United States v. Lewis

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 26 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-4304
v. Dist. of Utah
CINDY LEWIS, (D.C. No. 02-CR-740-DS)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **
Cindy Lewis appeals the order of restitution 1
imposed by the United States
District Court for the District of Utah. Lewis had pled guilty to one count of
making false statements to a Postal Inspector who was investigating a check
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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Lewis was sentenced to five months in prison and ordered to pay
$29,816.14 in restitution. Although Lewis has served her sentence, this appeal is
not moot as she has not fully paid the restitution.
cashing scheme, in violation of 18 U.S.C. § 1001. Lewis claims that the district
court violated United States Sentencing Guideline § 1B1.3(a)(1) (USSG) and
Blakely v. Washington, 124 S. Ct. 2531 (2004), by making findings of fact during
the restitution hearing when it considered her involvement in the check cashing
scheme as relevant conduct for sentencing and restitution purposes. Finding no
error by the district court, we affirm.
Background
A grand jury issued a four-count indictment against Lewis charging her
with conspiracy to steal and alter checks in the U.S. mail, making false statements
to a Postal Inspector, and two counts of possession of stolen mail. On June 17,
2003, Lewis entered into a plea agreement with the United States in which she
pled guilty to making false statements to the Postal Inspector and agreed to “pay
restitution, if any, for all relevant conduct (USSG § 1B1.3) including counts to
which I have not pled guilty and conduct charged in the indictment to be
determined at a restitution hearing.” (App. Vol. I, 10-11) (emphasis added). In
exchange, the government agreed to dismiss the remaining three counts of the
indictment and recommend a two-level reduction in her sentence for acceptance
of responsibility. The government also agreed to recommend a sentence on the
“low end of the guideline range.”
Before the restitution hearing took place, Lewis contested what the court
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could consider as relevant conduct for purposes of restitution and sentence
enhancement. Under USSG § 2B1.1(b), a six-level upward adjustment is
appropriate if loss resulting from a crime involving fraud exceeds $30,000, and a
two-level upward adjustment is applicable if the fraud victimizes more than ten
persons. Lewis asserted that her actions during the check cashing scheme were
not relevant conduct under USSG § 1B1.3(a)(1) because they took place several
months before she made false statements to the Postal Inspector, the only crime
for which she was convicted.
At the restitution hearing, the district court heard testimony from Lewis’s
alleged co-conspirator, a handwriting expert who examined certain documents for
evidence of forgery, the Postal Inspector, and Lewis’s ex-husband. The court also
examined checks written, altered, and/or cashed by Lewis. In a written order, the
district court rejected Lewis’s arguments and found that Lewis’s false statements
were part of a common scheme and plan, see USSG § 1B1.3, to steal mail, cash
fraudulent checks, and cover up the crimes. That common scheme and plan
included conduct that resulted in actual and potential losses exceeding $30,000.
At the sentencing hearing held two months later, the court found Lewis’s relevant
conduct included the facts and findings as set forth in the presentence report,
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found the offense to be a total of level twelve, 2
sentenced Lewis to five months in
prison plus twelve months probation, and ordered her to pay restitution in the
amount of $29,816.14. 3
Discussion
I.
We review “the legality of a restitution order de novo, . . . the factual
findings underlying the order for clear error and the amount of restitution for
abuse of discretion.” United States v. Osborne , 332 F.3d 1307, 1314 (10th Cir.
2003).
Lewis argues that the court violated USSG § 1B1.3(a)(1) when it
considered her involvement in the check cashing scheme as relevant conduct.
Lewis reads this particular guideline to mean that a court can only consider as
relevant conduct that conduct which occurred literally “during the commission of,
. . . in preparation for, . . . or in the course of attempting to avoid detection for”
the offense for which she was convicted. USSG § 1B1.3(a)(1). As such, Lewis
A base level six for the offense of lying to the Postal Inspector; a six-level
2
enhancement for losses exceeding $30,000; a two-level enhancement for losses
stemming from more than ten but less than fifty victims; and a two-level
downward adjustment for acceptance of responsibility.
