United States v. Charvester D. Anthony ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14407
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00049-EAK-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARVESTER D. ANTHONY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 27, 2017)
Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Charvester Anthony appeals his convictions and sentences for receiving
stolen U.S. Treasury checks, in violation of 18 U.S.C. § 641. Anthony asserts
three issues on appeal, which we address in turn. After review, we affirm
Anthony’s convictions and custodial sentence, and vacate the restitution order and
remand for further proceedings.
I. DISCUSSION
A. 18 U.S.C. § 641
Anthony first asserts the Government failed to prove at trial that he dealt in
stolen treasury checks. He contends property taken from the government by fraud
is not property taken by “stealing,” as that term is used in 18 U.S.C. § 641, and in
any event, he asserts the Government submitted insufficient evidence that he knew
the treasury checks were stolen.
A defendant may be convicted for receiving stolen government property
under § 641 if the government establishes that: (1) the money described in the
indictment belonged to the United States or an agency thereof; (2) the defendant
received the property knowing it to have been embezzled, stolen, purloined, or
converted; and (3) the defendant did so knowingly with intent to deprive the
government of the money. 18 U.S.C. § 641. “[T]o establish the requisite criminal
intent, the government need only prove that [the] defendant[] knowingly used
government property for [his] own purpose[ ] in a manner that deprived the
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government of the use of the property.” United States v. Lanier, 920 F.2d 887, 895
(11th Cir. 1991).
As an initial matter, Anthony’s argument that his conduct falls outside
§ 641’s prescriptive scope is unavailing.1 We have upheld convictions under § 641
where defendants procured U.S. treasury checks by filing false tax filings. In
United States v. Wilson, 788 F.3d 1298 (11th Cir. 2015), Wilson operated a Florida
check-cashing business and deposited a number of fraudulent tax refund checks
into his business account. Id. at 1305. We affirmed Wilson’s six convictions
under § 641. Id. at 1309-10.
Moreover, the evidence presented at trial, when taken in the light most
favorable to the Government, was sufficient for a reasonable jury to infer that
Anthony knew the checks were fraudulent.2 First, Anthony claimed he had
matching IDs for each check he cashed, but he failed to produce them for
authorities. Second, five victims testified they did not file the tax returns and the
signatures on the back of the refund checks were not theirs. Third, the
1
The interpretation of a statute is a question of law that is reviewed de novo. United
States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
2
We review the sufficiency of the evidence de novo. United States v. Rutgerson, 822
F.3d 1223, 1231 (11th Cir. 2016). We are required to affirm a conviction if “any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” United
States v. Mintmire, 507 F.3d 1273, 1289 (11th Cir. 2010). We view all the evidence in the light
most favorable to the government and draw all reasonable inferences and credibility choices in
favor of the jury’s verdict. Id.
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investigating officer testified that Anthony told him that the checks were stolen,
that he was “stealing from thieves,” and that he charged more for stolen checks.
Fourth, Anthony did not provide an explanation as to how the IDs he claimed he
reviewed from the fraudulent filers matched the names on the checks. Lastly,
Anthony deposited all of the fraudulent checks by ATM, and therefore, avoided
signing the checks himself. Thus, a reasonable jury could infer from the evidence
that Anthony had knowledge that the checks were stolen.
Finally, the jury had the ability to assess Anthony’s credibility, and we will
assume that the jury answered all credibility questions in a manner supporting the
verdict. See United States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009)
(explaining we assume the jury answered credibility questions in a manner that
supports the verdict, and a defendant’s own testimony, if disbelieved by the jury,
may be considered as substantive evidence of the defendant’s guilt). Accordingly,
we affirm Anthony’s convictions.
B. U.S.S.G. § 2B1.1(b)(20(A)
Second, Anthony asserts the district court plainly erred at sentencing in
upwardly adjusting his offense level based upon the number of victims under
U.S.S.G. § 2B1.1(b)(2)(A). He contends the only victim in this case was the IRS,
and that none of the identity fraud victims were harmed by conduct attributable to
him. He asserts that in Chapter Two of the Guidelines, “case involving” specifies
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the particular case in which a defendant was convicted, not some other case that
may be related to a defendant’s offense or conviction, and requests this Court not
expand the meaning of “case involving.”
A defendant’s base offense level is increased by 2 levels if the offense
involved 10 or more victims. U.S.S.G. § 2B1.1(b)(2)(A). For purposes of
§ 2B1.1, “victim” means “any person who sustained any part of the actual loss”
attributed to the crime. Id. § 2B1.1, comment. (n.1). In cases involving means of
identification, a victim is defined to include “any individual whose means of
identification was used unlawfully or without authority.” Id. § 2B1.1, comment.
(n.4(E)(ii)). A “means of identification” is “any name or number that may be used,
alone or in conjunction with any other information, to identify a specific
individual,” including names, social security numbers, and dates of birth. 18
U.S.C. § 1028(d)(7). The term “victim,” for purposes of § 2B1.1(b)(2), “‘is
appropriately limited, however, to cover only those individuals whose means of
identification are actually used.’” United States v. Hall, 704 F.3d 1317, 1323 n.3
(11th Cir. 2013) (quoting U.S.S.G. app. C, amend. 726).
