United States v. TateUnited States v. Tate
Before SUTTON and COOK, Circuit Judges; and ALDRICH, District Judge.*
ALDRICH, District Judge.
In the United States District Court for the Southern District of Ohio, Tate pled guilty to possession of a counterfeit security in violation of
Tate challenges the district court’s application of U.S.S.G. § 2B1.1, which adds offense levels for certain theft crimes based on the amount of loss attributable to the offense. Thе district court found a loss of $38,768; under U.S.S.G. § 2B1.1(a), a loss between $80,000 and $70,000 added six levels, yielding a final offense level of ten.
Tate also challenges his custodial sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), contending that he has a Sixth Amendment right to have a jury determine the amount of loss beyond a reasonable doubt. This argument is foreclosed by United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which permits a district court judge to make such a factual finding so long as the Guidelines are not read to require the judge to increase the sentence based on that finding. See United States v. Harris, 397 F.3d 404, 411 (6th Cir.2005) (”Booker teaches that there is no Sixth Amendment violation when a sentencing judge exercises genuine discretion within a clearly defined statutory range.“) (citing Booker, 125 S.Ct. at 750 (Stevens, J., for the Court)). The Court accomplished this by excising
We vacate Tate’s custodial sentence, however, because it was imposed with the understanding that the guidelines were mandatory. Booker held that the Guidelines are merely advisory and that the district court has discretion to impose a reasonable sentence outside the Guidelines range. We remand for the district court to exercise that discretion.
Lastly, Tate challenges the $4,848 restitution order, contending that the proper amount is $1,800. Tate contends that the district court erred by including $2,968 in charges made on a stolen credit card registered under his wife’s alias and used only by his wife. Tate is mistaken; under
I. BACKGROUND
In August 2002 Tate and his wife Jeanette were arrested while attempting to buy goods at a clothing store in southern Ohio with a $100 counterfeit travelers check. Police confiscated false identification cards in the names of “Eric Shelly” and “Michelle Tice.” A search of the Tates’ vehicle uncovered forty-four more counterfeit $100 travelers checks and a stolen credit card also in the name of Michelle Tice. The
During the Secret Service investigation, and in the plea agreement, Tate admitted that he and his wife knowingly used $9,000 in counterfeit checks in the past and knowingly possessed $8,000 in counterfeit checks on their trip to Cincinnati (using $1,100 in stores and giving others to relatives for their use). (J.A. 17, 21, at 104-105.) In addition to the checks presented in Cincinnati, VISA reported receiving $27,000 in counterfeit checks in the name of “Eric Shelly” and/or “Michelle Tice” between January and August 2002. (J.A. at 105.) The signatures on all the checks were similar.
II. STANDARD OF REVIEW
We review the sentencing court’s factual findings for clear error and its legal determinations de novo. See United States v. Wiant, 314 F.3d 826, 828 (6th Cir.) (citations omitted), cert. denied, 538 U.S. 970, 123 S.Ct. 1774, 155 L.Ed.2d 529 (2003). The determination of what types of loss can constitute the loss attributable to Tate’s offense for purposes of his offense level under U.S.S.G. § 2B1.1(b)(1) is a question of law subject to de novo review. See United States v. Brown, 151 F.3d 476, 489 (6th Cir.1998).2
We uphold restitution awards unless the district court abused its discretion. See United States v. Hart, 70 F.3d 854, 862 (6th Cir.1995). We uphold the district court’s finding as to the amount of restitution unless it is “outside the universe of acceptable computations.” United States v. Fleming, 128 F.3d 285, 287 (6th Cir.1997) (citations omitted).
