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  • United States v. Coffman, 10th Cir. (1997)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Wilma Fay Coffman for telemarketing fraud. The court affirmed in part and remanded for resentencing. It found that the district court did not violate rights by communicating ex parte with a witness, but that the court failed to make written findings on controverted factual matters in the presentence report as required by Rule 32(c)(1). The case was remanded for resentencing and the appropriate written findings.

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    Filed: 1997-10-07 Precedential Status: Non-Precedential Docket: 96-5245

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Wilma Fay Coffman for telemarketing fraud. The court affirmed in part and remanded for resentencing. It found that the district court did not violate rights by communicating ex parte with a witness, but that the court failed to make written findings on controverted factual matters in the presentence report as required by Rule 32(c)(1). The case was remanded for resentencing and the appropriate written findings.

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    17 views5 pages

    United States v. Coffman, 10th Cir. (1997)

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    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Wilma Fay Coffman for telemarketing fraud. The court affirmed in part and remanded for resentencing. It found that the district court did not violate rights by communicating ex parte with a witness, but that the court failed to make written findings on controverted factual matters in the presentence report as required by Rule 32(c)(1). The case was remanded for resentencing and the appropriate written findings.

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    of 5

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    OCT 7 1997

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    WILMA FAY COFFMAN, a/k/a Fay
    Gist, a/k/a Estell Gist,

    No. 96-5245
    (D.C. No. 96-CR-38-1-B)
    (N.D. Okla.)

    Defendant-Appellant.

    ORDER AND JUDGMENT *

    Before BRORBY, LOGAN, and HENRY, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
    ordered submitted without oral argument.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    Defendant appeals from the sentence imposed after she pled guilty to one
    count of telemarketing fraud. We have jurisdiction under 28 U.S.C. 1291 and
    18 U.S.C. 3742. We affirm in part, and remand for resentencing.
    Defendant filed objections to the presentence report. Insofar as they are
    relevant to this appeal, defendant challenged the probation officers assertions:
    (1) in paragraph 19 that eleven points should be added to the base offense level
    because the actual or intended loss from the telemarketing fraud exceeded
    $800,000 but was less than $1,500,001; (2) in paragraph 22 that two points should
    be added because defendant deliberately selected victims who were unusually
    vulnerable to telemarketing schemes; and (3) in paragraph 21 that two points
    should be added because defendant represented a fictitious charity.
    After a hearing, the district court summarily overruled all of defendants
    objections to the presentence report. The court adopted paragraphs five through
    thirteen of the presentence report as to the facts of the case, and determined that
    the applicable guideline range was fifty-one to sixty months imprisonment. See
    R. Vol. IV at 87-88. The court noted that defendant had already been convicted
    and sentenced in Mississippi to twenty years imprisonment for telemarketing
    fraud at the time of her indictment in the Northern District of Oklahoma, and that
    the guidelines required defendants Oklahoma sentence to run concurrently with
    her Mississippi sentence. Because defendant was also entitled to credit for the
    -2-

    eleven months she had already served in Mississippi, the court sentenced
    defendant to forty-nine months imprisonment, to run concurrently with her
    Mississippi sentence. See id. at 88-89.
    On appeal, defendant argues that the sentencing court: (1) violated her
    rights by communicating ex parte before the sentencing hearing with one of the
    governments witnesses; (2) failed to make written findings on all controverted
    factual matters in the presentence report, as required by Fed. R. Crim. P. 32(c)(1);
    and (3) erred by finding that defendant targeted vulnerable victims, that she
    solicited on behalf of a fictitious charity, and that the actual or intended amount
    of the loss exceeded $800,000.
    Defendant has not shown that the district court violated her rights by
    communicating ex parte with one of the governments witnesses. While talking
    with the probation office on the morning of the sentencing hearing, the district
    court had occasion to ask the Special Assistant Attorney General for the State of
    Mississippi, Jean Smith Vaughan, how much of defendants twenty-year
    Mississippi sentence defendant would probably serve. Ms. Vaughans opinion
    was that defendant was likely to serve a minimum of about five years in
    Mississippi. The court took this information into account in determining
    defendants Oklahoma sentence because the guidelines required the court to make

    -3-

    it concurrent to her Mississippi sentence, and the court wanted to make sure that
    it did not extend beyond the Mississippi sentence. See R. Vol. IV at 72.
    Defendant asserts without much elaboration (and no case law) that this ex
    parte communication was a constitutional error that had a substantial influence on
    the sentence imposed against her. See United States v. Garcia, 78 F.3d 1457,
    1465 (10th Cir.), cert. denied, 116 S. Ct. 1888 (1996). We are not persuaded.
    Defendant did not object or seek to cross-examine Ms. Vaughan when the court
    revealed at the sentencing hearing that it had obtained information from her ex
    parte, and defendant has not shown that the information obtained was incorrect or
    that it prejudiced her. We therefore find no error on this point.
    We agree, however, that the district court improperly failed to make
    required written findings in this case. Federal R. Crim. P. 32(c)(1) requires the
    sentencing court to make findings on each objection to the presentence report, or
    state that no findings are required because the controverted material either will
    not be taken into account or will not affect sentencing. See, e.g., United States v.
    Henning, 77 F.3d 346, 349 (10th Cir. 1996). The rule also requires the court to
    reduce its findings to writing and attach them to the presentence report. See id.
    The sentencing court does not meet its burden by adopting the presentence report.
    See id. Nothing in our cases allows us to accept the district courts failure to
    actually make written findings and attach them to the presentence report. See,
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    e.g., United States v. Roederer, 11 F.3d 973, 977, 983 (10th Cir. 1993) (affirming
    sentence but remanding for findings required under former version of
    Rule 32(c)(1)); United States v. Price, 945 F.2d 331, 333 (10th Cir. 1991)
    (remanding for resentencing); United States v. Alvarado, 909 F.2d 1443, 1444-45,
    1447 (10th Cir. 1990) (remanding for resentencing and findings). Moreover,
    when a sentence enhancement is sought on the basis that the defendant targeted an
    unusually vulnerable victim, the sentencing court [must] make particularized
    findings of vulnerability. United States v. Lee, 973 F.2d 832, 834 (10th Cir.
    1992). The case must be remanded. Accordingly, we do not reach defendants
    other issues.
    The decision of the United States District Court for the Northern District of
    Oklahoma is AFFIRMED IN PART, and the case is REMANDED for
    resentencing and appropriate findings pursuant to Fed. R. Crim. P. 32(c)(1).

    Entered for the Court

    Wade Brorby
    Circuit Judge

    -5-

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