GARLAND, Chief Judge:
Russell James Caso, Jr. is innocent of the crime for which he was charged and convicted. The government does not dispute the point. Nonetheless, Caso was denied an opportunity to collaterally attack his conviction and sentence because he could not demonstrate that he is also innocent of a separate and uncharged offense that has a lower sentencing range under the United States Sentencing Guidelines. Because Caso was not required to make such a showing, we reverse the order denying his motion to vacate his conviction and sentence.
Caso's conviction arose out of his work for former United States Representative Curt Weldon. Caso initially served as one of Representative Weldon's legislative assistants. In 2005, he was appointed as the Representative's chief of staff. During this time, Representative Weldon was approached by a nonprofit consulting firm ("Firm A") to take legislative action on two proposals implicating relations between the United States and Russia. The same firm retained Caso's wife to edit written drafts of those proposals. Over the course of several months, Firm A paid Caso's wife $19,000 for what appear to be de minimis services. Mem. & Order Denying Mot. Vacate 2, United States v. Caso, No. 07-332 (D.D.C. Jan. 12, 2012) ("Dist. Ct. Op.").
Caso, like many officers and employees of the United States Congress, was required to file an annual disclosure statement detailing, among other things, the sources of "income earned by a spouse from any person which exceed $1,000." 5 U.S.C. app. 4 § 102(e)(1)(A); see generally 5 U.S.C. app. 4 §§ 101 et seq. ("Ethics in Government Act of 1978"). Despite this requirement, Caso failed to list Firm A's payments to his wife on his 2005 disclosure statement. Nonetheless, Caso signed the statement, certifying that it was true, complete, and correct. Dist. Ct. Op. 2.
On December 4, 2007, the government charged Caso with conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. §§ 371, 1343, and 1346. See 18 U.S.C. § 371 (proscribing conspiracy to defraud the United States); id. § 1343 (proscribing "any scheme or artifice to defraud" that involves the interstate transmission of signals over a wire); id. § 1346 (defining "scheme or artifice to defraud" to include "a scheme or artifice to deprive another of the intangible right of honest services"). On the same day, Caso entered into a plea agreement, admitting that he had intentionally failed to disclose Firm A's payments to his wife and that "[a] reason for this non-disclosure was that [he] knew that his wife's financial relationship with Firm A created a personal conflict of interest." Statement of Offense 3-4 (Dec. 7, 2007) (Appellant's App. 14-15); see Plea Agreement 2 (Dec. 7, 2007) (Appellant's App. 19).
On July 30, 2009, Caso was sentenced to three years' probation, including a 170-day term of home confinement. Caso's term of
Shortly after Caso was sentenced, the Supreme Court handed down Skilling v. United States, ___ U.S. ___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), a decision that substantially limited the permissible reach of 18 U.S.C. § 1346, the honest-services fraud statute. Prior to Skilling, the government had used that statute to prosecute public officials who failed to disclose conflicts of interest, on the theory that such nondisclosure constituted a "scheme or artifice to deprive another of the intangible right of honest services," 18 U.S.C. § 1346. See Skilling, 130 S.Ct. at 2932-33. In Skilling, however, the Court interpreted § 1346 more narrowly. In an effort to avoid a "vagueness shoal," id. at 2907, the Court held that § 1346 "proscribe[s] bribes and kickbacks — and nothing more." Id. at 2932.
After the Supreme Court issued its decision, Caso filed a motion under 28 U.S.C. § 2255 to vacate and set aside his conviction and sentence on the ground that "the conduct to which he admitted in the statement of the offense — which did not stipulate [his] receipt of a bribe or a kickback — does not constitute an offense under § 1346 following Skilling." Dist. Ct. Op. 4; see Def.'s Mot. Vacate 1 (Apr. 25, 2011). The government opposed the motion. It did not dispute that Caso was "`actually innocent' of the honest services wire fraud upon which his conspiracy conviction was based, as that offense now is defined under Skilling." Opp'n to Def.'s Mot. Vacate 16 (Nov. 3, 2011).
