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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12930
Non-Argument Calendar
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D.C. Docket No. 6:18-cr-00272-RBD-GJK-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
CHRISTOPHER STEWART,
Defendant-Appellant.
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No. 19-12980
Non-Argument Calendar
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D.C. Docket No. 6:18-cr-00272-RBD-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
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WESLEY ANDERSON,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Florida
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(November 17, 2020)
Before JORDAN, JILL PRYOR and BRANCH, Circuit Judges.
PER CURIAM:
Christopher Stewart and Wesley Anderson appeal their respective 57-month
and 84-month sentences. D.E. 36 at 10. First, Mr. Anderson and Mr. Stewart argue
that the district court erred in calculating the loss amount by using the face value of
the counterfeit checks they deposited instead of the actual amount withdrawn from
the banks. D.E. 21 at 10. Second, Mr. Stewart argues that the district court clearly
erred in finding that he was not eligible for a minor role reduction. Id. Finally, Mr.
Stewart contends that the district court clearly erred by considering his criminal
history as an aggravating factor when determining his sentence. Id. After review of
the parties’ briefs and the record, we affirm.
I
We review for clear error a district court’s amount-of-loss determination. See
United States v. Machado,
333 F.3d 1225, 1227 (11th Cir. 2003). Under this
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standard, we will not reverse unless we are left with a definite and firm conviction
that the district court committed a mistake. United States v. White,
335 F.3d 1314,
1319 (11th Cir. 2003).
When a defendant’s offense involves counterfeit checks, a district court does
not clearly err when it uses the full face value of a check to calculate intended loss.
See United States v. Grant,
431 F.3d 760, 765 (11th Cir. 2005) (“[W]e hold when an
individual possesses a stolen check, or a photocopy of a stolen check, for the purpose
of counterfeiting, the district court does not clearly err when it uses the full face
value of that stolen check in making a reasonable calculation of the intended loss.”).
See also United States v. Chukwura,
5 F.3d 1420, 1425 (11th Cir. 1993) (holding
that the district court did not clearly err by calculating the total loss as the aggregate
amount of fraudulent checks, even though the defendant did not withdraw all the
funds from the bank accounts, because the full value of the checks represented the
“intended losses”). We explained in Grant that, “[a]lthough a district court cannot
equate the full face value of stolen checks with intended loss as a matter of law in
every case, it can still find a defendant intended to utilize the full face value of stolen
checks.” Grant,
431 F.3d at 765. “Where the Government presents evidence
indicating the defendant intended to utilize the full face value of the checks, and the
defendant fails to present countervailing evidence, a district court is especially
justified in including the checks’ full face value in its intended loss calculation.”
Id.
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Here, the district court did not clearly err by calculating Mr. Stewart’s and Mr.
Anderson’s intended loss amounts based on the full face value of the checks rather
than the amount they actually withdrew from the banks. The face value of the 376
counterfeit checks deposited was $372,417.14, while the actual loss to the banks was
$79,033.30. D.E. 16 at 7. Mr. Anderson and Mr. Stewart argue that the district court
clearly erred by using the full face value calculation, but that general contention is
foreclosed by our precedent in Grant and Chukwura. Their argument that the district
court clearly erred because they never intended to obtain or use the full face value
of the counterfeit checks also fails. First, the government presented sufficient
evidence to show that they were likely to have continued withdrawing money had
Mr. Anderson and Mr. Griffin (a co-conspirator) not been arrested soon after a
majority of the checks were deposited. Second, Mr. Stewart and Mr. Anderson failed
to present sufficient countervailing evidence. Accordingly, we affirm in this respect.
II
We review for clear error a district court’s factual finding that a defendant did
not have a mitigating role in his offense. See United States v. De Varon,
175 F.3d
930, 937-38 (11th Cir. 1999) (en banc). The defendant “bears the burden of proving
a mitigating role in the offense by a preponderance of the evidence.”
Id. at 939
(citations omitted).
