United States v. Jessie Tolbert , 704 F. App'x 646 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50499
Plaintiff-Appellee, D.C. No. 2:13-cr-00692-
JFW-2
v.
JESSIE L. TOLBERT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued December 11, 2015
Submitted July 28, 2017
Pasadena, California
Before: GOULD and BERZON, Circuit Judges, and ZOUHARY,** District Judge.
Following his plea of guilty to charges of wire fraud and conspiracy to
commit wire fraud, Jessie Tolbert appeals the district court’s application of two
enhancements to his base offense level at sentencing. Tolbert maintains that the
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the Northern
District of Ohio, sitting by designation.
district court erred in finding that he intended a loss of between $400,000 and
$999,999 resulting from the fraud, and that the district court also erred in finding
that he used sophisticated means in furtherance of the fraud.
We vacated submission of this case pending the outcome of en banc
proceedings in United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (en
banc). Gasca-Ruiz held that review of a district court’s application of the
Guidelines to the facts is for abuse of discretion. Id. at 1168. Applying that
standard, we affirm the district court’s sentence in full.
1. The district court did not clearly err in applying a 14-level enhancement
pursuant to U.S.S.G. § 2B1.1(b)(1)(H), which at the time of Tolbert’s sentencing
required such an enhancement for an intended loss between $400,000 and
$999,999. As recounted in the government’s offer of proof, the accuracy of which
Tolbert confirmed at sentencing, Tolbert admitted that he and his coconspirators
had persuaded an undercover government agent to invest $500,000 in their
fraudulent scheme.
Tolbert maintains that the amount of $500,000 was suggested by the
government’s undercover agent rather than himself or his coconspirators, and that
he was entrapped into committing a larger fraud than he was otherwise disposed to
commit. But no evidence in the record suggests that the government exerted undue
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pressure on Tolbert or his coconspirators, or that Tolbert was at all reluctant to
participate in the scheme before or after the $500,000 figure was proposed. Rather,
the government agent merely “presented the opportunity” for a $500,000
investment to Tolbert and his coconspirators, which they agreed to and then
actively participated in making a reality. See United States v. Black, 733 F.3d 294,
312 (9th Cir. 2013).
2. The district court did not abuse its discretion in applying a two-level
enhancement for the use of sophisticated means in furtherance of the offense
pursuant to U.S.S.G. § 2B1.1(b)(10)(C). See Gasca-Ruiz, 852 F.3d at 1168.
The Application Notes to the Guidelines describe “sophisticated means” as
“especially complex or specially intricate offense conduct pertaining to the
execution or concealment of an offense. Conduct such as hiding assets or
transactions, or both, through the use of fictitious entities, corporate shells, or
offshore financial accounts ordinarily indicates sophisticated means.” U.S.S.G. §
2B1.1(b)(10) cmt. 9(B). The district court cited three critical facts in explaining its
application of the sophisticated-means enhancement: (1) that Tolbert used his
company, Levette, Inc. (which the district court found was a “shell corporation,”)
as part of the scheme; (2) a coconspirator presented himself under an assumed
name as Tolbert’s attorney, with Tolbert’s knowledge; and (3) that same
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coconspirator falsified a U.S. passport to lend verisimilitude to his assumed
identity and thereby to induce the government’s agent to invest his money.
Tolbert argues, with some force, that these three facts do not reflect
sophistication in his particular case. He contends that Levette was not, in fact, a
shell corporation but a legitimate company, and that a coconspirator lying about his
name and occupation is an element in many fraud schemes. As to the forged
passport, he argues that the record includes no evidence as to its sophistication or
quality. But as Tolbert acknowledges, the three facts cited by the district court, at
least “considered in isolation,” may “suggest sophistication.” Given our holding in
Gasca-Ruiz that a district court’s application of the Guidelines to the facts of a
given case is reviewed for abuse of discretion, we are compelled to affirm. We
cannot say that the district court’s application of the enhancement was “illogical,
implausible, or without support in inferences that may be drawn from the record.”
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).
Tolbert also contends that the district court applied the enhancement based
largely on a coconspirator’s conduct rather than Tolbert’s own, although
Guidelines Amendment 792 (effective as of November 1, 2015) makes clear that
the focus of U.S.S.G. § 2B1.1(b)(10)(C) is conduct in which the defendant
intentionally engaged or caused.
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“We consider three factors when assessing whether an amendment to the
Guidelines applies retroactively: (1) whether the amendment is listed as a
retroactive amendment in U.S.S.G. § 1B1.10[]; (2) whether the amendment is
characterized as a clarification; and (3) whether the amendment resolves a circuit
split.” United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016). None
of those factors applies here. The 2015 amendment constituted a substantive
change to the Guidelines, not a clarification; the amendment did not purport to
resolve a circuit split; and Amendment 792 is not among those listed in U.S.S.G.
§§ 1B1.10(c) or (d). Moreover, the record suggests that Tolbert’s own conduct
supported two of the district court’s three reasons for applying the enhancement.
Tolbert presented himself as a “client” of his coconspirator masquerading as an
attorney, and actively solicited investment in Levette, the alleged shell corporation.
AFFIRMED.
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