United States v. Sylvester Gayekpar ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
Nos. 06-1595/1807
________________
United States of America, *
*
Appellee/Cross-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Sylvester Richards Gayekpar, *
* [UNPUBLISHED]
Appellant/Cross-Appellee. *
________________
Submitted: December 22, 2006
Filed: January 4, 2007
________________
Before WOLLMAN, HANSEN, and COLLOTON, Circuit Judges.
________________
PER CURIAM.
Sylvester Richards Gayekpar attacks the constitutionality of 18 U.S.C. § 472as applied to his conviction for possession of altered United States currency with the
intent to defraud. The Government cross-appeals Gayekpar's non-Guidelines sentence
as unreasonable. We affirm the district court's judgment of conviction and remand for
resentencing.
Gayekpar attempted to defraud an acquaintance, Abdullah Abdullah, with a
"black money" scheme. He claimed to have $3 million worth of U.S. currency that
had been covered with a black substance to get it out of Liberia and into the United
States. Gayekpar promised to give Abdullah a portion of the cleaned money if
Abdullah would help him obtain the $90,000 he allegedly needed to purchase a special
chemical used to restore the currency to a useable form. Gayekpar demonstrated the
process by purporting to clean some of the blackened money and offered to let
Abdullah keep a cleaned $50 bill as a show of good faith. Abdullah was skeptical of
Gayekpar and contacted local officials. He eventually worked with the Secret Service,
who arrested Gayekpar when he arrived at Abdullah's business to collect $30,000 of
baited money. Investigators determined that the "black money" was actually black
construction paper.
Gayekpar was charged and convicted by a jury of possessing altered U.S.
currency with intent to defraud, in violation of 18 U.S.C. § 472. At the time of
Gayekpar's sentencing, he had been in custody for nearly eight months, and the district
court sentenced him to "time served." Gayekpar appeals his conviction, and the
Government cross-appeals his sentence.
Gayekpar concedes that under Eighth Circuit precedent, his conduct is
punishable under § 472. See United States v. Idriss, 436 F.3d 946, 949 (8th Cir. 2006)
(holding that blackened currency in an identical scheme was "altered" within the
meaning of § 472). He claims, however, that application of the statute to altered
genuine currency, as opposed to counterfeit currency, is beyond Congress's
enumerated power to punish counterfeiting. See U.S. Const. Art. 1 § 8 cl. 6
(authorizing Congress "[t]o provide for the Punishment of counterfeiting the
Securities and current Coin of the United States"). Congress's power over currency
is not limited to clause 6, however. Article 1, section 8, clause 5 of the Constitution
grants to Congress the power to "coin Money, [and] regulate the Value thereof,"
which the Supreme Court has interpreted to include "the correspondent and necessary
power and obligation to protect and to preserve in its purity this constitutional
currency for the benefit of the nation." United States v. Marigold, 50 U.S. (9 How.)
-2-
560, 568 (1850) (relying on the broader clause 5 powers, coupled with the Necessary
and Proper clause, to uphold a constitutional challenge to Congress's ability to
criminalize the passing of counterfeit notes).
Gayekpar did not challenge the constitutionality of § 472 in the district court.
We therefore review his challenge for plain error, United States v. Letts, 264 F.3d 787,
789 (8th Cir. 2001) ("We review Letts's constitutional challenges to § 922(g)(3) for
plain error, because he did not make those claims in the district court."), cert. denied,
535 U.S. 908 (2002), and will reverse only if application of the statute to Gayekpar's
conduct is "so plainly unconstitutional that the failure of the trial court or this Court
to hold it so can be regarded as a plain error or a culpable neglect of judicial duty,"
United States v. White, 890 F.2d 1033, 1034-35 (8th Cir. 1989) (internal marks
omitted). Congress's power to regulate the alteration of genuine U.S. currency is part
of its broad power "to protect and to preserve in its purity this constitutional currency
for the benefit of the nation." Marigold, 50 U.S. at 568; see also United States v.
Howell, 470 F.2d 1064, 1066 (9th Cir. 1972) (relying on Marigold and Art. 1, § 8, cl.
