United States v. Stroupe ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK ANTHONY STROUPE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-03-894)
Submitted: August 16, 2006 Decided: September 13, 2006
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Anthony Stroupe, Appellant Pro Se. Michael Rhett DeHart,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a plea agreement, Mark Anthony Stroupe pled
guilty to conspiracy to commit wire fraud, in violation of 18
U.S.C. §§ 371, 1343 (2000). The district court sentenced Stroupe
to fifty-seven months’ imprisonment. Stroupe appeals, proceeding
pro se.
Stroupe claims the Government breached the plea agreement
by purportedly not allowing him to be debriefed, which in turn
deprived him of the opportunity to receive a downward departure.
He also takes issue with the Government’s seeking of sentencing
enhancements that increased his total offense level beyond the
stipulated level of nineteen.1 Plea agreements are interpreted
according to contract law, and “‘each party should receive the
benefit of its bargain.’” United States v. Peglera, 33 F.3d 412,
413 (4th Cir. 1994) (quoting United States v. Ringling, 988 F.2d
504, 506 (4th Cir. 1993)). Here, the parties agreed that Stroupe
would be fully truthful and forthright; otherwise, the Government’s
obligations under the plea agreement would become null and void.
Additionally, the parties agreed that the Government retained the
sole discretion to determine whether Stroupe had been fully
1
Stroupe also contends, in conclusory fashion, that he was
prejudiced by an Internal Revenue Service agent’s alleged false
statements before the grand jury and by the fact that he pled
guilty before the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), but was sentenced after Booker, thus
rendering his guilty plea as unknowing. We reject both contentions
as meritless.
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truthful and forthright. Stroupe frustrated the Government’s
efforts to debrief him by attempting to limit the scope of the
questioning, and claimed in an objection to the presentence report
that he never guaranteed his financial services were safe and
without risk, in the face of evidence plainly contradicting this
claim. The Government acted within its discretion in determining
that Stroupe was not compliant with the bargained terms of the plea
agreement, and the district court properly rejected Stroupe’s
motion to enforce the Government’s obligations under the
agreement.2
Stroupe also challenges his sentence. First, he contends
that his sentence should be evaluated as if it were imposed prior
to United States v. Booker, 543 U.S. 220 (2005), because he entered
into the plea agreement and pled guilty prior to the Supreme
Court’s opinion in that case. Therefore, Stroupe maintains that he
was entitled to application of a reasonable doubt standard at
sentencing, despite the fact that the district court recognized the
sentencing guidelines were advisory in light of Booker. Regardless
of when Stroupe entered into the plea agreement, the district court
was entitled to make the relevant factual findings by a
preponderance of the evidence when, as here, the guidelines were
2
Although Stroupe styled his motion in part as an attempt to
withdraw from the plea agreement, it appears that he sought
specific performance of its terms. At the sentencing hearing,
Stroupe reaffirmed that he did not wish to withdraw his guilty
plea.
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applied in an advisory manner. See United States v. Dalton, 409
F.3d 1247, 1252 (10th Cir. 2005); United States v. Mares, 402 F.3d
511, 519 (5th cir.), cert. denied, 126 S. Ct. 43 (2005); see also
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), cert.
denied, 126 S. Ct. 2309 (2006) (consistent with Booker, “a district
court shall first calculate (after making the appropriate findings
of fact) the range prescribed by the guidelines”). Furthermore,
Stroupe’s contention is futile because the district court
explicitly noted at sentencing that it found the challenged
enhancements to be appropriate by either a preponderance of the
evidence or beyond a reasonable doubt.
Next, Stroupe challenges the factual basis for the
offense level enhancements corresponding to the amount of loss,
pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 2F1.1
(1998),3 and his leadership role in the offense, pursuant to USSG
§ 3B1.1(c). We review a district court’s factual findings at
sentencing for clear error and its legal conclusions, including its
interpretation and application of the sentencing guidelines, de
novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006);
United States v. Collins, 415 F.3d 304, 315 (4th Cir. 2005).
3
Although USSG § 2F1.1 was deleted in 2001 and its provisions
consolidated with USSG § 2B1.1, see USSG App. C, amend. 617, the
pre-amendment guidelines applied to Stroupe’s case to avoid an ex
post facto violation. See United States v. Morrow, 925 F.2d 779,
782-83 (4th Cir. 1991).
