United States v. Belay Reddick , 185 F. App'x 817 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 20, 2006
No. 05-11363 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00163-CR-J-25-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BELAY REDDICK,
a.k.a. Unknown B,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 20, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Belay Reddick appeals his 240-month sentence for one count of conspiracy
to pass or utter a false instrument, in violation of 18 U.S.C. §§ 371 and 514, and
three counts of knowingly passing or uttering a false instrument, in violation of 18
U.S.C. § 514. After review, we affirm.
I. BACKGROUND
Between August 2003 and his arrest in May 2004, Reddick was involved in
a conspiracy to produce counterfeit checks. Reddick created counterfeit checks
using computers belonging to his wife and to a co-conspirator, Charles Porter.
Reddick also recruited and paid others to cash the checks at various banks and
check-cashing establishments. While participating in this counterfeit check
scheme, Reddick was on supervised release after having served a 60-month federal
prison term for a separate counterfeit check scheme.
Reddick’s estranged wife, Carla Hughes, advised the Secret Service that
Reddick was again counterfeiting checks and that Reddick planned to have Hughes
negotiate several counterfeit checks. While under surveillance on May 21, 2004,
Reddick drove Hughes and a third individual, Benita Jones, to a bank. After Jones
entered the bank, law enforcement attempted to stop Reddick’s car. In an effort to
elude police, Reddick drove through a Burger King parking lot and jumped from
the car, which continued in motion and collided with the bushes in an adjoining
parking lot. Reddick was apprehended and arrested.
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A search of Reddick’s wife’s computer revealed a software program used to
manufacture checks and logs of the counterfeit checks made with the program
totaling over $180,000. A search of co-conspirator Porter’s home uncovered
$5,500 in counterfeit checks and a computer that Porter rented to others, including
Reddick. Porter’s computer contained a log of counterfeit checks totaling an
additional $48,917.13.
Without the benefit of a plea agreement, Reddick pled guilty to one count of
conspiracy to pass or utter a false instrument, in violation of 18 U.S.C. §§ 371 and
514, and three counts of knowingly passing or uttering a false instrument, in
violation of § 514. The Presentence Investigation Report (“PSI”) recommended
these enhancements: (1) a 12-level enhancement for a loss amount of $247,364.06;
(2) a 4-level enhancement for Reddick’s role as a leader or organizer; (3) a 2-level
enhancement for obstruction of justice because Reddick wrote letters to his wife
attempting to intimidate her and prevent her from testifying against him; (4) a 2-
level enhancement for reckless endangerment during flight because Reddick
jumped from his moving car when police chased him. The PSI calculated a total
offense level of 27 and 23 criminal history points for a criminal history category of
VI.
Reddick filed numerous written objections to the PSI, primarily asserting
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that his sentence could not be enhanced based on facts neither proven to a jury nor
admitted by him. Reddick also argued that his efforts to avoid police were
insufficient to support the reckless endangerment enhancement.
At the sentencing hearing, Reddick raised additional objections to the PSI.
First, Reddick denied involvement with 10 of the 35 co-conspirators identified in
the PSI. After the government noted that Reddick did not contest at least five of
the co-conspirators listed in the PSI, which was sufficient to support the
leader/organizer role enhancement, the district court overruled the objection.
Second, Reddick objected to the PSI’s loss calculation of $247,364.06. The
loss calculation included $180,112.55 in checks logged on Reddick’s computer,
$12,782.03 in counterfeit checks cashed by Reddick’s co-conspirators, $5,552.35
in counterfeit checks found in Porter’s residence for a total of $198,446.93. The
loss amount also included $48,917.13 in checks logged on Porter’s computer.
Reddick did not object to $198,446.93 of the loss, but argued that the PSI
improperly included all of the check amounts logged on Porter’s computer because
that computer was used by others. In response, the government proffered that (1)
the checks found on Porter’s computer were sufficiently similar to checks Reddick
had forged to be attributable to him, and (2) Porter had told investigators that,
while he rented the computer to people other than Reddick, no one else, other than
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one of Reddick’s co-conspirators, used it to forge checks. The district court then
overruled this objection without comment. The district court also overruled
Reddick’s written objection to the reckless endangerment enhancement, but
sustained Reddick’s written objection to the obstruction of justice enchantment.
