United States v. Smith ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-28-2007
USA v. Smith
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3635
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-3635
UNITED STATES OF AMERICA
v.
CHRISTOPHER SMITH,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 05-cr-00414)
District Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
June 8, 2007
Before: FISHER and GREENBERG, Circuit Judges, and POLLAK,* District Judge
OPINION
____
*
Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
POLLAK, District Judge
Defendant-Appellant Christopher Smith appeals his prison sentence of thirty-two
months on the grounds that the District Court erred (a) in the calculation of his sentence,
(b) in not allowing withdrawal his guilty plea to conspiracy, and (c) in entering a sentence
that was unreasonable. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231,
and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). For
the reasons explained herein, we will affirm the sentence.
I.
Much of Smith’s appeal concerns a factual dispute about his level of involvement
in the conspiracy and in related activity. On October 19, 2005, Christopher Smith and
Kimberly Bingaman were charged in a three-count indictment with conspiracy, bank
fraud, and theft and possession of articles stolen from the United States mails. The
government’s allegations, as subsequently particularized at Smith’s change-of-plea
hearing, were as follows: Between April 26, 2005 and June 19, 2005, Smith and
Bingaman stole four credit card “convenience checks” 1 from the mailbox of their
neighbor, Denise Staub. Bingaman endorsed the checks and the defendants attempted to
deposit them at various banks. Only one of the four checks was successfully negotiated.2
1
Convenience checks are special checks issued by credit card companies to
cardholders, allowing the cardholder to write the check against his/her line of credit.
2
The first convenience check, in the amount of $7,500, was deposited into an ATM
machine at a branch of the M&T Bank in Chambersburg, PA on April 27, 2005. It was
negotiated into Bingaman’s bank account. The second check, also in the amount of $7,500,
2
During this same time period, Smith and Bingaman acquired a credit card stolen
from the mailbox of another neighbor, Brittany Hopkins, and thereafter made several
credit card purchases.
On June 30, 2005, Bingaman was interviewed by a postal inspector about the
stolen checks. She told the inspector that her boyfriend, Christopher Smith, had been the
mastermind of the criminal scheme. She explained that Smith had brought the checks to
her and asked her to sign them, telling her that they were loan checks and that she could
not get in trouble. On one occasion, according to Bingaman, Smith accompanied
Bingaman to the Orrstown Bank and instructed her to attempt to cash a check by telling
the bank teller that the payee on the check was her mother. Bingaman continued that, on
another occasion, Smith accompanied her to an ATM machine, where he gave her a
stolen ATM card and PIN number and had her attempt to cash another of the checks
through the ATM.
Smith initially pled not guilty, but then decided to change his plea pursuant to a
plea agreement with the government. The plea agreement provided that Smith would
was deposited into an ATM machine at a branch of the M&T Bank in Chambersburg, PA on
May 22, 2005. The third check, in the amount of $7,000, was attempted to be deposited into
a new account in Bingaman’s name at a branch of the Orrstown Bank in Chambersburg, PA
on May 26, 2005. The fourth check, in the amount of $9,000, was deposited into an ATM
machine at a branch of the M&T Bank in Greencastle, PA on June 19, 2005.
Only the first check was successfully negotiated. The second and third checks were
not negotiated. The fourth check was initially negotiated into an M&T Bank account, which
was then immediately frozen upon discovery of the bank fraud. See Appellant’s Mem. at 7.
3
plead guilty to one count of conspiracy in violation of 19 U.S.C. § 371 and, in turn, the
government would move at sentencing for the dismissal of the bank fraud count and the
theft and possession count. A21.
On March 14, 2006, the District Court held a change-of-plea hearing. At the
hearing, the government explained what evidence it would use if the matter were to
proceed to trial. The government described how “one of the stolen checks was
successfully negotiated by Bingaman, resulting in a loss of approximately $2,136.90. The
other three attempts were unsuccessful resulting in no losses. These unsuccessful
attempts entailed approximately $24,000 in stolen checks.” A63.3 Before accepting the
plea, the court inquired whether Smith understood that the intended loss—as opposed to
the actual loss—could be a factor in the sentencing calculation:
Court: Do you further understand that your guideline will be driven by the
amount of the loss and the loss could include the expected or the attempted
efforts that you made to cash checks even though you didn’t receive money? So
the potential we’re looking at here is probably over $25,000 of attempted
loss. . . .
[Smith’s attorney]: Your Honor, that has been explained to Mr. Smith.
A65. The District Court thereafter accepted Smith’s plea. A66.
