United States v. George Tonks ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3821
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
George Bing Tonks, also known as *
Ian William Stone, *
*
Appellant. *
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Submitted: June 12, 2009
Filed: July 29, 2009
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Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
The appellant, George Bing Tonks, pled guilty to two counts of wire fraud in
violation of 18 U.S.C. § 1343. The district court1 imposed a sentence of 78 months
imprisonment on each count to run consecutively to undischarged terms of
imprisonment imposed on Tonks in Pennsylvania and New York.2 In this appeal,
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
2
On May 6, 2008, Tonks pled guilty in the United States District Court for the
Southern District of New York to one count of conspiracy to commit wire fraud and
Tonks contends that the district court erred in denying a reduction of his offense level
for acceptance of responsibility and in ordering that his sentence run consecutively to
the undischarged portions of his New York and Pennsylvania sentences. We affirm.
From August 2002 through June 2003, under Tonks’s direction and with his
assistance, Tonks’s fellow schemers contacted an elderly Iowa woman via telephone
from Brooklyn, New York. They knowingly and falsely represented to her that she
had won a large cash lottery prize but that, in order to receive the proceeds, she was
required to pay taxes and other fees up-front. During this time period, the victim was
instructed to transfer multiple amounts of cash, purportedly to pay these taxes and
fees, to various recipients in the New York City area. The victim was instructed to use
a name other than her own in making some of these wire transfers, and she was
frequently told not to retain the receipts. Further, she was instructed not to reveal her
lottery winnings or discuss the matter with others. The elderly victim did as instructed
and, on 16 occasions, wired cash sums totaling over $200,000 to the addresses
one count of wire fraud in connection with a scheme executed by Tonks and others
to defraud individuals of money allegedly required as advance fees necessary to
secure roles for the victims in adult motion pictures. Tonks was sentenced to a term
of 115 months imprisonment. See United States v. Stone, No. 1:06-cr-00771-PAC
(S.D.N.Y. 2008), appeal docketed, No. 08-2378-cr (2d Cir. May 13, 2008).
On September 9, 1993, Tonks entered a plea of guilty in the United States
District Court for the Eastern District of Pennsylvania to one count of mail fraud, one
count of money laundering, and one count of contempt. He was sentenced to a term
of 37 months of imprisonment to be followed by five years of supervised release. See
United States v. Dupont, No. 2:93-cr-00192-CRW (E.D. Pa. Sept. 30, 1993). On
January 7, 2008, the United States District Court for the Northern District of Illinois,
which had obtained jurisdiction over Tonks’s supervised release in 1999, revoked
Tonks’s supervised release and sentenced Tonks to a term of imprisonment of nine
months to run concurrent to the term of imprisonment imposed in the Southern
District of New York. See United States v. Tonks, No. 1:99-cr-00911-1 (N.D. Ill. Jan.
7, 2008).
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provided. Tonks and his accomplices retained the proceeds of the scheme, and the
victim received nothing.
Tonks was indicted on 19 counts of wire fraud, and he subsequently entered
into a plea agreement. The plea agreement provided for Tonks’s guilty plea to two
counts of wire fraud, for the United States to move for dismissal of the remaining
counts, and for Tonks’s stipulation that he would pay full restitution to the victim.
The plea agreement also contained a stipulation of the facts involved in the offense
conduct, expressed the expectation that a reduction of offense level would be awarded
for acceptance of responsibility, and indicated that the United States would move for
an additional offense-level reduction for Tonks’s timely acceptance of responsibility.
At sentencing, the district court noted that the Presentence Investigation Report
recommended a two-level decrease in offense level for acceptance of responsibility,
see United States Sentencing Commission, Guidelines Manual, §3E1.1(a) (Nov.
