United States v. Haynes ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 1, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-40967
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STONE HAYNES, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CR-129-ALL
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Stone Haynes, Jr. pleaded guilty to counts one and three of a
superseding indictment charging him with wire and mail fraud.
Haynes was sentenced to concurrent 24-month terms of imprisonment
and to concurrent three-year periods of supervised release. Haynes
was ordered to pay restitution in the amount of $3,021.74 to
Service Life and Casualty Insurance Company (“SLCIC”) and $6,717.62
to General Motors Acceptance Corporation (“GMAC”). Haynes has
appealed his sentence.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 02-40967
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Haynes complains that the district court would not permit Dr.
Daniel Carlson, a prison psychologist, to testify by telephone at
the sentencing hearing. Haynes contends that the testimony was
pertinent to the question of whether the district court could
depart downward under U.S.S.G. § 5K2.13 (2000).
Under FED. R. CRIM. R. 32(c)(1), the question of whether
parties may introduce testimony at the sentencing hearing is within
the discretion of the sentencing court. See United States v.
Edwards, 65 F.3d 430, 432 (5th Cir. 1995). Because Dr. Carlson’s
reports do not support the conclusion that Haynes’s depression
prevented him from understanding the wrongfulness of his behavior,
from exercising the power of reason, or from controlling behavior
that he knew was wrongful, see U.S.S.G. § 5K2.13, comment. (n.1)
(2000), there is no reason to believe that his testimony would have
been relevant to the question of whether Haynes “committed the
offense while suffering from a significantly reduced mental
capacity.” See U.S.S.G. § 5K2.13. The district court did not
abuse its discretion.
Haynes contends that the district court erred in determining
the amount of the loss in calculating the offense level for the
mail fraud count. In determining how many points should be added
to Haynes’s offense level under U.S.S.G. § 2F1.1(b)(1) (2000), the
district court determined that SLCIC had sustained a $13,021.70
loss resulting from the filing by Haynes of forged disability
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progress reports. Haynes has not shown that the district court
erred reversibly in determining the loss sustained by SLCIC.
The district court considered as relevant conduct a $13,027.52
intended loss incurred by GMAC related to checks tendered by
Haynes, to pay off two loans, which were returned to GMAC marked
“NSF.” Haynes’s schemes to defraud SLCIC and GMAC, if adjudicated,
would be grouped under U.S.S.G. § 3D1.2(d) (2000), since the court
determined reasonably that the schemes are a part of the same
“course of conduct.” See U.S.S.G. § 1B1.3(a); U.S.S.G. § 1B1.3,
comment. (n. 9 (B)). Accordingly, the district court did not
clearly err in considering the loss suffered by GMAC as relevant
conduct in determining Haynes’s offense level. See U.S.S.G.
§ 1B1.3(a) (2000); see also United States v. Anderson, 174 F.3d
515, 526 (5th Cir. 1999) (standard of review).
Haynes complains also that the district court erred by
overruling his objection to the probation officer’s finding that
Haynes had previously submitted a $16,626.67 NSF check to GMAC to
pay off a loan. The district court held that the information did
not affect the guideline calculation, but could be considered,
nevertheless, under U.S.S.G. § 1B1.4. No error has been shown.
Haynes contends that the district court erred in determining
the amount of the loss for purposes of calculating the offense
level for the wire fraud count. Haynes contends that the district
court erred by finding that his fraud scheme against Edward Jones
was committed during the period when he was defrauding SLCIC and
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GMAC. Haynes contends that the finding implies incorrectly that
the offense was planned for an extended period of time. The
district court stated that it had not found that the fraud was
“extensive,” but only that the fraud was contemporaneous with the
fraud perpetrated against SLCIC and GMAC. No error has been shown.
Haynes contends that the amount of the loss suffered by Edward
Jones should have been reduced by sums which he contends were owed
to him by Edward Jones. The amount of the intended loss, for
purposes of determining offense level, was the amount of the money
unlawfully taken. See U.S.S.G. § 2F1.1, comment (n.8) (2000)).
The district court’s ruling was not clearly erroneous. See United
States v. Ismoila, 100 F.3d 380, 396–97 (5th Cir. 1996).
