United States v. Brathwaite , 242 F. App'x 900 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4670
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDY EARL BRATHWAITE, a/k/a Trini,
Defendant - Appellant.
No. 06-4825
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TESHARA L. SYKES,
Defendant - Appellant.
No. 06-4827
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONITA SHARMAINE SYKES,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cr-00022-RBS)
Submitted: April 11, 2007 Decided: June 18, 2007
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
I. Lionel Hancock, III, BOHANNON, BOHANNON & HANCOCK, Norfolk,
Virginia; Christopher I. Jacobs, ZOBY & BROCCOLETTI, Norfolk,
Virginia; George A. Neskis, DECKER, CARDON, THOMAS, WEINTRAUB &
NESKIS, Norfolk, Virginia, for Appellants. Chuck Rosenberg, United
States Attorney, Michael C. Moore, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
In these consolidated appeals, Andy Earl Brathwaite,
Tonita Sharmaine Sykes, and Teshara L. Sykes appeal their
convictions and sentences stemming from a conspiracy to produce and
distribute fraudulent driver’s licenses. Brathwaite pled guilty
without a plea agreement to one count of conspiracy to produce and
transfer identification documents and three counts of production of
identification documents without lawful authority in violation of
18 U.S.C. § 1028(a)(1)-(2), (b)(1)(A)(ii) and (c)(3)(A) (2000).
The Sykes sisters each pled guilty without plea agreements to one
count of conspiracy to produce and transfer identification
documents, and two counts each of production of identification
documents without lawful authority, also in violation of 18 U.S.C.
§ 1028(a)(1)-(2), (b)(1)(A)(ii) and (c)(3)(A). Brathwaite was
sentenced to twenty-four months in prison on each count, all terms
to run concurrently. The Sykeses were sentenced to sixty months in
prison on each count, all terms to run concurrently.
Counsel for Brathwaite and the Sykeses filed a
consolidated appeal in which appellants assert their sentences are,
for various reasons, unreasonable. Brathwaite also filed a motion
to file a pro se supplemental brief and a pro se supplemental brief
in which he claims: (i) the indictment charging him was legally
insufficient; (ii) the district court erred when it increased his
offense level for his managerial role in the conspiracy; and (iii)
- 3 -
the district court erroneously refused to reduce his offense level
for acceptance of responsibility. We grant Brathwaite’s motion to
file a pro se supplemental brief and affirm Brathwaite’s and the
Sykeses’ convictions and sentences.
I. Andy Earl Brathwaite, No. 06-4670
A. Sufficiency of Indictment
In his pro se supplemental brief, Brathwaite claims his
indictment was legally insufficient because it did not allege the
intended unlawful uses of the fraudulent driver’s licenses produced
by the conspiracy of which Brathwaite was a part. Brathwaite’s
argument is meritless. There is no requirement under § 1028(a)(1),
(a)(2), or (c)(3)(A) that an indictment specifically allege the
unlawful purpose for which the fraudulent documents were going to
be used. Rather, all that is required is that a criminal defendant
“knowingly and without lawful authority produce[] an identification
document, authentication feature, or a false identification
document”, and that “the production, transfer, possession, or use
prohibited . . . is in or affects interstate or foreign commerce,
including the transfer of a document by electronic means.” 18
U.S.C. § 1028(a)(1) & (c)(3)(A); see also 18 U.S.C. § 1028(a)(2)
(criminal defendant must “knowingly transfer . . . a false
identification document knowing that such document . . . was stolen
or produced without lawful authority”).
- 4 -
While Brathwaite relies upon United States v. Rohn, 964
F.2d 310 (4th Cir. 1992), for the proposition his indictment was
insufficient for failing to allege the intended unlawful use of the
fraudulent driver’s licenses, Rohn is inapplicable. In Rohn, this
court held that under 18 U.S.C. § 1028(a)(3), the Government must
establish that an individual in possession of false identification
intends to use the identification in a fraudulent and unlawful
manner. Rohn, 964 F.2d at 312-13 (holding that mere possession is
not enough to satisfy § 1028(a)(3)). Brathwaite was not indicted
or convicted for a violation of this subdivision of § 1028.
Moreover, Brathwaite does not deny he took part in a conspiracy to
produce and transfer the fraudulent driver’s licenses.
Accordingly, we conclude Brathwaite’s argument regarding the
insufficiency of his indictment is meritless.
B. Challenges to Sentence
Brathwaite also raises several issues regarding the
validity of his sentence. Brathwaite claims the district court
erred when it: (i) increased his offense level by two for a loss
of more than $5000 but less than $10,000 pursuant to U. S.