The district court agreed with the government. It noted that a defendant is ordinarily required to first "raise the basis of his habeas challenge during trial or on appeal in order to assert that claim on collateral review." Dist. Ct. Op. 6 (citing United States v. Frady, 456 U.S. 152, 162, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). Because Caso had failed to do so, the court held that he had presumptively defaulted his claim for collateral relief. Finally, the court agreed with the government that Caso had failed to satisfy the narrow conditions for excusing such a default that the Supreme Court set out in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
In Bousley, the Court noted that, "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate" one of two conditions: (i) "cause" for the default and "actual prejudice" resulting therefrom, or (ii) that the defendant is "actually innocent." Id. at 622, 118 S.Ct. 1604 (citing, inter alia, Murray v. Carrier, 477 U.S. 478, 485, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To satisfy the second condition, the "petitioner must demonstrate that, `"in light of all the evidence,' "`it is more likely than not that no
Id. at 624, 118 S.Ct. 1604 (emphasis added).
Caso has not attempted to satisfy the first condition for overcoming procedural default; he relies solely on the second. To meet that condition, the district court held that Caso had to demonstrate his "actual innocence" not only of the crime for which he was charged and convicted — conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. § 371 — but also of the separate, uncharged offense of making a "materially false ... statement" to the government, in violation of 18 U.S.C. § 1001. The court held that the government had forgone the false statement charge in the course of bargaining, and that this charge was just as serious as the honest-services conspiracy charge of which Caso had been convicted. Concluding that Caso could not show his actual innocence of the false statement charge in light of the admissions he made in his plea agreement, the court denied his motion to vacate his conviction and sentence.
The question at issue on this appeal is whether, in order to fall within the "actual innocence" condition for excusing procedural default, Caso is required to show his actual innocence of the false statement charge. Because that is a legal question, we review the district court's holding de novo. United States v. Weaver, 234 F.3d 42, 46 (D.C.Cir.2000).
Caso proffers three arguments for why he should not be required to demonstrate his "actual innocence" of the separate, uncharged offense of making a false statement. In this Part, we set out his first two arguments. We do not, however, need to resolve them. As we discuss, even if Caso is wrong about them, his third argument — which we set out in Part III — is sufficient to require a decision in his favor.
Caso's first contention is that Bousley does not require him to show his "actual innocence" of making a false statement in violation of 18 U.S.C. § 1001 because he was never charged with that crime. Caso notes that Bousley states that a habeas petitioner must show his actual innocence of "more serious charges" that the government "has forgone." Bousley, 523 U.S. at 624, 118 S.Ct. 1604 (emphasis added). In his view, this refers to charges that were actually presented in an indictment or information.
But Bousley's use of the word "charges" is not alone sufficient to establish Caso's position. There is nothing strained about concluding that a prosecutor can forgo "charges" either by dropping them after an indictment or by never bringing them at all. Notably, Bousley referenced charges forgone by the prosecution "in the course of plea bargaining," id., a process that may either follow or precede the issuance of an indictment (or information).
To support his interpretation, Caso points us to Bousley's application of its own rule. Kenneth Bousley had pled guilty to "using" a firearm during a drug
The Court gave the following reasons:
Id.
Focusing on the first sentence in the above quotation, Caso maintains that he does not have to demonstrate his innocence of the false statement offense because the government never charged him under § 1001. But the Supreme Court did more than merely look to Bousley's indictment to see what the government charged. In addition, it observed that "there is no record evidence that the Government elected not to charge petitioner with `carrying' a firearm in exchange for his plea of guilty." Id. In Caso's case, by contrast, the government contends (and the district court agreed) that it does have "record evidence" that it elected not to charge him with making a false statement in violation of 18 U.S.C. § 1001.
In support of this contention, the government points to an affidavit from its lead prosecutor, averring that the government had indeed contemplated charging Caso with violating § 1001, but had consciously forgone doing so as part of the plea agreement. Gov't Br. 27; see Decl. of Howard Sklamberg 2 (Supplemental App. at 84). Caso responds that only evidence created contemporaneously with a charging decision should be considered in determining what charges the government elected not to bring. Considering post hoc record evidence "would invite abuse," he argues, because the "government can always point to new or additional charges that its prosecutors could have or would have pursued but for the plea agreement." Appellant's Br. 24, 26.
