USA v. Andrew Lichtenberg
Filing
FILED OPINION (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and JOHNNIE B. RAWLINSON) AFFIRMED. Judge: MDH Authoring, FILED AND ENTERED JUDGMENT. [7626660]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW L. LICHTENBERG,
Defendant-Appellant.
No. 09-10191
D.C. No.
1:05-cr-00496-SOM
OPINION
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted
October 13, 2010—Honolulu, Hawaii
Filed January 27, 2011
Before: Michael Daly Hawkins, M. Margaret McKeown and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Hawkins
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UNITED STATES v. LICHTENBERG
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COUNSEL
Peter C. Wolff, Jr., Federal Public Defender, Honolulu,
Hawaii, for the defendant-appellant.
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UNITED STATES v. LICHTENBERG
Lawrence L. Tong and Clare E. Connors, Assistant United
States Attorneys, Honolulu, Hawaii, for plaintiff-appellee.
OPINION
HAWKINS, Senior Circuit Judge:
In this sentencing appeal, defendant Andrew Lichtenberg
(“Lichtenberg”) challenges his 112-month sentence, imposed
following a remand from this court, for wire fraud, money
laundering, and making a false statement in connection with
a passport application, arguing the district court improperly
calculated his criminal history points, improperly imposed an
above-Guidelines sentence for factors already taken into consideration by the Guidelines, and imposed a substantively
unreasonable sentence. We affirm.
FACTS AND PROCEDURAL HISTORY
Lichtenberg was convicted of wire fraud, money laundering
and false statement on a passport application. The charges
arose from a real estate transaction in which he had been hired
to assist an elderly client from Louisiana with the sale of her
interest in a piece of property on Kauai. The client paid Lichtenberg $1,800 and gave him explicit instructions regarding
handling the proceeds of the sale, which were to be wired
directly to her account. Having previously had a bad experience with a power of attorney, the client refused to give Lichtenberg one and explicitly refused to have the funds placed
into Lichtenberg’s client trust account.
Against those instructions, Lichtenberg had the escrow
company wire the sale proceeds of $373,000 to his client trust
account. A day later, he transferred $100,000 by wire to Indonesia1 and purchased two cashier’s checks in the amount of
1
Lichtenberg’s wife and her family lived in Indonesia. Indonesia lacks
an extradition treaty with the United States. When Lichtenberg was ulti-
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$100,000 each, payable to himself. Depositing these checks
into a checking account and savings account, then wiring the
full amount of the savings account to a bank in Indonesia,
Lichtenberg closed his law practice and left for Indonesia
using a fraudulently-obtained passport.2
Lichtenberg testified at his trial and denied any wrongdoing. The jury convicted him of all counts except for one count
of mail fraud. At his original sentencing, the district court
indicated agreement with the presentence report’s calculation
of Lichtenberg’s base level and criminal history points. This
included enhancements for vulnerable victim, abuse of trust,
obstruction of justice and use of a fraudulently obtained passport, resulting in an advisory Guidelines range of 70-87
months. The district court told Lichtenberg it was actually
considering a sentence of eleven and one-half years (138
months), noting it was influenced in part by his refusal to
cooperate with returning any of the money to the victim. At
this point, Lichtenberg indicated he had $200,000 in an
account in Indonesia that he was willing to give his client,
though still claiming this was not her money, but his personal
savings account. The court agreed to give Lichtenberg some
time to see if he could cooperate with the government in getting the funds back from Indonesia, and this was eventually
accomplished after nearly a year. However, Lichtenberg never
accounted for what happened to the remaining $173,000. It
mately arrested in Bali, Indonesia, he was apparently “very insistent that
he should never have been removed from Indonesia because there was a
lack of an extradition treaty”; in his first appeal, Lichtenberg also challenged the federal courts’ jurisdiction over him for similar reasons. United
States v. Lichtenberg, 2009 WL 118937, at *1 (9th Cir. 2009).
2
The indictment alleged that Lichtenberg had applied for an expedited
replacement passport, claiming he had “lost” his original passport, when
in fact it had been seized by the court in an unrelated state court proceeding. The jury convicted Lichtenberg of making false statements in the
application and use of a passport, and Lichtenberg does not contest this
conviction on appeal.
