United States v. Agyepong ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL K. AGYEPONG,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00178-JAB-2)
Submitted: December 29, 2008 Decided: February 20, 2009
Before TRAXLER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
Winston-Salem, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Robert M. Hamilton, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Daniel K. Agyepong pled
guilty to conspiracy to use counterfeit and unauthorized access
devices (credit cards and credit card account numbers), in
violation of 18 U.S.C. § 1019(a)(1), (a)(2), (b)(2) (2006)
(Count One), and aggravated identity theft, in violation of 18
U.S.C. § 1028A(a)(1) (2006) (Count Eleven). The district court
sentenced Agyepong to fifteen months’ imprisonment on Count One
and a consecutive twenty-four months’ imprisonment on Count
Eleven. Agyepong appeals his sentence, contending that the
district court erred in its loss calculation and in calculating
his criminal history. We affirm the loss calculation, but
remand for resentencing for the reasons stated below.
In the presentence report (“PSR”), the probation
officer determined that the base offense level for Count One ∗ was
six, pursuant to USSG § 2B1.1(a)(2). Finding that the amount
of loss exceeded $10,000, the probation officer increased
Agyepong’s base offense level by four levels, pursuant to USSG
§ 2B1.1(b)(1)(C). Because the offense involved the possession
∗
The probation officer did not group Counts One and Eleven,
although they were closely related, because Count Eleven,
aggravated identity theft, 18 U.S.C. § 1028A(a)(1), (a)(2),
carried a mandatory consecutive prison term. U.S. Sentencing
Guidelines Manual § 5G1.2(a) (2007); 18 U.S.C. § 1028A(a)(1),
(b)(2).
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or use of device-making equipment, the probation officer
increased Agyepong’s offense level by two levels, pursuant to
USSG § 2B1.1(b)(1)(A)(i). The probation officer recommended a
two-level decrease in offense level for acceptance of
responsibility, pursuant to USSG § 3E1.1(a). Based on his prior
criminal convictions, the probation officer found that
Agyepong’s subtotal criminal history score was three. However,
the probation officer added two points under USSG § 4A1.1(d),
because he found that Agyepong committed the instant offense
while on probation; the total criminal history score of five
points placed Agyepong in Criminal History Category III. The
guidelines range for offense level ten and criminal history III
was ten to sixteen months in prison. Thus, the probation
officer determined that Agyepong’s guidelines range for Count
One was ten to sixteen months in prison, with a mandatory two-
year consecutive sentence for Count Eleven, pursuant to 18
U.S.C. § 1028A(a)(1), (b)(2).
Agyepong objected to the four-level increase in
offense level for a loss greater than $10,000 based on the
$26,914.90 loss calculation in the PSR, claiming that he was
unaware of the full scope of the scheme and did not realize the
credit card purchases were fraudulent. At the sentencing
hearing, the Government called United States Secret Service
Special Agent James Albert Shively, Jr., who testified about
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specific transactions. Agyepong also testified, admitting that
he illegally obtained credit card account numbers for
co-conspirator, Ahdi Ghazi Alshare, but denying that he ever
personally made purchases with a fraudulent credit card.
The district court overruled Agyepong’s objections to
the loss determinations in the PSR. Furthermore, the court
denied Agyepong the acceptance of responsibility reduction.
Without the acceptance of responsibility adjustment, Agyepong’s
offense level was twelve, resulting in a guidelines range of
fifteen to twenty months. The court sentenced Agyepong to
fifteen months in prison on Count One, the bottom of the
guidelines range, and a consecutive twenty-four months’
imprisonment on Count Eleven.
Agyepong argues first on appeal that the district
court improperly calculated the amount of loss attributable to
him. In a fraud case, the Government must establish the amount
of loss for sentencing purposes by a preponderance of the
evidence. United States v. Pierce, 409 F.3d 228, 234 (4th Cir.
2005). This court reviews the amount of loss, to the extent
that it is a factual matter, for clear error. United States v.
West, 2 F.3d 66, 71 (4th Cir. 1993). This deferential standard
of review requires reversal only if this court is “left with the
definite and firm conviction that a mistake has been committed.”
United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005).
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We find that the district court did not clearly err in its loss
calculations.
