United States v. Michael E. Jones , 199 F. App'x 812 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 29, 2006
No. 06-10758 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00013-CR-RWS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL E. JONES,
a.k.a. Wesley Williams,
a.k.a. Jacques Deloach,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 29, 2006)
Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Michael E. Jones appeals his seventy-one month sentence following his
negotiated guilty plea to one count of bank fraud, in violation of 18 U.S.C. §§
1344(1) and 2. Upon a thorough review of the record on appeal, including the Fed.
R. Crim. P. 11 plea hearing and sentencing transcripts, the presentence
investigation report (“PSI”), and after consideration of the briefs of the parties to
this Court, we find no reversible error.
BACKGROUND
Between May 1998 and April 2001, Jones engaged in a scheme to purchase
numerous luxury vehicles and Rolex watches by creating and passing fraudulent
certified checks to unsuspecting victims. In one instance, Jones used a fraudulent
cashier’s check in the amount of $45,500 to purchase a 1998 Range Rover from a
private seller. Jones then sold the vehicle to Carmax for $28,851. In July 2001,
Jones was arrested in Virginia after attempting to sell a Porsche Boxster, which he
had fraudulently obtained, to an undercover officer. Jones was convicted and
remained incarcerated until October 3, 2003.
On or about October 20, 2003, Jones commenced the instant check-kiting
offense by opening a new checking account via the internet with Net Bank using a
forged and non-sufficient-funds check. Jones then opened additional fraudulent
accounts with other banks, after which he began kiting checks between the various
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financial institutions. In August 2004, Jones again attempted to use a fraudulent
certified check to purchase a 1991 BMW. Shortly thereafter, Forsyth County
police officers obtained an arrest warrant for Jones. While searching Jones’s
vehicle and residence, the police discovered business cards in several of Jones’s
aliases and twenty-six checks totaling $67,005, and various other items.
While committing the instant offense, Jones also fraudulently leased a house
in St. Marlo Golf and Country Club, Duluth, Georgia. Jones signed the lease in
July 2004 and was evicted in September 2004. During that period, Jones attempted
to pay the $9,300 in rent due with a series of three fraudulent checks with a total
face value of $21,300. The landlord claimed a loss of $11,000 as a result of
Jones’s fraud.
On appeal, Jones argues that at sentencing the district court (1) erred by
including in its fraud-loss calculation under U.S.S.G. § 2B1.1(b) the loss amounts
associated with his fraudulent conduct prior to his incarceration in Virginia
because those acts were distinct from the instant offense and too temporally
remote; (2) erred by including both the $45,500 he used to fraudulently purchase
the 1998 Range Rover as well as the $28,851 he later sold the vehicle for to
Carmax; (3) erred by including in the total fraud-loss amount the cumulative face
value of the fraudulent rent checks that Jones presented to his landlord rather than
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the rent amount actually due; and (4) plainly erred by including in its fraud-loss
calculation outdated checks seized from Jones’s residence and vehicle.
STANDARD OF REVIEW
The district court’s application of the Sentencing Guidelines presents a
mixed question of law and fact. United States v. Anderson, 326 F.3d 1319, 1326
(11th Cir. 2003). The Court reviews the findings of fact for clear error, and its
application of the sentencing guidelines to those facts de novo. Id. The Court
reviews a district court’s findings of fact at sentencing regarding the amount of loss
for clear error. United States v. Manoocher Nosrati-Shamloo, 255 F.3d 1290, 1291
(11th Cir. 2001).
DISCUSSION
1. Pre-Incarceration Conduct
Jones argues that the district court erred by including in its fraud-loss
calculation the $160,476.80 loss associated with his fraudulent conduct that
occurred before his Virginia incarceration. Jones contends that his pre-
incarceration conduct cannot be considered relevant conduct under U.S.S.G. §
1B1.3(a)(2), because it did not involve a common scheme or plan and was not part
of the same course of conduct.