In preparation for sentencing, the probation office prepared a pre-sentence
investigation report (PSR). The PSR calculated the total intended loss from the four
checks as $31,000. PSR at 4. Before sentencing, defendant submitted a memorandum
3
The attempted loss of the successfully-negotiated check was $7,500, see supra note
2, but that was not discussed at the change-of-plea hearing.
4
objecting to the $31,000 loss figure, stating that “during the negotiations with the
government leading to the signing of the Plea Agreement and in the statements made
during the Change of Plea hearing, it is obvious that the government did not intend to
charge Mr. Smith with the entire amount of the intended loss in the scope of the
conspiracy but only with $24,000.” A51.
Smith’s sentencing was held on July 31, 2006, and the District Court inquired
about Smith’s objection to the total loss figure:
Court: That last sentence, it says, during the negotiations with the Government,
etc., etc., it is obvious that the Government did not intend to charge Mr. Smith
with the entire amount of the intended loss in the scope of the conspiracy, but
only with $24,000.
[Government]: That is simply not correct, Your Honor. The $24,000 figure
represented the Government’s best information and estimate regarding the loss at
the time, but the United States does not barter away parts of conspiracies. And if
[Smith’s attorney] had that impression, that impression was entirely erroneous.
The Government provided information which confirmed some $24,000 in
check fraud. It appears with the preparation of the pre-sentence report that, that
amount grows by about $6,000, but at no time did the Government represent to
[Smith’s attorney] that it would not try to pursue relevant conduct that was part of
the case.
A73–A74.
The District Court and the parties continued to discuss the loss figure, and the
government stated that any confusion between the $24,000 figure and the $31,000 figure
was based on the government’s erroneous calculation of the aggregate loss.4 The
4
The government did not have the change-of-plea transcript with it during the
sentencing. The transcript is part of the record on appeal. Review of the transcript makes
it clear that the government calculated the intended loss from the three unsuccessful attempts
5
following colloquy ensued:
Court: The problem I have is that, based on the plea transcript, apparently he
was pleading to $24,000.
[Government]: I don’t think that’s correct, Your Honor. I think that what it
reflects is that, when [another government attorney] covered the plea and gave a
basis, a factual basis, he used the erroneous figure that I had initially calculated,
but that the plea colloquy will reflect that this Defendant understood that he faced
any sentence up to the statutory maximum of five years.
There was no stipulation in the plea agreement as to loss. There was, as I
concede, an erroneous initial estimate as to what that loss would be. That
erroneous initial estimate was off by some $7,000, which affects these guidelines
by two offense levels. . . .
The Court: I realize that he is subject to the maximum penalty, but at the same
time, he knows that part of the sentence is going to be based on the guidelines.
And if he was under the impression that he was pleading to $24,000, is that an
intelligent and knowing —
[Government]: I’m saying, if [Mr. Smith] ultimately believes that his plea was
not knowing and intelligent, then we ought to litigate his right to withdraw that
plea, and the Government then ought to have the opportunity to bring any other
charges that the evidence would bear here, charges that the Government decided
to forgo when the plea took place.
So I think this Defendant has to make a judgment on what it is that he is
asking for. What he is asking for right now is not an opportunity to withdraw his
plea apparently, but an opportunity to reform and reframe his plea agreement.
A78–A80. Ultimately, the District Court ruled that “the Court will use the intended loss
as to the entire conspiracy,” which was $31,000. A124–A125.
At Smith’s sentencing, Bingaman was called to testify, and the version of events
she gave was markedly inconsistent with her original testimony to the postal inspector on
June 30, 2005. At Smith’s sentencing, Bingaman testified that she had planned the
to negotiate checks at $24,000, differentiating this loss from the $2,136.90 actual loss
resulting from Smith and Bingaman’s successful negotiation of the first check. A63. The
disposition of the four checks is outlined supra, note 2.
6
check-cashing scheme without Smith’s knowledge and that Smith hadn’t taken any steps
to endorse or negotiate any of the four checks. She further testified that when Smith
accompanied her to the Orrstown Bank, he did not know that the check Bingaman was
there to negotiate was a stolen convenience check. She claimed that it was only after the
Orrstown Bank incident that she made Smith aware of her criminal enterprise. When
asked why her account of the events had been so radically different when she was
interviewed by the postal inspector, Bingaman testified that she had placed the blame on
Smith “[b]ecause I was nine months pregnant [with Smith’s baby], and [Smith] was
already in jail, and I didn’t want to go to jail.” A96.
