UNITED STATES of America, Plaintiff-Appellee, v. Ehizele Aydo SEIGNIOUS, a/k/a Mike Smith, Defendant-Appellant.
No. 12-4621.
United States Court of Appeals, Fourth Circuit.
July 1, 2014.
Argued: May 15, 2014.
In sum, Maryland‘s first-degree burglary statute tracks the common law and so is “narrower than the generic” definition developed in Taylor, 495 U.S. at 598, 110 S.Ct. 2143. Henriquez‘s conviction thus “necessarily implies that [he] has been found guilty of all the elements of generic burglary.” Id. at 599, 110 S.Ct. 2143. Accordingly, that conviction categorically qualifies as a proper federal sentencing predicate. I would affirm.
Cir.2014), we recently held that Maryland‘s fourth-degree burglary statute—which provides in relevant part that “[a] person may not break and enter the dwelling of another,”
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge WILKINSON and Judge THACKER joined.
HAMILTON, Senior Circuit Judge:
We ordered briefing on several issues pertaining to the district court‘s order that criminal defendant Ehizele Seignious
We also affirm Seignious’ convictions and sentence in the face of the brief filed by Seignious’ appellate counsel, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the pro se supplemental brief filed by Seignious, and our court‘s obligation under Anders to “conduct ‘a full examination of all the proceeding[s] to decide whether the case is wholly frivolous,‘” Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396) (alteration in original).
I.
A.
On April 12, 2012, Seignious pled guilty, without benefit of a plea agreement, to one count of conspiracy to commit bank fraud,
Following Seignious’ guilty plea, but prior to his final sentencing hearing, the district court conducted five evidentiary hearings over the course of two months to address, inter alia, the parties’ dispute regarding the applicable loss figure under United States Sentencing Guidelines (the Guidelines or USSG) § 2B1.1(b)(1). During these hearings, the government offered the testimony of numerous cooperating witnesses who were involved in the scheme, the testimony of an investigative agent with the Secret Service who worked extensively on the case, and, through such agent, a summary exhibit of physical and documentary evidence regarding actual and intended losses caused by the bank fraud conspiracy.
Sherice Jones (Jones), one of the initial four coconspirators in the case, testified that Seignious introduced her to the other two primary coconspirators—brothers Moadian Bratton-Bey (Moadian) and Boaz Bratton-Bey (Boaz).1
During its infancy, the conspiracy involved recruiting employees at legitimate businesses such as restaurants and hotels to use skimmer devices to record customers’ credit card numbers and then deliver those numbers to the Initial Coconspirators. Eventually, the conspiracy grew to include the purchasing of large volumes of credit card numbers from foreign countries, including China and Russia, over the Internet.
Credit card numbers in hand, the Initial Coconspirators manufactured fraudulent credit cards using specialized printers and other equipment purchased by Seignious, Moadian, and Boaz. The Initial Coconspirators also counterfeited photo identification cards to accompany the fraudulent credit cards. The Initial Coconspirators would then use the newly minted credit and identification cards to purchase high-value merchandise in various retail stores. To convert their purchases to cash, they
Jones also explained that the conspiracy involved purchasing individuals’ identifying information from a local business which specialized in assisting customers with passport applications. Jones and Seignious would use such information to purchase or rent cars and property and to open new credit card accounts. Jones noted that Seignious used another person‘s identifying information to rent an apartment where the conspiracy based its operations and where Seignious personally produced counterfeit credit cards.
As the conspiracy grew, the Initial Coconspirators recruited numerous other individuals known as “strikers” to handle the necessary interaction with retailers. This division of labor produced a tiered hierarchy of crews, comprised of five to six individuals each, who were managed and supplied with fraudulent credit cards by the Initial Coconspirators. In total, Jones estimated that over fifty individuals were recruited to assist in the conspiracy which eventually expanded to other states up and down the eastern seaboard of the United States.