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was also discovered during this time that the interest from the
$200,000 was going into a separate account, from which
Lichtenberg’s wife was withdrawing the full amount of interest each month. The court ultimately sentenced Lichtenberg to
126 months, noting it remained concerned by his lack of candor and incomplete information regarding the additional
funds.
On appeal, we affirmed Lichtenberg’s conviction for wire
fraud, but reversed two of the money laundering counts.
United States v. Lichtenberg, 2009 WL 118937 (9th Cir.
2009). We also affirmed the application of the vulnerable victim enhancement and the use of a fraudulently obtained passport enhancement. We left for the district court to address an
issue Lichtenberg raised for the first time in that appeal: the
inclusion in his criminal history calculation of two state convictions for violating a protective order. Id. at *2.
At resentencing, the district court considered Lichtenberg’s
arguments regarding criminal history, but concluded that his
conviction for violating a domestic protection order was not
sufficiently similar to contempt of court to qualify for exclusion from criminal history consideration. The resulting applicable Guidelines range was 63-78 months, but the court again
decided to impose an above-Guidelines sentence, based
largely on the same reasons given at the previous sentencing.
The court also gave Lichtenberg some credit for his belated
expression of remorse, sentencing him to 112 months. This
appeal followed.
STANDARD OF REVIEW
The district court’s calculation of the Guidelines, including
the inclusion of a prior conviction for criminal history purposes, is reviewed de novo. United States v. HernandezHernandez, 431 F.3d 1212, 1220 (9th Cir. 2005). The district
court’s ultimate sentence, including the extent of any departure from the advisory Guidelines range, is reviewed for “rea-
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sonableness.” United States v. Mohamed, 459 F.3d 979 (9th
Cir. 2006).
DISCUSSION
I.
Lichtenberg claims error in the calculation of his applicable
Guidelines range based on the district court’s assessment of
criminal history points for his convictions of violating a state
domestic relations protective order.3 His argument is that violation of a state protective order is “similar to” a contempt of
court violation, which is expressly excluded from criminal
history calculation under U.S.S.G. § 4A1.2(c)(1).
[1] The Application Notes to the Guidelines offer some
guidance for determining whether an offense is “similar to”
an excluded listed offense:
[T]he court should use a common sense approach
that includes consideration of relevant factors such
as (i) a comparison of punishments imposed for the
listed and unlisted offenses; (ii) the perceived seri3
In February 2002, Lichtenberg was arrested and charged in two separate matters, one charging eight counts of violating the order of protection
(no description of the events was available) and another charging two
counts of violating the same order by sending his ex-wife a Valentine card
and then telephoning her to ask if she had received it. He was convicted
and sentenced to 200 hours community service and $550 in fines on the
first eight counts, and 100 hours community service and two days confinement on each of the latter two counts.
The second arrest occurred in September 2002 for one count of violating the same protective order. Lichtenberg’s wife was having lunch at a
Borders Bookstore when he approached her and tapped her shoulder; she
asked him to leave and he did, but then later approached her again outside
Borders and apologized for violating the protective order. He was sentenced to 100 hours community service, fined $200, and ordered to participate in a domestic violence intervention program.
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ousness of the offense as indicated by the level of
punishment; (iii) the elements of the offense; (iv) the
level of culpability involved; and (v) the degree to
which the commission of the offense indicated a
likelihood of recurring criminal conduct.
U.S.S.G. 4A1.2 cmt. n.12(A) (2007).4 If federal law is available, then the comparison should be between the federal version of the listed offense and the crime which the defendant
contends is “similar to” the excluded listed offense. United
States v. Kemp, 938 F.2d 1020, 1023-24 (9th Cir. 1991).
[2] A comparison of punishments is of limited value in this
case because the federal contempt statute, 18 U.S.C. § 401,
does not specify any range of punishments. Thus, a violation
of the federal statute could technically result in a lengthy sentence, which would be substantially greater than the misdemeanor provisions of the Hawaii statute, H.R.S. § 586-11. But
federal contempt could also result in no incarceration at all,
whereas the Hawaii statute requires jail time under a number
of scenarios and permits it in others. See id. We thus consider
this a neutral factor.