Under the Guidelines, a district court may hold a defendant accountable “not
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just for the ‘offense of conviction,’ but for all ‘offense conduct,’ which ‘refers to
the totality of the criminal transaction in which the defendant participated and
which gave rise to his indictment, without regard to the particular crimes charged
in the indictment.’” United States v. Fuentes, 107 F.3d 1515, 1522 (11th Cir.
1997) (quoting United States v. Scroggins, 880 F.2d 1204, 1209 n.12 (11 th Cir.
1989)). Section 1B1.3(a)(2) of the Guidelines describes what “relevant conduct”
must be considered in calculating a defendant’s base offense level, and provides
that the defendant must be held accountable for all acts and omissions “that were
part of the same course of conduct or common scheme or plan as the offense of
conviction.” United States v. Maxwell, 34 F.3d 1006, 1010 (11th Cir. 1994)
(quoting U.S.S.G. § 1B1.3(a)(2)). Two offenses qualify as the “same course of
conduct” if “they are sufficiently connected or related to each other as to warrant
the conclusion that they are part of a single episode, spree, or ongoing series of
offenses.” U.S.S.G. § 1B1.3, comment. (n.9(B)). Relevant factors to consider
include “the degree of similarity of the offenses, the regularity (repetitions) of the
offenses, and the time interval between the offenses.” Id. Two offenses qualify as
a “common scheme or plan” if they are “substantially connected to each other by at
least one common factor, such as common victims, common accomplices, common
purpose, or similar modus operandi.” Id., comment. (n.9(A)). Relevant conduct
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may include uncharged conduct. Maxwell, 34 F.3d at 1010.
Jones argues that his pre-incarceration conduct (1) occurred between two-
and-a-half and five-and-a-half years before the beginning of the charged check-
kiting offenses, (2) involved the dissimilar scheme of acquiring vehicles and
watches, and (3) involved a completely different type of victim and modus
operandi. Jones argues that the government failed to demonstrate temporal
proximity, similarity, or relevancy to the instant scheme.
At sentencing, the district court stated that Jones’s ongoing fraudulent
conduct was only interrupted by his term of incarceration; therefore, the pre-
incarceration conduct could be considered relevant conduct under the Guidelines.
This Court has not addressed whether an intervening term of incarceration will
generally preclude a district court from finding that a defendant’s pre-incarceration
conduct was part of the same common scheme or part or the same course of
conduct as the offenses of the conviction, because the pre-incarceration conduct is
too temporally remote and did not occur with sufficient regularity. In this
particular case, we find that the record demonstrates that Jones committed the
extrinsic fraudulent conduct with sufficient regularity and in temporal proximity to
the charged offense regardless of his incarceration.
Between May 1998 and April 2001, Jones engaged in a series of purchases
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of six luxury vehicles and two Rolex watches using fraudulent certified checks.
Jones ultimately was arrested in July 2001 in Virginia after attempting to sell one
of the vehicles to an undercover officer. Jones remained incarcerated in Virginia
until October 2003. The same month that he was released from incarceration,
Jones immediately resumed his fraudulent activities, commencing the instant
check-kiting offense. Given that there was no break in the activity outside of the
period of incarceration, Jones’s acts of creating and passing fraudulent certified
checks represent an “ongoing series of offenses” within the meaning of § 1B1.3.
U.S.S.G. § 1B1.3, comment. (n.9(B)).
Furthermore, the record demonstrates the Jones’s pre-incarceration
fraudulent conduct was sufficiently similar to the charged offense. In evaluating
the “similarity, regularity, and temporal proximity” between the offense of
conviction and the extrinsic conduct, this Court has cautioned that it would be
improper to find two offenses sufficiently similar just because they are of the same
general type. See Maxwell, 34 F.3d at 1011.
In Maxwell, this Court rejected the district court’s conclusion that the
defendant’s distribution of dilaudid was part of the same course of conduct as his
distribution of cocaine simply because both schemes involved “drug distribution.”
