United States v. Tamika Wade ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2181
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Tamika Wade, *
* [PUBLISHED]
Appellant. *
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Submitted: January 9, 2006
Filed: January 13, 2006
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Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.
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PER CURIAM.
Tamika Wade appeals the 18-month sentence imposed by the district court1
after Wade pleaded guilty to bank fraud. We affirm the sentence.
Wade was indicted with two codefendants in June 2004 in a four-count
indictment for her involvement in a bank fraud scheme in August and September of
1
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
2002. She pleaded guilty to one count of aiding and abetting bank fraud on January
16, 2005, and was sentenced on April 18, 2005. Wade objected to the presentence
investigation report (PSR) prepared by the United States Probation Office to the
extent the PSR recommended a twelve-level increase to her base offense level based
on a loss amount of $256,726, the total amount of forged checks deposited by Wade
and her codefendants. Wade argued that each codefendant engaged in separate
transactions and that United States v. Booker, 125 S. Ct. 738 (2005), which was
decided a few days before Wade's guilty plea, prevented the district court from
enhancing her sentence based on facts not found by a jury. The district court
overruled the objection, calculated a sentencing range of 18 to 24 months based on
the total loss amount, recognized the advisory nature of the Guidelines, and sentenced
Wade to 18 months imprisonment. Wade appeals, arguing that the district court
violated the "constitutional" holding of Booker and violated her right to due process
by treating the Guidelines as advisory in sentencing her for conduct that occurred pre-
Booker.
We review Wade's constitutional challenges to her sentence de novo. See
United States v. Mashek, 406 F.3d 1012, 1016 (8th Cir. 2005) (holding that legal
challenges to a district court's sentence continue to be reviewed de novo post-
Booker). If the sentence passes those challenges, we review Wade's ultimate sentence
for reasonableness. Id.
We reject Wade's challenge to the district court's use of the preponderance of
the evidence standard. We have previously determined that "the remedial opinion in
Booker held that such judicial fact-finding [by the preponderance of the evidence] for
sentencing purposes does not violate the Sixth Amendment when made as part of an
advisory Guidelines regime." United States v. Vaughn, 410 F.3d 1002, 1004 (8th Cir.
2005), petition for cert. filed, __ U.S.L.W. __ (U.S. Oct. 27, 2005) (No. 05-7869).
See also United States v. Patient Transfer Service, Inc., 413 F.3d 734, 745 (8th Cir.
2005) (recognizing that "the Supreme Court maintained the trial court's fact finding
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authority without setting a new standard" in Booker). The district court properly
applied the Booker sentencing scheme as dictated by the Supreme Court, first
calculating the proper Guidelines range, and then treating that range as advisory in
considering the 18 U.S.C. § 3553(a) factors to reach a final sentence. Having
properly treated the Guidelines range as advisory, the district court was free to
consider any sentencing facts supported in the record by a preponderance of the
evidence in setting Wade's sentence, subject only to the statutory maximum and the
guiding factors in § 3553(a).
We likewise reject Wade's due process challenge. The ex post facto clause
does not apply to actions by the judiciary, see Rogers v. Tennessee, 532 U.S. 451,
456-57 (2001), though due process concerns do require that application of judicial
decisions to a pending defendant's case complies with the "concepts of notice,
foreseeability, and in particular the right to fair warning . . ." Id. at 459. Wade
suggests that the district court should be required to apply the Guidelines in a
mandatory fashion, without, of course, violating the Sixth Amendment by making
fact-findings by a preponderance of the evidence. Wade seeks the benefit of the
"constitutional" holding of Booker without also recognizing its remedial holding. But
the district court did just what Justice Breyer directed in his majority remedial
opinion: it applied the Booker "holdings–both the Sixth Amendment holding and
[the] remedial interpretation of the Sentencing Act–to all cases on direct review."
Booker, 125 S. Ct. at 769. We, like the district court, are obliged to follow the
Supreme Court's directive, and we agree with the Tenth Circuit that the Supreme
Court would not direct us to violate the Constitution. See United States v. Rines, 419
F.3d 1104, 1107 (10th Cir. 2005) (rejecting a similar due process challenge), petition
for cert. filed, __ U.S.L.W. __ (U.S. Nov. 14, 2005) (No. 05-7719).
Another problem with Wade's argument is that judicial fact-finding by a
preponderance of the evidence would have been part of her "reasonable expectations"
in 2002 as well. Thus, Wade would have faced the same sentencing range, and she
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was sentenced at the bottom of that range. She cannot complain of a due process
violation where there is no undue harshness. See Rines, 419 F.3d at 1107; see also
United States v. Egenberger, 424 F.3d 803, 805-06 (8th Cir. 2005) (finding no due
process concern where the district court sentenced the defendant above the properly-
calculated Guidelines range but within the statutory maximum), petition for cert.
filed, __ U.S.L.W. __ (U.S. Nov. 15, 2005) (No. 05-7905); United States v.
Perez-Ruiz, 421 F.3d 11, 15 (1st Cir. 2005) ("At the time of Perez' crime–indeed,
until the morning that Booker was announced by the Supreme Court–Perez faced a
foreseeable risk that any crime he committed would result in a guideline sentence
(within the statutory maximum) based on judge-made fact-finding. That is exactly
what he got in this case."), petition for cert. filed, __ U.S.L.W. __ (U.S. Nov. 22,
2005) (No. 05-7747). Finally, the Supreme Court decided Booker days prior to
Wade's guilty plea and months prior to her sentencing. Thus, even if the Blakely-type
sentencing scheme she seeks was viable, which it was not, she has no claim to such
an expectation. Cf. United States v. Salter, 418 F.3d 860, 862 (8th Cir. 2005)
(rejecting a due process claim based on a plea agreement entered into between the
time of Blakely and Booker, where the district court properly anticipated Booker and
applied the Guidelines as advisory after making its own fact-findings).
Having rejected Wade's legal challenges to her sentence, we believe that her
sentence is reasonable. She cashed a forged check, retained a large portion of it, and
withdrew the balance of the check from her account in cash, in increments less than
$10,000, to return to the person who provided the check. She recruited her
grandparents, her uncle, and her friend to participate in the "opportunity," and served
as the conduit to return the cash to the check provider. Her efforts to use the ill-
gotten proceeds to better herself do not change the illegality of the scheme and are not
properly considered factors under § 3553(a). Her 18-month sentence, at the bottom
of the applicable range, is reasonable.
Wade's sentence is affirmed.
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