The District Court was not persuaded by Bingaman’s testimony that Smith was a
minor participant in the crime. To the contrary, the court determined that Bingaman’s
June 2005 statement to the postal inspector was more credible than Bingaman’s July 2006
testimony at the sentencing hearing.
At the close of the hearing, the District Court sentenced Smith to a thirty-two
month term of imprisonment.
II.
Smith raises five arguments on appeal. Smith contends that the District Court
erred in (1) calculating the loss caused by his crimes at $31,000; (2) raising the offense
level two levels under U.S.S.G. § 2B1.1(b)(10)(C)(I); (3) failing to grant him a two-level
downward adjustment under U.S.S.G. § 3B1.2(b); (4) failing to withdraw his guilty plea;
7
and (5) entering an unreasonable sentence.
We conduct a de novo review the District Court’s interpretation of the sentencing
guidelines, but review factual findings for clear error. United States v. Johnson, 302 F.3d
139, 153 (3d Cir. 2002). We review the sentence imposed for reasonableness. United
States v. Booker, 543 U.S. 220, 261–62 (2005).
A.
Smith’s first contention is that, while the District Court properly determined the
base offense level for his conspiracy conviction under U.S.S.G. § 2B1.1(a), it erred in
calculating the total attempted loss as $31,000 instead of $24,000. We disagree. The
District Court made a factual finding that the aggregate loss figure was $31,000, and the
ruling was not clearly erroneous.
Smith makes three arguments in support of his contention that the appropriate loss
figure was $24,000. He contends that 1) “that the government, in good faith during the
plea negotiations with Mr. Smith, used the intended loss figure of $24,000,” leading
Smith to believe that the $24,000 figure would be used in his sentencing calculation; 2)
that at the plea hearing the government again used an intended loss figure of $24,000; and
3) that Bingaman’s testimony at Smith’s sentencing made it clear that Smith did not join
the conspiracy until after one, and perhaps two, of the convenience checks had been
negotiated or attempted to be negotiated, and so the intended loss from his relevant
8
conduct should be calculated accordingly. Appellant’s Br. at 13.
We address the first two arguments together. At the change-of-plea hearing, the
government described the loss as follows: “one of the stolen checks was successfully
negotiated by Bingaman, resulting in a loss of approximately $2,136.90. The other three
attempts were unsuccessful resulting in no losses. These unsuccessful attempts entailed
approximately $24,000 in stolen checks.” A63. It is evident that the $24,000 figure
described the intended loss from the three unsuccessful attempts, in contrast to the actual
loss from the one successful attempt, which was thought to be $2,136.90. At the time of
the plea hearing, the “intended loss” of the first check was not discussed, but the court
brought to Smith’s attention that his “guideline will be driven by the amount of the loss
and that loss could include the expected or attempted efforts that [he] made to cash
checks even though [he] didn’t receive money,” and that the court was “looking at . . .
probably over $25,000 of attempted loss.” Because the $24,000 figure was subject to
enlargement to include the intended loss from the first check—$7,500, see supra, note
2—the District Court did not err in making the factual determination that the entire
intended loss was $31,000.5
To be sure, once the $24,000 figure was used at the plea hearing, both the
5
The application note to § 2B1.1(b)(1) directs that loss is measured by the “greater
of actual loss or intended loss.” § 2B1.1 cmt. n.3. “Actual loss” is defined as the “reasonably
foreseeable pecuniary harm that resulted from the offense.” Id. n.3(A)(I). “Intended loss”
is defined as “the pecuniary harm that was intended to result from the offense.” Id.
n.3(A)(ii).
9
government and Smith may have believed that this represented the aggregate loss.6 But
the parties never stipulated to a $24,000 intended loss in the plea agreement. To the
contrary, the plea agreement stated that “[t]he defendant further agrees that any legal and
factual issues relating to the application of the Federal Sentencing Guidelines to the
defendant’s conduct, including facts that support any specific offense characteristic or
other enhancement or adjustment and the appropriate sentence within the statutory
maximums provided for by law, will be determined at a sentencing hearing.” A21; see
also A29. (“The defendant understands that the Court is not a party to and is not bound
by this agreement or any recommendations made by the parties. Thus, the Court is free to
impose upon the defendant any sentence up to and including the maximum sentence of
imprisonment for 5 years . . . .”).
