United States v. Katrina Wright ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13304
Non-Argument Calendar
________________________
D.C. Docket No. 7:14-cr-00002-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KATRINA WRIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 6, 2015)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Katrina Wright appeals her 96-month sentence of imprisonment for
conspiring to commit bank fraud. She argues that the district court erred in the
following three ways: (1) applying a four-level aggravating role enhancement
under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3B1.1(a); (2)
imposing her federal sentence to run consecutively to an undischarged state
sentence; and (3) failing to reduce her sentence by seventeen months to account for
time served on another state sentence resulting from conduct related to the instant
offense. After careful review, we affirm.
I.
A federal grand jury indicted Wright and four co-defendants in January 2014
on one count of conspiracy to commit bank fraud, in violation of 18 U.S.C.
§§ 1344 and 1349. Wright pled guilty under a written plea agreement.
The plea agreement included a factual description of the offense, which
Wright confirmed was true and accurate at her change-of-plea hearing.
Specifically, the agreement indicated that, from July 2009 to November 2011,
Wright and four others conspired to and did defraud banks by generating
fraudulent and counterfeit checks.
The plea agreement described the scheme as follows: Wright and one other
co-conspirator wrongfully acquired the names and bank account numbers of bank
customers through various means. Using this personal information, at her home,
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Wright printed fraudulent checks in the names or aliases of her co-conspirators, but
using the victims’ account numbers. Wright then gave the fraudulent checks to her
co-conspirators, who would use them to purchase merchandise or services at
businesses. The co-conspirators delivered some of the merchandise to Wright,
who sold it to others. In total, Wright and her co-conspirators passed fraudulent
checks worth over $100,000.
Before her sentencing, a probation officer prepared Wright’s presentence
investigation report (“PSR”), finding the applicable guideline range to be 77 to 96
months of imprisonment. Notably, in calculating the guideline range, the
probation officer applied a four-level aggravating-role enhancement under
U.S.S.G. § 3B1.1(a), finding that Wright was an organizer or leader of criminal
activity that involved five or more participants.
The PSR also detailed Wright’s criminal history. Three of Wright’s prior
convictions and sentences from Georgia state courts are relevant to this appeal.
First, in 2004, Wright was sentenced in Crisp County to a total of two consecutive
ten-year terms of probation for uttering forged checks and possessing checks in
another’s name. Her probation was revoked in 2006, but she was released from
custody on “conditional transfer” or parole in 2007. Then, in 2012, her parole was
revoked. Her maximum release date is October 2023.
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Second, in February 2013, Wright was sentenced in Dougherty County to a
total ten-year term of imprisonment for identity fraud and forgery related to
passing forged checks. The sentence was imposed to run concurrently with her
parole revocation from Crisp County.
Third, in October 2013, Wright was sentenced in Ben Hill County to a three-
year term of imprisonment for possession of a firearm by a felon. According to the
PSR, the sentence was “to run concurrently with any sentence now serving.” The
firearm was found during a search of her home for evidence of the instant offense.
Wright filed written objections to the PSR. Among others, she objected to
the application of the four-level role enhancement under § 3B1.1(a). She also
asserted that her federal sentence must run concurrently with the Dougherty
County sentence, pursuant to U.S.S.G. §5G1.3(b), because it was based on
“relevant conduct.” And she requested a downward “departure” under
§ 5G1.3(b)(1) to account for the time she had spent serving the Dougherty County
sentence.1
At sentencing, the district court overruled Wright’s objection to the
application of § 3B1.1(a) after hearing argument from the parties. In so ruling, the
1
Wright also objected that her Ben Hill County conviction should not have been scored
in determining her criminal-history category because it was based on “relevant conduct,”
U.S.S.G. § 1B1.3, and therefore excluded from her criminal history by U.S.S.G. § 4A1.2(a)(1).
However, she withdrew this objection at sentencing.
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court declined to hear testimony from a Secret Service agent present at the
sentencing hearing.
The court and the parties also addressed Wright’s state sentences and their
connection to and effect on the instant federal case. Wright’s counsel made clear
that Wright was requesting only that her federal sentence run concurrently with her
sentence from Dougherty County, because it was relevant conduct based on an
overt act in the conspiracy for which she was being sentenced. The government
responded that it had no objection to running the federal sentence concurrently
with the Dougherty County sentence but consecutively to the Crisp County and
Ben Hill County sentences. Asked by the court whether the government’s
suggestion was “satisfactory,” Wright’s counsel responded, “Yes, Sir, Your
Honor.”
Finally, the district court denied Wright’s request for a sentence reduction of
seventeen months “to achieve full concurrency” between the Dougherty County
sentence and the federal sentence.
Ultimately, the district court imposed a 96-month sentence of imprisonment,
at the top end of the guideline range. The sentence imposed was to be served
consecutively to the sentences from Crisp County and Ben Hill County and
concurrently with the Dougherty County sentence.