But there is more than just post hoc evidence in this case. As part of the plea agreement, the government agreed that Caso would "not be further prosecuted criminally for the conduct set forth in the attached Statement of Offense." Plea Agreement 1. For his part, Caso agreed that the Statement of Offense "fairly and accurately" described his conduct. Id. at 2. Although that statement did not specifically cite 18 U.S.C. § 1001, it did include admissions that were sufficient to establish at least a presumptive violation of that section. In particular, Caso stipulated that he had "intentionally failed to disclose that his wife received payments from Firm A" on his financial disclosure form, "even though he knew that he was required to do so." Statement of Offense 3-4. And he conceded that "[a] reason for this non-disclosure was that [he] knew that his wife's financial relationship with Firm A
Nonetheless, the relevant language in Bousley is ambiguous. The Court's reference to "record evidence" does not clearly resolve whether post hoc affidavits of the kind presented by the government should be considered in determining whether the government considered and then dropped a charge. Nor does the Court's reference to "forgone ... charges" resolve whether the government's decision to forgo a charge must have been expressly made or whether it is sufficient that it be implicit in the conduct the defendant acknowledges in his plea. Because Caso wins this appeal even if we assume that the government agreed to forgo the false statement charge, see infra Part III, we need not resolve those questions today.
Caso's second argument is that Bousley's "actual innocence" requirement does not extend to the § 1001 offense because that offense was not "more serious," Bousley, 523 U.S. at 624, 118 S.Ct. 1604, than the § 371 charge. In his view, it was at most "equally serious." The parties dispute the appropriate measure of seriousness, an issue we address in Part III. The government insists that the correct measure is the statutory maximum penalty; Caso contends that the correct measure is the Sentencing Guidelines range. But as Caso notes, even if we were to adopt the government's measure, the § 1001 charge of making a false statement and the § 371 charge of conspiring to commit honest-services wire fraud are equally serious: both have the same statutory maximum penalty of 5 years' imprisonment.
The government argues, and the district court held, that Bousley requires a habeas petitioner to show not only that he is actually innocent of the charge to which he pled guilty, but also "of any charges of greater or equal seriousness" that the government forwent in exchange for the guilty plea. Gov't Br. 13 (emphasis added); see Dist. Ct. Op. 10-12. In response, Caso points to Bousley's plain language, which only extends the showing-of-innocence requirement to "more serious charges." Bousley, 523 U.S. at 624, 118 S.Ct. 1604 (emphasis added).
Once again, the Bousley Court's application of its own rule generates ambiguity with respect to the meaning of its language. As we noted above, in Bousley the Court looked to the indictment and other record evidence to determine whether the habeas petitioner had to show his actual innocence of "carrying" as well as "using" a firearm. Yet, as the government points out, the "carrying" offense bears the same statutory penalty as the "using" offense for which Bousley was convicted. See 18 U.S.C. § 924(c)(1). Likewise, the two offenses are assigned the same base offense level under the Sentencing Guidelines. See U.S. SENTENCING GUIDELINES MANUAL § 2K2.4 (2008) ("U.S.S.G."). Hence, if it were unnecessary to show actual innocence of an "equally serious" charge, the Court's analysis would have been superfluous. The fact that the Court nonetheless undertook that analysis suggests that it intended the actual innocence requirement to extend to "equally serious" charges, notwithstanding that its language mentioned only
The few courts of appeals that have considered this issue appear divided with respect to its resolution.
Even if we assume that the government did forgo the false statement charge, and even if we assume that a habeas petitioner must show his innocence of a forgone charge that is of either equal or greater seriousness than the charge of conviction, Caso contends that we must nonetheless reverse the district court. That is so, he argues, because the § 1001 charge is of neither equal nor greater seriousness than the § 371 charge to which he pled guilty. Rather, a violation of § 1001 is a less serious offense than a violation of § 371. It is less serious, Caso maintains, because its Sentencing Guidelines range is lower and because the Guidelines provide the proper measure of the relative seriousness of offenses.
The government disagrees. It maintains, and the district court held, that seriousness can only be measured by comparing the statutory maximum penalties for each offense. As noted above, by that measure violations of § 1001 and § 371 are equally serious.
In Subpart A, we consider whether the Guidelines or the statutory maxima are the appropriate measure of seriousness under Bousley. In Subpart B, we apply our conclusion to the facts of Caso's case.
Bousley did not tell us which measure of seriousness to employ in determining which offenses are "more serious." Nor did it explain the rationale for requiring habeas petitioners to demonstrate their innocence of "more serious" offenses. Although intuiting the Court's unexpressed rationale is a tricky business, we must attempt to do so because determining which measure of seriousness most closely satisfies that rationale is the best way to decide which measure to apply.
1. The parties appear to believe that the rationale for the "more serious offense" requirement rests on the dynamics of plea bargaining — i.e., that it represents an effort to recreate the bargaining outcome that the parties would have reached absent the invalid charge. It is not clear, however, how the "more serious" requirement meshes with those dynamics. The government suggests that, in a case in which it has forgone a more serious charge, a showing of innocence regarding that charge is required because it would have demanded a plea to the more serious charge had it known the charge of conviction
Another, possibly more plausible, rationale relates to the equities of plea bargaining rather than to its dynamics. The Court may have regarded it as fair that, if the uncharged offense is more serious than the offense of conviction, the lesser penalty for the latter should stand unless the defendant can show that he is innocent of both offenses. This ensures, the Seventh Circuit has said, that the defendant does not receive an unjustified "windfall." Lewis, 329 F.3d at 936.
2. In the end, it does not matter whether the rationale for the Bousley rule is rooted in the dynamics of the plea bargaining process or in its equities (or in both). Either rationale leads to the conclusion that the appropriate measure of the seriousness of an offense must be derived from the Sentencing Guidelines rather than the statutory maximum penalty.
There is no doubt that, in deciding whether to plead and what to plead to, defendants rely primarily on their expected Guidelines exposure rather than on the statutory maximum for the offense. See generally Peugh v. United States, ___ U.S. ___, 133 S.Ct. 2072, 2085, 186 L.Ed.2d 84 (2013) (plurality opinion) (explaining that a defendant who is contemplating a plea "will be aware that the [Guidelines] range
This reliance on the Guidelines is plainly logical. Although the government correctly notes that the Guidelines are no longer binding on district courts, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court reminded us just this Term that they nonetheless remain the "lodestone of sentencing." Peugh, 133 S.Ct. at 2084 (majority opinion). "Even after Booker..., district courts have in the vast majority of cases imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Government's motion. In less than one-fifth of cases since 2007 have district courts imposed above-or below-Guidelines sentences absent a Government motion." Id. Nor is this mere happenstance. Guidelines calculations are still "the starting point and the initial benchmark" for every sentencing decision, and "district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process." Id. at 2080, 2083 (quoting Gall v. United States, 552 U.S. 38, 49, 50 n. 6, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)); see United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C.Cir.2008).
Looking to the statutory maxima, by contrast, would provide the parties with little useful information. The statutory ranges are far broader than the Guidelines ranges. Compare 18 U.S.C. § 1001 (authorizing a sentence between 0 and 5 years absent special circumstances), with U.S.S.G. § 2B1.1 (generating Guidelines ranges as narrow as six months). And courts rarely sentence defendants to the statutory maxima. See U.S. SENTENCING COMM'N, SPSS DATAFILE FOR FISCAL YEAR 2012, available at http://www.ussc.gov/Research_and_Statistics/Datafiles/index.cfm
As we discuss below, Caso's Sentencing Guidelines range for both the § 1001 and the § 371 offense are well below the statutory maximum for each offense. Hence, if the rationale of the Bousley rule is to recreate the bargaining outcome that the parties would likely have reached absent an invalid charge, we must appraise any forgone charges just as the parties would have — by reference to the Guidelines.
An equity rationale likewise requires resort to the Guidelines. On that rationale, a defendant should not be absolved of his conviction and sentence if he cannot show he is innocent of an uncharged crime that carries an even longer sentence. At the same time, a defendant should not be required to serve a longer sentence associated with a crime he did not commit, just because he cannot demonstrate his innocence of another crime that would have yielded a shorter sentence. Once again, knowing the statutory maxima is largely irrelevant to this analysis. The operative question is how severe a sentence the forgone charge would likely have yielded. Only the Guidelines can generate a reasonable answer to that question.
