Document Info

DocketNumber: 13-14147

Judges: Wilson, Rosenbaum, Fay

Filed Date: 9/16/2014

Status: Non-Precedential

Modified Date: 11/6/2024

  •              Case: 13-14147   Date Filed: 09/16/2014   Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-14147
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:06-cr-00003-TCB-AJB-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MICHAEL W. WHITE,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (September 16, 2014)
    Before WILSON, ROSENBAUM, and FAY, Circuit Judges.
    PER CURIAM:
    Michael W. White appeals his 96-month sentence, following his conviction
    of numerous crimes involving stolen motor vehicles. We affirm.
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    I. BACKGROUND
    A. Conviction and Initial Sentence—2006 Case
    In March 2006, a federal grand jury indicted White in the case before this
    court (the “2006 Case”), for one count of owning, maintaining, or operating a
    “chop shop,”1 in violation of 18 U.S.C. § 2322 (Count 1); three counts of
    transporting stolen motor vehicles, in violation of 18 U.S.C. § 2312 (Counts 2, 5,
    8); three counts of receiving, possessing, or disposing of stolen motor vehicles, in
    violation of 18 U.S.C. § 2313(a) (Counts 3, 6, 9); two counts of possessing with
    intent to sell or dispose of motor vehicles, the vehicle identification numbers
    (“VINs”) of which had been altered or removed, in violation of 18 U.S.C. § 2321
    (Counts 4, 7); and two counts of altering or removing VINs, in violation of 18
    U.S.C. § 511 (Counts 10-11). 2 The indictment alleged White committed the
    crimes between January 2003 and January 2006. The indictment also contained a
    forfeiture provision and named in various counts several codefendants, Michael
    Ivey, Scott Hughes, and Nathan Wynn. A jury convicted White of all 11 counts,
    following a 4-day trial. In June 2008, the district judge imposed a general 94-
    month term of imprisonment, to be followed by 3 years of supervised release. We
    1
    A “chop shop” operation involves dismantling stolen automobiles and selling their
    parts. United States v. Fuentes, 
    107 F.3d 1515
    , 1517 n.1 (11th Cir. 1997).
    2
    The indictment erroneously listed 18 U.S.C. § 2321 as the statute applicable to Count
    10, which has been corrected in White’s most recent judgment.
    2
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    affirmed White’s conviction and sentence on direct appeal. United States v. White,
    349 F. App’x 381, 383 (11th Cir. 2009) (per curiam).
    B. 2009 Case—Northern District of Georgia, Case No. 3:09-cr-00016-JOF-AJB-1
    In December 2009, a federal grand jury issued a new indictment against
    White (the “2009 Case”), based on conduct White allegedly committed while on
    pretrial release in the 2006 Case. The 2009 indictment charged White with several
    chop-shop and stolen-motor-vehicle crimes, including possessing with intent to sell
    or dispose of vehicles with altered or removed VINs (Count 6), and one count of
    committing an offense, while on pretrial release in the 2006 Case (Count 9). The
    2009 indictment alleged White committed the offenses between September 2006
    and February 2008.
    White pled guilty to Counts 6 and 9 under a plea agreement that included an
    appeal waiver. In January 2011, the district judge imposed consecutive prison
    terms of 34 months on Count 6 and 12 months on Count 9, for a total of 46 months
    of imprisonment, to be served consecutively to White’s undischarged sentence in
    the 2006 Case. In March 2012, we granted the government’s motion to dismiss
    White’s appeal in the 2009 Case, based on the appeal waiver in his plea agreement.
    United States v. White, No. 11-10119 (11th Cir. Mar. 23, 2012).
    3
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    C. Motion to Vacate the Subject Conviction and Initial Sentence—2006 Case
    In April 2011, White filed a pro se 28 U.S.C. § 2255 motion to vacate his
    conviction and sentence in the 2006 Case. He raised several grounds for relief,
    including his 94-month sentence exceeded the 5-year statutory maximum
    applicable to Counts 10 and 11, and his indictment listed the wrong statute as for
    Count 10. Following a hearing before a magistrate judge, the district judge granted
    White’s § 2255 motion in part, vacated his sentence because it was an unlawful
    general sentence, and ordered a new sentencing hearing.
    D. Resentencing—2006 Case
    In this case, White’s probation officer prepared a new presentence
    investigation report (“PSI”), which applied the 2013 Sentencing Guidelines
    Manual. The PSI calculated a base offense level of 8, under U.S.S.G. § 2B6.1(a).
    The PSI added 10 levels based on a total loss amount of $154,274.75, under
    § 2B6.1(b)(1)(B), and an additional 3 levels, for White’s role in the offense, under
    U.S.S.G. § 3B1.1(b). The loss amount was based on vehicles stolen between
    March or April 2003 and October 2005.
    The PSI calculated a criminal-history score of 16 and a criminal history
    category of VI. The probation officer assigned criminal-history points for prior
    federal and state convictions for theft by receiving stolen property; possession of a
    motor vehicle with an altered VIN; owning, operating, or conducting a chop shop;
    4
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    and conspiracy to commit several motor-vehicle offenses; and White had
    committed these crimes, while on supervised release in a prior case. The PSI also
    reported unscored prior state convictions for burglary, criminal use of an article
    with an altered identification mark, theft by receiving stolen property, and theft by
    taking. The PSI showed White previously had been convicted of a total of 16
    counts of theft in 5 prior cases, and his probation had been revoked a total of 7
    times in 4 prior cases.
    Based on a total offense level of 21 and a criminal history category of VI,
    the PSI calculated a Sentencing Guidelines range of 77-96 months of
    imprisonment. White was subject to statutory maximum prison terms of 15 years
    on Count 1, 10 years on Counts 2-9, and 5 years on Counts 10-11. See 18 U.S.C.
    §§ 511(a) (Counts 10-11), 2312 (Counts 2, 5, 8), 2313(a) (Counts 3, 6, 9), 2321(a)
    (Counts 4, 7), 2322(a)(1) (Count 1).
    The PSI also reported White’s guilty plea and sentence in the 2009 Case,
    under the heading “Offense Behavior Not Part of Relevant Conduct.” (PSI ¶ 58).
    The charges in the 2009 Case arose from a chop shop operated by White and Karen
    Wright, who also was named as a defendant in the 2009 Case. White committed
    the crimes in the 2009 Case between September 2006, when he was released on
    bond and under pretrial supervision in this case, and February 2008, when he was
    convicted and remanded in this case.
    5
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    During White’s August 2013 resentencing hearing in this case, the district
    judge calculated a total offense level of 21, a criminal history category of VI, and a
    resulting Sentencing Guidelines range of 77-96 months of imprisonment. Under
    United States v. Fuentes, 
    107 F.3d 1515
    (11th Cir. 1997), and U.S.S.G. § 5G1.3,
    White argued that the 2009 Case should be considered relevant conduct to this
    case, and White’s applicable sentence therefore should run concurrently with part
    of the sentence in his 2009 Case. He asked for a 77-month imprisonment sentence,
    to be served concurrently with the 34-month sentence in the 2009 Case (for
    possessing with intent to sell or dispose of vehicles with altered or removed VINs),
    and consecutively to the 12-month sentence in that case (for committing an offense
    while on release). See 18 U.S.C. § 3147 (requiring a sentence imposed for
    committing an offense while on supervised release to run consecutively to any
    other sentence).
    The district judge stated he had been impressed by the “breathtaking extent”
    of White’s criminal enterprise and significant history of violating probation, and he
    noted that White had numerous theft convictions. R. at 2693. The judge imposed
    concurrent prison terms of 94 months on Counts 1-9 and 60 months on Counts 10-
    11, all to be served consecutively to the 46-month sentence in the 2009 Case, and
    to be followed by concurrent 3-year terms of supervised release on each count.
    The judge also reimposed previously ordered restitution. In sentencing White, the
    6
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    judge stated he would have imposed the same sentence, even if he had erred in
    overruling White’s relevant-conduct objection, in view of the need for adequate
    deterrence and punishment.
    White argues on appeal that, under Fuentes, the district judge clearly erred
    when he failed to find White’s conviction in the 2009 Case constituted relevant
    conduct for purposes of sentencing in this case. According to White, the conduct
    underlying the 2009 Case was composed of the same criminal acts, committed at
    nearly the same time, and with the same purpose and goal, as the conduct
    underlying his sentence before this court. White further argues the district judge
    procedurally erred by failing to calculate properly his Sentencing Guidelines range.
    In his reply brief, White argues for the first time that a currently pending proposed
    amendment to § 5G1.3 issued on April 30, 2014, 3 supports his position.
    II. DISCUSSION
    We review de novo the application of § 5G1.3. United States v. Bidwell,
    
