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United States v. Reed, 10th Cir. (2001)
United States v. Reed, 10th Cir. (2001)
JUN 12 2001
PATRICK FISHER
Clerk
No. 00-6253
(D.C. No. 00-CR-1-L)
(W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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Category VI. 5K2.0, 4A1.3. The resulting sentencing range was forty-one to
fifty-one months, and the court sentenced Reed to fifty-one months.
On appeal, Reed challenges the district courts decision to increase his
offense level for his role as a leader/organizer, its refusal to grant an adjustment
for acceptance of responsibility, and its upward departure in his criminal history.
He also contends that the sentence imposed violates
person to use the credit cards to buy merchandise or get cash advances, and that
these individuals returned some of the proceeds from the use of the credit cards to
Reed. The fraudulent cards had a limited period of usefulness because they could
be used only until the true owner of the cards received a statement showing
fraudulent charges. This and other evidence created a reasonable inference that
Reed supplied new fraudulent cards to these individuals on an on-going basis and
that he was at the head of this criminal activity because he manufactured the
counterfeit cards and got each operation started. Based on this evidence, we
cannot say that the courts finding that Reed was a leader or organizer of the
criminal activity was clearly erroneous.
Reed contends that because he timely agreed to plead guilty and save the
government the expense of preparing for trial and because he should not be held
responsible for the conduct of others, the district court clearly erred in denying
him an adjustment for acceptance of responsibility. We review the district courts
denial of a reduction for acceptance of responsibility for clear error.
United
States v. Nichols , 229 F.3d 975, 978 (10th Cir. 2000). Alternatively, he contends
the district court should not have imposed a five-level increase for relevant
conduct. 1
The five-level increase actually was for the amount of intended loss, most
of which stemmed from the relevant conduct of others for whom Reed was found
(continued...)
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The district court refused to adjust Reeds offense level for acceptance
of responsibility because the court concluded he frivolously had denied his
involvement in a variety of relevant conduct--virtually the same activity on
which the court relied in finding him a leader/organizer--until just prior to the
sentencing hearing. In fact, even at the sentencing hearing, Reed continued to
deny his involvement in the relevant conduct (as he does on appeal). But he
withdrew his objections to the presentence reports recommendations regarding
relevant conduct under the idea, apparently with the backing of the government,
that he would then be able to get a reduction for acceptance of responsibility,
likening his action to an
Alford 2 plea.
With respect to his contention regarding the five-level increase for relevant
conduct, Reeds withdrawal of his objection to the presentence report regarding
relevant conduct acts as an admission of those facts, and we will not consider
this contention on appeal.
(10th Cir. 1999). Admission of these facts, however, does not necessarily mean
that Reed has accepted responsibility for the relevant conduct.
v. Cruz Camacho , 137 F.3d 1220, 1226 (10th Cir. 1998) (A defendant who
falsely denies or frivolously contests, relevant conduct that the court determines
(...continued)
to be leader or organizer.
1
maintains his innocence and refuses to acknowledge his conduct in the offense is
a relevant factor in the acceptance of responsibility determination). Moreover,
the timeliness of a defendants admission of relevant conduct may also be
considered in the acceptance-of-responsibility determination, USSG 3E1.1,
cmt. (n.6), and the court noted that Reeds belated withdrawal of his objections
created unnecessary work for the court and government. Given Reeds continuing
denial of the relevant conduct and the last-minute withdrawal of his objections,
the court clearly did not err in denying Reed an adjustment for acceptance of
responsibility.
Reed next contends that the court erred in departing upwardly in his
criminal history level because it relied on prior convictions that were too old to
be counted under the Sentencing Guidelines. The district court noted that Reed
had twenty-two prior offenses, but only three were counted in determining his
initial criminal history score because of their age. If all prior convictions had
been counted, Reed would have had thirty-nine criminal history points, well more
than the thirteen required for criminal history Category VI. The court determined
that Reeds initial criminal history category did not adequately represent his prior
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criminal conduct or the likelihood he would commit other crimes, and therefore
departed upwardly.
Contrary to Reeds argument, the Sentencing Guidelines do not prohibit the
consideration of offenses outside the applicable time period in USSG 4A1.2(e)
when determining whether to depart upwardly.
1498, 1502 (10th Cir. 1997). Moreover, the district court also relied on Reeds
numerous other arrests and pending charges in deciding to depart. Applying an
abuse-of-discretion standard,
that [o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.). The district court did use Reeds
relevant conduct to increase his sentence, but the sentence it imposed did
not exceed the statutory maximum of ten years for violation of 18 U.S.C.
1029(a)(1). Enhancing a sentence in this manner does not violate
United States v. Heckard , 238 F.3d 1222, 1235-36 (10th Cir. 2001).
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Apprendi .
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