United States v. Stanford

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-1-2006
USA v. Stanford
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5332
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Recommended Citation
"USA v. Stanford" (2006). 2006 Decisions. Paper 251.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-5332
UNITED STATES OF AMERICA
v.
MARK L. STANFORD,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 04-cr-00184
District Judge: The Honorable David S. Cercone
Argued October 25, 2006
Before: SMITH, FISHER, and COWEN, Circuit Judges
(Filed November 1, 2006)
Paul D. Boas (Argued)
5th Floor
429 Fourth Avenue
Law & Finance Building
Pittsburgh, PA 15219
Counsel for Appellant
Robert L. Eberhardt
Michael L. Ivory (Argued)
Office of the United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219
Counsel for Appellee
OPINION
SMITH, Circuit Judge.
In the spring and early summer of 2001, Mark L. Stanford wanted to purchase a
boat from Fox Chapel Sea Ray priced at $437,693. All that was standing in the way of
that purchase was his lack of the necessary funds and his inability to obtain the requisite
credit. Undeterred, Stanford devised a scheme to obtain both the funds and the credit.
The scheme eventually unraveled. On July 27, 2004, Mark L. Stanford waived his right
to be indicted and pleaded guilty to an Information charging him with violating 18 U.S.C.
§ 1344(1) by using a scheme and artifice to defraud First Union Bank “[f]rom in or
around June of 2001, and continuing thereafter until May of 2002 . . . .”
Thereafter, Stanford vigorously challenged several aspects of the presentence
report (PSR) prepared in advance of his sentencing. The only relevant challenge for
purposes of this appeal is his assertion that the PSR erroneously used the 2001 edition of
the United States Sentencing Guidelines (U.S.S.G. or Guidelines) instead of the 2000
edition, thereby committing an ex post facto violation. According to Stanford, all of the
fraudulent activity occurred in June 2001. Because this activity occurred when the 2000
edition of the Guidelines was in effect, Stanford contends that the District Court erred by
using the 2001 version which did not become effective until November 1, 2001.
Application of the 2001 edition of the Guidelines yielded an advisory guideline
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range of 18 to 24 months. Using the 2000 edition of the Guidelines, however, would
have resulted in a guideline range of 10 to 16 months. Although the District Court used
the 2001 edition of the Guidelines, the Court departed downward and imposed a sentence
of eight months of imprisonment.
Stanford appealed, contending that the District Court erred by failing to use the
more favorable 2000 edition of the Guidelines. The District Court had jurisdiction under
18 U.S.C. § 3231. Appellate jurisdiction exists pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006). “We
exercise plenary review over whether the District Court applied the correct version of the
Sentencing Guidelines.” United States v. Brennan, 326 F.3d 176, 197 (3d Cir. 2003)
(citing United States v. Bertoli, 40 F.3d 1384, 1403 (3d Cir.1994)).
The District Court recognized that U.S.S.G. § 1B1.11(b)(1) instructs that it must
“use the Guidelines Manual in effect on the date that the offense of conviction was
committed.” To determine when the offense of conviction was committed, the District
Court relied upon Application Note 2 of U.S.S.G. § 1B1.11, which provides that “[u]nder
subsection (b)(1), the last date of the offense of conviction is the controlling date for ex
post facto purposes.” We find no error in the District Court’s application of the 2001
edition of the Guidelines. As the Supreme Court instructed in United States v. Broce, 488
U.S. 563 (1989), a guilty plea “‘is more than a confession which admits that the accused
did various acts.’ Boykin v. Alabama, 395 U.S. 238, 242 (1969). It is an ‘admission that
he committed the crime charged against him.’ North Carolina v. Alford, 400 U.S. 25, 32
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(1970).” Broce, 488 U.S. at 570. Here, the Information charged that the scheme and
artifice to defraud “continu[ed] thereafter until May of 2002.” Thus, Stanford’s
admission that he engaged in fraudulent activity after November 1, 2001 provided a
sufficient basis for the District Court to apply the 2001 edition of the Guidelines. See
United States v. Moscony, 927 F.2d 742, 754 (3d Cir. 1991) (rejecting the contention that
there was an ex post facto violation by applying the new version of the Guidelines
inasmuch as the RICO offense of conviction was a “straddle crime” that continued after
the effective date of the new guidelines).
We will affirm the judgment of the District Court.
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