Id. at 1011. Unlike the situation in Maxwell, the district court in the case before
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this Court did not conclude that the extrinsic acts and the instant offense were
sufficiently similar solely because both offenses generally involved “fraud.” See
id. Rather, the facts of this case demonstrate an overlap in the modus operandi and
similarity of Jones’s pre- and post-incarceration conduct. The evidence shows that,
in both instances, Jones’s modus operandi was to create and use fraudulent
certified checks to defraud his victims. While his pre-incarceration conduct
involved a scheme to acquire and resell vehicles and jewelry, and his post-
incarceration conduct involved check kiting between various financial institutions,
the schemes were based on the same method and were sufficiently similar to allow
for a finding that they were part of a common scheme or same course of conduct.
In addition, the evidence shows that Jones also used the same alias, Jacques
Deloach, during both periods. Furthermore, even after his incarceration, Jones
engaged in the identical act of using a fraudulent certified check to purchase a
vehicle.
Therefore, the district court did not clearly err in finding that Jones’s pre-
and post-incarceration conduct were sufficiently similar and amounted to relevant
conduct under § 1B1.3, and that the pre-incarceration conduct could be considered
in calculating the total loss amount under § 2B1.1(b).
2. Loss Calculation of the Range Rover
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Jones argues that the district court erred by including in its loss calculation
both the $45,500 fraudulent check he used to purchase the 1998 Range Rover as
well as the $28,851 he received when he sold the vehicle to Carmax. Jones argues
that the district court ignored the value of the car that he provided to Carmax, and
the court should have given him an offset credit because he did not intend to cause
a loss greater than $45,500. Jones contends that the loss amount should have been
either $45,500 or $28,851, but not both amounts.
Section 2B1.1 of the United States Sentencing Guidelines provides a
14-level enhancement for a fraud offense involving between $400,000 and
$1 million in loss. U.S.S.G. § 2B1.1(b)(1)(H) (2004). Application Note 3 to that
section provides that the “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1, comment. (n.3(A)). “Actual loss” is defined as “the reasonably
foreseeable pecuniary harm that resulted from the offense.” Id.,
comment. (n.3(A)(i)). “‘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.” Id., comment. (n.3(A)(ii)). The
Guidelines also provide for “credits against loss,” stating that the loss amount shall
be reduced by either (1) the fair market value of any property returned to the victim
before the offense was detected; or (2) “[i]n a case involving collateral pledged or
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otherwise provided by the defendant, the amount the victim has recovered at the
time of sentencing from disposition of the collateral, or if the collateral has not
been disposed of by that time, the fair market value of the collateral at the time of
sentencing.” Id., comment. (n.3(E)(i)(ii)).
The district court did not clearly err in finding that Jones’s initial fraudulent
purchase, and then sale of the 1998 Range Rover were separate transactions
designed to cause a loss to two distinct victims. The facts of this case demonstrate
that Jones used a fraudulent cashier’s check in the amount of $45,500 to purchase a
1998 Range Rover from a private seller. Jones then sold the 1998 Range Rover to
Carmax for $28,851. At the time of each transaction, Jones intended to deprive the
private seller of the $45,500 value of his vehicle, as well as to deprive Carmax out
of $28,851.00 See U.S.S.G. § 2B1.1, comment. (n.3(A)(ii)). Furthermore, Jones’s
claim that he was entitled to a “credit against loss” for the value of the vehicle is
without merit. Id., comment. (n.3(E)(i)(ii)). Jones neither returned the vehicle to
the original owner before the offense was detected, nor pledged any collateral to
protect either of the two victims. Accordingly, the district court did not err by
including both the $45,500 and the $28,851 loss amounts in its fraud-loss
calculation.