In addition, we recently held that, in applying the commonsense approach of Application Note 12, we will place more
importance on the actual punishment given, rather than the
statutory range of punishments theoretically available. Grob,
2010 WL 4486751, at *3. Here, Lichtenberg received a combination of fines, community service and minimal jail time.
While these punishments are relatively minor and likely similar to punishments imposed for contempt of court, we note
4
As we recently explained, this application note was added in November 2007 to resolve a circuit conflict regarding the manner in which a
court should determine whether a non-listed offense is “similar to” an
offense listed in § 4A1.2(c)(1) or (2). United States v. Grob, ___ F.3d __,
2010 WL 4486751, at *2-3 (9th Cir. 2010). This note adopted
the”common-sense” multi-factored test previously employed by the Second, Fifth, and Seventh Circuits. See id. at *2.
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that Lichtenberg was also ordered to participate in a domestic
violence intervention program as part of his punishment. See
H.R.S. § 586-11(a). As discussed more below, this distinction
highlights what we believe is an important difference in the
two crimes — the violation of a domestic protection order
always involves a victim that the court is attempting to protect
from physical harm and/or emotional harassment.
[3] Thus, although the punishments for violating a Hawaii
state protective order are relatively minor, in reviewing the
remaining factors identified by the Guidelines, we conclude
that the Hawaii violation for breach of a protective order is
not similar to contempt of court. While both crimes involve
knowing violation of a court order, an initial finding of
domestic abuse or the potential for domestic abuse (which
may include emotional harm to the victim) is required before
a protective order may issue in the first place. H.R.S. §§ 5863; 586-4–5.5. The crime elements thus differ because violating a specific type of order is required for the Hawaii state
protective order violation conviction.5 As one district court
explained:
The elements for these offenses [contempt of court
and violating a protective order] are closely related
because both require a defendant to willfully violate
a court order. However, the nature of the order that
an actor violates distinguishes these offenses. In a
Protective Order Violation, a defendant must violate
a domestic abuse protective order, while contempt of
court does not require a defendant to violate a partic5
Although under Hawaii law a violation of the state protective order
may also be prosecuted as contempt of court, Lichtenberg fails to appreciate that the converse is not true. See Naluai v. Naluai, 55 P.3d 856, 86061 (Haw. Ct. App. 2002). That is, contempt of court might be a lesserincluded offense of violating a protective order and the prosecutor is free
to choose which statute to proceed under, but it is the existence of the
domestic protection order itself that sets the offense apart from the run-ofthe-mill violation of a court order.
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ular order. This distinction is meaningful. When a
defendant violates an Order of Protection, the defendant creates a risk of immediate harm to those protected by the Order of Protection. In contrast,
Contempt of Court does not necessarily present any
risk of injury to others.
United States v. Bastian, 650 F. Supp. 2d 849, 872 (N.D. Iowa
2009), aff’d 603 F.3d 460 (8th Cir. 2010).6
[4] The distinction between the two crimes is reflected in
Lichtenberg’s actual offense conduct. See Grob, 2010 WL
4486751, at *5. Lichtenberg’s violations, including sending a
Valentine’s card, calling his ex-wife, and then approaching
her, fall squarely within the protective order his ex-wife had
obtained for the express purpose of freeing herself from contact with Lichtenberg. Although he did not physically harm
his ex-wife, Lichtenberg’s repeated violation of the protective
order at least “create[d] a meaningful risk of immediate harm”
to her. Bastian, 650 F. Supp. 3d at 872. This conduct was not
undirected conduct with no identifiable victim, and was therefore unlike a contempt of court violation.
[5] The level of culpability involved also differs because a
breach of a protective order violates not only the integrity of
the court system7 but the safety of the individual the order was
specifically designed to protect. See id.; United States v. Perkins, 421 F. Supp. 2d 209, 213-14 (D. Me. 2006); see also
United States v. Daigle, 564 F. Supp. 2d 50, 60 (D. Me. 2008)
(“Without minimizing the seriousness of generic contempt of
court, the risks that accompany the willingness of a domestic
partner to intentionally violate no-contact orders in cases of
pending domestic violence are well-documented, all too fre6
Bastian did not appeal the criminal history calculation decision, and
thus the Eighth Circuit decision does not discuss this issue.