This resulted in a total offense level of 25, which, with a criminal history category
of VI, yielded an advisory Guidelines range of 110 to 137 months’ imprisonment.
The district court then advised the parties that, given Reddick’s “horrible
criminal history” and recidivism, it was considering imposing the maximum
sentence, as follows:
Well, let me – let me say this to you, and I’m only saying this to
– to direct your comments. I think there is nothing that can be done to
stop Mr. Reddick. I think he – if he gets five years, if he gets ten
years, he’s going to be back into doing this again. I think he has a
horrible criminal history category. The fact that he’s already been in
federal prison for 60 months for this offense is extremely troubling to
me, therefore, I am considering imposing the maximum sentence
under the law in this case.
After Reddick argued for a sentence within the advisory Guidelines range of 110 to
137 months, the district court, in imposing a 240-month sentence, reviewed how
Reddick had continuously committed fraud, theft, worthless check offenses, and
counterfeit and forged security offenses. The district court also pointed out that
Reddick had completed a 60-month federal sentence, then had his supervised
release revoked in 2003 and still committed the instant offenses in 2003 and 2004,
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while on supervised release. The district court found that Reddick had refused to
stop his offenses and only maximum jail time would protect the public, stating:
This – this man has been – his criminal history is – is horrible.
He has 20 criminal history points for a lot of things but quite a bit of it
involved the same type of – the same type of fraudulent-type offense
and theft offense starting from age 18. I mean, he has worthless check
charges, fraudulent use of credit cards, grand theft, forgery, uttering
forgeries, more worthless checks, more grand thefts, obtaining a
motor vehicle by fraud, the letters talk about some other insurance
fraud, obtaining worthless checks again.
And I think what’s even more troubling to me is that in 1997 –
with all of that in ‘98 he’s sentenced to 60 months to the Bureau of
Prisons for conspiracy to make and utter counterfeit and forged
securities to be followed by three years supervised release, he was
released in 2002 and revoked in 2003, and he’s back again. I don’t
think he can be stopped.
And I think in considering 3553, the only way to protect the
public from further crimes from this defendant is to put him in prison
for as long as I can, and the guidelines I think are . . . or the sentence
that’s called for in the guidelines is just totally inappropriate to do that
considering his history.
Although the maximum sentence on count one is five years and the maximum
sentence on counts two through four is twenty-five years, the district court imposed
a sentence of 240 months or twenty years. This appeal followed.
II. DISCUSSION
A. Booker
Reddick argues that the district court committed Booker error by enhancing
his sentence based on facts that were not proven to a jury and that he did not admit.
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There is no Booker error here because the district court sentenced Reddick under
an advisory rather than mandatory Guidelines scheme. See United States v. Chau,
426 F.3d 1318, 1323-24 (11 th Cir. 2005); United States v. Rodriguez, 398 F.3d
1291, 1301 (11 th Cir.), cert denied, 125 S. Ct. 2935 (2005). In addition, Reddick
argues that, because the Guidelines were mandatory when he committed his
offenses, application of the advisory Guidelines scheme to his sentence violates ex
post facto and due process principles. We have held that no due process or ex post
facto violations occur based on retroactive application of Booker’s remedial
opinion making the Guidelines advisory. See United States v. Duncan, 400 F.3d
1297, 1306-08 (11 th Cir.), cert. denied, 126 S. Ct. 432 (2005); see also United
States v. Martinez, 434 F.3d 1318, 1323 (11 th Cir. 2006).1
B. Sentencing Enhancements
Reddick alternatively argues that his sentencing enhancements were not
supported by sufficient evidence. When a defendant challenges one of the factual
bases for his sentence, the government must establish the disputed fact by a
preponderance of the evidence, and this burden must be satisfied with “reliable and
1
Reddick also argues that his due process rights were violated because the government
failed to inform him that it would seek the sentencing enhancements until after he pled guilty
and that the district court erred in applying the preponderance standard rather than the clear and
convincing evidence standard in determining the facts underlying his sentencing enhancements.