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II.
Wright first argues that the district court erred in applying the four-level
organizer or leader enhancement, U.S.S.G. § 3B1.1(a), without making specific
findings of fact. According to Wright, the undisputed record evidence supports
application of the three-level increase for a manager or supervisor, U.S.S.G.
§ 3B1.1(b), only. In particular, Wright points out that she denied recruiting other
conspirators, placing any limitations on the negotiation of the fraudulent checks
(other than insisting that certain items be purchased for her), or receiving a larger
share of the proceeds.
We review for clear error the district court’s determination that a defendant
is subject to a § 3B1.1(a) role enhancement as an organizer or leader. United
States v. Martinez, 584 F.3d 1022, 1025 (11th Cir. 2009); see also United States v.
Rodriguez De Varon, 175 F.3d 930, 937-38 (11th Cir. 1999) (en banc) (holding
that the determination of a defendant’s role in the offense is a finding of fact
reviewed only for clear error). A factual finding is clearly erroneous when, in light
of the entire record, we are “left with the definite and firm conviction that a
mistake has been committed.” United States v. Gupta, 572 F.3d 878, 887 (11th
Cir. 2009) (quotation marks omitted).
Section 3B1.1(a) provides for a four-level enhancement “[i]f the defendant
was an organizer or leader of a criminal activity that involved five or more
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participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). A three-level
enhancement applies “[i]f the defendant was a manager or supervisor (but not an
organizer or leader).” Id. § 3B1.1(b). Wright concedes that the criminal activity
involved five or more participants.
The commentary to § 3B1.1 sets forth several factors for a sentencing court
to consider in distinguishing a leadership role from a management role, including
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and
authority exercised over others.
Id. § 3B1.1 cmt. n.4; United States v. Esquenazi, 752 F.3d 912, 938 (11th Cir.),
cert. denied, 135 S. Ct. 293 (2014). However, there is no requirement that all of
these factors be present. Martinez, 584 F.3d at 1026. At a minimum, the
defendant must have “exerted some control, influence or decision-making
authority over another participant in the criminal activity.” Id.Initially, we note that the district-court judge, in determining Wright’s role
in the offense, “ha[d] no duty to make any specific subsidiary factual findings.”
Rodriguez De Varon, 175 F.3d at 939. Rather, “[s]o long as the district court’s
decision is supported by the record and the court clearly resolves any disputed
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factual issues, a simple statement of the district court’s conclusion is sufficient.”
Id. (emphasis in original).
Here, undisputed record evidence supports the district court’s determination
that Wright was an organizer or leader of the conspiracy. Wright admitted as part
of her guilty plea that she originated the fraudulent-check scheme, operated it from
her home, produced the checks, and distributed the checks to her co-conspirators.
See Martinez, 584 F.3d at 1027 (stating that the district court can properly base its
factual findings on, among other things, facts admitted during a defendant’s guilty
plea); U.S.S.G. § 3B1.1 cmt. n.4. In other words, Wright was the most culpable
participant in the bank-fraud conspiracy.
In addition, the record supports a determination that Wright exercised
control or influence over her co-conspirators. See Martinez, 584 F.3d at 1026;
U.S.S.G. § 3B1.1 cmt. nn.2 & 4. Wright admitted in her plea that one of her co-
conspirators provided her with bank account numbers, which she used to create the
checks. She also admitted that she received from co-conspirators merchandise
purchased with the fraudulent checks. And, at sentencing, Wright’s counsel
conceded that Wright gave co-conspirators shopping lists of specific items to
purchase and directed them to go to particular merchants.
Because the district court’s determination of Wright’s role in the offense was
based on a permissible view of the facts, the court did not clearly err in applying
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the four-level organizer or leader enhancement. See Martinez, 584 F.3d at 1025;
Rodriguez De Varon, 175 F.3d at 937-38, 945.
III.
Wright next contends that the district court erred in failing to run her federal
sentence concurrently with her Ben Hill County sentence because, according to
Wright, the Ben Hill County sentence was based on relevant conduct. Wright also
asserts that her federal sentence is “nonsensical” because all of her state sentences
run concurrently. Finally, Wright contends that the district court should have
adjusted her sentence downward by seventeen months to account for the time she
spent serving the Dougherty County sentence before her federal sentencing.
Generally, we review a district court’s imposition of a consecutive sentence
for an abuse of discretion. United States v. Covington, 565 F.3d 1336, 1346 (11th
Cir. 2009). However, we review sentencing issues raised for the first time on
appeal for plain error only. 2 United States v. Shelton, 400 F.3d 1325, 1328 (11th
Cir. 2005).
