United States v. Michael Carroll , 436 F. App'x 184 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4259
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL WAYNE CARROLL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:09-cr-00011-jpj-pms-1)
Argued: May 13, 2011 Decided: June 29, 2011
Before GREGORY, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Gregory and Judge Diaz joined.
ARGUED: Randy Virlin Cargill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Jennifer R.
Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal
Public Defender, Roanoke, Virginia, Brian J. Beck, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Abingdon, Virginia, for Appellant. Timothy J. Heaphy, United
States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Defendant Michael Wayne Carroll pled guilty to charges
arising from his involvement in a conspiracy to possess and pass
counterfeit instruments. On appeal, he challenges the
reasonableness of his sentence on both procedural and
substantive grounds. For the reasons explained below, we affirm
Defendant’s sentence.
I.
In September 2009, Defendant pled guilty, without a plea
agreement, to one count of conspiracy to possess and pass
counterfeit money orders with intent to defraud, in violation of
18 U.S.C. § 371; three counts of possession with intent to pass
false documents purporting to be actual security or financial
instruments, in violation of 18 U.S.C. § 514(a)(2); and one
count of possession of counterfeit currency, in violation of 18
U.S.C. § 472. Defendant’s Presentence Report (“PSR”)
recommended a total offense level of 19, a criminal history
category of IV, and an advisory Guideline range of 46-57 months’
imprisonment.
When Defendant made his initial appearance in federal court
in August 2009, it was by writ from a Kentucky detention
facility. Following Defendant’s pleas of guilty in September
2009, a sentencing date was scheduled for December 15, 2009.
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However, the sentencing date was rescheduled for February 2010
because the probation officer needed more time to complete
Defendant’s PSR. Defendant was released from the custody of the
state of Kentucky on December 31, 2009.
In Defendant’s PSR, paragraph 59 noted his 2007 conviction
in Kentucky state court for possession of a forged instrument,
for which he received five years’ incarceration. Defendant’s
PSR recommended no criminal history points on the basis of this
conviction. Paragraph 60 of Defendant’s PSR noted that in March
2006 Defendant advertised on the internet that he had a
Yorkshire puppy for sale. A purchaser agreed to buy the dog for
$1,500 and sent a Western Union money transfer. Defendant did
not, however, send a dog in return. Defendant was convicted in
Kentucky state court for theft by deception in August 2007.
Defendant’s PSR recommended the addition of three criminal
history points on the basis of this conviction.
Defendant objected to Paragraph 60 of his PSR, arguing that
the Kentucky theft by deception constituted relevant conduct to
his federal charges and therefore should not have resulted in
additional criminal history points. Defendant also argued that
he was entitled to a downward departure under Sentencing
Guideline § 5K2.23, which would award him a credit for a prior
fully-served state sentence involving relevant conduct. The
district court overruled Defendant’s objections.
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Additionally, Defendant’s PSR recommended an increase in
the base offense level by eight levels since the intended loss
amount was more than $70,000 but not more than $120,000. See
U.S. Sentencing Guidelines Manual (“USSG”) § 2B1.1(b)(1)(E).
The district court found, however, that due to the scope and
nature of Defendant’s scheme “it is probable that there are more
victims who have not been identified.” The district court
stated that while the actual loss “cannot be determined
precisely enough to apply to the advisory guideline calculation,
the facts are sufficiently clear to allow the court to consider
a greater loss in judging the seriousness of the defendant’s
conduct.” The district court noted that had the loss been
calculated at the next higher level, Defendant’s Guideline range
would have been 57 to 71 months of imprisonment.
The district court ultimately ruled that an upward variance
from the recommended Guideline range was justified because (1)
the loss amount attributable to Defendant underestimated the
actual harm; (2) Defendant utilized vulnerable persons as
accomplices; and (3) Defendant used threats of violence to
intimidate some of his accomplices. The district court
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therefore sentenced Defendant to a term of 72 months’
imprisonment. 1 Defendant appeals.
II.
We review the sentence imposed by the district court for
reasonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). We first ensure
that the district court committed no significant procedural
error, such as improperly calculating the Guideline range,
selecting a sentence based on clearly erroneous facts, or
failing to explain the sentence imposed. Id.; United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). We then consider the
substantive reasonableness of the sentence. Gall, 552 U.S. at
51; United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir.
2010). When reviewing substantive reasonableness, we consider
the extent of any deviation from the recommended Guideline
range, giving due deference to the district court’s decision
that the 18 U.S.C. § 3553(a) factors justify the extent of the
variance. Gall, 552 U.S. at 51.
1
The district court published its findings at United States
v. Carroll, 691 F. Supp. 2d 672 (W.D. Va. 2010).
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III.
Defendant argues that the district court miscalculated his
criminal history category by attributing three criminal history
points to his Kentucky conviction for theft by deception.