III. ANALYSIS: LOSS FOR PURPOSES OF CUSTODIAL SENTENCE
A. Calculating Loss Under U.S.S.G. § 2B1.1
United States Sentencing Guideline § 2B1.1 gоverns “Offenses Involving Altered or Counterfeit Instruments” other than federal securities. Subsection 2B1.1(b)(1) increases the offense level based on the amount of loss attributable to the offense, as follows:
| Loss (apply the greatest) | Increase in Level |
| (A) $5,000 or less | no increase |
| (B) More than $5,000 | add 2 |
| (C) More than $10,000 | add 4 |
| (D) More than $30,000 | add 6.... |
The Commentary to section 2B1.1 further provides, in pertinent part:3
Loss Under Subsection (b)(1)
(A) General Rule—Subject to the exclusions in subdivision (D) [interest, late fees, cost of investigation and prosecution], loss is the greater of actual loss or intended loss.
(i) Actual Loss—“Actual loss” means the reasonably foreseeable pecuniary harm that resulted from the offensе.
(ii) Intended Loss—“Intended loss” (I) means the pecuniary harm that was intended to result from the offense; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).
* * * * *
(C) Estimation of Loss.—The court need only make a reasonable estimate of the loss. The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidencе. For this reason, the court’s loss determination is entitled to appropriate deference. See
18 U.S.C. § 3742(e) and (f).
U.S.S.G. § 2B1.1 commentary, App. Note 2 (emphasis added).
B. The District Court Did Not Err in Calculating the Amount of Loss
The district court found an actual loss of $31,978, consisting of three components:
| $28,100 | Checks cashed by Tate and/or his wife between January and August 2002 |
| $ 2,968 | Charges made on the credit card bearing Tate’s wife’s alias |
| $ 100 | Check that the Tates were trying to cash when they were apprehended. |
Tate concedes that the actual loss includes $28,100 in checks that they actually negotiated. Conversely, the government concedеs that actual loss cannot include the $100 check which the Tates were prevented from cashing. Thus the only disputed component of actual loss is the $2,968 charged on the stolen credit card. But we need not decide whether that amount could properly be included in actual loss for purposes of U.S.S.G. § 2B1.1. It is irrelevant whether the actual loss alone exceeded the $30,000 threshold, because the intended loss did.
“The total loss amount may include both actual and intended losses where the fraud involved both successful and ultimately unsuccessful attempts.” United States v. Gross, No. 02-1981, 84 Fed.Appx. 531, 533 (6th Cir.2003) (citing United States v. Brown, 151 F.3d 476, 489-90 (6th Cir.1998)). Accordingly, “if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss.” United States v. Brothers Const. Co. of Ohio, 219 F.3d 300, 318 (4th Cir.2000) (citing Brown, 151 F.3d 476). See, e.g. United States v. DeSantis, 237 F.3d 607, 612 (6th Cir.2001) (“a defendant in Brown was held responsible for not $152,960.61 in actual losses but $511,023.61 in ‘intended’ losses....“) (emphasis added).4
Tate has conceded that his offenses caused $28,100 in actual loss (the amount represented by the checks that he and/or his wife successfully negotiated between January and August 2002). In addition to this actual loss, the district court сounted the following amounts as intended loss: $4,400 in unused travelers checks that were seized from Tate and his wife and $2,300 in unused travelers checks that were seized from Tate’s relatives (who had obtained them from the Tates).
Tate contends that the $6,700 in unused checks cannot be counted under United States v. Watkins, 994 F.2d 1192 (6th Cir.1993), which establishes two surviving requirements needed to include an amount in the loss attributable to an offense. First, the defendant must have intended the loss; second, “the defendant must have completed or been about to complete but for interruption, all of the acts necessary to bring about the loss.” Id. at 1196. Under this standard, the district court properly counted as intended loss the $4,400 in unused counterfeit checks possessed by the Tates.
