United States v. Cummings , 18 F. App'x 135 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4805
DARYL CUMMINGS,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4826
CHARLENE RENE LOCKLEAR,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4903
CHARLES RONALD LOCKLEAR,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-21)
Submitted: August 20, 2001
Decided: September 10, 2001
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
2 UNITED STATES v. CUMMINGS
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina; Michael
R. Ramos, RAMOS & LEWIS, L.L.P., Shallotte, North Carolina;
Walter Hoytt Paramore, III, Jacksonsville, North Carolina, for Appel-
lants. John Stuart Bruce, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Felice McConnell Corpening,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Daryl Cummings, Charlene Locklear, and Charles
Locklear of conspiracy to manufacture and making, possessing, and
passing counterfeit currency. On appeal, they allege that the district
court erred by enhancing their offense levels for use of a minor.1
Finding no reversible error, we affirm.
The basic facts of this case are undisputed. Appellants and several
others gathered at Charlene Locklear’s home. Also present were a co-
defendant’s fifteen-year-old daughter, Charles Locklear’s sixteen-
year-old girlfriend, and Charlene Locklear’s three children, ages ten,
seven, and five. At some point during the evening, the conspirators
attempted to download images of federal reserve notes from the Inter-
1
U.S. Sentencing Guidelines Manual § 3B1.4 (2000).
UNITED STATES v. CUMMINGS 3
net and print them. However, they were unable to line up the fronts
and backs of the bills. The group ultimately obtained a scanner,
scanned images of real currency into the computer, and printed coun-
terfeit bills of various denominations. Some of the conspirators cut
the individual bills from sheets, and then everyone in the house,
including the five minors, crumpled the bills to make them appear
worn.
The currency was split up, and Charles Locklear, four co-
conspirators, and the fifteen-year-old traveled to South Carolina, pass-
ing counterfeit bills at several convenience stores, purchasing crack
cocaine, and attempting to use the bogus bills to play video poker.
When they returned home, another group, which included Cummings,
Charlene Locklear, and the fifteen-year-old, left to pass the notes at
several more convenience stores and a flea market. Charles Locklear
remained in the house with the other minors and printed more bills.
The conspirators were apprehended after the fifteen-year-old and an
adult co-defendant were arrested while attempting to pass counterfeit
bills at a Wal-Mart.
Appellants all objected at trial to the USSG § 3B1.4 enhancement,
arguing, as they do on appeal, that there was no evidence they
recruited, coerced, or actively employed the minors.2 Cummings also
argues that there was no evidence he was aware the minors were
under the age of eighteen.
Appellants primarily rely on recent decisions by the Sixth and
Ninth Circuits to support their position that the definition of "use" for
purposes of the enhancement should be similar to that found in Bailey
v. United States, 516 U.S. 137 (1995).3 We reject such a narrow defi-
2
Under USSG § 3B1.4, a defendant’s base offense level may be
enhanced by two levels if a minor is used. "Use" is defined as "directing,
commanding, encouraging, intimidating, counseling, training, procuring,
recruiting, or soliciting" the minor. USSG § 3B1.4, cmt. n.1. In the pres-
ent case, Appellants allege that the minors were willing and active partic-
ipants.
3
See United States v. Butler, 207 F.3d 839, 847-48 (6th Cir. 2000)
(holding that a defendant must take affirmative steps to actively employ
the minor); United States v. Parker, 241 F.3d 1114, 1120-21 (9th Cir.
2001) (same).
4 UNITED STATES v. CUMMINGS
nition, finding the approach taken by the Seventh Circuit, focusing on
the term "encouraging" in the definition of "use," to be more persua-
sive. United States v. Ramsey, 237 F.3d 853, 859-60 (7th Cir. 2001)
(holding that an adult defendant who forms a partnership with a minor
clearly encourages the minor to commit the crime by virtue of the
inherent relationship between adults and minors), petition for cert
filed, Apr. 18, 2001 (No. 00-9546).
In the present case, there were special relationships between the
minors and the adult conspirators that make the Seventh Circuit’s
approach more applicable. For example, we find it highly probable
that Charles Locklear (age twenty-eight at the time of the offenses)
influenced and encouraged his sixteen-year-old girlfriend to partici-
pate. Likewise, the fifteen-year-old was probably encouraged by her
co-conspirator mother. More importantly, it is beyond debate that
Charlene Locklear’s ten, seven, and five-year-old children required
direction and encouragement while they helped crumple the counter-
feit bills.
Finally, we find Cummings’ scienter argument to be without merit.
As a factual matter, even if he could not tell that the fifteen- and
sixteen-year-olds were minors, there could be no question as to Char-
lene Locklear’s small children. Furthermore, the burden is on Cum-
mings to show that the information in the presentence report is
incorrect, and we find that he has failed to meet this burden. United
States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). More importantly,
there is nothing in the guidelines imposing a knowledge requirement.
United States v. McClain, 252 F.3d 1279, 1286 (11th Cir. 2001).
We therefore affirm Appellants’ convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED