Filed: Apr. 01, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4738 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. MICHAEL IBANGA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Walter D. Kelley, Jr., District Judge. (2:04-cr-00227-WDK) Argued: March 21, 2008 Decided: April 1, 2008 Before NIEMEYER and MICHAEL, Circuit Judges, and C. Arlen BEAM, Senior Circuit Judge of the United States Court of Appeals for the E
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4738 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. MICHAEL IBANGA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Walter D. Kelley, Jr., District Judge. (2:04-cr-00227-WDK) Argued: March 21, 2008 Decided: April 1, 2008 Before NIEMEYER and MICHAEL, Circuit Judges, and C. Arlen BEAM, Senior Circuit Judge of the United States Court of Appeals for the Ei..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4738
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
MICHAEL IBANGA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr., District
Judge. (2:04-cr-00227-WDK)
Argued: March 21, 2008 Decided: April 1, 2008
Before NIEMEYER and MICHAEL, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellant. Trey Robert Kelleter,
VANDEVENTER & BLACK, L.L.P., Norfolk, Virginia, for Appellee. ON
BRIEF: Chuck Rosenberg, United States Attorney, Alexandria,
Virginia, Laura M. Everhart, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal by the government arises out of a drug
trafficking and money laundering prosecution of a group of
individuals that included Michael Ibanga. The jury convicted
Ibanga of conspiracy to launder money and acquitted him of the drug
trafficking charges. Nonetheless, the district court found at
sentencing that the government had proven by a preponderance of the
evidence that Ibanga had trafficked in 124.03 grams of
methamphetamine (meth). Although acquitted conduct proven by a
preponderance of the evidence may be taken into account in
sentencing, the district court sentenced Ibanga to a prison term
that did not reflect any drug trafficking. The government appeals
Ibanga’s sentence, arguing that the district court contravened 18
U.S.C. § 3661 by categorically refusing to consider acquitted
conduct -- Ibanga’s drug trafficking found by the court -- in
determining his sentence. Because it appears that the district
court applied a standard that would categorically exclude
consideration of acquitted conduct in every case, we vacate
Ibanga’s sentence and remand for resentencing.
I.
On January 27, 2005, a grand jury sitting in Norfolk,
Virginia, returned a superseding indictment charging Ibanga, among
others, with conspiring to distribute and possess with intent to
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distribute 50 grams or more of meth and 500 grams or more of a
substance containing meth (count 1); conspiring to conduct
financial transactions involving the proceeds of meth distribution
(count 2); conducting a financial transaction involving the
proceeds of an unlawful activity (count 19); distribution of
approximately 20.1 grams of meth (count 28); aiding and abetting
the possession of approximately one kilogram of a substance
containing meth with intent to distribute (count 36); and aiding
and abetting the possession of approximately 500 grams of a
substance containing meth with intent to distribute (count 48).
After a jury trial Ibanga was convicted of conspiracy to launder
money (count 2) and acquitted on all other counts.
Under U.S.S.G. § 2S1.1 the base offense level for a money
laundering conviction is established by using the underlying
offense that produced the laundered funds if the defendant
committed the underlying offense. Here, the underlying offense was
drug trafficking, but the jury acquitted Ibanga on the drug
trafficking counts. Nevertheless, acquitted conduct may be used at
sentencing if the sentencing court finds the conduct has been
established by a preponderance of the evidence. United States v.
Watts, 519 U.S. 148, 157 (1997). Based upon the trial testimony,
the presentence report (PSR) recommended attributing 7.67613
kilograms of trafficked meth to Ibanga and therefore assigned a
base offense level of 38 according to U.S.S.G. § 2D1.1(c), the drug
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trafficking quantity table. The PSR also recommended a two-step
increase in offense level for possession of a dangerous weapon, a
two-step increase for the money laundering conviction, and a three-
step increase for Ibanga’s supervisory role in the offense. The
PSR assigned Ibanga a criminal history category of II based upon
several recent driving offenses.
The district court engaged in an exhaustive sentencing
effort, conducting three sentencing hearings and holding several
off-the-record status conferences. Of the co-conspirators who
testified at trial, the district court found only John Gelardi to
be credible; and, based on Gelardi’s testimony, found, by a
preponderance of the evidence, that 124.03 grams of meth were
attributed to Ibanga. The court also found that Ibanga was a minor
player in the conspiracy and sustained Ibanga’s objection to the
sentencing enhancement for having a supervisory role in the
offense. Finally, the court sustained Ibanga’s objection to the
firearm possession enhancement and reduced his criminal history
category to I.