Nothing in the record supports the notion that Tate fabricated those checks but had no design to negotiate them as he and his wife negotiated all the others throughout the year. Cf. United States v. Jeffers, No. 04-4018, 108 Fed.Appx. 804, 805-806 (4th Cir.2004) (notwithstanding that defendant returned $215,000 teller check to bank, district court did not err by counting it as intended loss, because theft of the check was “part of the same course of conduct as his fraudulent loans” which did cause loss to the bank). It was reasonable to infer that the Tates intended to continue, and would have continued negotiating counterfeit checks in the same manner if they had not been apprehended (or as Watkins puts it, “interrupted“). See United States v. Rennicke, Nos. 04-3486 and 04-3487, 132 Fed.Appx. 652 (7th Cir.2005) (district court properly determined total loss by using intended loss rather than the lower actual loss figure “under the assumption that they would not have discontinued their scheme until caught.“) (citing United States v. Rettenberger, 344 F.3d 702, 708-709 (7th Cir.2003)).
Adding that $4,400 to thе $28,100 in conceded actual loss yields an intended
In short, the district court did not err in finding that the total loss attributable to Tate’s offenses was sufficient to add six offense levels, for a total offense level of ten and a Guideline range of 24-30 months imprisonment.
IV. ANALYSIS: LOSS FOR PURPOSES OF RESTITUTION
The district court’s $4,868 restitution order consisted of three components:
| Charges made by Tate’s wife on stolen credit card | $2,968 |
| Amounts not contested by Tate | $1,800 |
| Check that the Tates were trying to cash when they were arrested | $100 |
The government states, “We must ... concede that the defendant was ordered, in error, to make restitution in the amоunt of $100.00 to American Eagle. [T]he transaction was terminated before either the defendant or his co-defendant could defraud yet another victim.” Government’s Brief at 17. Thus the only dispute is whether the district court erred in counting the charges that Tate’s wife made on the stolen credit card as a loss for purposes of his restitution order.
U.S.S.G. § 5E1.1 provides, in pertinent part,
(a) In the case of an identifiable victim, the court shall—
(1) enter a restitution order for the full amount of the victim’s loss, if such order is authorized under
18 U.S.C. § 3663 , or§ 3663A ....
See also
In Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the Supreme Court interpreted the Victim and Witness Protection Act of 1982 (“VWPA“) and reversed an order that rеquired the defendant to pay restitution for counts other than the counts of conviction. The Court held that “the language and structure of the Act make plain Congress’[s] intent to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Id. at 420, 110 S.Ct. 1979.
Shortly after Hughey, however, Congress amended the VWPA to broaden the definition of victim. The VWPA now provides that for purposes of restitution, an offender’s victims include:
a person directly and proximately harmed as а result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in
the course of the scheme, conspiracy, or pattern.
In United States v. Clark, 957 F.2d 248 (6th Cir.1992), the defendant was convicted of theft of one vehicle and conversion with the intent to steal another. The defendant stole two other vehicles so that he would not have to use his own car to get to the scene of the thefts for which he was convicted. See id. at 249-50. The district court ordered restitution not only for the two vehicles underlying the conviction, but also for the third аnd fourth vehicles. See id. at 252-53. On appeal, the government emphasized that the defendant stole the third and fourth vehicles in the course of his theft and conversion of the first two. The government argued that “the evidence, taken in its entirety, indicated that [the defendant] was involved in a scheme, conspiracy or pattern of stealing vehicles and, therefore, that the ‘victims’ entitled to restitution include all those whose vehicles were stolen during the course of [his] activities.” Id. at 253. We rejected the government’s argument and held,
Section 3663(a)(2) by its terms extends only to those crimes where a scheme, conspiracy, or pattern of criminal activity is an element of the offense [of conviction].
* * * * *
The indictment under which [the defendant] was charged and convicted was limited to the FBI Blazer and Cadillac and was brought solely under
18 U.S.C. § 641 [theft of public money, property or records]. That section, however, does not include a scheme, conspiracy, or pattern of criminal conduct as an element of the offense. Therefore, the FBI was the only “victim” entitled to restitution under the VWPA. That Clark may have been involved in a scheme or pattern of stealing vehicles is, we believe, irrelevant; Clark was neither charged with nor convicted of such scheme or pattern, but merely with simple theft.
Id. (emphasis in original).
