United States v. Howard

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 14, 2008
No. 07-10116 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TAWANA LYNN HOWARD
Defendant-Appellant
Appeal from the United States District Court for the
Northern District of Texas, Abilene Division
USDC No. 1:06-cr-0017-C
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
Defendant-Appellant Tawana Lynn Howard (“Howard”) appeals from the
sentence imposed by the district court after her guilty plea to wire fraud.
Howard first challenges the district court’s calculation of victim losses, relevant
to both the applicable length of imprisonment and the amount of required
restitution. Howard also challenges the district court’s determination of her
criminal history category. For the reasons set forth below, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-11324
I.
Tawana Lynn Howard placed her unborn child up for adoption through
three agencies and received money from them and from their clients but after
the baby’s birth Howard refused to proceed with any adoption and kept the baby.
She was charged by indictment with three counts of wire fraud, in violation of
18 U.S.C. § 1343, and five counts of mail fraud, in violation of 18 U.S.C. § 1341.
She pleaded guilty to one count of wire fraud.
The Pre-Sentence Report (“PSR”) assigned Howard a base offense level of
seven pursuant to U.S.S.G. § 2B1.1. The PSR determined that the amount of
loss was $34,678.25 and six offense levels were added pursuant to
§ 2B1.1(b)(1)(D). Howard received a two-level reduction for accepting
responsibility for her crime, bringing the total offense level to 11.
In calculating Howard’s criminal history, the PSR assigned two points for
a forgery offense that occurred in April 1997 and two more points for a similar
forgery offense that occurred in May of the same year. Howard was given four
total additional criminal-history points for three other convictions. The resulting
eight-point total put Howard in criminal-history category IV. Her resulting
guidelines sentence range was 24 to 30 months.
At sentencing Howard raised two relevant objections. The first was that
the amount of victim losses cited in the PSR was too high. The second was that
the two forgery offenses considered in the criminal history calculation should
have been treated as related offenses which would have reduced her criminal
history category to III instead of IV. The district court overruled Howard’s
objections and adopted the PSR as amended. Howard was sentenced to
imprisonment for a term of 24 months, with that term to run consecutive to any
sentence imposed in state-court proceedings. She was also ordered to pay
restitution in the amount of $34,678.25, the amount of victim losses calculated
in the PSR. Howard timely appealed.
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II.
Howard raises the same two issues on appeal that she raised in the district
court. We consider each issue below.
A.
Howard argues first that the district court erred in assessing the victim
losses at $34,678.25 both for calculating her criminal history score and for
restitution. A district court’s factual findings at sentencing are reviewed for
clear error and its legal analysis is reviewed de novo. United States v. Olis, 429
F.3d 540, 545 (5th Cir. 2005) (citing Nixon v. Epps, 405 F.3d 318, 322 (5th Cir.
2005)). An amount of loss determination is reviewed for clear error. United
States v. Edwards, 303 F.3d 606, 645 (5th Cir. 2002); United States v. Morrow,
177 F.3d 272, 301 (5th Cir. 1999). The legality of the district court's order of
restitution is reviewed de novo. United States v. Hughey, 147 F.3d 423, 436 (5th
Cir.), cert. denied, 525 U.S. 1030 (1998). “Once we have determined that an
award of restitution is permitted by the appropriate law, we review the propriety
of a particular award for an abuse of discretion.” Id. (internal citation omitted).
This Court must first determine whether the method of calculating the
amount of loss was legally acceptable. Olis, 429 F.3d at 545 (citations omitted).
Assuming that its methodology is correct, the sentencing court enjoys wide
latitude in making its estimate of loss. United States v. Cothran, 302 F.3d 279,
287 (5th Cir. 2002). Absent credible rebuttal evidence, the sentencing court may
adopt the PSR as its own. United States v. Valles, 484 F.3d 745, 759 (5th Cir.
2007).
Loss is the greater of actual or intended loss. U.S.S.G. § 2B1.1, cmt. n.
3(A). Actual loss means the reasonably foreseeable pecuniary harm that
resulted from the offense. Id. at cmt. n. 3(A)(I). Reasonably foreseeable
pecuniary harm means pecuniary harm the defendant knew or should have
known was a potential result of the offense. Id. at cmt. n. 3(A)(iv). The
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defendant is responsible at sentencing for losses caused directly by the offense
conduct. Olis, 429 F.3d at 546 (citation omitted). Loss for sentencing purposes,
however, generally does not include the victim’s consequential or incidental
losses. United States v. Izydore, 167 F.3d 213, 223 (5th Cir. 1999).
Howard asserts first that the Government failed to present any witnesses
or documentation to establish the amount of loss. Therefore it failed to meet its
burden of proving the amount of loss. The district court, however, made a
reasonable estimate of the loss based on reliable evidence set forth in the PSR.
Because Howard did not show that the information contained in the PSR was
not materially untrue, inaccurate, or unreliable, the district court did not clearly
err in adopting the PSR at sentencing.
Howard also argues that the losses of “Couple A,” the first family to whom
she promised her unborn child, should not be included in the victim loss
calculation because she always intended to give the baby to this family and was
prevented from doing so only because the father refused to terminate his
parental rights. Because she intended to place her child for adoption with
“Couple A,” her argument continues, no offense conduct committed by Howard
directly caused the losses “Couple A” experienced in attempting to adopt. This
argument is unavailing, however, because Howard stated at sentencing that she
intended to place her child for adoption with “Couple B,” not “Couple A,” and
never intended to cause loss to “Couple B,” not “Couple A.” The district court
made no explicit credibility determinations on this point, but when it adopted
the PSR over Howard’s objections it implicitly rejected Howard’s testimony that
she did not intend to cause “Couple B” any loss. Cf. United States v. Richardson,
998 F.2d 1014 (5th Cir. 1993) (unpublished opinion). Howard’s present
argument, that it was “Couple A” and not “Couple B” that she never intended to
cause any loss, reinforces the district court’s decision to ignore her testimony in
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this respect. We decline to consider Howard’s inconsistent argument made to us
for the first time on appeal, which in any event is unpersuasive.