5 to uphold 18 U.S.C. § 473, which criminalizes the dealing in counterfeit or altered
currency, against a constitutional challenge); Barbee v. United States, 392 F.2d 532,
536 (5th Cir.) (upholding a challenge to altered genuine currency, noting that "because
attacks upon the physical integrity of currency in particular may endanger society by
depleting the public trust in its economic standard, the government must establish
sanctions to discourage such attacks"), cert. denied, 391 U.S. 935 (1968). We uphold
Gayekpar's conviction against his constitutional challenge.
Gayekpar has not responded to the government's cross-appeal. At sentencing,
the district court adopted the undisputed factual findings contained in the presentence
investigation report (PSR), determined an intended loss of $90,000, and calculated his
adjusted offense level at a level 15, based on a base offense level of 7, United States
Sentencing Guidelines Manual (USSG) § 2B1.1(a)(1), and an 8-level enhancement for
an intended loss between $70,000 and $120,000, USSG § 2B1.1(b)(1)(E). Coupled
-3-
with a criminal history category of II, Gayekpar faced an advisory Guidelines range
of 21 to 27 months of imprisonment. At sentencing, the district court said: "The
sentence will incorporate the Supreme Court decisions of last year and will take into
consideration paragraph 2 of Section 3553(a), which outlines the duties of the Court
in imposing sentence." (Sentencing Tr. at 12.) The district court then sentenced
Gayekpar to "time served," or approximately eight months.
When the parties do not dispute the applicable advisory Guidelines range, the
issue before this court is whether the district court imposed a reasonable sentence in
light of the § 3553(a) factors, which we review for an abuse of discretion. United
States v. Bradford, 447 F.3d 1026, 1028 (8th Cir. 2006). A sentence within the
properly-calculated advisory Guidelines range is presumptively reasonable, and a
sentence outside of that range requires some explanation. Although a rote recitation
of the § 3553(a) factors is not required, "the court should explain both the decision to
vary and the extent of the variance." Id. (remanding for resentencing where the only
factor discussed by the district court did not justify a sentence significantly below the
advisory Guidelines range).
In its written statement of reasons filed after the sentencing hearing, the district
court listed various statutory factors: §§ 3553(a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(6), and (a)(7), without explaining their significance to Gayekpar's case.
It is not clear whether the district court adopted any of Gayekpar's arguments at
sentencing for a non-Guidelines sentence. Based on the record, however, none of the
subsections cited by the district court justifies a sentence thirteen months below the
advisory Guidelines range. Some of the subsections cited by the district court do not
apply at all; for example, neither restitution under § 3553(a)(7) nor the need for
training or medical care under § 3553(a)(2)(D) is at issue in this case. Other cited
subsections actually counsel toward a longer rather than a shorter sentence. For
example, the lenient sentences (probation for one defendant and six months of
imprisonment for the other) originally received by the defendants in Idriss, at least one
-4-
of whom reportedly trained Gayekpar in perpetrating the same scheme, apparently
failed to deter others, namely Gayekpar, from similar conduct. See § 3553(a)(2)(B)
(sentence imposed should afford adequate deterrence). In addition, Gayekpar engaged
in the offense conduct less than one year after pleading guilty to committing financial
transaction card fraud for stealing and using a VISA debit card and possessing his co-
workers' blank checks, for which he spent nine days in jail. See § 3553(a)(1) (history
and characteristics of the defendant); § 3553(a)(2)(C) (sentence imposed should
protect the public from the defendant). The original sentences received by the
defendants in Idriss were reversed on appeal because the district court, acting after
Blakely v. Washington, 542 U.S. 296 (2004), and before United States v. Booker, 543
U.S. 220 (2005), did not consider the amount of the loss. See Idriss, 436 F.3d at 951.
On remand, those defendants received sentences of six months and eighteen months
of imprisonment. Considering Gayekpar's higher criminal history score of II,
compared to the criminal history category of I faced by both of the Idriss defendants,
a sentence below the advisory Guidelines range was not necessary to avoid
unwarranted sentencing disparities. See § 3553(a)(6).
On this record, an unexplained sentence of "time served," resulting in a
sentence thirteen months below the 21-month bottom of the presumptively reasonable
advisory Guidelines range, is unreasonable where nothing in the record supports it.
See United States v. McMannus, 436 F.3d 871, 875 (8th Cir. 2006).
We affirm the judgment of conviction, and we remand for resentencing
consistent with this opinion.
______________________________
-5-