These arguments lack merit and warrant no further discussion.
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specific evidence.” United States v. Sepulveda, 115 F.3d 882, 890 (11 th Cir. 1997)
(citation omitted). The only enhancements to which Reddick challenged the
factual basis were the organizer/leader enhancement and the enhancement for the
$247,364.06 loss.2 We find no reversible error with regard to these enhancements.3
As for the role enhancement, Reddick disputed his criminal involvement
with only 10 of the 35 co-conspirators named in the PSI. Section 3B1.1 requires a
two-level increase if “the defendant was an organizer or leader of a criminal
activity that involved five or more participants. U.S.S.G. § 3B1.1(a). Given that
Reddick admitted involvement with 25 of the co-conspirators identified in the PSI,
the district court did not clearly err by imposing the organizer/leader role
enhancement. See United States v. Hedges, 175 F.3d 1312, 1315 (11 th Cir. 1999)
2
Although Reddick objected to the reckless endangerment enhancement, he did not
dispute the facts underlying that enhancement, i.e., that, while attempting to elude police, he
jumped from a moving car that he had been driving through a Burger King parking lot. Instead,
Reddick argued that immediate flight from arrest is insufficient to support the enhancement. He
does not raise this argument on appeal.
3
Booker did not alter the standards of review for Guidelines issues. United States v.
Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We review for clear error a district court’s
factual finding that a defendant was a leader or organizer under U.S.S.G. § 3B1.1 and its loss
calculation under the Guidelines. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005)
(U.S.S.G. § 3B1.1); United States v. McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004) (loss
calculation). Although Booker requires the district court to properly calculate the Guidelines
range, if the district court erred in doing so, we are not required to remand for resentencing if the
district court likely would have sentenced the defendant in the same way without the error.
United States v. Scott, 441 F.3d 1322, 1329 (11th Cir. 2006).
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(concluding that the district court may rely on any undisputed statements in the PSI
even in the absence of supporting evidence).
As for the loss calculation, U.S.S.G. § 2B1.1 provides for a base offense
level of 7 where, as here, the defendant was convicted of a crime involving
counterfeit instruments that has a statutory maximum term of imprisonment of at
least 20 years. U.S.S.G. § 2B1.1(a)(1). If either the actual or intended loss,
whichever is greater, resulting from the offense exceeded $120,000 the offense
level is increased by 10 levels. U.S.S.G. § 2B1.1(b)(1)(F) & cmt. n.3(A)(i)-(ii). If
the loss exceeded $200,000, the offense level is increased by 12 levels. U.S.S.G. §
2B1.1(b)(1)(G). The district court’s valuation of the loss need not be precise; a
“reasonable estimate of the intended loss will be upheld on appeal.” United States
v. Dominguez, 109 F.3d 675, 676 (11 th Cir. 1997) (addressing loss calculation
under former U.S.S.G. § 2F1.1 now consolidated with U.S.S.G. § 2B1.1).
Here, Reddick did not dispute $198,446.93 of the loss calculation, which
alone brought him close to the $200,000 amount needed to trigger the 12-level
increase he received. As for the $48,917.13 worth of checks logged on Porter’s
computer, Reddick did not deny using that computer in his scheme, but objected
only to being held responsible for all of the checks on that computer since others
had access. Because the district court’s valuation need only be a reasonable
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estimate and given that only $1,553.07 in checks out of the $48,917.13 were
needed to place Reddick over the $200,000 threshold, we cannot say that the
district court’s loss determination was clear error.
In any event, any error here was harmless because, considering the district
court’s statements at sentencing that Reddick needed the longest possible sentence
due to his recidivism and the court’s decision to impose an above-Guidelines
sentence, it is highly unlikely the district court would have imposed a lesser
sentence even absent any error in the loss calculation.