Smith further argues that the District Court should have credited Bingaman’s
testimony at sentencing that Smith joined the conspiracy after the first, and possibly the
second, check had been sought to be negotiated, and thus the loss from the first check (or
two) should not have been counted as part of Smith’s relevant offense conduct. The
District Court instead credited Bingaman’s initial testimony to the postal inspector,
finding that Smith had been involved in the entirety of the conspiracy and was thus
6
At sentencing, the government told the District Court that its “initial assessment of
the loss was $24,000 [;] that estimate was erroneous.” Thus, even though the transcript of
the change-of-plea hearing shows that the government never stated that the total loss figure
was $24,000, we will assume that both parties could have operated under the mistaken
assumption that the aggregate intended loss asserted by the government was $24,000.
10
responsible for the entirety of the loss.
The District Court did not commit clear error in crediting Bingaman’s June 2005
statement to the postal inspector rather than the radically divergent account she presented
at the July 2006 sentencing hearing. The District Court observed that Bingaman’s earlier
testimony to the postal inspector was closer in time to the criminal conduct and was less
likely to have been influenced by Smith. A125. The court also found that Bingaman’s
June 2005 account made more sense in light of the parties’ respective criminal
histories—Smith had several prior convictions, including convictions for identity theft or
forgery offenses, whereas “Bingaman . . . had no prior experience in this type of criminal
offense.” A125. Weighing the credibility of a witness’s testimony is a determination a
district court is best suited to make, and such determination is entitled to deference. See
18 U.S.C. § 3742(e) (“[In reviewing a sentence,] [t]he court of appeals shall give due
regard to the opportunity of the district court to judge the credibility of the witnesses.”).
We thus find that the District Court did not commit clear error by crediting Bingaman’s
earlier account of Smith’s role in the criminal enterprise and finding that all four checks
were part of Smith’s relevant conduct.
B.
In June 2005—while Smith and Bingaman were engaged in the convenience check
conspiracy—they also acquired a credit card stolen from the mailbox of their neighbor,
Brittany Hopkins. They used this card to obtain a duplicate copy of the credit card, which
11
they used to make several purchases. PSR at 2. Smith was charged in the Franklin
County Court of Common Pleas with identity theft, inter alia, and pled nolo contendere as
part of a plea bargain in January 2006.
In preparation for Smith’s sentencing on the federal conspiracy conviction, the
probation office reported the Hopkins conduct in the PSR. The PSR recommended, and
the District Court imposed, a two-level increase under U.S.S.G. § 2B1.1(b)(10)(C)(I),
because Smith’s criminal conduct with regard to Hopkins involved what the guidelines
refer to as “the unauthorized transfer or use of any means of identification unlawfully to
produce or obtain any other means of identification.” Smith objected to the increase at
sentencing, contending that the government had not raised the issue of his crimes against
Hopkins “either at the discovery or any of the discussions or negotiations” with Smith.
A110. Smith’s attorney raised the alternative argument that if the conduct relating to
Hopkins was to be included as relevant offense conduct, then Smith’s sentence should run
concurrent to the sentence he would have to serve on the Franklin County charges.
A110–A111. The government agreed that a concurrent sentence was appropriate because
“those two sentences do embrace some of the same conduct.” A119. The District Court
found that the conduct pertaining to Hopkins was “appropriate relevant conduct pursuant
to Application Note 8 of the Guidelines, Section 1B1.3,” and increased the offense level
12
by two points.7
When a district court is sentencing a defendant, the court’s first task is to
determine the applicable offense guideline section to be applied, based on the crime of
conviction. Cf. Watterson v. United States, 219 F.3d 232, 236 (3d Cir. 2000). In the case
of Smith, that was U.S.S.G. § 2B1.1(a)(2). The court then determines the base offense
level, at which point relevant conduct may be taken into account if it relates to “(1)
calculating the base offense level, (2) considering the specific offense characteristics set
forth in the particular guideline, (3) considering any cross-references contained in the
particular guideline, and (4) making any adjustments authorized by Chapter Three.” Id. at
239 (quoting United States v. Chandler, 125 F.3d 892, 897–98 (5th Cir. 1997)). Such
relevant conduct must be proved by a preponderance of the evidence. See United States
v. Watts, 519 U.S. 148, 157 (1997). In the present case, the PSR presented ample
7
When determining what specific offense characteristics apply at sentencing,
§ 1B1.3 allows the district court to consider “all acts and omissions . . . that were part of the
same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2). Application note 8 elaborates on the process by which a district judge
evaluates whether an act is “relevant conduct” with the following example:
The defendant engaged in two cocaine sales constituting part of the same course of
conduct or common scheme or plan. Subsequently, he is arrested by state authorities
for the first sale and by federal authorities for the second sale. He is convicted in
state court for the first sale and sentenced to imprisonment; he is then convicted in
federal court for the second sale. In this case, the cocaine sales are not separated by
an intervening sentence. Therefore, under subsection (a)(2), the cocaine sale
associated with the state conviction is considered as relevant conduct to the instant
federal offense. The state prison sentence for that sale is not counted as a prior
sentence.