Defendant contends that this offense was relevant conduct to his
instant offenses and therefore should not have resulted in
additional criminal history points.
The Guidelines provide that three criminal history points
are to be allocated “for each prior sentence of imprisonment
exceeding one year and one month.” USSG § 4A1.1(a). However,
§ 4A1.1(a) excludes convictions for conduct that is “relevant
conduct” to the instant offense. See USSG § 4A1.2 cmt. n.1.
Relevant conduct includes all acts and omissions “that were part
of the same course of conduct or common scheme or plan as the
offense of conviction.” USSG § 1B1.3(a)(2).
We review a district court’s determination concerning
relevant conduct for clear error. United States v. Hodge, 354
F.3d 305, 313 (4th Cir. 2004). This standard requires reversal
only if we are “‘left with the definite and firm conviction’”
that the district court has made a mistake. United States v.
Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson
v. Bessemer City, 470 U.S. 564, 573 (1985)). If the district
court’s account is plausible in light of the entire record, we
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will not reverse the finding simply because we would have come
to a different conclusion. Id.The district court found that Defendant’s Kentucky theft by
deception conviction was not substantially connected to the
present offenses. It explained that “[a]lthough occurring
during the same general period of time as the present offenses,
[the Kentucky theft by deception] lacked a common victim,
accomplice, purpose, or modus operandi as [Defendant’s] present
scheme.” Other than being fraudulent and fueled by greed, the
district court said, “the offenses have no connection or
similarity.”
We hold that the district court did not clearly err in
ruling that the Kentucky theft by deception was not relevant
conduct to the instant offenses. Defendant’s Kentucky
conviction arose from his failure to deliver a dog that he had
advertised on the internet. By contrast, the instant offenses
arose from Defendant’s obtaining counterfeit financial
instruments and then cashing them with the help of accomplices.
Given these circumstances, the district court could reasonably
conclude that the Kentucky theft by deception conviction was not
relevant conduct to Defendant’s instant offenses. See Hodge,
354 F.3d at 314 n.3 (noting that mere fact that two offenses
both involved cocaine distribution along the East Coast would
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not be alone sufficient to support a finding of relevant
conduct).
IV.
Defendant next argues that the district court did not
adequately explain its decision to deny him a downward departure
for time served on his Kentucky state court conviction for
possession of a forged instrument.
We recognized in Carter that “[r]egardless of whether the
district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an ‘individualized
assessment’ based on the particular facts of the case before
it.” Carter, 564 F.3d at 330 (quoting Gall, 552 U.S. at 50)).
Moreover, “the district court must ‘state in open court’ the
particular reasons supporting its chosen sentence.” Id. at 328
(quoting 18 U.S.C. § 3553(c)). We stated that when “‘the
defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence’ than that set forth in the
advisory Guidelines, a district judge should address the party’s
arguments and ‘explain why he has rejected those arguments.’”
Id. (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).
Sentencing Guideline § 5G1.3 prescribes an adjustment to
the sentence when the defendant is (1) currently serving a term
of incarceration for another offense that is relevant conduct to
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the instant offense, and (2) the relevant conduct was the basis
for an increase in the offense level for the instant offense.
USSG § 5G1.3(b). Application Note 4 states that a downward
departure “is not prohibited” when the defendant has completed
serving a term of imprisonment, and the Guideline would have
otherwise provided an adjustment. USSG § 5G1.3(b) cmt. n.4.
This departure is codified by Guideline § 5K2.23, which states
that a downward departure may be appropriate if the defendant
(1) has completed a term of imprisonment, and (2) §5G1.3(b)
would have provided an adjustment “had that completed term of
imprisonment been undischarged at the time of sentencing for the
instant offense.” USSG § 5K2.23.
The district court rejected Defendant’s argument for a
downward departure, explaining that “the Kentucky offense was
not a basis for an increase in the offense level for the instant
offenses of conviction.” The district court believed that
Defendant was therefore not entitled to the § 5G1.3 adjustment.
See USSG § 5G1.3(b). It followed that Defendant was also not
entitled to the § 5K2.23 departure. See USSG § 5K2.23. The
district court stated that “even if [§ 5K2.23] did apply, I
would not exercise my discretion to grant a downward departure.
. . . [A]n appropriate punishment in this case does not include
a reduction for the time served for the Kentucky conviction.”
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Insofar as Defendant argues the district court failed to
explain its decision, our review of the record convinces us that
the district court satisfied its responsibility to explain its
sentencing determination. Indeed, the language excerpted above
indicates that the district court considered and rejected his
argument for a downward departure. Defendant’s argument that
the district court erred in this regard is without merit. See
Rita, 551 U.S. at 358-59 (district court’s explanation for
denying a downward departure was sufficient when record and
context revealed it had considered evidence and arguments).
