United States v. Christopher McGlown , 380 F. App'x 487 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0351n.06
No. 08-3903
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 08, 2010
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
CHRISTOPHER McGLOWN,
Defendant–Appellant. OPINION
__________________________________/
Before: CLAY and GILMAN, Circuit Judges; and ZATKOFF, District Judge.*
LAWRENCE P. ZATKOFF, District Judge. On October 22, 2007, Christopher McGlown
entered pleas of guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count
of uttering and possessing counterfeit checks, in violation of 18 U.S.C. § 513(a). The district court
imposed a term of imprisonment of 26 months on each count, to be served concurrently. The district
court also ordered that McGlown pay restitution in the amount of $116,904 to Huntington Bank. For
the reasons set forth below, we DISMISS this appeal on the basis of McGlown’s waiver of his
appellate rights.
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.
No. 08-3903
I. BACKGROUND
At the time he pled guilty, McGlown was represented by Attorney Merle R. Dech, Jr.
Following McGlown’s guilty plea, the U.S. Probation Department prepared a presentence
investigation report. McGlown, through Attorney Dech, filed objections to the presentence
investigation report, wherein he asserted that he was responsible only for approximately $25,000 in
losses to Sky Bank (the predecessor to Huntington Bank), not the $116,904 loss amount determined
by the U.S. Probation Department. On May 30, 2008, the district court conducted an evidentiary
hearing, at which McGlown was granted leave to proceed pro se, with Attorney Dech designated as
stand-by counsel. At the evidentiary hearing, Secret Service Special Agent Jennifer Thompson
testified that, after being advised by Sky Bank that counterfeit checks were being drawn on Sky Bank
accounts, she conducted an investigation. The investigation led her to conclude that McGlown was
the manufacturer of numerous counterfeit checks totaling $128,101 drawn on Sky Bank accounts.1
As part of her investigation, Thompson participated in the execution of a search warrant at
343 Mentor, Toledo, Ohio. McGlown was present during the search. A number of items were
seized, including computer equipment and software, numerous altered Ohio identification cards
(some with McGlown’s photograph), counterfeit checks, boxes of check stock used to create
counterfeit checks, debit cards and papers that included individual identifiers such as names, social
security numbers and Sky Bank account numbers. A scan of the recovered computer equipment
revealed check images, identification images, alias names and Sky Bank account numbers related
1
This higher amount was determined post-indictment, but McGlown was sentenced and
ordered to pay restitution based on the $116,904 amount specified in the indictment.
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to this case. Numerous handwritten Sky Bank account numbers comparable to known samples of
McGlown’s handwriting were found in a notebook in McGlown’s bag.
Thompson also testified that she reviewed surveillance videos of McGlown passing
counterfeit checks, and she testified that some store employees presented with the checks identified
McGlown in photo lineups. Thompson further testified that, although Sky Bank identified the
amount of loss, her own review of the case enabled her to generate a spreadsheet detailing the
individual transactions. Ultimately, Thompson identified 29 aliases used to cash 196 checks on 49
bank account numbers. Thompson testified in detail (approximately 22 pages of transcript) how
McGlown was associated with each alias name and the various Sky Bank accounts from which
counterfeit or forged checks were drawn.
On July 7, 2008, the district court held McGlown’s sentencing hearing. At that time,
McGlown withdrew all of his objections to the presentence investigation report, including his
objection to the amount of the loss indicated in the indictment:
THE COURT: It is also my understanding, Mr. McGlown, that you are
withdrawing your objection to and will admit to the amount of the loss as indicated
in the indictment of $116,904; is that correct?
THE DEFENDANT: That is correct.
McGlown also waived his right to appeal at the sentencing hearing, except in limited instances:
THE COURT: It is also my understanding that at this juncture the - - you
have discussed with counsel, Mr. Deck [sic], a waiver of right to appeal; am I
correct?
THE DEFENDANT: You are correct, Your Honor.
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THE COURT: I want to read to you the right to appeal waiver to make sure
you understand it, and I wish that you will listen very carefully, as you generally have
in these hearings.
You acknowledge having been advised by your attorney of your right in
limited circumstances to appeal the conviction or sentence in this case, including
your right to appeal conferred by 18 United States Code, Section 3742, and to
challenge the conviction or sentence collaterally through a post conviction
proceeding, including that under Section 2255 of 28 United States Code.
You expressly are waiving your right to those appeals and those collateral
attacks except as follows: You reserve your right to appeal, A, any punishment in
excess of the statutory minimum - - or maximum, I’m sorry; B, any sentence to the
extent it exceeds the maximum of the sentencing range determined by the Sentencing
Guidelines in accordance with the sentencing stipulations and computations which
I will outline to you in a moment. And the use of the criminal history category found
applicable by me.
Nothing I’ve just read to you shall act to bar you from perfecting any legal
remedies you may otherwise have on appeal for collateral attack respecting claims
of ineffective assistance of counsel or prosecutorial misconduct.