2002), and contemplated that the United States would move for an additional one-
level reduction for Tonks’s timely acceptance of responsibility. Id. §3E1.1(b). The
district court asked Tonks if he persisted in his pleas of guilty. In response, Tonks
hesitated, then he stated “yes.” When the court inquired as to whether the hesitation
indicated that Tonks no longer wished to plead guilty, Tonks stated that, although
there was “no actual evidence” against him, he had no choice but to plead guilty
because of his “past” and because of witnesses who the government had “made deals
with to testify” against him. In response to Tonks’s comments, the district court
indicated that it was tentatively declining to grant an acceptance-of-responsibility
adjustment. Tonks’s attorney advised the court that Tonks had agreed to a detailed
factual recitation of what had occurred as detailed in the plea agreement and that
Tonks’s lack of an objection to a four-level leadership role enhancement was
indicative of Tonks’s acceptance of “his involvement and responsibility with respect
to this entire scheme.” The United States agreed that, in the plea agreement, Tonks
had stipulated to the underlying facts of the case. Further, the United States advised
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the district court that if the court granted a two-level acceptance-of-responsibility
adjustment, the United States would move for an additional reduction of one level
pursuant to section 3E1.1(b).
At that point, Tonks elected to speak further and launched a rambling attack on
federal law enforcement agents who apparently had been involved in the investigation
which led to his New York federal prosecution. Tonks accused agents of drugging
and torturing him, and he accused various federal prosecutors of misconduct. He
further denied guilt with respect to the New York prosecution and complained about
the sentence imposed in that case.
Turning to the case at hand, Tonks denied knowledge of the bogus lottery
scheme and denied receiving any of the proceeds of the scam perpetrated on the Iowa
victim. He denied personal participation in “any type of lottery business” and termed
his only culpability as a failure to supervise telemarketers working for him who “stole
thousands of dollars from several customers without [his] knowledge.”
The district court found that Tonks’s in-court statements demonstrated that he
took no responsibility for the defrauding of the Iowa victim and espoused Tonks’s
view that he was the victim. The court stated that Tonks’s comments “basically
negate[] everything that he said in the Stipulation of Facts that led to the plea
agreement.” Accordingly, the court declined to grant an acceptance-of-responsibility
adjustment. The court calculated Tonks’s base offense level at 6, see USSG
§2B1.1(a); assessed a 12-level increase based upon the amount of loss to the victim,
see id. §2B1.1(b)(1)(G); and added 4 levels due to Tonks’s role as a leader/organizer,
see id. §3B1.1(a), resulting in an adjusted offense level of 22.
The adjusted offense level of 22, combined with a criminal history category of
IV, yielded a sentencing range of 63-78 months. After considering the sentencing
factors specified under 18 U.S.C. § 3553(a), the district court imposed a sentence of
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78 months imprisonment on each count with the terms of imprisonment to run
concurrently with each other but consecutively to the undischarged portion of the
terms of imprisonment imposed in the Eastern District of Pennsylvania and the
Southern District of New York.
On appeal, Tonks first asserts that the district court erred in denying him an
acceptance-of-responsibility adjustment pursuant to section 3E1.1. “A defendant
bears the burden of establishing entitlement to a downward adjustment for the
acceptance of responsibility.” United States v. Tjaden, 473 F.3d 877, 879 (8th Cir.
2007). “We review the District Court’s decision to deny an acceptance-of-
responsibility reduction for clear error,” United States v. Bell, 411 F.3d 960, 963 (8th
Cir. 2005), and we accord “great deference on review” to this determination by the
sentencing court, id. (quoting USSG §3E1.1, comment. (n.5)). “We do not substitute
our judgment for that of the district court because the district court is in a better
position to assess whether a defendant has accepted responsibility . . . . Our review,
then, is not to determine what conclusion we might reach in the case were we to sit as
the finders of fact, but to determine whether the district court’s factual findings
amount to clear error.” United States v. Jones, 539 F.3d 895, 897 (8th Cir. 2008).
Tonks asserts that his statements at sentencing addressed mistreatment and an
unjust result that he believes occurred in the previous New York federal prosecution.