    393 F.3d 1206
    , 1208-09 (11th Cir. 2004). Under § 5G1.3, when a term of
    imprisonment resulted from another offense that is relevant conduct to the subject
    crime of conviction and was the basis for an increase in the offense level under
    Chapters 2 or 3 of the Sentencing Guidelines, the sentence “shall be imposed to run
    concurrently to the remainder of the undischarged term of imprisonment.”
    3
    White filed his initial appellate brief on April 23, 2014.
    7
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    U.S.S.G. § 5G1.3(b); United States v. Knight, 
    562 F.3d 1314
    , 1329 (11th Cir.
    2009). If the subject crime was committed while the defendant was serving a
    prison term, or after sentencing for, but before beginning to serve a prison term, the
    sentence must run consecutively to the undischarged prison term. U.S.S.G.
    § 5G1.3(a). In all other cases, the sentence may be imposed to run concurrently,
    partially concurrently, or consecutively to a prior undischarged prison term. 
    Id. § 5G1.3(c).
    By statute, “[m]ultiple terms of imprisonment imposed at different
    times run consecutively unless the court orders that the terms are to run
    concurrently.” 18 U.S.C. § 3584(a). Both § 3584 and § 5G1.3 “evince a
    preference for consecutive sentences when imprisonment terms are imposed at
    different times.” United States v. Ballard, 
    6 F.3d 1502
    , 1506 (11th Cir. 1993).
    In reviewing the district judge’s application of the Sentencing Guidelines,
    we apply the version of the Guidelines in effect on the date of the sentencing
    hearing. United States v. Jerchower, 
    631 F.3d 1181
    , 1184 (11th Cir. 2011); see
    also U.S.S.G. § 1B1.11. Although subsequent clarifying amendments to the
    Guidelines are to be considered on appeal, substantive guideline amendments are
    not applied retroactively on appeal. 
    Jerchower, 631 F.3d at 1184
    .
    On April 30, 2014, the Sentencing Commission submitted to Congress a
    proposed amendment to § 5G1.3. See 79 Fed. Reg. 25,996, 25,997, 26,010-11
    (May 6, 2014). If adopted, the amended § 5G1.3 will no longer include the
    8
    Case: 13-14147     Date Filed: 09/16/2014   Page: 9 of 11
    requirement that a prior undischarged term of imprisonment was the basis for an
    increase in his offense level, as a prerequisite to the imposition of concurrent
    sentences. See 
    id. at 26,010.
    Absent congressional action to the contrary, the
    amendment will become effective on November 1, 2014. See 
    id. at 25,997;
    see
    also 28 U.S.C. § 994(p); United States v. Colon, 
    707 F.3d 1255
    , 1260-61 (11th Cir.
    2013). We generally will not consider arguments raised for the first time in a reply
    brief. See United States v. Evans, 
    473 F.3d 1115
    , 1120 (11th Cir. 2006).
    Fuentes, which addressed a prior version of § 5G1.3(b), is inapplicable here.
    In that case, defendant Fuentes had been convicted in state court of stealing three
    cars between August 1989 and February 1991. 
    Fuentes, 107 F.3d at 1518
    .
    Fuentes had taken each car to a chop shop, stripped it, removed the VINs, and sold
    the parts. 
    Id. The state
    court sentenced him in March 1992 to a total of 12 years of
    imprisonment. 
    Id. Fuentes also
    had stolen and “chopped” at least 12 other cars
    between the summer of 1991 and October of that year, when he was arrested. 
    Id. In June
    1993, a federal grand jury indicted Fuentes for his chop-shop
    activities, after which he pled guilty to conspiracy to alter VINs and to possess
    with intent to dispose of motor vehicles and parts with altered VINs. 
    Id. The district
    judge sentenced Fuentes to five years of imprisonment, to be served
    consecutively to his undischarged state sentence. 
    Id. at 1519.
    9
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    On appeal, we concluded the district judge had misinterpreted § 5G1.3(b).
    See 
    id. at 1524-26.
    We explained (1) the state offenses were required to be
    considered relevant conduct under U.S.S.G. § 1B1.3(a)(2), because the state and
    federal offenses formed both the same course of conduct and a common scheme or
    plan; and (2), when a defendant is serving an undischarged sentence based on
    conduct that is required to be considered in a later sentencing as relevant conduct
    under § 1B1.3, the later sentence should run concurrently to the undischarged
    sentence under § 5G1.3(b). 
    Id. Unlike the
    version of § 5G1.3(b) in effect at the time of Fuentes, the current
    version of § 5G1.3(b) requires the sentence to run concurrently to a prison term
    resulting from another crime if the other crime (1) is relevant conduct under
    § 1B1.3(a)(1)-(3); and (2) was the basis for an increase in the offense level. See
    U.S.S.G. § 5G1.3(b); 
    Knight, 562 F.3d at 1329
    . The version of § 5G1.3(b) in
    effect at the time of Fuentes did not require the other offense to have been the basis
    for an increase in the instant offense level. See U.S.S.G. App. C, Amend. 660;
    