When calculating a defendant's sentencing range under the Guidelines, the
sentencing court must consider all “relevant conduct” as defined in § 1B1.3. See
United States v. Blanc, 146 F.3d 847, 851–52 (11th Cir. 1998). Because “the
limits of sentencing accountability are not coextensive with the scope of criminal
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liability,” United States v. Hamaker, 455 F.3d 1316, 1336, 1338 (11th Cir. 2006)
(quotations omitted), relevant conduct is broadly defined to include both uncharged
and acquitted conduct that is proven at sentencing by a preponderance of the
evidence. Id. Under § 1B1.3, relevant conduct includes “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully
caused by the defendant” U.S.S.G. § 1B1.3.
The district court did not commit plain error in applying the
§ 2B1.1(b)(2)(A) enhancement. See United States v. Bennett, 472 F.3d 825, 831
(11th Cir. 2006) (reviewing objections to sentencing calculation issues raised for
the first time on appeal for plain error). By not objecting to the presentence
investigation report (PSI), Anthony admitted the facts contained therein. See id. at
833-34 (stating a defendant who fails to object to allegations of fact in the PSI
admits those facts for sentencing purposes). These facts concluded he was
accountable for theft of fraudulent tax returns issued in the names of 33 taxpayers.
Because the PSI contained the factual finding that means of identification were
used for 33 people, they qualified as victims. U.S.S.G. § 2B1.1, comment.
(n.4(E)(ii)). Further, Anthony’s arguments concerning the scope of the
enhancement are unavailing because the district court, in sentencing, can consider
conduct outside that underlying a conviction. Therefore, although Anthony did not
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file the returns himself, he did aid and abet the stealing of treasury checks by
cashing them and retaining the funds for his own use.
Furthermore, neither we nor the Supreme Court has issued binding precedent
on the specific issue of whether receiving fraudulent Treasury checks constitutes
unlawful use of means of identification under § 2B1.1(b)(2)(A), and therefore, the
district court’s application of the enhancement cannot be plain error. See United
States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (stating there can be
no plain error where there is no precedent from the Supreme Court or this Court
directly resolving the explicit language of a statute or rule at issue). Accordingly,
the district court did not commit plain error in applying a two-level enhancement
based on 33 victims, pursuant to § 2B1.1(b)(2)(A), and we affirm the district
court’s imposition of the enhancement.
C. Restitution
Lastly, Anthony claims, and the Government concedes, that the district court
plainly erred in ordering him to pay restitution in an amount greater than those
losses attributable to the offense of conviction. He contends the district court
ordered restitution in the amount of $252,088.03, but claims the district court was
only authorized to enter judgement in the amount of $31,462.73.
A district court may order restitution only if a statute empowers it to do so.
United States v. Dickerson, 370 F.3d 1330, 1335 (11th Cir. 2004). Pursuant to 18
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U.S.C. § 3556, the district court is required to order restitution as part of a
defendant's sentence under the Mandatory Victim Restitution Act (MVRA). 18
U.S.C. § 3663A. The MVRA provides that a district court shall order restitution to
a victim as part of the defendant’s sentence for offenses against property under
Title 18. Id. § 3663A(a)(1), (c)(1)(A)(ii). The MVRA defines a victim as:
a person directly and proximately harmed as a 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.
Id. § 3663A(a)(2).
Generally, a district court may impose restitution only for losses caused by
the conduct underlying the offense of conviction. See United States v. Romines,
204 F.3d 1067, 1068-69 (11th Cir. 2000). However, based on the definition of
victim in 18 U.S.C. § 3663A(a)(2), a district court may impose restitution for all
losses caused by the defendant’s conduct in the course of a scheme if the defendant
was convicted of an offense that involves as an element a scheme, conspiracy, or
pattern of criminal activity. See United States v. Foley, 508 F.3d 627, 636 (11th
Cir. 2007).
The district court plainly erred in basing Anthony’s restitution amount on all
of his relevant conduct, and we vacate the restitution order and remand the case for
further proceedings in that respect. See 18 U.S.C. § 3742(f)(1). Under the MVRA,
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restitution was mandatory as to Counts 1-5, as they constituted offenses against
property under Title 18. See id. § 3663A(c)(1)(A)(ii). However, as Anthony was
not convicted of an offense that involved as an element a scheme, conspiracy, or
pattern of criminal activity, the district court only had the authority to impose
restitution for the losses caused by Anthony’s conduct underlying his actual
convictions. See Foley, 508 F.3d at 636.
II. CONCLUSION
We affirm Anthony’s conviction and custodial sentence. We vacate
Anthony’s restitution order, and remand with instructions to limit the restitution
imposed as part of Anthony’s total sentence to the losses caused by Anthony’s
conduct underlying his convictions.
AFFRIMED IN PART, VACATED AND REMANDED IN PART.
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