Here, by contrast, Tate pled guilty not just to the counterfeit security offense, but also to aiding and abetting his wife in committing the same offense. Tate’s aiding and abetting his wife in their negotiation of dozens of checks they knew to be counterfeit, over many months, involves a “scheme ... or pattern of criminal activity” as required by
V. ANALYSIS: THE IMPACT OF BOOKER
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that “[o]ther than the faсt of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court elaborated that
the “statutory maximum” for Apprendi purposes is the maximum sentence [a] judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. * * * In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishmеnt that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.
Blakely, 124 S.Ct. at 2357 (internal citations omitted) (emphasis in original).
Then, in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that Blakely’s reading of the Sixth Amendment right to a jury trial affects the Guidelines. More specifically, the Supreme Court held that the mandatory federal sentencing guidelines violated the Sixth Amendment by requiring judges to enhance the sentences of defendants based on facts not found by a jury or admitted by the defendant. To remedy this problem, the Court excised from the Sеntencing
Here, Tate’s offense level was increased—and hence his Guideline sentencing range was increased by six months—based on facts found by the district judge, namely the amount of total loss attributable to his offenses. Since Tate failed to make this Sixth Amendment objection at sentencing, however, we conduct only plain error review to determine if he must be resentenced. See United States v. Israel, No. 03-3298, 133 Fed.Appx. 159, 165-66 (6th Cir.2005). Re-sentencing is not necessary unless there is (1) error (2) that is plain and (3) that affects Tate’s substantial rights.8 See id. (citing United States v. Oliver, 397 F.3d 369, 378 (6th Cir.2005)). If these conditions are met, we may exercise our discretion to notice the forfeited error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
Tate’s sentence in violation of the Sixth Amendment constitutes error that is plain. “Moreover, according to this circuit’s precedent in Oliver, a sentence enhancement based on judge-found facts under a mandatory guidelines system necessarily affects [Tate’s] substantial rights.” Israel, 133 Fed.Appx. at 166-67 (citing Oliver, 397 F.3d at 379-80). Furthermore, ”Oliver dictates that any sentencing error that leads to a violation of the Sixth Amendment by imposing a more severe sentence than is supported by the jury verdict automatically diminishes the integrity and reputation of the judicial system.” Israel, 133 Fed.Appx. at 166-67 (citing Oliver, 397 F.3d at 380).
Lastly, we recently held that “in light of the Supreme Court’s remedial holding in Booker, a sentencing court’s ‘failure to treat the sentencing guidelines as advisory’ constitutes plain error.” United States v. Hudson, 405 F.3d 425, 444 (6th Cir.2005) (quoting United States v. Barnett, 398 F.3d 516, 527 (6th Cir.2005)). Under Barnett, we presume that such an error affectеd a defendant’s substantial rights. See Hudson, 405 F.3d at 444 (citing Barnett, 398 F.3d at 527-29).
As we were careful to observe in Barnett, we do not categorically rule out the possibility that there may be a case “where the evidence in the record will be sufficient to rebut the presumption of prejudice.” Barnett, 398 F.3d at 529. Thus, we must determine whether “the trial record contains clear and specific evidence that the district court would not have, in any event, sentenced the defendant to a lower sentence under an advisory guidelines range.” Barnett, 398 F.3d at 529 (citing United States v. Crosby, 397 F.3d 103, 118 (2d Cir.2005)). The government has not identified any such “clear and specific evidence” that would rebut the presumption of prejudice.
Therefore, Tate’s custodial sentence must be vacated and his case remanded for a new determination of his terms of imprisonment and supervised release. See United States v. Yagar, 404 F.3d 967 (6th Cir.2005) (remanding for resentencing on mail theft conviction where district court
VI. CONCLUSION
For the foregoing reasons, we affirm the determination that an intended loss of between $80,000 and $70,000 was аttributable to Tate’s offenses for purposes of his custodial sentence. Consequently we also affirm the addition of six offense levels under U.S.S.G. § 2B1.1(b)(1), yielding a total offense level of ten, and the guidelines again call for 24-30 months imprisonment.