C. Booker Reasonableness
Reddick argues that his above-Guidelines sentence is unreasonable. After
Booker, a sentencing court must consider the correctly calculated Guidelines range,
but then, after consideration of the factors in 18 U.S.C. § 3553(a), may impose a
more severe or more lenient sentence as long as that sentence is reasonable. United
States v. Jordi, 418 F.3d 1212, 1215 (11 th Cir.), cert. denied, 126 S. Ct. 812 (2005).
We review a defendant’s ultimate sentence, in its entirety, for unreasonableness in
light of the § 3553(a) factors. United States v. Winingear, 422 F.3d 1241, 1245
(11 th Cir. 2005).4
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The factors in § 3553(a) include (1) the nature and circumstances of the offense, (2) the
history and characteristics of the defendant, (3) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment, (4) the
need to protect the public, and (5) the guideline range. 18 U.S.C. § 3553(a).
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After review, we cannot say Reddick’s 240-month sentence was
unreasonable. The district court considered the § 3553(a) factors and determined,
based on Reddick’s extensive criminal history and recidivism, that a sentence
within the Guidelines would be inadequate to protect the public and deter Reddick
from continuing his counterfeit check schemes. A significant portion of Reddick’s
criminal history points were attributable to fraud-related crimes, such as passing
worthless checks and using a fraudulent credit card. Indeed, Reddick’s 23 criminal
history points far exceeded the 13 points required to obtain a criminal history
category of VI. See U.S.S.G. ch. 5, pt. A (sentencing table). Most troubling to the
district court was the fact that Reddick began a new check counterfeiting scheme
almost immediately upon having completed a 60-month sentence for his last check
counterfeiting conviction and while still on supervised release. Although the
district court contemplated imposing the longest sentence possible, the 240-month
sentence it imposed was five years less than the statutory maximum sentence of 25
years. We find nothing on this record that convinces us that Reddick’s sentence
was unreasonable.
D. Rule 32(h) Notice
Reddick also argues that the district court was required by Federal Rule of
Criminal Procedure 32(h) to give him notice that it intended to sentence him above
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the advisory Guidelines range.5 Because Reddick raises this argument for the first
time on appeal, we review for plain error. United States v. Paslay, 971 F.2d 667,
674 n.13 (11 th Cir. 1992).
Rule 32(h) permits a sentencing court to depart from the applicable
Guidelines range on a ground not identified in the PSI or in the government’s pre-
hearing submission only if it provides the defendant reasonable notice specifying
the ground upon which it is contemplating a departure. Fed. R. Crim. P. 32(h); see
also Burns v. United States, 501 U.S. 129, 138-39, 111 S. Ct. 2182, 2187 (1991).
This Court has not yet addressed whether, post-Booker, Rule 32(h) requires a
district court to give notice before imposing an above-Guidelines-range sentence in
an advisory system as opposed to departing upward a mandatory Guidelines
system. However, at least one circuit has concluded that it does not. See United
States v. Egenberger, 424 F.3d 803, 805 (8 th Cir. 2005). Under these
circumstances, where there is no binding or persuasive precedent to the contrary,
any error was not plain. See United States v. Baker, 432 F.3d 1189, 1207 (11 th Cir.
2005) (explaining that for an error to be plain it must be obvious under current
law).
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Reddick incorrectly characterizes the district court’s 240-month sentence as an “upward
departure.” The district court did not depart under the Guidelines. Rather, the district court
calculated the Guidelines range and then, after considering the § 3553(a) factors as required in
Booker, selected a sentence above the advisory Guidelines range.
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III. CONCLUSION
For all these reasons, we affirm Reddick’s 240-month sentence.6 However,
we remand this case to the district court so that the court can append a written
record of its sentencing findings to the PSI as required by Federal Rule of Criminal
Procedure 32(i)(3)(C).
AFFIRMED and REMANDED.
6
Because the record is not sufficiently developed, we decline to address on direct appeal
Reddick’s claims that he received ineffective assistance of counsel when his sentencing counsel
failed to preserve sentencing issues for appeal. See United States v. Tyndale, 209 F.3d 1292,
1294 (11th Cir. 2000).
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