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The Sentencing Guidelines permit a district court to decrease a defendant’s
offense level by two if it finds the defendant was a “minor participant” in his criminal
activity. See U.S.S.G. § 3B1.2(b). A minor participant is a defendant “who is less
culpable than most other participants, but whose role could not be described as
minimal.” § 3B1.2, comment. (n.5). In determining whether a minor role reduction
is warranted, a district court (1) “must measure the defendant’s role against the
relevant conduct for which [he] was held accountable at sentencing,” and (2) “may
also measure the defendant’s role against the other participants, to the extent that
they are discernable, in that relevant conduct.” De Varon,
175 F.3d at 945. Relevant
conduct is the “conduct attributed to the defendant in calculating [his] base offense
level.”
Id. at 941. A defendant, however, “is not automatically entitled to a minor
role adjustment merely because [he] was somewhat less culpable than the other
discernable participants.”
Id. at 944.
In determining whether to apply a mitigating role adjustment, the court should
consider (1) “the degree to which the defendant understood the scope and structure
of the criminal activity,” (2) “the degree to which the defendant participated in
planning or organizing the criminal activity,” (3) “the degree to which the defendant
exercised,” or “influenced the exercise of[,] decision-making authority,” (4) “the
nature and extent of the defendant’s participation in the . . . criminal activity,” and
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(5) “the degree to which the defendant stood to benefit from the criminal activity.”
§ 3B1.2, comment. (n.3(C)).
Here, the district court did not err in declining to apply a mitigating role
adjustment for Mr. Stewart because he failed to prove by a preponderance of the
evidence that he was less culpable than the other members of the conspiracy. See De
Varon,
175 F.3d at 939. The government produced evidence that Mr. Stewart
(1) deposited checks by himself and with his co-conspirators, (2) withdrew funds
from the ATMs, and (3) posted photos on social media holding wads of cash in a
bank parking lot. D.E. 36 at 30. Furthermore, Mr. Stewart was seen entering and
exiting the hotel rooms where Mr. Anderson and Mr. Griffin kept the counterfeit
check production equipment, and his belongings were found in the hotel room after
Mr. Anderson and Mr. Griffin were arrested. Id. at 30-31. Although Mr. Stewart
was not responsible for as many counterfeit check deposits and withdrawals as Mr.
Anderson and Mr. Griffin, this fact alone is not enough to carry his burden of proving
that he was a minor participant in light of the other evidence against him.
Considering these facts, we conclude that the district court did not clearly err in
finding that Mr. Stewart was not eligible for a minor role reduction. Accordingly,
we affirm in this respect as well.
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III
We review the substantive reasonableness of a sentence for abuse of
discretion. See Gall v. United States,
552 U.S. 38, 51 (2007). We will vacate a
sentence as substantively unreasonable only if we are “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Irey,
612
F.3d 1160, 1190 (11th Cir. 2010) (en banc).
A district court abuses its discretion and imposes a substantively unreasonable
sentence when it commits a clear error of judgment in considering appropriate
sentencing factors. See United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th
Cir. 2015). A defendant “bears the burden of showing that the sentence is
unreasonable in light of the entire record, the § 3553(a) factors, and the substantial
deference afforded [to the] sentencing court.” Id. “Although we do not
automatically presume a sentence within the guidelines range is reasonable,” we
ordinarily expect such a sentence “to be reasonable.” United States v. Hunt,
526
F.3d 739, 746 (11th Cir. 2008) (quoting United States v. Talley,
431 F.3d 784, 788
(11th Cir. 2005)). That a sentence is below the statutory maximum term of
imprisonment is another indicator of reasonableness. See United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008).
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Here, the district court did not make a clear error in judgment by focusing on
Mr. Stewart’s criminal history as an aggravating factor when determining his
sentence. Mr. Stewart was 20 years old at the time of sentencing and had 14 criminal
history points based on 8 juvenile convictions and 1 adult conviction. D.E. 36 at 33.
At the time of his arrest, Mr. Stewart had adult charges for marijuana-possession,
possession of a firearm by a delinquent, carrying a concealed firearm, and grand
theft of a firearm.
Id. The district court was well within its discretion to give weight
to his lengthy criminal history. Moreover, even after considering Mr. Stewart’s
criminal history, the district court sentenced him to the lowest possible sentence
within the guidelines range, well below the statutory maximum of 30 years’
imprisonment, another indicator of reasonableness. See Hunt, 526 at 746; Gonzalez,
550 F.3d at 1324. Accordingly, we affirm.
IV
The sentences of Mr. Stewart and Mr. Anderson are affirmed.
AFFIRMED.
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