United States v. Kareem Russell ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1637
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UNITED STATES OF AMERICA
v.
KAREEM RUSSELL,
a/k/a/ “REEM”,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2-09-cr-00672-003)
District Judge: Honorable Gene E.K. Pratter
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Submitted Under Third Circuit LAR 34.1(a)
September 26, 2013
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Before: CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges.
(Filed: October 9, 2013)
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OPINION
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SHWARTZ, Circuit Judge.
Kareem Russell pleaded guilty in the United States District Court for the Eastern
District of Pennsylvania to conspiracy, fraud, and identity theft arising from a fraudulent
check scheme. The District Court originally imposed a sentence of 94 months’
imprisonment, which was vacated and remanded to recalculate the amount of loss
attributable to Russell. 1 United States v. Russell, 504 F. App’x 162, 163 (3d Cir. 2012).
On remand, the District Court imposed a sentence of 87 months’ imprisonment. Russell
appeals this sentence, arguing that the District Court erred in holding him accountable for
allegedly unforeseeable pecuniary losses caused by the acts of co-conspirators. We will
affirm.
I.
As we write primarily for the benefit of the parties, we recite only the essential
facts and procedural history. A federal grand jury returned indictments charging Russell
with one count of conspiracy to commit bank fraud and aggravated identity theft, in
violation of 18 U.S.C. § 371 (Count 1); two counts of bank fraud and aiding and abetting,
in violation of 18 U.S.C. §§ 1344, 2 (Counts 3 and 4); and two counts of aggravated
identity theft and aiding and abetting, in violation of 18 U.S.C. § 1028A(a)(1), (c)(5) and
18 U.S.C. § 2 (Counts 42 and 43). Russell entered an open guilty plea to each of those
counts.
The charges were based on a bank fraud and identity theft conspiracy headed by
Russell’s co-defendant Miguel Bell. Bell, Russell, and several other co-conspirators
illegally obtained bank account and personal information of bank customers from bank
1
In his first appeal, Russell argued that the District Court erred when it denied him
a minimal or minor role reduction pursuant to U.S.S.G. § 3B1.2, and that the District
Court erred in calculating the applicable loss amount under U.S.S.G. § 2B1.1. United
States v. Russell, 504 F. App’x 162, 163 (3d Cir. 2012). We held that the District Court
correctly denied Russell’s motion for a minimal or minor role reduction, but incorrectly
calculated the applicable loss amount. Id. We therefore vacated Russell’s original
sentence and remanded for resentencing. Id.
2
employees and an insurance company employee. The conspirators, who operated out of
the Philadelphia area, used that information to create false identification documents and
fraudulent checks in the names of bank customers. Bell and Russell, among others, then
recruited individuals, called “check runners,” to use the false identities to cash the
fraudulent checks. The record shows that Russell recruited two check runners, Priscilla
Torres and Ralph Guy. Guy, in turn, recruited his common-law wife, Jennie Hill. The
Government presented no evidence that Russell knew Hill, but did present evidence that
(1) Hill presented $12,416 in fraudulent checks during a road trip to Indiana for which
Russell recruited Torres to serve as a driver; and (2) Russell drove Torres and another
check runner, Gregory Grayson, to a bank in New Jersey, where Grayson attempted to
cash a $2,500 fraudulent check.
At the resentencing hearing, the District Court found that Russell was responsible
for $203,705 in loss from his role in the conspiracy and calculated Russell’s offense level
as 19 pursuant to U.S.S.G. § 2B1.1(a)(1), (b)(1)(G) (2012). Russell was then given a
two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. §
3E.1(a), for a total offense level of 17. Russell’s criminal history category was VI and
therefore the advisory Guideline range, prior to the application of the mandatory
consecutive sentences under 18 U.S.C. § 1028A, was 51 to 63 months. Because
Russell’s convictions for aggravated identity theft under 18 U.S.C. §1028A required a
consecutive sentence of a minimum of 24 months and a maximum of 48 months, the
District Court added 24 to 48 months to this advisory Guideline range. As a result,
Russell’s advisory Guideline range was 75 to 111 months.
3
The District Court resentenced Russell to 87 months’ imprisonment and 5 years’
supervised release. 2 Russell again appeals his sentence.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We exercise plenary
review of the District Court’s interpretation of the Guidelines. United States v. Kennedy,
554 F.3d 415, 418 (3d Cir. 2009). We review any factual findings that support a
sentencing determination for clear error. 3 Id. We review the District Court’s
“application of the Guidelines to the facts for abuse of discretion . . . .” United States v.
Blackmon, 557 F.3d 113, 118 (3d Cir. 2009).
III.
Russell claims that the District Court erred in attributing $203,705 of loss to him.