Haynes contends that the district court erred in determining
the amount of restitution. Haynes contends that he settled SLCIC’s
civil claim against him for $10,000 and was given a full release
and that he settled GMAC’s claims for $17,500 and was given a full
release. Haynes contends that the district court should not have
ordered restitution to those parties because they have released him
from further liability. Under the Mandatory Victim Restitution Act
(“MVRA”), when sentencing a defendant convicted for an offense
against property under Title 18 by fraud and deceit, the district
court must order the defendant to make restitution to the victim of
the offense. 18 U.S.C. § 3663A(a)(1) & (c)(1)(A)(ii). The
district court was required, under the MVRA, to “order the full
amount of restitution.” United States v. Myers, 198 F.3d 160, 168
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(5th Cir. 1999); see 18 U.S.C. § 3664(f)(1)(A); see also United
States v. Sheinbaum, 136 F.3d 443, 448 (5th Cir. 1998).
Haynes contends also that restitution should not have been
ordered to GMAC because GMAC was not a victim of the crime for
which he pleaded guilty. Under the MVRA, “The court shall also
order, if agreed to by the parties in a plea agreement, restitution
to persons other than the victim of the offense.” 18 U.S.C.
§ 3663A(a)(3). Haynes’s plea agreement contains such a provision.
Haynes complains that his offense level was not adjusted for
his acceptance of responsibility. The district court refused to
adjust Haynes’s offense level because Haynes made self-serving
statements justifying his conduct during his debriefing with the
probation officer, and because Haynes did not enter a guilty plea
until the Friday before the trial, which was scheduled on the
following Monday. Haynes argues that he accepted responsibility
for his conduct by pleading guilty. A timely guilty plea does not
automatically entitle a defendant to a decrease in his offense
level for acceptance of responsibility. United States v. Pierce,
237 F.3d 693, 694 (5th Cir. 2001). Rather, “the sentencing judge
is in a unique position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the
sentencing judge is entitled to great deference on review.”
U.S.S.G. § 3E1.1, comment. (n.5) (2000). Moreover, specious
arguments made by Haynes in his reply brief, such as his argument
that he forged Dr. Ray’s signature on the disability progress
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reports “merely as a convenience,” indicates that Haynes still has
not accepted responsibility for his conduct. No error has been
shown.
Haynes contends that the district court erred by raising his
offense level, pursuant to U.S.S.G. § 2F1.1(b)(2) (2000), because
the offense involved more than minimal planning. In overruling
Haynes’s objection, the district court reasoned that Haynes had
taken affirmative steps to conceal the fraudulent stock
transaction, that the wire fraud transaction involved repeated
fraudulent acts, and that there was more than one victim. The
district court’s ruling was not clearly erroneous. See United
States v. Barndt, 913 F.2d 201, 204 (5th Cir. 1990).
Haynes contends that the district court erred by raising his
offense level, pursuant to U.S.S.G. § 3B1.3 (2000), because
Haynes’s position as a stockbroker facilitated the commission or
concealment of the wire fraud offense. Haynes contends that any
customer of the brokerage firm could have committed the same
offense and that his position did not involve managerial
discretion. In overruling Haynes’s objection, the district court
reasoned that Haynes was not like any other customer. Haynes
“could not be the broker handling a stock transaction for himself.
He did it that way to avoid another broker detecting his NSF check.
Therefore, it was his position that allowed him to complete the
transaction.” Haynes had a position of trust within the firm and
was given “considerable latitude. He was allowed to operate his
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own office without supervision and [unlike employees who are not
brokers] was given access to the company’s computer system, which
allowed him to purchase and sell stock.” The district court’s
ruling was not clearly erroneous. See United States v. Deville,
278 F.3d 500, 508 (5th Cir. 2002); see also U.S.S.G. § 3B1.3,
comment. (n.1) (2000).
Haynes complains that the district court overruled his
objections to the paragraphs in the presentence report in which the
offense level was totaled. In a similar fashion, Haynes complains
that the district court erred in calculating his guideline
imprisonment range and in determining his eligibility for
probation. Because these arguments are predicated on Haynes’s
other issues, which are without merit for reasons discussed above,
no error has been shown.
Haynes also complains that the district court erred by
overruling his objection to the probation officer’s recommendation
that the district court could consider, as a basis for an upward
departure, the fact that Haynes was involved in another,
contemporaneous fraud scheme against First Bank and Trust. The
district court did not depart upward. Thus, Haynes has not shown
that the district court erred.
For the foregoing reasons, the judgment is AFFIRMED.