines." U.S.S.G. § 2B1.1, comment. (n. 6(C)). The PSR does calculate the loss enhancement under (b)(1) based on the amount of the child support order which the defendant violated by avoiding payment. On its face, application note 6(C) appears to preclude the additional two-point enhancement in this case. The court sustains the defendant's objection. As a result, the court reduces the total offense level calculated in the PSR from twelve to ten. Using a criminal history category of one, the applicable sentencing guideline range is six to twelve months.
IT IS THEREFORE ORDERED that the defendant's motion to allow additional objections (Dk. 47) is denied in part and granted in part.