United States v. Kenneth Lucas, II , 539 F. App'x 826 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50287
Plaintiff - Appellee, D.C. No. 2:09-cr-01005-VBF-1
v.
MEMORANDUM*
KENNETH JOSEPH LUCAS, II, AKA
Kenneth Joseph Lucas,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-50411
Plaintiff - Appellee, D.C. No. 2:09-cr-01005-TJH-1
v.
KENNETH JOSEPH LUCAS, II, AKA
Kenneth Joseph Lucas,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50046
Plaintiff - Appellee, D.C. No. 2:09-cr-01005-TJH-3
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
JONATHAN PRESTON CLARK, AKA
Preston Clark, AKA John Prestone, AKA
Jonathan Prestone,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50202
Plaintiff - Appellee, D.C. No. 2:09-cr-01096-GAF-1
v.
KENNETH JOSEPH LUCAS, II, AKA
Kenneth Joseph Lucas,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank and Terry J. Hatter, Jr., Senior District Judges, and Gary
Allen Feess, District Judge, Presiding
Argued and Submitted August 6, 2013
Pasadena, California
Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
Senior District Judge.**
**
The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.
In these consolidated appeals, Kenneth Joseph Lucas, II, appeals the 132-
month sentence imposed by the district court following his guilty plea to one count
of wire and bank fraud conspiracy, in violation of 18 U.S.C. § 1349; forty-three
counts of bank fraud, in violation of 18 U.S.C. § 1344; one count of aggravated
identity theft, in violation of 18 U.S.C. § 1028A; one count of computer fraud
conspiracy, in violation of 18 U.S.C. § 371; two counts of computer fraud, in
violation of 18 U.S.C. § 1030(a)(4); and one count of money laundering
conspiracy, in violation of 18 U.S.C. § 1956. Lucas also appeals the district
court’s modification of the 60-month sentence imposed following his guilty plea to
manufacture of 100 or more marijuana plants, in violation of 21 U.S.C.
§ 841(a)(1).
Jonathan Preston Clark appeals the 40-month sentence imposed by the
district court following his guilty plea to one count of wire and bank fraud
conspiracy, in violation of 18 U.S.C. § 1349; one count of bank fraud, in violation
of 18 U.S.C. § 1344; one count of computer fraud conspiracy, in violation of 18
U.S.C. § 371; and one count of money laundering conspiracy, in violation of 18
U.S.C. § 1956.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the 132-
month sentence in Lucas’s fraud case; vacate the district court’s April 26, 2012
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Amended Judgment in Lucas’s marijuana case; and vacate and remand for
resentencing in Clark’s fraud case.
A. Nos. 11-50287 and 11-50411
1. The district court did not clearly err in determining the loss amount
attributable to Lucas for purposes of a sentence enhancement under U.S.S.G.
§ 2B1.1(b)(1). The evidence in support of the district court’s approximation
possessed “‘sufficient indicia of reliability to support its probable accuracy’” and
was sufficient to establish “the approximate quantity by a preponderance of the
evidence.” United States v. August, 86 F.3d 151, 154 (9th Cir. 1996) (quoting
USSG § 6A1.3(a)); see also United States v. Culps, 300 F.3d 1069, 1077 (9th Cir.
2002) (approving the use of a multiplier to approximate drug quantity “[p]rovided
that the approximation has a reliable evidentiary basis and that the court proceeds
with caution”). The record also supports the district court’s conclusion that Lucas
was accountable for losses caused by his codefendants because the losses were
within the scope of the joint undertaking and were reasonably foreseeable to Lucas.
See U.S.S.G. § 1B1.3; United States v. Treadwell, 593 F.3d 990, 1002-03 (9th Cir.
2010).
2. Even assuming Lucas properly raised this claim in the district court,
the district court did not err in applying an enhancement under U.S.S.G.
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§ 2B1.1(b)(15)(A) for an offense under 18 U.S.C. § 1030 involving an intent to
obtain personal information. See U.S.S.G. § 2B1.1 cmt. n.13(A) (2008)
(“‘Personal information’ means sensitive or private information” including
“financial records” or “similar information”); U.S.S.G. § 2B1.1 cmt. n.1 (2010)
(same).
4. The district court did not procedurally err by failing to explain its
reasons for rejecting Lucas’s arguments regarding disparity under plain error
review. The record reflects that the district court considered Lucas’s arguments
and adequately explained its reasons for rejecting them. See United States v.