According to Tonks, it was in that proceeding that he was victimized, and the district
court in this case “focused” in error on these remarks about the prior prosecution to
determine that Tonks was unwilling to accept responsibility in this case. Tonks argues
that the district court failed to give sufficient weight to his pleas of guilty, his
admission of the factual basis for the pleas submitted under oath before a magistrate
judge during the earlier plea proceeding, and his stipulation of facts contained in the
plea agreement.
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We find no clear error in the district court’s denial of an acceptance-of-
responsibility adjustment. While much of Tonks’s statement at sentencing was
directed at his prior New York prosecution, he clearly denied participation in or
knowledge of the mail fraud scheme perpetrated on the elderly Iowa victim, and he
unequivocally asserted that his only fault lay in his failure to supervise telemarketer
employees whom he claimed were the actual culprits. A defendant who pleads guilty
is not entitled to a downward acceptance-of-responsibility adjustment as a matter of
right. United States v. Spurlock, 495 F.3d 1011, 1015 (8th Cir.), cert. denied, 128 S.
Ct. 687 (2007). The district court was entitled to decline to find acceptance of
responsibility where, notwithstanding his previous admissions, Tonks expressly and
unequivocally denied his factual guilt, and we find no clear error in the district court’s
decision to deny Tonks an acceptance-of-responsibility adjustment..
Tonks’s second assertion on appeal is that, in ordering that his sentence run
consecutively to the undischarged New York and Pennsylvania sentences, the district
court imposed an unreasonable sentence and failed to explain its reasons for imposing
a consecutive sentence. “We review the district court’s decision to impose a
consecutive or concurrent sentence for reasonableness.” United States v. Winston,
456 F.3d 861, 867 (8th Cir. 2006). “The district court must explain its reasoning for
imposing a concurrent or consecutive sentence ‘[f]or this court to properly carry out
the appellate review mandated by Booker . . . .’” Id. (quoting United States v. Shafer,
438 F.3d 1225, 1227 (8th Cir. 2006)).
Under 18 U.S.C. § 3584(b), the sentencing court, “in determining whether the
terms imposed are to be ordered to run concurrently or consecutively, shall consider,
as to each offense for which a term of imprisonment is being imposed, the factors set
forth in section 3553(a).” The advisory Sentencing Guidelines provide further
procedural guidance as to this issue. Guidelines section 5G1.3(c) provides in a policy
statement that “the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the prior undischarged term
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of imprisonment to achieve a reasonable punishment for the instant offense.”
Application note three to section 5G1.3 further instructs:
To achieve a reasonable punishment and avoid unwarranted disparity,
the court should consider the factors set forth in 18 U.S.C. § 3584(referencing 18 U.S.C. § 3553(a)) and be cognizant of:
(a) the type (e.g., determinate, indeterminate/parolable) and length of the
prior undischarged sentence;
(b) the time served on the undischarged sentence and the time likely to
be served before release;
(c) the fact that the prior undischarged sentence may have been imposed
in state court rather than federal court, or at a different time before the
same or different federal court; and
(d) any other circumstance relevant to the determination of an
appropriate sentence for the instant offense.
USSG §5G1.3, comment. (n.3).
In this case, the district court followed these procedural directives. The court
expressly referred to section 5G1.3(c) and the accompanying application note as well
as the application note’s comment that section 3584 and its reference to
section 3553(a) be considered. The court discussed the section 3553(a) factors and
their applicability including: the nature and circumstances of the offenses of
conviction; the kinds of sentences available; Tonks’s history and characteristics,
noting his age, education, and his history of drug use; Tonks’s criminal history,
including the Pennsylvania and New York convictions as well as an unscored juvenile
record; the need to protect the public; and the court’s well-justified observation that
Tonks appeared at sentencing “totally unrepentent.” After expressly considering the
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foregoing, the court concluded that “the facts and circumstances of this offense
support a consecutive sentence, and that will be what the Court imposes.”
We conclude that the district court thoroughly discussed the section 3553(a)
factors it found applicable and adequately explained the reasons for its imposition of
a consecutive sentence. The imposition of a consecutive sentence is reasonable.
We affirm.
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