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We first turn to the amount of loss, which is generally
a factual question reviewed for clear error. Hughes, 401 F.3d at
557. “[T]he loss need not be determined with precision,” and
“[t]he court need only make a reasonable estimate of the loss,
given the available information.” USSG § 2F1.1, comment. (n.9).
We conclude the district court made a reasonable estimate. The
parties submitted a voluminous record with respect to the amount of
loss, and the district court calculated the amount of loss more
conservatively than the presentence report recommended. The
district court did not commit clear error in finding this amount of
loss. See Allen, 446 F.3d at 527.
Moreover, the sentencing enhancement under USSG
§ 3B1.1(c) was appropriate. “An upward departure may be warranted
. . . in the case of a defendant who did not organize, lead,
manage, or supervise another participant, but who nevertheless
exercised management responsibility over the property, assets, or
activities of a criminal organization.” The district court found
that Stroupe exercised management responsibility over the property,
assets, or activity of his criminal organization. This finding was
not clearly erroneous. See id..
Next, Stroupe contends his fifty-seven-month sentence, at
the top of the sentencing guidelines range and within the statutory
maximum of sixty months’ imprisonment, was unreasonable because the
district court allegedly failed to provide an adequate statement of
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reasons, failed to consider all of the relevant factors in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and imposed a sentence
that was greater than necessary to achieve the purposes of
sentencing. In a post-Booker sentencing, district courts must
calculate the appropriate guideline range, consider the range in
conjunction with other relevant factors under the guidelines and
§ 3553(a), and impose a sentence. United States v. Green, 436 F.3d
449, 455-56 (4th Cir.) (citing Hughes, 401 F.3d at 546). However,
“a district court need not explicitly discuss every § 3553(a)
factor on the record,” United States v. Eura, 440 F.3d 625, 632
(4th Cir. 2006), petition for cert. filed (U.S. June 20, 2006) (No.
05-11659), nor must it “robotically tick through § 3553(a)’s every
subsection,” United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006). “[A] sentence imposed within the properly calculated
Guidelines range . . . is presumptively reasonable.” Green, 436
F.3d at 457 (internal quotation marks and citation omitted). We
conclude that Stroupe has failed to rebut the presumption that his
sentence was reasonable.
Finally, Stroupe argues that his sentence violates the Ex
Post Facto Clause because he pled guilty prior to Booker, when the
guidelines were applied as mandatory, and he was sentenced post-
Booker, under the current advisory guidelines scheme. At the
guilty plea hearing, Stroupe was advised of the statutory maximum
of five years’ imprisonment; the statutory maximum did not change
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between his guilty plea and the sentencing hearing, and he was
sentenced below this maximum punishment. See United States v.
Williams, 444 F.3d 250, 254 (4th Cir. 2006) (ruling defendant had
fair warning that distributing cocaine base was punishable by a
prison term of up to twenty years, as spelled out in the United
States Code); United States v. Davenport, 445 F.3d 366, 369-70 (4th
Cir. 2006) (ruling that retroactive application of remedial holding
of Booker did not violate Ex Post Facto Clause; defendant was on
notice of statutory penalty when he committed crime). When he
committed the crime, and as later reaffirmed at his guilty plea
hearing, Stroupe was on notice that the maximum statutory penalty
was five years’ imprisonment; this is all that is required to
satisfy the concerns of fair notice embodied by the Ex Post Facto
Clause. See Davenport, 445 F.3d at 370.
Stroupe has also filed a motion to correct a purported
clerical error in the district court’s judgment. In the motion,
Stroupe claims that the six months’ home detention imposed by the
district court to commence his three years’ supervised release
term, when combined with the fifty-seven-month term of
incarceration imposed by the district court, would exceed the
statutory maximum of sixty months’ imprisonment. However,
“Congress generally views home confinement as a part of a sentence
of probation or supervised release, not as imprisonment.” United
States v. Hager, 288 F.3d 136, 137 (4th Cir. 2002). Thus, no
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correction of the judgment is required, and we deny Stroupe’s
motion.
Accordingly, we affirm the district court’s judgment. We
grant the Government’s motion to file a supplemental appendix. 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
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