7
See Young v. United States, 481 U.S. 787, 800 (1987) (criminal contempt serves “limited purpose of vindicating the authority of the court”).
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quent, and all too often tragic.”). Although Lichtenberg
argues that violation of a protective order under Hawaii law
does not require any type of threatening or abusive contact,
and that his violations did not involve any such conduct, he
fails to recognize that the protective order could not issue in
the first place without a showing that there has been or is the
potential threat of domestic abuse, which may include physical harm, threats, psychological abuse, or property damage.
See H.R.S. § 586-1. Even absent physical violence or threats,
his repeated violations of the protective order present precisely the type of emotional harassment the order is designed
to prevent. Cf. Bastian, 650 F. Supp. 2d at 873 (“By violating
an Order of Protection, the defendant repeats the type of conduct that necessitated the implementation of the Order of Protection in the first instance.”); see also Grob, 2010 WL
4486751, at *6 (looking to facts of the “entire episode which
led to the prior conviction” when considering level of culpability) (quoting United States v. Reyes-Maya, 305 F.3d 362,
367 (5th Cir. 2002)).
[6] The final consideration is the likelihood of recurring
criminal conduct. The Hawaii statute includes escalating penalties for repeated violations of protective orders, suggesting
the legislature anticipated a likelihood of recidivism with this
crime, perhaps due to the emotionally-charged nature of the
parties’ relationship. See generally H.R.S. § 586-11. Indeed,
Lichtenberg’s convictions reveal that he violated the protective order eleven times in a period of only a few months, demonstrating a significant risk of recurring criminal conduct.
While Lichtenberg’s appellate counsel made a thoughtful
argument to the contrary, on balance we see the factors tipping in favor of finding the crimes are dissimilar because of
the type of court order involved, the initial showing required
to obtain that type of order, and the identifiable victim always
present in that type of order. This in turn escalates the culpability level beyond merely flaunting the court’s authority. The
likelihood of recidivism also appears higher with this crime
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than with ordinary contempt of court, as amply illustrated in
this case. We therefore affirm the district court’s inclusion of
Lichtenberg’s convictions in his criminal history calculation.
II.
[7] With respect to the reasonableness of his sentence,8
Lichtenberg is correct that some of the facts the court relied
on to impose an above-Guidelines sentence were already
taken into account by the Guidelines and the various enhancements imposed. However, the court also identified additional
facts which were of a different nature than those required for
the enhancements, including Lichtenberg’s use of his knowledge of extradition law to attempt to avoid capture and/or
payment of restitution, and his lack of candor with the court
throughout a lengthy sentencing process that further hindered
restitution efforts and allowed his wife to live off the interest
income of the ill-gotten assets. See United States v. Black, 78
F.3d 1, 6 (1st Cir. 1996) (finding defendant’s attempt to frustrate restitution by secreting assets was a new and different act
of misbehavior which could justify an upward departure in
addition to obstruction enhancement already applied for perjury at trial). The district court further identified a need for a
rather lengthy sentence to prevent Lichtenberg from profiting
from the crime by moving outside the United States to live
comfortably off the money he had stolen, about half of which
was never recovered. Especially given the deferential standard
of review, see United States v. Amezcua-Vasquez, 567 F.3d
1050, 1055 (9th Cir. 2009), we conclude the 112-month sentence is not substantively unreasonable. Lichtenberg’s argument regarding sentencing disparities—based on data from
8
Lichtenberg also argues that the district court “procedurally erred” by
relying on factors already accounted for by the Guidelines to justify an
upward departure from the Guidelines range. However, post-Booker, this
court’s review of upward departures from the advisory Guidelines merges
with this court’s review of the ultimate sentence for reasonableness, and
is not reviewed as a separate issue. Mohamed, 459 F.3d at 986.
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2006 regarding the “average” sentences for fraud and money
laundering—is without merit. See United States v. Treadwell,
593 F.3d 990, 1012 (9th Cir. 2010) (“The mere fact that
[defendant] can point to a defendant convicted at a different
time of a different fraud and sentenced to a term of imprisonment shorter than [his] does not create an ‘unwarranted’ sentencing disparity.”).
AFFIRMED.
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