The sole argument the government makes for using statutory maxima as the measure of seriousness for Bousley purposes is that the maxima reflect Congress' judgment regarding the relative seriousness of offenses. It is not even clear that this is correct as a matter of congressional understanding, as it was Congress that authorized the Sentencing Guidelines and mandated that district courts consider them in imposing sentences. See 28 U.S.C. § 994; 18 U.S.C. § 3553(a)(4).
In sum, we conclude that the appropriate measure of the relative seriousness of offenses for purposes of the Bousley rule must be derived from the Sentencing Guidelines rather than the statutory maxima. Accord United States v. Halter, 217 F.3d 551, 553 (8th Cir.2000); United States v. Lloyd, 188 F.3d 184, 189 n. 13 (3d Cir.1999).
Caso was sentenced for conspiracy to commit honest-services wire fraud, an offense with a Guidelines base offense level of 14. Pre-Sentence Report (PSR) ¶ 32; see U.S.S.G. § 2C1.1(a)(1) (2008); id. § 2X1.1(a). Because the value of the payments his wife received was more than $10,000 but less than $30,000, the base offense level was enhanced by four levels to 18. PSR ¶ 33; see U.S.S.G. §§ 2C1.1(b)(2), 2B1.1(b)(1)(C). After a reduction for acceptance of responsibility, Caso's total offense level was 15. PSR ¶¶ 39, 40; see U.S.S.G. § 3E1.1(b). For a defendant like Caso, who had no prior criminal history, that total offense level
By contrast, the offense of making a false statement under 18 U.S.C. § 1001 corresponds to a base offense level of 6. See U.S.S.G. § 2B1.1(a)(2). Under the circumstances of this case, there appear to be no relevant enhancements. See id. § 2B1.1(b). With the appropriate reduction for acceptance of responsibility, the total offense level would have been 4. See id. § 3E1.1(a).
One of the government's arguments against using the Guidelines rather than the statutory maxima as the measure of seriousness is that several Guidelines factors do not relate to the seriousness of the statutory offense, but rather to the circumstances of the particular case. In this case, the enhancement for the value of the payments Caso's wife received is such a factor. In addition, there are other factors that relate to the characteristics of the defendant rather than to those of the offense: here, for example, Caso's acceptance of responsibility and his criminal history. Although we take the government's point, a good argument can be made that all of these factors are relevant to evaluating relative seriousness. All are part of the determination of the defendant's final Guidelines range and hence of his likely sentence, and both possible rationales for the Bousley rule depend upon knowing what the defendant's actual sentence likely would be — not what some average or typical sentence might be for the mine run of those who commit the same statutory offense.
But even if we were to consider the Guidelines shorn of any factors particular to the defendant or his conduct, we would reach the same result in this case. The base offense level for all public officials who conspire to commit honest-services fraud is 14; the base offense level for all those who make a false statement is 6. On this measure, the former remains the more serious charge.
In a footnote, the government contends that, even if we do consider the Guidelines
In sum, by any relevant measure, the government did not forgo a more serious charge when it charged Caso with conspiring to commit honest-services wire fraud.
Under the rule enunciated in Bousley, a defendant who has procedurally defaulted a claim by failing to raise it on direct review may raise it in habeas if he can demonstrate that he is actually innocent both of the charge for which he was convicted and of "more serious" charges that the government forwent in the course of plea bargaining. Bousley, 523 U.S. at 624, 118 S.Ct. 1604.
We hold today that the appropriate measure of "seriousness" for purposes of this rule must be determined by reference to the United States Sentencing Guidelines. This approach reflects the continued relevance of the Guidelines in charging decisions, plea bargaining, and sentencing, and best aligns with any plausible rationale for the Bousley rule. Because Russell Caso is actually innocent of his offense of conviction, and because the government did not forgo any more serious charge in the course of plea bargaining, the judgment of the district court is
Reversed.