See also id. cmt. n.9 (defining common scheme or plan and same course of conduct).
13
evidence that the offenses involving Brittany Hopkins were conducted concurrently with
the convenience check scheme. It was thus relevant conduct under U.S.S.G. § 1B1.3,
Application notes 8–9. Accordingly, we find no error in the District Court’s
consideration of Smith’s “unauthorized transfer or use of any means of identification
unlawfully to produce or obtain any other means of identification” in the offenses against
Hopkins as a relevant specific offense characteristic to increase his offense level under
U.S.S.G. § 2B1.1(b)(10)(C)(I).
C.
Smith next argues that the District Court erred in not granting him a two-level
downward adjustment for being a minor participant in the criminal activity under
U.S.S.G. § 3B1.2(b). Because the District Court’s conclusion that Smith was not entitled
to a minor-participant downward adjustment was based on its assessment of the
credibility of Bingaman’s testimony, it was a factual determination that we review for
clear error. See United States v. Isaza-Zapata, 148 F.3d 236, 237 (3d Cir. 1998). “The
district courts are allowed broad discretion in applying this section, and their rulings are
left largely undisturbed by the courts of appeal.” Id. at 238.
As discussed above, see supra Part II.A, the District Court’s determination that
Bingaman’s earlier account of the events to the postal inspector was more credible than
her account at sentencing was not clear error. Since Smith’s claim that he was a “minor
participant” is only supportable if Bingaman’s testimony at the sentencing hearing is
14
believed, our earlier finding disposes of this claim as well. Accordingly, we do not find
clear error in the District Court’s decision to deny the minor-role downward adjustment.
D.
Smith further contends that the District Court erred at sentencing by not
withdrawing Smith’s guilty plea. However, nothing in the record suggests that Smith
moved to withdraw his guilty plea, and the court did not err in failing to withdraw the
guilty plea sua sponte.
E.
Smith’s final argument is that the District Court erred by imposing an
unreasonable sentence under 18 U.S.C. § 3553(a), United States v. Booker, 543 U.S. 220(2005) and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006). In Booker, the
Supreme Court directed that appellate courts should review sentences for
“reasonableness.” 543 U.S. at 261–62. To determine if a district court acted reasonably in
imposing a sentence, a reviewing court must consider whether the district court
appropriately exercised its discretion by giving meaningful consideration to the relevant
factors under 18 U.S.C. § 3553(a).8 “There are no magic words that a district judge must
8
The § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
15
invoke when sentencing, but the record should demonstrate that the court considered the
§ 3553(a) factors and any sentencing grounds properly raised by the parties which have
recognized legal merit and factual support in the record.” Cooper, 437 F.3d at 332.
Having reviewed the record in Smith’s case, we find no merit in Smith’s
argument that the District Court unreasonably calculated his sentence. The District Court
properly considered the nature and circumstances of the offense and the need for the
sentence to provide just punishment, reflect the seriousness of the offense, promote
respect for the law, protect the public from the defendant, and afford adequate deterrence
to others. 18 U.S.C. § 3553(a). The court noted that “a sentence at the high end of the
custody range is necessary to adequately meet sentencing goals of providing a penalty and
deterrence,” especially since “prior terms of imprisonment and supervision have been
unsuccessful in deterring him.” A128, A129. Referring to Smith’s criminal history, the
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . issued by the Sentencing Commission . . . that,
except as provided in section 3742(g), is in effect on the date the defendant is
sentenced[;]
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a); see also Cooper, 437 F.3d at 329.
16
District Court further noted that Smith “preys on society by committing identity theft” and
that “[s]ociety must be protected by removing him from the public for a period of time.”
A129. The District Court properly considered the history and characteristics of the
defendant pursuant to 18 U.S.C. §3553(a)(1), taking into account that he was a
“recidivist” who has been “involved with the criminal justice system since age 16.”
A129. Finally, the district court evaluated and ruled upon all issues and objections raised
by Smith and his attorney.
The District Court’s sentence was reasonable and we see no problem with the
manner in which it conducted the sentencing process.
III.
For the foregoing reasons, we will affirm.
17