We review Wright’s challenges relating to the Ben Hill County sentence for
plain error only because she did not present these arguments to the district court for
2
In order to correct an error on plain-error review, we must determine the existence of
an (1) error, (2), that is plain, and (3) that affects the defendant’s substantial rights. Shelton, 400
F.3d at 1328-29. If these three conditions are met, we may exercise our discretion to correct the
forfeited error, “but only if (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. 1329 (quotation marks omitted).
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resolution at sentencing. See Shelton, 400 F.3d at 1328. In any case, after review,
we find no abuse of discretion or error, plain or otherwise.
A.
Federal courts generally “have discretion to select whether the sentences
they impose will run concurrently or consecutively with respect to other sentences
that they impose, or that have been imposed in other proceedings, including state
proceedings.” Setser v. United States, ___ U.S. ___, ___, 132 S. Ct. 1463, 1468
(2012); see 18 U.S.C. § 3584(a). “Multiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are to run
concurrently.” 18 U.S.C. § 3584(a). In determining whether to impose a
consecutive or concurrent sentence, the district court must consider the factors
listed in 18 U.S.C. § 3553(a). Id. § 3584(b).
Section 5G1.3 of the Sentencing Guidelines governs the imposition of a
sentence on a defendant subject to undischarged terms of imprisonment. In
general, the purpose of § 5G1.3 is “to mitigate the possibility that the fortuity of
two separate prosecutions will grossly increase a defendant’s sentence.” Witte v.
United States, 515 U.S. 389, 404-05, 115 S. Ct. 2199, 2208-09 (1995). The
following three general scenarios are contemplated by that section.
First, if the instant offense is committed while a defendant is serving, or has
been sentenced to, a term of imprisonment, § 5G1.3(a) provides that “the sentence
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for the instant offense shall be imposed to run consecutively to the undischarged
term of imprisonment.” U.S.S.G. § 5G1.3(a). There has been no suggestion that
§ 5G1.3(a) applies in this case.
Second, if § 5G1.3(a) does not apply, and if a defendant is subject to a term
of imprisonment for another offense that (i) is “relevant conduct to the instant
offense,” and (ii) was the basis for an increase in the offense level, § 5G1.3(b)
provides that “the sentence for the instant offense shall be imposed to run
concurrently to the remainder of the undischarged term of imprisonment.” Id.
§ 5G1.3(b)(2). In addition, “the court shall adjust the sentence for any period of
imprisonment already served on the undischarged term of imprisonment if the
court determines that such period of imprisonment will not be credited to the
federal sentence by the Bureau of Prisons.” Id. § 5G1.3(b)(1).
Finally, § 5G1.3(c) provides that in any other case involving an
undischarged term of imprisonment, the court has discretion to structure the
sentence for the instant offense (to run concurrently, partially concurrently, or
consecutively) so as “to achieve a reasonable punishment for the instant offense.”
Id. § 5G1.3(c).
B.
In this case, Wright was subject to three undischarged terms of
imprisonment resulting from three state sentences imposed at separate times. For
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the reasons that follow, we conclude that this situation was governed by U.S.S.G.
§ 5G1.3(c) and that the district court did not abuse its discretion or plainly err in
imposing Wright’s sentence for the instant offense. We address each prior state
sentence separately before explaining why § 5G1.3(c) applies.
With regard to the Ben Hill County sentence, the district court was not
required to run Wright’s federal sentence concurrently with the undischarged term
of that sentence under § 5G1.3(b). Section 5G1.3(b) applies only if the prior
offense is “relevant conduct” to the instant offense and was the basis for an
increase in the offense level. U.S.S.G. § 5G1.3(b). As pertinent here, “relevant
conduct” under the Sentencing Guidelines includes all acts and omissions
committed by the defendant “during the commission of the offense of conviction.”
Id. § 1B1.3(a)(1)(A). Wright’s firearm conviction was not relevant conduct
because it has no connection to the commission of the bank-fraud conspiracy,
despite the fact that the firearm that provides the basis for that conviction was
found in her apartment during a search related to the instant offense. Nor did
Wright’s possession of a firearm factor into her offense level. For instance, she did
not receive a two-level increase in her offense level for “possession of a dangerous
weapon (including a firearm) in connection with the offense”). Id.
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§ 2B1.1(b)(15)(B). Therefore, § 5G1.3(b) does not apply to the undischarged Ben
Hill County sentence. 3 Instead, the residual category of § 5G1.3(c) applies.
Wright’s Crisp County parole-revocation sentence likewise is governed by
§ 5G1.3(c). Subsection (c) applies in cases where, as here, the defendant was on
parole at the time of the instant offense and has had her parole revoked. Id.
§ 5G1.3 cmt. n.3(C). In such cases, the Sentencing Commission recommends that
the court impose the sentence for the instant offense consecutively to the sentence
imposed for the revocation. Id.