Agyepong also challenges the district court’s
calculation of his criminal history category. Under USSG
§ 4A1.1(d), a defendant who “committed the instant offense while
under any criminal justice sentence, including probation,” will
be assessed two criminal history points. In addition to the
three criminal history points Agyepong received for past
criminal convictions, he received two points under § 4A1.1(d)
for committing his subject offenses while on probation. He now
contends that the district court erred by assessing these two
criminal history points. Because Agyepong did not object to his
criminal history calculation in the district court, we review
his claim for plain error. United States v. Olano, 507 U.S.
725, 732 (1993) (error occurred, which was plain, affected
defendant’s substantial rights, and “seriously affects the
fairness, integrity, or public reputation of judicial
proceedings”).
The subject offenses occurred from April 1, 2004, to
September 9, 2004. As the Government concedes, a review of the
PSR reflects that Agyepong was not on probation at the time of
the instant offenses and therefore the two criminal history
points were incorrectly applied. Thus, the district court erred
in calculating Agyepong’s guidelines range.
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Without these criminal history points, Agyepong’s
criminal history category would be II. Under USSG ch. 5, pt. A
(sentencing table), with offense level twelve and criminal
history category II, Agyepong’s guidelines range on Count One
should have been twelve to eighteen months. The fifteen-month
sentence Agyepong received on this Count is within that range.
Nevertheless, the Government concedes that Agyepong is entitled
to be resentenced based on this error. We agree.
In United States v. McCrary, 887 F.2d 485 (4th Cir.
1989), we determined that the defendant was entitled to be
resentenced when the district court imposed a sentence of
imprisonment under an erroneously calculated sentencing
guidelines range--even when, as here, the sentence imposed fell
within the overlap between the correct and erroneous ranges. In
such circumstances, we held that the appellate court “cannot
confidently assume” that the factors influencing the district
court’s selection of a specific term of imprisonment within the
erroneous range would necessarily lead the court to select the
same term within the correct range. Id. at 489. The case was
remanded in order that, “apprised of the error in the
presentence report and the applicability of a different
guidelines range, the district court [could] reconsider the
sentence imposed, either on the [existing] record or on the
basis of further proceedings.” Id.6
The Supreme Court has endorsed the principle
underlying McCrary even after United States v. Booker, 543 U.S.
220 (2005). Post-Booker, “a district court should begin all
sentencing proceedings by correctly calculating the applicable
Guidelines range. As a matter of administration and to secure
nationwide consistency, the Guidelines should be the starting
point and the initial benchmark.” Gall v. United States, 128 S.
Ct. 586, 596 (2007) (internal citations omitted). Gall thus
confirms the holding in McCrary that the district court may
weigh the specific factors relevant to the defendant to arrive
at the reasonably appropriate sentence only after correctly
determining the starting point--i.e., the correct guidelines
range.
Accordingly, the error in this case is not the
district court’s imposition of a fifteen-month term of
imprisonment on Count One, but its acceptance of the Probation
Office’s report placing Agyepong in criminal history category
III upon an incorrect factual basis for that determination.
That error, based upon a finding that Agyepong was on probation
when he was not, affected his right to a determination of the
correct guidelines range, the district court’s starting point
for evaluating his sentence.
As in McCrary, we cannot know whether the district
court would have imposed the same term of imprisonment had it
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“appreciated the possibility that an alternative, ‘overlapping’
guideline[s] range might apply.” 887 F.2d at 489. But because
the district court sentenced Agyepong to the minimum term of
imprisonment under the guidelines range it mistakenly applied,
it is reasonable to presume the court would have imposed a lower
sentence had it been aware of the correct guidelines range. See
United States v. Price, 516 F.3d 285, 289 n.28 (5th Cir. 2008)
(The district court’s imposition of the minimum term under the
incorrect range “demonstrate[d] ‘at least a reasonable
probability that the district court would have imposed a lesser
sentence if it had properly applied the Guidelines.’”)
Accordingly, we find that Agyepong has satisfied the plain error
standard of review.
Accordingly, although we affirm the district court’s
loss calculation, we vacate Agyepong’s sentence and remand for
resentencing under the correctly calculated guidelines range.
Agyepong’s motions to file a pro se supplemental brief are
denied. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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