United States v. Camara , 165 F. App'x 252 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4713
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH CAMARA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. William L. Osteen,
District Judge. (CR-03-209)
Submitted: December 22, 2005 Decided: February 1, 2006
Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Camille M. Davidson, THE FULLER LAW FIRM, P.C., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Matthew T. Martens, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Joseph Camara was convicted on
one count of conspiracy to commit bank fraud and to make, utter,
and possess counterfeit checks, in violation of 18 U.S.C. § 371(2000). The district court sentenced him to ten months
incarceration: five months in prison followed by five months of
home detention. Camara timely appeals his sentence.
Camara was involved in a conspiracy in which a $50,000
counterfeit check was deposited in a bank account and the co-
conspirators attempted to withdraw funds from the account based on
the falsely created account balance. The bank quickly took
remedial action and the actual loss it suffered was $9615.
Pursuant to U.S. Sentencing Guidelines Manual
§ 2B1.1(a)(2) (2004), Camara’s base offense level for violating 18
U.S.C. § 371 was 6. The district court increased Camara’s offense
level by six levels under USSG § 2B1.1(D), finding that the loss
exceeded $30,000. With an offense level of 12 and placement in
Criminal History Category I, Camara’s guideline range was ten to
sixteen months incarceration. USSG Ch. 5, Pt. A (Sentencing
Table). The district court sentenced Camara to the bottom of the
guideline range, imposing five months in prison followed by five
months of home detention.
Camara first argues on appeal that his sentence violates
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),
because the district court increased his offense level based on
facts that had not been found by the jury, namely the amount of
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loss. In Booker, the Supreme Court held that the mandatory manner
in which the federal sentencing guidelines required courts to
impose sentencing enhancements based on facts found by the court by
a preponderance of the evidence violated the Sixth Amendment. 543
U.S. at ___, 125 S. Ct. at 746, 750 (Stevens, J., opinion of the
Court). The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West
Supp. 2005) (requiring sentencing courts to impose a sentence
within the applicable guideline range), and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2005) (setting forth appellate standards of
review for guideline issues), thereby making the guidelines
advisory. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005) (citing Booker, 543 U.S. at ___, 125 S. Ct. at 756-67
(Breyer, J., opinion of the Court)). After Booker, courts must
calculate the appropriate guideline range, consider the range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a sentence.
If a district court imposes a sentence outside the guideline range,
the court must state its reasons for doing so. Hughes, 401 F.3d at
546. The district court sentenced Camara within these parameters
and we conclude that the fact that his sentence was based on
judicial factfinding did not violate Booker.
Next, Camara argues that the district court erred by
imposing a sentence that was greater than those of other co-
defendants who were more culpable. We find no merit in this claim.
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After calculating the appropriate guideline range, a
district court must consider, in imposing a sentence, the relevant
factors under 18 U.S.C.A. § 3553(a), including “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”
§ 3553(a)(6). We will affirm the sentence imposed as long as it is
within the statutorily prescribed range and is reasonable. Hughes,
401 F.3d at 546-47. Here, the court determined that a sentence at
the bottom of the applicable guideline range was appropriate for
Camara, despite the lesser sentences imposed on his co-defendants.
We conclude that Camara’s sentence is reasonable, particularly in
view of the fact that the two co-defendants Camara mentions who
received lesser sentences pled guilty, whereas Camara elected to
proceed to trial. Cf. United States v. Brainard, 745 F.2d 320, 324
(4th Cir. 1984) (“The single fact of a disparity in sentences
between a defendant who stands trial and a co-defendant who pleads
guilty does not require appellate reversal . . . .”).
Finally, Camara contends that the district court erred by
failing to depart downward on the ground that the use of intended
loss, rather than actual loss, overstated the seriousness of his
offense. Camara does not dispute the district court’s finding that
the intended loss, based on the counterfeit check, was $50,000. We
find that Camara’s offense level of twelve, based on the $50,000
intended loss and resulting in a guideline range of ten to sixteen
months imprisonment, did not overstate the seriousness of his
offense.
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For these reasons, we affirm Camara’s sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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