United States v. Leonard ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 19 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-6234
v. (D.C. Nos. 03-CV-761-R
and 01-CR-107-R)
PIERRI B. LEONARD, also known as (W.D. Okla.)
Larry Smith,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **
Defendant-Appellant Pierri B. Leonard appeals from the district court’s
denial of his 28 U.S.C. § 2255 motion based upon ineffective assistance of
counsel at his sentencing hearing. The district court granted a certificate of
appealability (“COA”) on three issues: (1) whether the district court should have
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
held an evidentiary hearing to determine whether the evidence Mr. Leonard
wanted his counsel to present at sentencing was material, (2) whether counsel
provided ineffective assistance by not introducing evidence that statements in the
presentence investigation report (“PSR”) attributed to a codefendant were
disputed; and (3) whether Mr. Leonard was prejudiced by the alleged ineffective
assistance. R. Doc. 155 at 3, 158. Mr. Leonard renews his request for a COA on
the four-level role in the offense adjustment he received and whether a
codefendant who implicated him was credible. R. Doc. 155 at 3. We affirm the
district court’s denial of the § 2255 motion and decline to grant a COA on the
remaining issues.
Background
Mr. Leonard pleaded guilty to 20 counts of making, uttering, and
possessing counterfeit securities in violation of 18 U.S.C. § 513(a), based upon a
scheme where he purchased travelers checks, duplicated them and provided or
sold them to others. At his sentencing hearing, the district court found that the
criminal history category assessed to Mr. Leonard did not adequately reflect the
seriousness of his past criminal conduct. Accordingly, the district court departed
upward one criminal history category and sentenced Mr. Leonard to a term of 57
months imprisonment. Mr. Leonard thereafter appealed challenging the
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departure. We affirmed. United States v. Leonard, No. 01-6398, 2002 WL
31516890 (10th Cir. Nov. 13, 2002).
In this appeal from the denial of his § 2255 motion, Mr. Leonard contends
that the amount of the loss occasioned by his scheme was a little over $10,000,
not $165,500 as indicated by the PSR. He contends that his base offense level
should have been increased only three levels, U.S.S.G. § 2F1.1(b)(1)(D), rather
than the seven levels, U.S.S.G. § 2F1.1(b)(1)(H). He disputes those paragraphs in
the PSR that detail how the scheme worked, R. Doc. 149, Ex. I at 6-7, including
allegations that he produced and sold counterfeit travelers checks in locales other
than Oklahoma City.
The PSR calculated the $165,500 loss based upon four genuine travelers
checks found in a codefendant’s motel room, aligned and configured as a template
in preparation for reproduction, and a paper cutter. R. Doc. 149, Ex. I at 6, ¶¶ 12-
13. Counterfeit travelers checks (1,655 in $100 denominations) bearing the same
four serial numbers were negotiated across the United States. Id. ¶ 13.
The only specific evidence that Mr. Leonard offers to counter the loss
determination was that he purchased $10,000 of travelers checks in Los Angeles
by borrowing money on jewelry and other property. At the change of plea
hearing, Mr. Leonard admitted that he acted in concert with his codefendants and
that he purchased not only counterfeit travelers checks, but also the originals. II
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R. S. 9. Although he now disputes that he is responsible for any amount of loss
beyond that occasioned by the transactions in the indictment, he acknowledges, as
he must, that a codefendant implicated him in producing and selling counterfeit
travelers checks elsewhere. R. Doc. 144 at 5; see also R. Doc. 149, Ex. II at 2.
He claims her testimony is incredible as an attempt to reduce her exposure. R.
Doc. 144 at 5. He also points to an affidavit dated June 6, 2001, supporting the
criminal complaint, wherein the secret service agent stated that the codefendant
denied any knowledge of travelers checks. R. Doc. 1, Aff. at ¶ 25; see also R.
Doc. 149, Ex. I at 5, ¶ 10. However, a later report by the secret service agent
based upon an interview of the codefendant (August 3, 2001), contains the
incriminating information. Mr. Leonard argues that the two accounts of the
codefendant’s statements are inconsistent and the sworn affidavit should trump
the later report.
The district court held that Mr. Leonard could not show prejudice because
he had failed to allege facts or submit evidence that the challenged facts in the
PSR were in error, or that the sentence is incorrect. 1 In determining the amount
of a loss, several well-established principles guide a court. The government bears
the burden of proof by a preponderance of the evidence, but hearsay with minimal
After the district court ruled on his motion, the Mr. Leonard filed a
1
supplemental response that was sworn. R. Doc. 153. Nothing in that pleading
overcomes the deficiencies identified by the district court.
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indicia of reliability may support the district court’s finding which is reviewed
only for clear error. United States v. Moore, 55 F.3d 1500, 1501 (10th Cir. 1995).
The amount of the loss caused by a defendant’s conduct need only be a reasonable
estimate, and when it comes to jointly undertaken criminal activity, a defendant is
responsible (as relevant conduct) for “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.”
U.S.S.G. § 1B1.3(a)(1)(B); United States v. Osborne, 332 F.3d 1307, 1313 (10th
Cir. 2003).
We agree with the district court that we lack specific, particularized facts
supporting Mr. Leonard’s contention that the factual findings in the PSR are
incorrect. The PSR acknowledged that the codefendant who implicated him
originally denied participation. The pressures attendant to the statements
attributed to her are speculative. Counsel’s decision not to challenge the PSR’s
calculation of the loss are within the range of professional competence. An
evidentiary hearing was not required; thus, the district court did not abuse its
discretion in declining to hold one. There was not ineffective assistance of
counsel.
AFFIRMED. We DENY a COA on the remaining issues for lack of a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel,
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529 U.S. 473, 484 (2000). All pending motions are denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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