He argues that he should only be responsible for $188,789, which is the total of the
checks presented by the check runners Russell recruited, Torres and Guy. Russell argues
that the District Court’s calculation should not have included the $2,500 check Grayson
2
The sentence consisted of terms of 51 months’ imprisonment on Counts 1, 3, and
4, all to be served concurrently, 24 months’ imprisonment on each of Counts 42 and 43,
with 12 months on Count 43 to be served consecutively to the sentence for Count 42 and
12 months on Count 43 to be served concurrently to the sentence for Count 42, but all of
which is consecutive to the sentences on Counts 1, 3, and 4.
3
“A finding is ‘clearly erroneous’ when, although there is evidence to support it,
the reviewing body on the entire evidence is left with the definite and firm conviction that
a mistake has been committed.” United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)
(en banc) (alterations and citations omitted).
4
presented in New Jersey or the $12,416 in checks Hill presented in Indiana. Russell’s
sole argument is that losses attributable to Grayson and Hill should not be attributed to
him because he could not have reasonably foreseen these transactions.
Section 2B1.1 of the Guidelines provides a specific offense-level enhancement
based upon the pecuniary loss caused by theft crimes. If the loss is more than $120,000
but less than $200,000, the base offense level is increased by 10 levels. U.S.S.G. §
2B1.1(b)(1)(F), (b)(1)(G). If the loss is more than $200,000 but less than $400,000, the
base offense level is increased by 12 levels. U.S.S.G. § 2B1.1(b)(1)(G), (b)(1)(H). 4
To determine the loss amount, the sentencing court must consider the loss amount
directly attributable to the defendant’s actions and, when the conduct involves a joint
undertaking, the reasonably foreseeable losses others caused in furtherance thereof.
U.S.S.G. § 1B1.3(a)(1)(B) (requiring a defendant’s loss calculation to include the losses
from “all reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity”). For a loss caused by a co-conspirator to be attributable to
a defendant, the sentencing court must find that the actions of the co-conspirator “(1)
were in furtherance of the jointly-undertaken activity, (2) were within the scope of the
defendant’s agreement, and (3) were reasonably foreseeable in connection with the
criminal activity the defendant agreed to undertake.” United States v. Price, 13 F.3d 711,
732 (3d Cir. 1994) (citing United States v. Collado, 975 F.2d 985, 995 (3d Cir. 1992));
4
If the losses attributable to Grayson and Hill were excluded from the District
Court’s loss calculation, the loss attributable to Russell would be more than $120,000 but
less than $200,000 and his Guideline range would drop from 75 to 111 months to 65 to
99 months.
5
see also United States v. Robinson, 603 F.3d 230, 233-34 (3d Cir. 2010). The sentencing
court must conduct “a searching and individualized inquiry into the circumstances
surrounding each defendant’s involvement in the conspiracy . . . to ensure that the
defendant’s sentence accurately reflects his or her role.” Collado, 975 F.2d at 995.
The District Court correctly found that the $2,500 check that Grayson presented
was reasonably foreseeable to Russell. Grayson, while not recruited by Russell,
presented his check on a road trip to New Jersey that Russell orchestrated and
participated in. Torres testified that Russell picked her and Grayson up, supplied her with
fraudulent identification, and then drove them both to a Wachovia Bank in New Jersey,
where Grayson attempted to cash the fraudulent check. Given that Russell drove
Grayson to the bank with the express purpose of cashing fraudulent checks, the check
Grayson presented was reasonably foreseeable to Russell and therefore properly
attributed to him.
The District Court also correctly found that the $12,416 in fraudulent checks that
Hill presented were reasonably foreseeable to Russell. Torres testified that Russell, at
Bell’s direction, recruited her to drive to Indiana in February 2006 to cash checks with
Bell. Christopher Russell, Russell’s brother, and a couple later identified as Guy and Hill
also went on the trip. While Russell did not know Hill, he did know the conspiracy’s
method of operation. Cf. Price, 13 F.3d at 733 (holding that a defendant with “personal
knowledge about the scope” of a drug distribution organization “should have reasonably
foreseen the quantity of drugs being distributed by the organization”). Specifically,
Russell knew that Bell, personally and through others, recruited check runners to travel
6
out of state to cash fraudulent checks, and that, after cashing a check, the check runners
either gave the proceeds directly to Bell or to an intermediary, like Russell, who then
gave the proceeds to Bell. The trip to Indiana operated in the same way. At Bell’s
request, Russell recruited a check runner to drive to Indiana for the purpose of cashing
checks. Given the long distance from Philadelphia, it is reasonable to infer that Bell
wanted as many check runners as possible in the car for the trip to Indiana to maximize
the profit. As a result, it was reasonably foreseeable to Russell that check runners, in
addition to those he recruited, would be on this trip, which was undertaken to cash
checks. Thus, a reasonable inference can be drawn that all checks cashed during the trip
were foreseeable to him. It was, therefore, not clearly erroneous for the District Court to
attribute to Russell checks presented on that trip, including those Hill presented.
Accordingly, the factual findings concerning the loss amount were not clearly
erroneous.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.
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