Howard argues finally that the attorneys’ and agency fees expended by
“Couple B” and “Couple C” should not be included in the victim loss calculation
or restitution because they are collateral expenses that are incidental or
consequential. It is true that generally the calculation of loss does not include
the victim’s consequential or incidental losses. Izydore, 167 F.3d at 223. A
defendant is responsible, however, for any reasonably foreseeable pecuniary
harm caused by the offending conduct. See U.S.S.G. § 2B1.1, cmt. n. 3(A)(I).
Howard points to a Seventh Circuit decision that held that attorneys’ fees
incurred in mitigating damages of a fraudulent scheme are consequential in
nature. See United States v. Seward, 272 F.3d 831, 839 (7th Cir. 2001). This
Court, however, has held that when attorneys’ fees are part of the fraudulent
conduct they are not consequential in nature. See United States v. Mikolajczyk,
137 F.3d 237, 245 (5th Cir. 1998). Here, the money expended by the families for
adoption agency fees, attorney’s fees, and travel costs were directly caused by
Howard’s actions and were reasonably foreseeable to her. As such, the district
court did not err in including these costs in determining Howard’s sentence.
Similarly, for restitution purposes, legal fees incurred by a victim of fraud
must ordinarily be excluded from the calculation of loss. United States v.
Onyiego, 286 F.3d 249, 256–57 (5th Cir. 2002). As stated above, the record
reflects that all the legal fees paid by the three families included in the
restitution calculation were an integral part of the adoption process. As such,
Howard should have foreseen that the victims would incur these costs to adopt
the child. As such, the district court did not err in including these fees as victim
losses for purposes of restitution.
B.
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No. 06-11324
Howard next argues that the district court erred in refusing to consider
her two prior forgery convictions as related. Generally, application of the
sentencing guidelines is a question of law subject to de novo review. United
States v. Villegas, 404 F.3d 355, 361–62 & n.7 (5th Cir. 2005). This Court
reviews the finding that prior convictions are not related de novo. United States
v. Robinson, 187 F.3d 516, 519 (5th Cir. 1999). The determination of whether
convictions were functionally consolidated for trial or sentencing is a question
of fact that is reviewed for clear error. See Buford v. United States, 532 U.S. 59,
66 (2001).
The Guidelines provide that, in assessing a defendant’s criminal history
points, “[p]rior sentences imposed in related cases are to be treated as one
sentence for purposes of §§ 4A1.1(a), (b), and (c).” U.S.S.G. § 4A1.2(a)(2). The
commentary to § 4A1.2(a)(2) defines “related cases” as follows:
Prior sentences are not considered related if they were for offenses
that were separated by an intervening arrest (i.e., the defendant is
arrested for the first offense prior to committing the second offense).
Otherwise, prior sentences are considered related if they resulted
from offenses that (A) occurred on the same occasion, (B) were part
of a single common scheme or plan or (C) were consolidated for trial
or sentencing.
Id., cmt. n.3.
Howard first argues that the fact that there was no intervening arrest
between the two forgery charges compels the conclusion that the forgeries should
be considered related for purposes of criminal history calculation. The record
reflects that Howard negotiated the second check seven days after the first
check. The checks were drawn on different accounts, for different amounts, and
negotiated to two different payees. Howard’s argument is foreclosed by this
Court’s decision in Hayes, which holds that the lack of an intervening arrest
between prior convictions does not preclude a finding that the two convictions
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are not related. See United States v. Hayes, 342 F.3d 385, 388–89 (5th Cir.
2003).
Howard next argues that the two forgeries occurred on the same occasion
and were part of a single common scheme or plan. This Court has held that two
offenses may have occurred on the same occasion where they occurred
sequentially and close-in-time. See United States v. Moreno-Arrendondo, 255
F.3d 198, 207 (5th Cir. 2001). The two check forgeries, however, occurred seven
days apart from each other, and are thus not close-in-time such that they should
be considered related offenses. Additionally, the fact that prior offenses are
factually and temporally close is insufficient to establish a common scheme or
plan. See United States v. Garcia, 962 F.2d 479, 482 (5th Cir. 1992), abrogated
on a different ground by Buford, 532 U.S. at 63, 66; see also United States v.
Mota-Aguirre, 186 F.3d 596, 600 (5th Cir. 1999). To be sure, similar offenses are
not necessarily part of a common scheme or plan. See United States v. Ford, 996
F.2d 83, 86 (5th Cir. 1993). Here, the two forged checks were written seven days
apart, the victims were different, the checks were written for different amounts,
and although Howard received identical and concurrent punishments the cases
were never formally consolidated and retained distinct case numbers. The two
check forgeries were similar crimes but that they were not part of a common
scheme or plan such that they should be considered related offenses for purposes
of criminal history calculation.
Lastly, Howard argues that the two forgeries were “functionally” or
“informally” consolidated. Although it is true that identical concurrent
sentences were imposed for the two forgeries, this does not compel a finding of
functional consolidation. United States v. Huskey, 137 F.3d 283, 288 (5th Cir.
1998). Thus, the district court did not err in determining that Howard’s Texas
convictions for fraud were not consolidated.
III.
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For the foregoing reasons the sentence of Howard is affirmed.
AFFIRMED.
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