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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13394
Non-Argument Calendar
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D.C. Docket No. 3:15-cr-00008-CAR-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGH STEPHENS WORLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(April 5, 2018)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Hugh Worley appeals his 31-month sentence, imposed following his
conviction for federal programs bribery in violation of 18 U.S.C. § 666(a)(1)(B).
On appeal, he argues that the district court clearly erred in finding that the loss
amount attributable to him was $18,000 and enhancing his offense level
accordingly under U.S.S.G. § 2B1.1(b)(1)(C), because the government failed to
establish the loss amount by a preponderance of the evidence. He also argues that
the district court violated Federal Rule of Criminal Procedure 32(i)(3)(C) by failing
to attach a copy of its factual findings to the Presentence Investigation Report
(“PSI”).
We review a district court’s loss calculation for clear error, and will overturn
the calculation only if we are “left with a definite and firm conviction that a
mistake has been committed.” United States v. Campbell,
765 F.3d 1291, 1302
(11th Cir. 2014). A district court’s interpretation of the Guidelines and the
application of the Guidelines to the facts are reviewed de novo. United States v.
Mandhai,
375 F.3d 1243, 1247 (11th Cir. 2004).
When the government seeks to apply an enhancement under the Sentencing
Guidelines over the defendant’s factual objection, the government has the burden
of introducing sufficient and reliable evidence to prove the necessary facts by a
preponderance of the evidence. United States v. Washington,
714 F.3d 1358, 1361
(11th Cir. 2013). Absent a stipulation or agreement between the parties, an
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attorney’s factual assertions at the sentencing hearing do not constitute evidence
upon which a district court can rely.
Id. Facts contained in the PSI are considered
undisputed and deemed to have been admitted unless a party clearly and
specifically objects to them before the sentencing court. United States v. Beckles,
565 F.3d 832, 844 (11th Cir. 2009). The sentencing court may rely upon
undisputed statements without error, even if there is an absence of supporting
evidence.
Id.
We have recognized that it may often be difficult to determine the loss
amount with precision, and the Guidelines only require that the district court make
a “reasonable estimate” of the loss.
Campbell, 765 F.3d at 1301; U.S.S.G § 2B1.1
cmt. n.3(C). Because the method for calculating loss is highly fact-dependent, we
give district courts considerable leeway in choosing how to go about the task.
Campbell, 765 F.3d at 1301. Nonetheless, the district court must support its loss
calculation with reliable and specific evidence.
Id.
Loss is defined by the Guidelines as “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.” U.S.S.G. § 2B1.1 cmt. n.3(A)(i).
If the defendant returned any money or property to the victim or rendered any
services before the offense was detected, the loss amount is reduced by the fair
market value of the money returned or the services rendered. U.S.S.G. § 2B1.1
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cmt. n.3(E)(i). This “net loss approach” reflects the Sentencing Commission’s
position that an offender who transfers something of value to the victim is
generally committing a less serious offense than one who does not.
Campbell, 765
F.3d at 1302.
Section 6B1.4 of the Guidelines contains a policy statement regarding
stipulations that are made as a part of a plea agreement. U.S.S.G. § 6B1.4. A
court is not bound by any stipulation, and may not rely exclusively upon a
stipulation in ascertaining the factors relevant to the determination of the sentence.
U.S.S.G. § 6B1.4(d), cmt. Instead, the court should consider the stipulation,
together with the PSI and any other relevant information. U.S.S.G. § 6B1.4 cmt.
In United States v. Strevel,
85 F.3d 501, 502 (11th Cir. 1996) (per curiam), we
concluded that it was error for the sentencing court to rely solely upon the loss
calculation stipulated in the plea agreement, because such reliance constituted a
clear violation of the plain language of the commentary. Stipulations are
encouraged to aid, but not supplant, the sentencing court’s fact-finding. United
States v. Forbes,
888 F.2d 752, 754 (11th Cir. 1989).
The district court considered the stipulations regarding the restitution
amount Worley agreed to pay and the government’s information about transactions
involving Worley totaling $33,771.61. Worley contended that the four payments to
Sims Paving should not be considered because the City received the benefit of
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having the paver available, even though the projects involving the paver never took
place. Without these payments, the total loss amount would be $13,771.61. The
government agreed that the City received some benefit from the transactions, but
this benefit was not the entire $20,000 of the four payments. Thus, the loss to the
City would be $20,000 minus whatever benefit the City received from the rental of
the paver, added to the $13,771.61 of undisputed loss. The government argued that
a reasonable estimate of this loss would be $18,000, the amount stipulated to by
Worley as restitution. The Court agreed, and found that $18,000 was a reasonable
estimate of the loss to the City.
The court did not solely rely on the stipulations 1, but considered them along
with the government’s table of calculations. This was not clear error. Calculating
loss amount is difficult to determine with precision, and the district court only
needed to come up with a reasonable estimate. See
Campbell, 765 F.3d at 1301.
Although the parties disputed the value of the benefit to the City of the paver
(which the City never used but to which the City potentially had access), the
district court’s apparent estimate of that benefit was informed not only by the
stipulation, but also by the unobjected to fact in the PSI that the paver remained at
1
We need not in this case decide whether an agreement to pay $18,000 restitution is a mere
stipulation subject to the policy statement in U.S.S.G. § 6B1.4(d), cmt. because, even assuming it
is, the district court here did not rely solely on this agreement. That is, it may well be that an
agreement on the part of Worley to actually pay the City $18,000 may have more probative value
than a mere agreement that losses for sentencing purposes were $18,000; again, however, that is
an issue we need not decide in this case.
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Sims Paving. See PSI at ¶14. Moreover, even if the City received 90% of the value
of what it paid for the paver, the total loss to the City would still exceed $15,000,
necessitating the sentence enhancement applied by the district court.
As to Worley’s second argument on appeal, it is well settled in this circuit
that “failure to attach such determinations to the PSI is a ‘ministerial matter’ which
may be remedied without resentencing by attaching a copy of the sentencing
hearing transcript to the presentence report.” United States v. Spears,
443 F.3d
1358, 1362 (11th Cir. 2006). Thus, we
AFFIRM Defendant's sentence and REMAND for the limited purpose
of attaching a copy of the transcript from Defendant's sentencing hearing to
the presentence report.
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