United States v. Dover , 47 F. App'x 214 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4063
JACKIE LEE DOVER,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-01-186)
Submitted: August 29, 2002
Decided: September 24, 2002
Before NIEMEYER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas H. Johnson, Jr., GRAY, NEWELL, JOHNSON & BLACK-
MON, L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Steven H. Levin, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. DOVER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jackie Lee Dover pled guilty to conspiracy to defraud the United
States, 18 U.S.C. § 371 (2000), and to one count of making and pos-
sessing counterfeit securities, 18 U.S.C. §§ 513(a), 2 (2000). He
appeals his sentence of eighty-four months imprisonment and asserts
that he should be permitted to withdraw his guilty plea and proceed
to trial because the government breached the plea agreement. We
affirm the conviction and sentence.
In October 1999, Dover opened a checking account at the Branch
Banking and Trust (BB&T) in Rowan County, North Carolina, using
false identity documents created by co-defendant Michael Wall. In
November 1999, Dover deposited six counterfeit checks totaling
$31,325 into the account and made seven withdrawals totaling
$23,045.50 by writing checks payable to cash.
In January 2000, Dover and Clarence Connard traveled from North
Carolina to Lancaster, South Carolina, where Connard cashed four
counterfeit payroll checks totaling $1800 created by Wall. On Febru-
ary 6, 2000, Dover and Connard attempted to cash three more coun-
terfeit checks in Lancaster and were arrested. One check was for
$560.09; the others were for unknown amounts. Dover cooperated
with authorities after his arrest, which resulted in Wall’s arrest a year
later.
In July 2001, Dover pled guilty to federal charges of conspiring to
defraud the United States from October 1999 to February 7, 2001, and
making and possessing counterfeit securities in November 1999.
After his guilty plea, Dover was arrested in August 2001 for breaking
and entering a residence in May, and on October 16, 2001, he was
again arrested and later charged with unlawful entry and conspiracy
to steal furniture from mobile home model units.
UNITED STATES v. DOVER 3
In sentencing Dover, the district court departed upward from the
guideline range of 37-46 months and imposed a sentence of eighty-
four months, finding that Dover’s thirty-six criminal history points far
exceeded the number needed for criminal history category VI, that he
had a long record of recidivism, and that he had been treated leniently
by the courts in the past.
On appeal, Dover first contends that the district court erred in mak-
ing a two-level enhancement pursuant to U.S. Sentencing Guidelines
Manual § 2B1.1(b)(9)(C)(i) (2001) for unauthorized transfer or use of
any means of identification to produce or obtain unlawfully another
means of identification because this specific offense characteristic
was added in an amendment that took effect on November 1, 2001.1
This assertion is incorrect. Amendment 596, effective on November
1, 2000, added the enhancement to USSG § 2F1.1, the guideline
applicable at the time to violations of 18 U.S.C. § 513. See USSG
App. A. The enhancement was thus in effect before the conspiracy
was completed. Therefore, the district court’s use of the 2001 guide-
lines manual did not violate the Ex Post Facto Clause.
Dover next argues that the district court erred in calculating his
offense level based on a loss exceeding $30,000 when he was ordered
to pay restitution of only $23,045.50. Because Dover did not object
to the loss calculation in the district court, this claim is reviewed for
plain error. United States v. Olano, 507 U.S. 725, 731-32 (1993). The
amount of loss used in determining the offense level is the greater of
the actual or intended loss. USSG § 2B1.1. comment. (n.2(A)). There-
fore, Dover was held responsible for the total amount of the six coun-
terfeit checks he deposited in the BB&T account, even though he
withdrew only $23,045.50 from the account. Restitution was ordered
in the amount of $23,045.50 because that was the amount of loss to
BB&T and no other victim reported a loss. Dover has not shown that
the district court erred in computing the amount of loss.
Dover maintains that the district court engaged in impermissible
double counting when it considered his pending charges both to deny
1
Under USSG § 1B1.11(a), the guidelines manual in effect on the date
of sentencing should be used unless any amendments enacted after the
offense was committed subject the defendant to increased punishment.
4 UNITED STATES v. DOVER
him a reduction for acceptance of responsibility and to find that crimi-
nal history category VI under-represented his past criminal conduct.