    Fuentes, 107 F.3d at 1520-21
    & n.8; compare U.S.S.G. § 5G1.3 (1994), with
    U.S.S.G. § 5G1.3 (2013). White’s conviction in the 2009 Case was not the basis
    for an increase in his base offense level in this case, and it did not impact his loss-
    amount increase or role enhancement. Consequently, the district judge did not err
    10
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    under § 5G1.3 by ordering White’s sentence in the 2006 case to be served
    consecutively to the sentence in the 2009 Case.
    White’s assertion that the district judge failed to calculate properly his
    Sentencing Guidelines range is essentially a restatement of his relevant-conduct
    argument, and is refuted by the record. At the beginning of White’s resentencing
    hearing, the judge properly calculated a total offense level of 21, a criminal history
    category of VI, and a resulting Guidelines range of 77-96 months of imprisonment.
    The judge was not required to recalculate the same Guidelines range using the
    same figures after implicitly rejecting White’s § 5G1.3 argument. Regardless of
    whether White’s argument as to the proposed amendment to § 5G1.3 is properly
    before us, it has no bearing on this appeal. White’s argument is based on a version
    of § 5G1.3 that was not in effect at the time of his sentencing, is not yet in effect,
    and will become effective later this year, only if Congress does not modify or
    disapprove the amendment. See 28 U.S.C. § 994(p); 79 Fed. Reg. at 26,010-11;
    
    Colon, 707 F.3d at 1260-61
    ; 
    Jerchower, 631 F.3d at 1184
    .
    AFFIRMED.
    11