Regarding the conspiracy‘s profitability, Jones testified that, once fully operational, the conspiracy involved three to five crews each making $5,000 to $10,000 in fraudulent purchases per day. Jones estimated that the scheme netted millions of dollars in merchandise through the use of over 1000 counterfeit credit cards. Jones explained that, on average, each card the conspiracy produced that proved operational would be used to make three to four purchases of $1,500 to $2,000 each.
Shelia Allen, a striker in the conspiracy, testified that she alone purchased roughly $8,000 worth of televisions per week from January to April 2009. Another striker in the conspiracy, Mandy Myers (Myers), estimated that she alone used counterfeit credit cards to purchase around $400,000 to $500,000 worth of merchandise during her fifteen-month involvement in the conspiracy.
Jermaine Dansbury (Dansbury), a mid-level manager who the government refers to as a wrangler, estimated that some weeks his crew purchased between $5,000 and $20,000 worth of merchandise.
Secret Service Special Agent Scott Windish (Agent Windish), one of the lead investigative agents in the case, testified last on behalf of the government. Of relevance on appeal, through his testimony, Special Agent Windish laid the foundation for admission of Government Exhibit 1A. Government Exhibit 1A consists of a thirty-six page, color-coded document, in a twelve-column spreadsheet format. Government Exhibit 1A lists 1827 credit card numbers with each credit card number and its corresponding information coded in black (1,460), red (49) or blue (318).2
Per Special Agent Windish‘s testimony, black coding represents credit card numbers found on computers used by the conspiracy or found on computer printouts belonging to the conspiracy. The conspiracy purchased the credit card numbers coded in black in bulk amounts from persons in foreign countries via Internet transactions known as “credit card dump[s].” (J.A. 720). With respect to 211 of the 1,460 credit card numbers coded in black, Exhibit 1A lists actual losses totaling approximately $606,000. Although Exhibit 1A does not specifically list the date
Per Special Agent Windish, red coding represents credit card numbers with the attributes of credit card numbers coded in black, plus the existence of evidence verifying usage by the conspiracy, for example, a receipt in a vehicle in which merchandise purchased with the counterfeit credit card was recovered or video surveillance of a member of the conspiracy using such card. Exhibit 1A contains 49 credit card numbers and corresponding information coded in red with actual losses totally approximately $84,000.
Special Agent Windish explained that blue coding represents credit card numbers and their respective related information for which the investigation uncovered evidence verifying usage by the conspiracy, but did not find such numbers on computers used by the conspiracy or on computer printouts belonging to the conspiracy. Exhibit 1A contains 318 credit card numbers and corresponding information coded in blue with actual losses totaling approximately $523,000.
Special Agent Windish further testified that he and other case agents compiled Exhibit 1A as a master spreadsheet of the evidence gathered over the course of the criminal investigation of the conspiracy which evidence was put on “initial spreadsheets [that] were created as arrests were occurring, as warrants were occurring, before we were preparing evidence and discovery, as we were getting evidence from banks or from stores and receipts.” (J.A. 731). He also described the various methods he and the other agents used to weed out incomplete or unreliable information and to avoid double-counting.
On July 20, 2012, the district court sentenced Seignious to 120 months’ imprisonment and three years’ supervised release. Pursuant to the MVRA,
Notably, the district court determined the restitution amount without making findings on the record regarding the actual losses the scheme caused specific victims. Accordingly, instead of identifying individual victims and their losses, the district court‘s judgment simply directed that restitution be paid to the Clerk of Court.
Seignious noted this timely appeal on August 7, 2012. Roughly one week later, the government submitted a document for filing which specifies the total actual losses suffered by each of the banks and retailers listed as victims in Government Exhibit 1A. Such document, which the government refers to as the Restitution Worksheet, also specifies the victims’ names and respective addresses. On August 15, 2012,
B.
Seignious’ appellate counsel (Appellate Counsel) filed an Anders brief, certifying that there are no meritorious issues for appeal, but questioning whether the district court adequately complied with Federal Rule of Criminal Procedure 11 when accepting Seignious’ guilty plea and whether the district court properly sentenced Seignious. For his part, Seignious filed a pro se supplemental brief, in which he contests the district court‘s application of several sentencing enhancements. The government did not file a response to either brief.