Because Dover did not object to the probation officer’s recommenda-
tion against an adjustment for acceptance of responsibility, the issue
is reviewed for plain error.
The same conduct may be counted under more than one guideline
unless such conduct is expressly prohibited by the guidelines. United
States v. Crawford, 18 F.3d 1173, 1180 (4th Cir. 1994). The guide-
lines do not prohibit the district court from considering continued
criminal conduct in determining whether a defendant has accepted
responsibility for his offense. United States v. Kidd, 12 F.3d 30, 34
(4th Cir. 1993). The court may also consider charges pending against
the defendant at the time of sentencing in deciding whether to depart
upward pursuant to § 4A1.3. Therefore, the district court did not err
in considering the same conduct under § 3E1.1 and § 4A1.3.
Dover also contests the district court’s departure, claiming that the
district court failed to explain why a departure was justified. He fur-
ther argues that, despite the large number of his prior convictions and
sentences, his prior offenses were not serious in nature. Upward
departures are reviewed for abuse of discretion under the multi-part
test set out in Koon v. United States, 518 U.S. 81, 100 (1996); see
also United States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996). Most
of Dover’s countable sentences were for using fraudulent checks or
obtaining property by false pretenses. He had a considerable number
of similar convictions that were not counted because the sentences
were light and were beyond the time limits set out in § 4A1.2(e) and
he had two sentences for felony escape. Dover had been paroled sev-
eral times and each time committed new offenses that caused revoca-
tion of his parole.
The district court agreed with the probation officer’s suggestion
that criminal history category VI did not sufficiently account for
Dover’s thirty-six criminal history points, twenty-three points more
than were needed to put him in category VI. Further, the court stated
that Dover’s recidivism record was one of the worst it had seen. We
find that the district court sufficiently explained the basis for the
departure and the extent of the departure and did not abuse its discre-
tion in departing to a sentence of eighty-four months imprisonment.
UNITED STATES v. DOVER 5
Dover contends that his conviction and sentence violates the rule
set out in Apprendi v. New Jersey, 530 U.S. 466 (2000), because his
sentence was increased for factors not charged in the indictment and
submitted to a jury. See United States v. Promise, 255 F.3d 150, 160
(4th Cir. 2001) (Apprendi error does not affect conviction), cert.
denied, 122 S. Ct. 2296 (2002); United States v. Kinter, 235 F.3d 192,
201 (4th Cir. 2000) (sentencing judge’s factfinding under the guide-
lines does not implicate Apprendi if sentence does not exceed statu-
tory maximum), cert. denied, 532 U.S. 937 (2002). Dover further
alleges that his sentence exceeds the statutory maximum of five years
for Count One. However, he received only a five-year sentence for
Count One, made concurrent to the 84-month sentence on Count
Four. Thus, no error occurred in this respect.
Dover also argues that the government breached the plea agree-
ment when it moved for an upward departure and opposed an adjust-
ment for acceptance of responsibility.2 The government agreed in the
plea agreement that, "if . . . [Dover] clearly demonstrate[d] recogni-
tion and affirmative acceptance of personal responsibility for his
criminal conduct in a timely and sincere manner," the government
would recommend a two-level adjustment for acceptance of responsi-
bility. The government made no comment at sentencing about accep-
tance of responsibility and the issue did not arise since Dover did not
object to the presentence report.
In light of Dover’s continued criminal conduct after he entered into
the plea agreement, it is evident that the government was not bound
by the plea agreement to recommend a reduction for acceptance of
responsibility because Dover’s conduct did not demonstrate accep-
tance of responsibility. There was no provision in the plea agreement
that obligated the government to refrain from moving for an upward
departure. The district court did not plainly err in failing to find that
the government had violated the agreement. Consequently, there is
2
The government filed a sentencing memorandum before sentencing
which has not been included in the joint appendix. It is clear from the
district court’s remarks at the sentencing hearing that the government
moved for a departure above criminal history category VI, but whether
it took any position on acceptance of responsibility is not clear.
6 UNITED STATES v. DOVER
also no basis for Dover’s claim that he is entitled to withdraw his
guilty plea and proceed to trial.
We therefore affirm the conviction and sentence imposed by the
district court. 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