After these findings and adjustments made by the district
court were taken into account, the resulting Guidelines range was
a sentence of 151 to 188 months in prison. The district court
asked the probation officer to calculate the Guidelines range
without considering the acquitted conduct (the 124.03 grams of
trafficked meth), and this calculation produced a range of 51 to 63
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months. The court then confined itself to the 51 to 63 months
range, noting that sentencing based upon acquitted conduct “makes
the constitutional guarantee of a right to a jury trial quite
hollow.” J.A. 1515. In considering the 18 U.S.C. § 3553(a)
factors, the court found that Ibanga’s religious conversion and
“model” behavior since being released on bond seemed “quite
genuine.” J.A. 1516-17. This conduct, the court determined,
alleviated any concern about the need to protect the public with a
longer sentence. However, the court also described Ibanga’s money
laundering activities as “very serious” and found no reason to
depart from the Guidelines range (51 to 63 months) that did not
include acquitted conduct. J.A. 1517. The court imposed a
sentence of 55 months. In a written opinion issued after the
notice of appeal was filed, the district court further explained
its reasoning, stating that sentencing based upon acquitted conduct
would not promote respect for the law as it would thwart the
historic roles of the jury as finder of fact, protector against
government overreaching, and arbiter of guilt or innocence. The
government appeals Ibanga’s sentence, contending that the district
court violated 18 U.S.C. § 3661 by applying a standard that would
categorically exclude the consideration of acquitted conduct at
sentencing.
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II.
Since Ibanga was sentenced, the Supreme Court has issued
opinions clarifying the appropriate procedures and standards for
federal sentencing and the appellate review of sentences. In Gall
v. United States, 128 S. Ct. 586 (2007), the Court explained that:
a district court should begin all sentencing proceedings
by correctly calculating the applicable Guidelines range.
As a matter of administration and to secure nationwide
consistency, the Guidelines should be the starting point
and the initial benchmark. The Guidelines are not the
only consideration, however. Accordingly, after giving
both parties an opportunity to argue for whatever
sentence they deem appropriate, the district judge should
then consider all of the § 3553(a) factors to determine
whether they support the sentence requested by a party.
In so doing, he may not presume that the Guidelines range
is reasonable. He must make an individualized assessment
based on the facts presented. If he decides that an
outside-Guidelines sentence is warranted, he must
consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the
degree of the variance. . . . After settling on the
appropriate sentence, he must adequately explain the
chosen sentence to allow for meaningful appellate review
and to promote the perception of fair sentencing.
Id. at 596-97 (citations omitted); see also Kimbrough v. United
States,
128 S. Ct. 558, 564, 570 (2007) (While a district court
must “include the Guidelines range in the array of factors
warranting consideration” and “give respectful consideration to the
Guidelines,” it “may vary [from Guidelines ranges] based solely on
policy considerations, including disagreements with the
Guidelines.” (alteration in original) (quotation marks omitted)).
An appellate court reviews any sentence, whether inside
or outside the Guidelines range, “under a deferential abuse-of-
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discretion standard.” Gall, 128 S. Ct. at 591. The reviewing
court must first ensure that the sentencing court did not commit a
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
sentencing factors, or neglecting to explain adequately the
sentence imposed.
Id. at 597. If the sentence is procedurally
sound, the appellate court then considers the substantive
reasonableness of the sentence under an abuse of discretion
standard, “giv[ing] due deference to [a] District Court’s reasoned
and reasonable decision that the § 3553(a) factors, on the whole,
justified the sentence.”
Id. at 597, 602.
Section 3661 of Title 18 provides that “[n]o limitation
shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a
court of the United States may receive and consider for the purpose
of imposing an appropriate sentence.” This information includes
acquitted conduct proven by a preponderance of the evidence. See
Watts, 519 U.S. at 151-57.
The district court conducted Ibanga’s sentencing
proceedings with great deliberation, but the court committed
significant procedural error, see Gall, 128 S. Ct. at 597, by
categorically excluding acquitted conduct from the information that
it could consider in the sentencing process. Therefore, we vacate
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Ibanga’s sentence and remand for resentencing in accordance with
the guidance provided by Gall and Kimbrough.
VACATED AND REMANDED
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