Based upon our court‘s obligation under Anders to independently review the record, we ordered Appellate Counsel and the government to submit briefs addressing: (1) whether the government and the district court sufficiently complied with
In response to our order, Appellate Counsel filed an opening brief addressing the identified issues and the government filed a response brief. Although Appellate Counsel did not file a reply brief, we allowed Seignious to file a pro se supplemental reply brief. Having reviewed the entire record in accordance with Anders, we set the case for oral argument and directed counsel to focus on the restitutionary issues we had ordered briefed.
II.
We first take up the issue of whether the government and the district court sufficiently complied with
A.
As a threshold matter, we address our standard of review with respect to this issue. Because Seignious never brought to the district court‘s attention any deficiency in the government‘s and/or the district court‘s compliance with such procedures, we are constrained to review for plain error.
Plain error review has four prongs. The first prong requires the existence of legal error “that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant.” Id. at 135, 129 S.Ct. 1423. The second prong requires that the legal error at issue “be
B.
The MVRA provides that, “[n]otwithstanding any other provision of law, when sentencing a defendant convicted of an offense [against property under Title 18, including any offense committed by fraud or deceit], the court shall order, in addition to ... any other penalty authorized by law, that the defendant make restitution to the victim of the offense....”
Section 3664(a), for its part, directs the district court to order preparation of a presentence report that will include “information sufficient for the court to exercise its discretion in fashioning a restitution order” including “to the extent practicable, a complete accounting of the losses to each victim ... and information relating to the economic circumstances of each defendant.”
In addition, under
C.
Our thorough review of the record regarding the procedural history leading
The record leaves no doubt that the district court would have imposed the same amount of restitution on Seignious regardless of whether every requirement of
[MS. FINE:] And, finally, Your Honor, United States has established that there are actual losses in the amount of $1,213,347 in this case. We would ask that a restitution order in that full amount be entered, joint and several with other defendants in this case.
THE COURT: If you could say that amount again, please?
MS. FINE: Certainly. The amount that was testified to by Special Agent Windish from his spreadsheet ... is $1,213,347. Thank you, Your Honor.
THE COURT: Good. Thank you, Miss Fine.
(J.A. 866).
The spreadsheet to which government counsel refers in this quoted passage from the transcript of Seignious’ sentencing hearing is Government Exhibit 1A. To reiterate, the government introduced Exhibit 1A through the testimony of Special Agent Windish during the last of five hearings held over the course of two months for the purpose of taking evidence on Guidelines’ issues in dispute for sentencing, including the applicable loss figure under USSG § 2B1.1(b)(1). This Guidelines’ section provides for increasing amounts of levels to be added to a defendant‘s base offense level under the Guidelines based upon the greater of actual loss (i.e., “the reasonably foreseeable pecuniary harm that resulted from the offense“), USSG § 2B1.1 (b)(1), comment. (n.3 (A)(i)), or intended loss (i.e., “the pecuniary harm that was intended to result from the offense ...“),
Seignious had the opportunity to cross examine Special Agent Windish about how he arrived at the figure of $1,213,347 in actual losses caused by the conspiracy and about the creation of Exhibit 1A. In fact, Seignious availed himself of these opportunities and presented argument to the district court that, with respect to USSG § 2B1.1(b)(1), “the amount of [actual fraud] loss that the government has sufficiently proven attributable to this conspiracy is $251,496.” (J.A. 518). The district court rejected this argument and found, for purposes of USSG § 2B1.1(b)(1), the loss figure to be between $2.5 and $7 million, which range the district court characterized as “a more than conservative loss figure....” (J.A. 1020). Notably, in support of the district court‘s characteriza-
In sum, all of the evidence upon which the district court relied in determining the appropriate amount of restitution to impose upon Seignious under the MVRA was before the district court in the context of resolving the parties’ dispute regarding the appropriate loss amount to be used in applying USSG § 2B1.1(b)(1). Seignious had fair opportunity to challenge such evidence. Under these circumstances, we are not surprised that he cannot show prejudice resulting from restitution being imposed upon him without, in large part, the various procedural requirements of
III.
