United States v. Luke , 152 F. App'x 412 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-41256
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY JEROME LUKE, also known as Skip, also known as Roy
Evans, also known as Steve Edward Benson, also known as
Phillip Brown, also known as Happy Luke, also known as
Walter Mitchell, also known as Robert Bowers, also known as
Sean Campbell, also known as Miami,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-282-1
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Timothy Jerome Luke was convicted by a jury of conspiracy to
make, utter, and possess counterfeit securities. The substance
of the charged offense was that the conspirators would obtain
fraudulent checks and false identification documents for the
purpose of passing the fraudulent checks and receiving the
proceeds. Luke’s total offense level of 26 combined with a
*
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this opinion should not be published and is not precedent except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. 04-41256
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criminal history category of VI resulted in a guideline range of
60 months of imprisonment due to the statutory maximum for the
offense under 18 U.S.C. § 371. Luke objected to increases in his
offense level as being without a factual basis. The district
court overruled the objections and sentenced Luke to 60 months of
imprisonment and to a three-year term of supervised release.
Luke argues that the evidence was not sufficient to support
his conviction for conspiracy to make, utter, and possess
counterfeit securities. The court views the evidence, in the
light most favorable to the verdict, to determine if a rational
trier of fact could have found that the evidence established the
essential elements of the offense beyond a reasonable doubt.
United States v. Romero-Cruz, 201 F.3d 374, 378 (5th Cir. 2000).
“In a prosecution under [18 U.S.C.] § 513(a), the government
must prove that the defendants: (1) made, uttered, or possessed
(2) a counterfeit security (3) of an organization (4) with intent
to deceive another person, organization, or government.” United
States v. Chappell, 6 F.3d 1095, 1098 (5th Cir. 1993). Under 18
U.S.C. § 371, the Government “must prove that (1) two or more
persons conspired to pursue an unlawful objective; (2) the
defendant knew of the unlawful objective and voluntarily agreed
to join the conspiracy with the intent to further the objective;
and (3) one or more of the members of the conspiracy committed an
overt act in furtherance of the objective of the conspiracy.”
United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000).
No. 04-41256
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Luke does not argue that there was no conspiracy. Luke does
not argue that none of the coconspirators committed an overt act
in furtherance of the conspiracy. Luke argues that there is no
evidence that he possessed counterfeit securities and that there
is no evidence that he knew of the conspiracy or voluntarily
joined it. Christopher Paul Smith, an admitted member of the
conspiracy to cash fraudulent checks, testified that Luke handed
envelopes containing fraudulent checks and identification cards
to him, Smith, and another member of the conspiracy, Abel Garcia,
while in Smith’s presence. Smith’s testimony shows unequivocally
that Luke was part of the conspiracy. Luke gave Smith $2500 to
purchase a cashier’s check from Frost bank in Austin, Texas.
Counterfeit checks were made from this $2500 cashier’s check, and
five of them were cashed by Luke, Smith, and Garcia, with Luke
keeping most of the money. On cross-examination, Smith testified
that he drove Luke and Garcia to cash counterfeit checks, that
Luke and Garcia took his picture for fake identification, and
that he knowingly conspired with Luke and Garcia to pass
fraudulent checks. This evidence is sufficient to support Luke’s
conviction for conspiracy.
Luke argues for the first time on appeal that his sentence
was imposed legally in light of the rule in United States v.
Booker, 125 S. Ct. 738 (2005). Our review is for plain error.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33
(5th Cir. 2005), cert. denied, ___ S. Ct. ___ (Oct. 3, 2005) (No.
No. 04-41256
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05-5556); United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), cert. denied, ___ S. Ct. ___ (Oct. 3, 2005) (No. 04-9517).
After Booker, “[i]t is clear that application of the
Guidelines in their mandatory form constitutes error that is
plain.” Valenzuela-Quevedo, 407 F.3d at 733. Luke argues that
the error affected his substantial rights because it was
structural or because prejudice should otherwise be presumed.
These arguments are foreclosed. See United States v. Malveaux,
411 F.3d 558, 560 n.9 (5th Cir. 2005), cert. denied, ___ S. Ct.
___ (Oct. 3, 2005) (No. 05-5297).
To satisfy the plain-error test in light of Booker, Luke
must demonstrate that his substantial rights were affected by the
error. United States v. Infante, 404 F.3d 376, 395 (5th Cir.
2005). Luke has not made a particularized showing of an effect
on his substantial rights or that the record indicates in any way
that the district court would have imposed a lower sentence under
an advisory sentencing scheme. Accordingly, there is no basis
for concluding that the district court would have imposed a lower
sentence under an advisory sentencing regime. See Mares, 402
F.3d at 522.
AFFIRMED.