Regarding Wright’s Dougherty County conviction, it is undisputed that the
offense was based on relevant conduct. Because of this, Wright contends, the
district court was required to adjust her federal sentence under § 5G1.3(b)(1) to
account for the period of imprisonment already served on the Dougherty County.4
Assuming that Wright had been able to show that this prior offense increased her
offense level, an issue we do not reach, Wright may have been entitled to have her
federal sentence reduced under § 5G1.3(b)(1) to account for “any period of
3
Similarly, because the Ben Hill County offense was not relevant conduct, the district
court did not err in scoring it for Wright’s criminal-history category. See U.S.S.G.
§ 4A1.2(a)(1).
4
The government contends that we lack jurisdiction to entertain Wright’s arguments in
this respect based on the well-established principle that we lack jurisdiction to review the district
court’s discretionary refusal to depart downward under the Sentencing Guidelines. United States
v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006). We disagree. Notwithstanding Wright’s use of
the term “departure” in describing her request, the Sentencing Guidelines characterize the
adjustment prescribed under § 5G1.3(b)(1) as a “sentence reduction,” not a “downward
departure.” Compare U.S.S.G. § 5G1.3 cmt. n.2(C), with U.S.S.G. § 5G1.3 cmt. n.3(E) & n.4.
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imprisonment already served on the undischarged term of imprisonment.” See
U.S.S.G. § 5G1.3 cmt. n.2(A); see also United States v. Descally, 254 F.3d 1328,
1333 (11th Cir. 2001) (concluding that the district court erred in failing to apply
§ 5G1.3(b) and take into account time already served in state custody for a related
crime).
However, Wright was subject not just to the Dougherty County term of
imprisonment, but also to the terms from Crisp County and Ben Hill County. Even
assuming that § 5G1.3(b) applied to the Dougherty County sentence, § 5G1.3(c)
applied to the remaining two sentences.
In this complex situation, “in which a defendant may be subject to multiple
undischarged terms of imprisonment that seemingly call for the application of
different rules,” the commentary to § 5G1.3 provides that “the court may exercise
its discretion in accordance with subsection (c) to fashion a sentence of appropriate
length and structure it to run in any appropriate manner to achieve a reasonable
punishment for the instant offense.” U.S.S.G. § 5G1.3 cmt. n.3(D). And, unlike
subsection (b) of § 5G1.3, “subsection (c) does not authorize an adjustment of the
sentence for the instant offense for a period of imprisonment already served on the
undischarged term of imprisonment.” Id. § 5G1.3 cmt. n.3(E). Therefore, in the
circumstances of this case, the district court properly declined to reduce Wright’s
sentence under § 5G1.3(b)(1).
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In sum, § 5G1.3(c) applies to the district court’s sentence in this case.
Therefore, the only remaining question is whether the district court abused its
discretion by imposing a sentence that did not “achieve a reasonable punishment
for the instant offense.” Id. § 5G1.3(c); see Setser, 132 S. Ct. at 1468. Here, the
undischarged terms of imprisonment from Crisp County and Ben Hill County were
based on unrelated conduct and were imposed at different times from the federal
sentence. See 18 U.S.C. § 3584(a). In addition, the Crisp County sentence
resulted from the revocation of parole. See U.S.S.G. § 5G1.3 cmt. n.3(C). Given
these facts, the district court acted well within its discretion and in accord with the
Sentencing Guidelines when it imposed the sentence to run consecutively to
Wright’s undischarged terms of imprisonment for these offenses. 5 See 18 U.S.C.
§ 3584(a); U.S.S.G. § 5G1.3.
Wright’s final argument is that her sentence is “nonsensical” because her
state sentences were imposed to run concurrently with each other, but her federal
sentence runs concurrently to one state sentence but not the others. In addressing a
similar situation, the Supreme Court in Setser noted that such a sentence “is indeed
a problem,” but not one that “shows the District Court’s sentence to be unlawful.”
Setser, 132 S. Ct. at 1472. As in Setser, Wright identifies no flaw in the court’s
decision-making process with respect to this question, “nor anything at the time of
5
Wright does not otherwise argue that her sentence was unreasonably lengthy or that the
court failed to consider the 18 U.S.C. § 3553(a) sentencing factors.
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sentencing that the District Court failed to consider.” Id. at 1472-73. Indeed,
Wright appears to have requested, or at least acquiesced in, the structuring of the
sentence imposed by the district court. For these reasons, we conclude that the
district court did not abuse its discretion in structuring Wright’s federal sentence as
it did.
IV.
In short, the district court did not clearly err in determining that Wright was
an organizer or leader in the bank-fraud conspiracy, nor did the court abuse its
discretion in structuring Wright’s federal sentence to run consecutively to two
undischarged state sentences or in declining to reduce her sentence by seventeen
months under § 5G1.3(b)(1).
AFFIRMED.
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