We now turn to consider whether the restitution order is adequately supported by the evidence. At no point below did Seignious object to the amount of restitution imposed upon him or dispute the amount of restitution proposed by the government. Accordingly, as Seignious concedes, we are constrained to review this issue for plain error.
Under plain error review, we must first consider whether the district court committed legal error. Puckett, 556 U.S. at 135, 129 S.Ct. 1423. In the present context, this means that we must first consider whether the district court‘s factual finding that, based upon the preponderance of the evidence, the bank fraud conspiracy caused $1,213,347 in actual losses is clearly erroneous.
Here, we conclude that the district court‘s account of the evidence is plausible in light of the record viewed in its entirety. Accordingly, we uphold the district court‘s finding of fact that the bank fraud conspiracy caused $1,213,347 in actual losses as not clearly erroneous.
In his pro se supplemental response to the government‘s Supplemental Brief, Seignious takes the position that the evidence in the record does not support actual losses of $1,213,347. According to Seignious, at most, the record supports restitution in the amount of $176,336.36. He complains in large part that the testimony of his coconspirators regarding the profitability of their fraud scheme is too vague to be relied upon by the district court in calculating restitution. He also repeatedly makes the point that Agent Windish admitted the possibility that actual losses attributed on Exhibit 1A to the credit card numbers coded in black (accounting for approximately half of the $1,213,347 figure) could have been caused by other criminals who were not part of the conspiracy at issue in the present case.
Although the district court could have done a better job of making a record below with respect to restitution, after reviewing the record as a whole, we are not convinced that a mistake has been committed with respect to the district court‘s finding that the conspiracy caused $1,213,347 in actual losses. First, not even counting any of the credit card numbers coded in black, Government Exhibit 1A, as supported by the testimony of Special Agent Windish, supports approximately half of the total actual loss figure right off the bat. These are credit card numbers for which the government obtained evidence directly implicating the conspiracy in the actual loss listed on Government Exhibit 1A.
Now for the credit card numbers coded in black. We readily acknowledge the possibility, as Special Agent Windish acknowledged during his testimony, that other criminals could have separately obtained the same credit card numbers as the bank fraud conspiracy at hand and caused the losses listed on Exhibit 1A during the exact same time period the conspiracy at hand operated. The problem for Seignious, however, is that the conclusion that the bank fraud conspiracy at hand caused the actual losses occurring during the life of such conspiracy with respect to the credit card numbers indisputably illegally obtained by and found within the care, custody, and control of such conspiracy is plausible in light of the record viewed in its entirety.
Added on top of the testimony of Special Agent Windish and Government Exhibit 1A is the testimony of Seignious’ numerous coconspirators. The district court expressly credited and accepted all of the following testimony of Seignious’ codefendants Jones, Myers, and Dansbury, as summarized by the district court in its August 10, 2012 order addressing various Guidelines issues, including the amount of loss under USSG § 2B1.1 (b)(1):
Sherice Jones testified ... that between 3 and 5 crews of between 3 and 5 strikers each “went out every day” to make fraudulent purchases. She explained that, depending on the type of merchandise, each crew could purchase anywhere from $5,000 to $10,000 in merchandise per day. The merchandise was then either sold or returned, for cash, to the store where it had been purchased. Jones also testified that over the course
of the conspiracy, she estimated that the scheme brought in “millions of dollars” worth of merchandise by using “thousands” of fake credit cards. Mandy Myers, a striker, testified that she personally made between $400,000 and $500,000 in fraudulent purchases over the course of her 15-month involvement in the scheme. Jermaine Dansbury, a wrangler, testified that he took crews of 2 to 5 strikers out 4 to 7 times per week, and that his crews could “bring in” between $5,000 to $20,000 per week on average. Dansbury explained that the total amounts were inconsistent based on a variety of factors, but that his crews could sometimes purchase thousands of dollars’ worth of merchandise in just a few hours.