3. Loss Calculation of Rent Checks
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Jones argues that the district court erred by using the cumulative face value
of the three fraudulent checks he passed to his landlord for payment of rent on his
house in St. Marlo Golf and Country Club. Jones contends that the actual and
intended losses were the same, because his second and third fraudulent checks
were only presented to his landlord in order to remedy the problem with his first
fraudulent check. Jones notes that his landlord only claimed a loss of $11,000,
while the PSI calculated the loss value of $30,600.
Federal Rule of Criminal Procedure 52(a) states that “[a]ny error, defect,
irregularity, or variance that does not affect substantial rights must be disregarded.”
Fed.R.Crim.P. 52(a). At sentencing, the district court noted that based on the
court’s other rulings as to Jones’s fraud-loss calculation, that Jones’s amended total
fraud-loss amount was $425,960. Thus, the $19,600 difference between the
$30,600 figure used by the district court and the $11,000 in rent actually owed to
Jones’s landlord was insufficient to get Jones below the $400,000 threshold.
U.S.S.G. § 2B1.1(b)(1)(H). Therefore, even if the district court erred by including
the cumulative face value of each of Jones’s fraudulent rent checks in its total
fraud-loss calculation, Jones cannot demonstrate that the error affected the
calculation of his sentence. See Fed.R.Crim.P. 52(a).
4. Loss Calculation of Outdated Checks
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Finally, Jones argues that the district court plainly erred by including in the
loss calculation the value of outdated fraudulent checks seized from his vehicle and
residence. Because Jones’s challenge to the inclusion of these checks was not
raised in the district court, we review for plain error. United States v. Cover, 199
F.3d 1270, 1274 (11th Cir. 2000). To satisfy the plain error standard, we must find
that “(1) there was error in the district court’s determination, (2) the error was plain
or obvious, and (3) the error ‘affected substantial rights’ in that the error was
prejudicial and not harmless.” United States v. Chisholm, 73 F.3d 304, 307 (11th
Cir. 1996).
Jones asserts that the seized checks bore dates as far back as June 2000,
more than four years before his arrest in the instant case. Jones claims that all but
nine of the twenty-six seized checks were dated more than ninety days before his
September 3, 2004, arrest, and equated to $58,070 of the $67,005 total used by the
district court. Jones contends that the relatively old age of those checks
demonstrate that he lacked any intent to utter those checks; therefore, the checks
should not have been included in the total fraud-loss calculation.
In its response, the government asserts that the relative age of the checks and
the fact that the checks had not been presented for payment are inconsequential,
because the key issue is Jones’s intent to cause loss with the seized checks. The
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government argues that Jones’s intent to use counterfeit checks to defraud others is
apparent from his actions in committing the instant offense.
Jones does not satisfy his burden under plain-error review. Jones cites no
case law to support his assertion that the relative age of the checks evinces a lack
of intent to negotiate the checks.
In a similar situation, this Court held that “when an individual possesses a
stolen check, or a photocopy of a stolen check, for the purpose of counterfeiting,
the district court does not clearly err when it uses the full face value of that stolen
check in making a reasonable calculation of the intended loss,” even when the copy
of the check does not list an amount. United States v. Grant, 431 F.3d 760, 764-65
(11th Cir. 2005) (involving a scheme to use photocopied checks to create new
fraudulent checks). In Grant, this Court stated that the defendant’s intent is
paramount, and that a district court is justified in including a check’s full face
value in the loss calculation where the evidence indicates the defendant intended to
utilize the full face value of the check. Id. at 765.
In the case before this Court, the scope of Jones’s fraudulent-check activities
over the course of a number of years demonstrates that Jones had the intent to
cause loss with the checks seized from his vehicle and residence, regardless of the
dates listed on those checks. The Guidelines’s definition of “intended loss”
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includes “intended pecuniary harm that would have been impossible or unlikely to
occur.” U.S.S.G. § 2B1.1, comment. (n.3(A)(ii)). Therefore, the district court did
not plainly err by including in the total fraud-loss amount the value of the twenty-
six checks seized from Jones’s vehicle and residence. Accordingly, the district
court did not err, and we affirm.
AFFIRMED.
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