Do you understand what I’ve just told you?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you agree to that waiver?
THE DEFENDANT: Yes, Your Honor.
After stating that the applicable advisory Guideline range was 24 to 30 months, the district court
imposed a term of imprisonment of 26 months on each count, to be served concurrently. The district
court also ordered that McGlown pay restitution in the amount of $116,904 to Huntington Bank.
II. ANALYSIS
A. Waiver of Right to Appeal
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No. 08-3903
On appeal, McGlown challenges the amount of restitution that the district court ordered him
to pay. McGlown expressly waived his right to appeal at the sentencing hearing, however, except
under two specific instances, neither of which is presented in this appeal. McGlown was sentenced
to 26 months imprisonment. Therefore, his sentence cannot be appealed because it: (1) does not
exceed the statutory maximums for bank fraud (30 years) or possession of counterfeit securities (10
years), and (2) is less than the 30-month maximum under the advisory Guideline range, the two
instances for which he preserved his appellate rights. We therefore conclude that McGlown waived
his right to appeal the amount of restitution imposed by the district court.
B. Restitution Amount Imposed Not Clearly Erroneous
Even if we considered the merits of McGlown’s appeal, however, we would conclude that
the district court did not err in imposing restitution in the amount of $116,904. We generally review
the amount of a restitution award for abuse of discretion. United States v. Wood, 364 F.3d 704, 714
(6th Cir. 2004). Where an appellant has waived or failed to make objections to the restitution award
at the time of sentencing, however, we will not set aside the district court’s determination unless it
constitutes plain error. Id. (citing United States v. Bondurant, 39 F.3d 665, 668 (6th Cir. 1994)).
To establish plain error, a defendant must show:
(1) that an error occurred in the district court; (2) that the error was plain, i.e.,
obvious and clear; (3) that the error affected defendant’s substantial rights; and (4)
that this adverse impact seriously affected the fairness, integrity or public reputation
of the judicial proceedings.
United States v. Schulte, 264 F.3d 656, 660 (6th Cir. 2001) (internal citations omitted).
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The Mandatory Victims Restitution Act of 1996, 18 U.S.C. §§ 3663A-3664, requires that
defendant(s) pay restitution to identifiable victims who have suffered either physical injuries or
pecuniary losses as a result of certain criminal offenses. Those criminal offenses include crimes of
violence, offenses against property and offenses related to tampering with consumer products. See
18 U.S.C. §§ 3663A(c)(1)(A) and 3664(f)(1)(A). McGlown argues that he should not be responsible
for the entire restitution amount because additional persons were involved in the criminal scheme
for which he was convicted, a fact that is undisputed. McGlown relies on 18 U.S.C. § 3664(h) to
support his argument, but Section 3664(h) addresses situations where “the district court finds that
more than 1 defendant has contributed to the loss of a victim[.]” (emphasis added). In this case,
McGlown was the only person charged in the indictment. Therefore, Section 3664(h) is
inapplicable.
Moreover, even if there were multiple defendants or Section 3664(h) were interpreted to
apply when multiple persons were involved, Section 3664(h) explicitly gives a district court the
discretion to apply joint and several liability or to apportion liability based on the participants’
respective economic circumstances and contributions to the victim(s)’ losses. Based on the level of
McGlown’s involvement in the underlying criminal scheme (as testified to by Thompson), we do
not have a “definite and firm conviction that the trial court committed a clear error of judgment” in
holding McGlown responsible for the entire restitution amount. See United States v. Hunt, 521 F.3d
636, 648 (6th Cir. 2008), cert. den. 129 S.Ct. 2157 (2009) (internal citations omitted).
McGlown also argues that the amount of loss was not established by a preponderance of the
evidence. Pursuant to Fed.R.Crim.P. 32(i)(3)(B), a district court is required to make adequate factual
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No. 08-3903
findings in calculating the loss amount when there is a “disputed portion of the presentence report
or other controverted matter.” United States v. Darwich, 337 F.3d 645, 666 (6th Cir. 2003).
McGlown states that, at the evidentiary hearing on May 30, 2008 and until the sentencing hearing
on July 7, 2008, he repeatedly asserted that only about $25,000 of the loss was attributable to him.
This argument, however, ignores the statements of McGlown at the sentencing hearing. At the
sentencing hearing, McGlown: (1) withdrew his objection to the conclusion of the U.S. Probation
Department in the presentence investigation report that Sky Bank had suffered losses of $116,904,
and (2) admitted that the amount of loss was $116,904. Accordingly, there was no disputed portion
of the presentence investigation report with respect to the amount of loss. Therefore, the district
court had the authority to find that the amount of loss was $116,904. Fed.R.Crim.P. 32(i)(3)(A). We,
therefore, conclude that the district court did not clearly err in ruling that the amount of loss was
$116,904.
III. CONCLUSION
For all of the reasons set forth above, we DISMISS this appeal on the basis of McGlown’s
waiver of his appellate rights.
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