(J.A. 1019-20). The district court also held that the evidence amply demonstrated by a preponderance of the evidence that: (1) “there were at least 50 strikers involved in the scheme, though less than a third were actually indicted,” (J.A. 1017); (2) during the life of the conspiracy from December 2007 through August 2010 “the illegal conduct was consistent and persistent,” id.; and (3) with respect to the scope of the conspiracy, “hundreds of individuals were being victimized and ... the losses totaled in the millions of dollars,” (J.A. 1019).
Although we need not solely rely on Jones’ testimony in support of the district court‘s actual loss finding, Jones’ testimony goes a long way to support such a finding and is not too vague to be probative on issues of actual loss as alleged by Seignious. Based upon the most conservative figure in Jones’ testimony regarding the fraudulent purchasing modus operandi of a single crew working for the conspiracy during its time of operation (i.e., $5,000 per day), a single crew working for the conspiracy for just one year fraudulently purchased $1,825,000 in merchandise. This amount is $611,653 more than the amount of restitution the district court ordered Seignious to pay under the MVRA. Given that “[t]he settled law of this circuit recognizes that the testimony of a defendant‘s accomplices, standing alone and uncorroborated, can provide an adequate basis for conviction,” United States v. Burns, 990 F.2d 1426, 1439 (4th Cir.1993), there is no basis for us to conclude that the district court‘s actual loss figure of $1,213,347 is clearly erroneous.
Finally, assuming arguendo the district court‘s actual loss finding is clearly erroneous, thus satisfying the first prong of plain error review, we cannot say that such error is clear or obvious. Puckett, 556 U.S. at 135, 129 S.Ct. 1423. Therefore, Seignious fails the second prong of plain error review as well, making going further in our plain error analysis a fruitless exercise. In sum, Seignious is entitled to no relief with respect to his appellate challenge to the district court‘s factual finding underlying its order of restitution regarding the actual losses caused by the conspiracy.
IV.
We next consider whether the district court sufficiently explained its reasoning when imposing restitution. At no point did Seignious object to the adequacy of the district court‘s explanation of its reasoning when imposing such restitution. Accordingly, as Seignious concedes, we review for plain error.
Assuming arguendo that Seignious has established the first two prongs of the four prong test for obtaining appellate relief under plain error review, Olano, 507 U.S. at 732, 734, 113 S.Ct. 1770, the analysis stops because Seignious cannot establish the third prong—i.e., Seignious cannot
V.
The last issue for which we ordered briefing is whether the district court erred in failing to specifically identify in its July 25, 2012 judgment the victims eligible to receive restitution and their respective losses. Because Seignious filed no objection in this regard, we review for plain error.
Under plain error review, we hold Seignious is entitled to no relief. Jumping straight to the third prong of the test for plain error review (i.e., the prejudice prong), Seignious has failed to establish that the filing of the Restitution Worksheet approximately one week after the filing of his criminal judgment affected his substantial rights. Puckett, 556 U.S. at 135, 129 S.Ct. 1423. Accordingly, there is no basis to grant Seignious any appellate relief on this issue.
VI.
We have examined the issues raised by Seignious in his pro se briefing and his Appellate Counsel‘s Anders brief. We conclude that all such issues lack merit. Furthermore, in accordance with our obligations under Anders, 386 U.S. at 744, 87 S.Ct. 1396, we have reviewed the entire record in this case and find no reversible error. Accordingly, we affirm Seignious’ convictions and sentence in toto, as well as the district court‘s order of restitution.
AFFIRMED
UNITED STATES of America, Plaintiff-Appellee, v. Christopher George PERRY, f/k/a Christopher Parry, Defendant-Appellant.
No. 13-4012.
United States Court of Appeals, Fourth Circuit.
July 1, 2014.
Argued: March 20, 2014.