United States v. Tarnasha Harden , 675 F. App'x 491 ( 2017 )

Case: 16-30170 Document: 00513862349 Page: 1 Date Filed: 02/03/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30170 FILED
Summary Calendar February 3, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAY L. HOLMES, JR.,
Defendant-Appellant
Cons. w/No. 16-30173
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RALPHAEL CASSIBERRY,
Defendant-Appellant
Case: 16-30170 Document: 00513862349 Page: 2 Date Filed: 02/03/2017
No. 16-30170
Cons w/Nos. 16-30173, 16-30178, 16-30181
Cons. w/No. 16-30178
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TARNASHA HARDEN,
Defendant-Appellant
Cons. w/No. 16-30181
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEREMIAH J. SCOTT,
Defendant-Appellant,
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 5:15-CR-62-3
USDC No. 5:15-CR-62-8
USDC No. 5:15-CR-62-5
USDC No. 5:15-CR-62-1
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No. 16-30170
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Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Ray L. Holmes, Jr., Ralphael Cassiberry, Tarnasha Harden, and
Jeremiah J. Scott pleaded guilty to conspiracy to commit wire fraud. The court
sentenced each defendant to a within-guidelines term of imprisonment, 1 a
three-year term of supervised release, and restitution in the amount of
$61,438.86. Each defendant appeals the district court’s denial of a reduction
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. We address each
defendant’s arguments in turn.
Holmes argues that the district court erred in denying him a reduction,
disputing the district court’s finding that he had lied to the court and the
probation officer. In his view, he clearly demonstrated acceptance of
responsibility because he was the first to plead guilty and the only one of ten
defendants to give a statement admitting his role in the offense and identifying
his coconspirators. The district court’s denial of acceptance of responsibility as
to Holmes is not without foundation. See United States v. Preciado-Delacruz,
801 F.3d 508, 511 (5th Cir. 2015). The record reflects that Holmes did not
cooperate with the probation officer when answering questions concerning the
extent and scope of his involvement in the conspiracy and that he lied to the
probation officer and the district court when he initially denied knowing two
coconspirators, Harden and Ashley Thomas, both of whom are his cousins. See
United States v. Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005); United
States v. Cabrera, 288 F.3d 163, 177 (5th Cir. 2002).
* 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.
Holmes was sentenced to 30 months of imprisonment, Cassiberry was sentenced to
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24 months, Harden was sentenced to 18 months, and Scott was sentenced to 23 months.
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Next, Cassiberry contends that the district court violated his rights
under the Double Jeopardy Clause when it denied him a reduction based on
his criminal conduct while on pretrial release. There is no double jeopardy
violation when a defendant receives a sentencing enhancement that is based
on the same conduct that also results in additional criminal charges. United
States v. Dison, 573 F.3d 204, 208 n.21 (5th Cir. 2009). “The district court may
properly deny a reduction for acceptance of responsibility for failure to refrain
from criminal conduct while on pretrial release.” United States v. Rickett, 89
F.3d 224, 227 (5th Cir. 1996). The district court’s denial of the reduction as to
Cassiberry is thus not without foundation. See Preciado-Delacruz, 801 F.3d at
511.
The next defendant, Harden, argues that the district court violated his
Fifth Amendment privilege against self-incrimination when it denied the
reduction because Harden had refused to provide even basic information to the
probation officer and had made an overly frivolous objection to the loss amount.
The district court’s denial of a reduction did not violate Harden’s Fifth
Amendment rights. See Preciado-Delacruz, 801 F.3d at 511-12. Nor was the
district court’s denial without foundation. See id. at 511. A defendant’s refusal
to debrief with a probation officer may be a factor in denying a reduction for
acceptance of responsibility. See United States v. Medina-Anicacio, 325 F.3d
638, 648 (5th Cir. 2003); United States v. Solis, 299 F.3d 420, 458 (5th Cir.
2002). Also, a frivolous objection or denial of relevant conduct may be a basis
for withholding a reduction for acceptance of responsibility. See Medina-
Anicacio, 325 F.3d at 648. Preciado-Delacruz, 801 F.3d at 511-12.
Harden also argues that the sentence was procedurally and
substantively flawed because the district court did not consider the application
of 18 U.S.C. § 3664, which requires the Government to prove the victim’s loss
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for purposes of restitution and requires the district court to resolve any dispute
concerning loss by a preponderance of the evidence. The purpose of restitution
is to compensate a victim for his actual loss. United States v. Sharma, 703
F.3d 318, 322 (5th Cir. 2013). Although the Government has the burden of
proving the victim’s actual loss, see United States v. De Leon, 728 F.3d 500, 506
(5th Cir. 2013), the district court may adopt the amount in the Presentence
Report (PSR) if the amount has an adequate evidentiary basis and is
unrebutted by the defendant. United States v. Zuniga, 720 F.3d 587, 591 (5th
Cir. 2013). In the instant case, the PSR stated that the coconspirators used 29
different credit cards and performed fraudulent credit card transactions at
three different casinos, resulting in a total actual loss of $61,438.86 to Bank of
America. It further provided that the casinos had videos of the defendants
entering the casinos and conducting the fraudulent credit card transactions.
The district court did not err in adopting the loss amount in the PSR because
the amount was based on an adequate evidentiary basis and was unrebutted
by Harden. See id.; see also United States v. Smith, 528 F.3d 423, 425 (5th Cir.
2008).
Finally, as to Scott, his challenge to the district court’s decision denying
him a reduction for acceptance of responsibility is moot due to his release from
imprisonment and his failure to challenge the terms of his supervised release.
See Spencer v. Kemna, 523 U.S. 1, 7 (1998); United States v. Juvenile Male, 564
U.S. 932, 936 (2011).
Accordingly, the judgments of the district court as to Holmes, Cassiberry,
and Harden are AFFIRMED. Scott’s appeal is DISMISSED as moot.
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