Under Booker, however, that range is merely advisory, and the district court has discretion to impose a reasonable sentence outside the range under appropriate circumstances. Therefore we vacate Tate’s custodial sentence and remand for the distriсt court to exercise its Booker discretion. In doing so, however, the district court should still consider the recommended Guidelines sentence. See United States v. McDaniel, 398 F.3d 540, 550-51 (6th Cir.2005) (citing Booker, 125 S.Ct. at 764, and
Lastly, we direct the district court to reduce Tate’s restitution obligation from $4,848 to $4,748 to rectify the erroneous inclusion of a $100 check that was never cashed.
Notes
“Having severed and excised the SRA‘s standards governing review of sentences, the Supreme Court replaced them with review for unreasonableness.” United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005) (citing Booker, 125 S.Ct. at 765). “Therefore, when a defendant challenges a district court‘s sentencing detеrmination, we are instructed to determine ‘whether [the] sentence is unreasonable.‘” Webb, 403 F.3d at 383 (citing Booker, 125 S.Ct. at 766).
Although the Guidelines are no longer mandatory, we still look to the Commentary for guidance. See United States v. Yagar, 404 F.3d 967, 972 (6th Cir.2005); United States v. Bivens, Nos. 03-6667 and 04-5044, 129 Fed. Appx. 159, 166-167 (6th Cir.2005) (standard for determining whether defendant was a minor participant in conspiracy); United States v. Kavo, 128 Fed.Appx. 447, 449-50 (6th Cir. 2005) (definition of term “abducted“). Our sister Circuits’ post-Booker decisions also continue to look to the Commentary. See, e.g., United States v. Wallace, No. 04-1265, 408 F.3d 1046, 1047-49 (8th Cir.2005); United States v. Yazzie, No. 04-2152, 407 F.3d 1139, 1147 (10th Cir.2005) (en banc) (Briscoe, J., concurring).
Aiding and abetting necessarily involves joint activity between two or more people (a “scheme“), see United States v. Rodriguez, Nos. 88-1125 and 88-1127, 878 F.2d 387, 1989 WL 69934, at *5 (9th Cir. June 23, 1989), but it does not necessarily involve a “conspiracy.” See United States v. Carson, 9 F.3d 576, 586 (7th Cir.1993) (unlike conspiracy, “aiding and abetting does not require proof of an agreement to break the law. Rather it requires knowledge of the crime being aided and abetted, a desire to help the activity succeed, and some act of helping.“) (citation omitted). “[C]onspiracy ... involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding abetting.” United States v. Abreu, 962 F.2d 1425, 1434 (10th Cir. 1992) (citing United States v. Townes, 512 F.2d 1057, 1058 (6th Cir.1975) and published decisions from Third, Fourth and Fifth Circuits), vac’d o.g., 508 U.S. 935, 113 S.Ct. 2405, 124 L.Ed.2d 630 (1993). See, e.g., United States v. Zafiro, 945 F.2d 881, 884 (7th Cir.1991) (someone who warns members of drug ring of police raid, without previous dealings with ring, would be aider and abettor but not a conspirator) (citation omitted), aff‘d, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).
That statement was mere dicta, however, because it was not necessary to the decision. The panel identified a different basis for vacating the restitution order: “We vacate Comer‘s sentence and remand for resentencing because the district court erred in ... imposing a restitution order based in part on uncharged conduct and charges of which the defendant was acquitted.” Id. at 1274 (citation omitted). We are not bound by dicta in a previous panel opinion. See United States v. Burroughs, 5 F.3d 192, 194 (6th Cir.1993) (citation omitted). Moreover, Comer is readily distinguishable from this case. The restitution order against Tate was based only on conduct for which he was convicted—possessing counterfeit checks and aiding and abetting—not on uncharged or acquitted conduct.