The actual loss, and thereby the amount Lewis was required to pay as
3
restitution, was less than the total amount involved in the scheme because some
forged checks were recovered before they could be negotiated. See App. Vol. II,
73, 75.
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argues that none of her conduct during the actual check cashing scheme is
relevant for purposes of USSG § 1B1.3(a)(1) because it did not occur during, in
preparation of, or in an attempt to cover the crime of making false statements.
Lewis’s plea agreement, however, specifically allowed for the court to
consider her conduct, for purposes of restitution, as it related to all other counts
of the indictment, including those to which she did not plead guilty. Thus,
Lewis’s interpretation of the guideline is irrelevant because her plea agreement
determined that which the district court could consider as relevant conduct,
including other uncharged conduct. In any event, the district court did not err in
finding the conduct was part of a “common scheme or plan” under USSG
§ 1B1.3(a)(2) since her false statements were designed to evade detection of her
thefts. Therefore, we find that the district court did not violate USSG
§ 1B1.3(a)(1) when it considered Lewis’s involvement in the check cashing
scheme as relevant conduct.
II.
In her Statement in Advance of Restitution Hearing, Lewis argued that she
was unfairly surprised, in violation of Apprendi v. New Jersey , 530 U.S. 466(2000). She claimed the government improperly sought to include her actions
during the check cashing scheme, which she lied about to the inspector, as
relevant conduct. Now on appeal, taking a slightly different approach, Lewis
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argues that Apprendi stands for the proposition that the maximum sentence a
judge may impose is that which is supported by facts as found by a jury. Thus,
Lewis argues, in light of the Supreme Court’s recent decision in Blakely v.
Washington 124 S. Ct. 2531 (2004), that the district court violated her Sixth
Amendment rights when it considered the check cashing scheme as relevant
conduct because those facts were not found by a jury. See Aplt. Motion to Amend
Opening Brief, p.2 (hereinafter “Aplt. Mtn.”).
The Supreme Court in Blakely held that Washington State’s sentencing
guidelines ran afoul of the Sixth Amendment right to trial by jury because they
permitted a defendant’s sentence to be increased based on facts not proved beyond
a reasonable doubt. See Blakely , 124 S. Ct. at 2543. In Blakely , the Court found that
“the relevant ‘statutory maximum’ is . . . the maximum [sentence a judge] may
impose without any additional findings.” Id. at 2537 (emphasis in original). The
Court noted, however, that a defendant’s Sixth Amendment right to trial by jury is
not violated if the defendant stipulates to the facts upon which the sentence is based
or consents to judicial fact finding. Id. at 2451. Blakely has not yet been extended
to the federal sentencing guidelines, which are at issue here, see Blakely , 124 S. Ct.
at 2538, n.9 (“The Federal Guidelines are not before us, and we express no opinion
on them.”), although the Supreme Court has recently heard arguments to extend the
reasoning of Blakely to the federal sentencing regime. See United States v. Booker ,
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375 F.3d 508 (7th Cir. 2004), cert. granted , 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004)
(No. 04-104); Fanfan v. U.S. , No. 03-47, 2004 WL 1723114 (D. Maine 2004), cert.
granted , 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004) (No. 04-105).
The government correctly points out that we need not reach the Blakely issue
in this restitution appeal. We recently held that a restitution order does not violate
either Blakely or Apprendi if it does not exceed the statutory maximum restitution
amount or the value of the damages to the victim. United States v. Wooten , 377 F.3d
1134, 1144 n.1 (10th Cir. Aug. 10, 2004). The district court here imposed restitution
pursuant to 18 U.S.C. § 3663, which does not specify a statutory maximum for
restitution. Moreover, Lewis does not, and has not, challenged that the restitution
exceeds the amount her victims lost. Thus, under our holding in Wooten , the
restitution Lewis was ordered to pay under 18 U.S.C. § 3663 does not exceed a
statutory maximum and does not violate Apprendi .
WE AFFIRM.
Entered for the Court
Timothy M. Tymkovich
Circuit Court Judge
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