To the extent Defendant seeks our substantive review of the
district court’s determination, we decline the invitation. 2 The
denial of a downward departure is not subject to appellate
review “unless the court failed to understand its authority to
do so.” United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008). The record shows that the district court understood its
authority to depart and chose not to do so. This determination
is therefore not subject to appellate review.
2
Defendant also argues the district court abused its
discretion in not granting an adjustment where it was the
district court’s own rescheduling of Defendant’s sentencing that
made him ineligible for the adjustment under § 5G1.3. Defendant
does not, however, cite any authority recognizing such an error.
We note moreover that the district court explained why Defendant
was not eligible for the adjustment.
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V.
Defendant also argues that the district court erred in
anchoring its significant upward variance upon unproven
financial losses.
The Guidelines specify that the district court “need only
make a reasonable estimate of the loss.” USSG § 2B1.1 cmt.
n.3(C). The Application Notes to the Guidelines contain a list
of factors to consider when estimating loss amount, including
the scope and duration of the offense. Id. at cmt. n.3(C)(vi).
District courts are not prohibited from extrapolating loss
amount where there is an evidentiary basis for the calculation.
See United States v. Pierce, 409 F.3d 228, 234 (4th Cir. 2005)
(approving district court’s extrapolation of loss amount from
known data). We review a district court’s calculation of loss
amount under a clear error standard. United States v. Miller,
316 F.3d 495, 503 (4th Cir. 2003).
This Court reviews the substantive reasonableness of a
variance sentence under an abuse of discretion standard. See
Carter, 564 F.3d at 328. When reviewing a variance sentence, we
consider the district court’s decision to vary and the extent of
the variance, giving due deference to the district court’s
decision “‘that the [18 U.S.C.] § 3553(a) factors, on a whole,
justify the extent of the variance.’” United States v. Engle,
592 F.3d 495, 500 (4th Cir. 2010) (quoting Gall, 552 U.S. at
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51), cert. denied, 131 S. Ct. 165 (2010). Variance sentences
that contain plausible justifications grounded in §3553(a) will
be deemed reasonable, but the district court must support its
determination with reasons “‘sufficiently compelling to support
the degree of the variance.’” United States v. Morace, 594 F.3d
340, 346 (4th Cir. 2010) (quoting Gall, 552 U.S. at 50), cert.
denied, 131 S. Ct. 307 (2010).
In this case, Defendant argues that the district court’s
above-Guideline sentence contravenes the Sentencing Commission’s
attempt to equalize punishments for fraud offenders based on
loss amount and was “contrary to the policies of the Sentencing
Commission.” Brief of Appellant at 14-15.
Defendant’s offense level was determined with reference to
Guideline § 2B1.1. That provision contemplates an upward
departure when the prescribed offense level “substantially
understates the seriousness of the offense.” 3 USSG § 2B1.1 cmt.
n.19(A). Insofar as § 2B1.1 does not mandate a strict
correlation between the loss amount and the sentence imposed,
Defendant cannot demonstrate that the Sentencing Commission
sought to equalize punishments based on loss amount alone. He
3
We have recognized that the practical effects of applying
a departure and a variance are the same. See United States v.
Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011), cert. denied,
__ S. Ct. __, No. 10-10257, 2011 WL 1671037, (U.S. May 31,
2011).
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consequently fails to show that his sentence is contrary to any
Sentencing Guideline policy.
Defendant also argues that his sentence contradicts the
notions of due process and sufficient proof behind the Guideline
scoring system. He claims his enhanced sentence was based on
“the unproven suspicion that a higher loss figure might be
applicable.” Brief of Appellant at 18.
At Defendant’s sentencing hearing, Special Agent Greg
Watson testified that he believed the government was not able to
identify the full amount of loss due to the number of victims,
not all of whom could be found, and the nature of Defendant’s
scheme, which involved counterfeit money orders, not all of
which could be traced. Under the Guidelines, the district court
need only make a reasonable estimate of the loss. USSG § 2B1.1
cmt. n.3(C). The district court’s finding that the loss caused
by Defendant exceeded $120,000 was not clearly erroneous given
the scope and duration of the offense.
More importantly, the district court did not actually
reject the probation officer’s loss assessment and recalculate
the Guideline range based on a higher amount. It instead
imposed a variance sentence based, in part, on its finding that
“the loss amount attributable to the defendant underestimate[d]
his actual harm.” Indeed, the district court’s decision to
impose an upward variance was not based on loss amount alone,
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but also took into account Defendant’s use of vulnerable persons
as accomplices, and his use of threats to intimidate his
accomplices. Because the district court supported its
determination to vary upward with reasons sufficiently
compelling to support the degree of the variance, we do not
believe that the district court abused its discretion in
sentencing Defendant to 72 months’ imprisonment. See Morace,
594 F.3d at 346.
VI.
For the reasons stated herein, Defendant’s sentence is
AFFIRMED.
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