Trujillo, 713 F.3d 1003, 1009-11 (9th Cir. 2013); United States v. Carty, 520 F.3d
984, 992 (9th Cir. 2008) (en banc). Nor did the district court abuse its discretion
by imposing a substantively unreasonable sentence. See United States v.
Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010) (“When a district judge has
considered the § 3553(a) factors and the totality of the circumstances supports the
sentence, we have held that the sentence is substantively reasonable . . . .”).
Therefore, we affirm Lucas’s sentence in Nos. 11-50287 and 11-50411.
B. No. 12-50202
The district court erred in modifying Lucas’s sentence in the marijuana case.
“Rule 36 is a vehicle for correcting clerical mistakes but it may not be used to
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correct judicial errors in sentencing.” United States v. Penna, 319 F.3d 509, 513
(9th Cir. 2003) (collecting cases and rejecting the government’s argument that the
district court’s initial entry of judgment was akin to a clerical mistake because it
did not reflect “the court’s intention to conduct a jury trial regarding the number of
marijuana plants involved in Penna’s crimes”). The district court’s oral
pronouncement of Lucas’s sentence at the June 27, 2011 hearing matched exactly
the written judgment entered that day.1 That the district court chose a
commencement date which did not result in the total term of imprisonment it
intended does not transform its judicial error into a clerical one. See id. Nor did
the January 10, 2012 order of this court granting Lucas’s motion for voluntary
dismissal in No. 11-50254 confer authority to modify the sentence on the district
court that it did not otherwise have.
1
Compare Transcript of Sentencing Hearing at 33-34, United States v.
Lucas, No. 09-CR-1096-GAF (C.D. Cal. June 27, 2011), ECF No. 92 (“Pursuant to
the Sentencing Reform Act, it is the judgment of the Court that the defendant
Kenneth Joseph Lucas, II, is hereby committed on the single-count indictment, to
the custody of the Bureau of Prisons, to be imprisoned for a term of 60 months,
which sentence shall commence to run on January 1, 2016.”) with United States v.
Lucas, No. 09-CR-1096-GAF (C.D. Cal. June 27, 2011), ECF No. 76 (judgment
and probation/commitment order) (“Pursuant to the Sentencing Reform Act of
1984, it is the judgment of the Court that the defendant, Kenneth Joseph Lucas, II,
is hereby committed on the Single-Count Indictment to the custody of the Bureau
of Prisons to be imprisoned for a term of 60 months, which sentence shall
commence to run on January 1, 2016.”).
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Therefore, we vacate the district court’s April 26, 2012 Amended Judgment.
The district court’s June 27, 2011 Judgment shall remain in effect.
C. No. 12-50046
1. Even assuming Clark properly raised this claim in the district court,
the district court’s determination of the loss amount attributable to Clark for
purposes of a sentence enhancement under U.S.S.G. § 2B1.1(b)(1) is not clearly
erroneous. The record supports the district court’s conclusion that the amount of
money transferred to recipients in Egypt reflected approximately one third of the
money withdrawn from the drop accounts and, further, that the amount withdrawn
from the drop accounts (“actual loss”) reflected only a portion of the amount
fraudulently transferred from the victim accounts into the drop accounts (“intended
loss”). See August, 86 F.3d at 154. Clark’s contention that the intended loss
multiplier was redundant because the actual loss multiplier already accounted for
the full amount of the fraudulent transfers is not supported by the record.
2. However, because there is no evidence in the record that demonstrates
that Clark managed, directed, or otherwise controlled the conduct of Sylvia
Johnson or any other participant in the money laundering offense, the district court
clearly erred in finding to the contrary. Therefore, the district court should not
have imposed a two-level leadership enhancement under U.S.S.G. § 3B1.1(c). See
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United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012) (“Under this circuit’s
clear articulation of § 3B1.1(c), even a defendant with an important role in an
offense cannot receive an enhancement unless there is also a showing that the
defendant had control over others.” (internal citation and quotation marks
omitted)).
If the district court had not applied this enhancement, Clark’s total offense
level would have been 18 rather than 20, which would have resulted in an
applicable guidelines range of 30-37 months rather than 37-46 months. On review
of the record, we are not convinced that the district court would have arrived at the
same sentence had it started with the correct Guidelines range. See United States v.
Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011). Therefore, we vacate
Clark’s sentence and remand for resentencing.
Nos. 11-50287 & 11-50411: AFFIRMED.
No. 12-50046: VACATED and REMANDED.
No. 12-50202: The April 26, 2012 Amended Judgment is VACATED.
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