Sentencing Guidelines Manual (“USSG”) § 2B1.1(b)(1)(B) (2005)
because actual loss could not be determined; and (ii) imposed a
“reasonable” sentence because “reasonableness” is the standard of
review on appeal and the district court was required to impose a
sentence “sufficient, but not greater than necessary, to comply
- 5 -
with the purposes” of 18 U.S.C. § 3553(a) (2000). In his pro se
supplemental brief, Brathwaite also claims the district court erred
when it: (i) increased his offense level by three pursuant to USSG
§ 3B1.1(b) (2005) for Brathwaite’s managerial role in the
conspiracy for which he was convicted; and (ii) refused to reduce
his offense level for acceptance of responsibility pursuant to USSG
§ 3E1.1 (2005).
This court reviews a sentence for reasonableness. See
United States v. Booker, 543 U.S. 220, 261 (2005). In determining
whether a sentence is reasonable, this court reviews the district
court's legal conclusions de novo and its factual findings for
clear error. See United States v. Hampton, 441 F.3d 284, 287 (4th
Cir. 2006).
Post-Booker, a sentencing court must engage in a
multi-step process that begins with correctly determining the
defendant's guidelines range. See United States v. Moreland, 437
F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
“Next, the court must determine whether a sentence within that
range . . . serves the factors set forth in § 3553(a) and, if not,
select a sentence [within statutory limits] that does serve those
factors.” Id. (alterations in original) (internal quotation marks
omitted). “In doing so, the district court should first look to
whether a departure is appropriate based on the Guidelines Manual
or relevant case law.” Id. If it is appropriate, the court may
- 6 -
depart; if the “departure range still does not serve the factors
set forth in § 3553(a), the court may then elect to impose a
non-guideline sentence (a ‘variance sentence’).” Id. As part of
this process, “[t]he district court must articulate the reasons for
the sentence imposed, particularly explaining any departure or
variance from the guideline range.” Id.
A district court's mandate “is to impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes of § 3553(a)(2).” United States v. Davenport, 445 F.3d
366, 370 (4th Cir. 2006) (internal quotation marks omitted).
“Reasonableness is the appellate standard of review in judging
whether a district court has accomplished its task.” Id. (emphasis
in original). Ultimately,
[T]he overarching standard of review for unreasonableness
will not depend on whether we agree with the particular
sentence selected, but whether the sentence was selected
pursuant to a reasoned process in accordance with law, in
which the court did not give excessive weight to any
relevant factor, and which effected a fair and just
result in light of the relevant facts and law.
United States v. Green, 436 F.3d 449, 457 (4th Cir.) (internal
citation omitted), cert. denied, 126 S. Ct. 2309 (2006). Thus,
“reasonableness review involves both procedural and substantive
components.” Moreland, 437 F.3d at 434. A sentence will be
procedurally unreasonable if, for example, the district court
provides an inadequate statement of reasons. Id. We conclude
Brathwaite’s sentence is reasonable.
- 7 -
i. Increase of offense level for loss of more than $5000 but
less than $10,000 pursuant to USSG § 2B1.1(b)(1)(B)
We conclude the district court correctly increased
Brathwaite’s offense level by two pursuant to USSG
§ 2B1.1(b)(1)(B). For offenses involving fraud and deceit, the
district court is directed to increase a defendant’s offense level
if loss precipitated by the fraud is greater than $5000. USSG
§ 2B1.1(b)(1). If there is a loss “but it reasonably cannot be
determined,” the district court must then “use the gain that
resulted from the offense as an alternative measure of loss.” USSG
§ 2B1.1, comment. (n.3(B)).
Brathwaite claims the district court erred in using gain
as a measure of loss because “[t]he record is devoid of any
evidence that a victim incurred a loss.” Brathwaite also argues
the Government should have produced a Department of Motor Vehicles
(“DMV”) representative to testify as to the loss incurred.
Brathwaite’s arguments are unavailing.
Brathwaite’s presentence investigation report (“PSR”)
stated that “the loss amount cannot be reasonably determined.” The
PSR used the gain attributed to Brathwaite to determine the amount
of loss to the DMV and, according to USSG § 2B1.1, attributed a
loss of $9000 to Brathwaite. At the sentencing hearing, the
Government introduced testimony establishing the DMV would have to
take action to retrieve the fraudulent driver’s licenses and cancel
- 8 -
them. As of the time of Brathwaite’s sentencing, however, that
process had only begun.
Although Brathwaite generally objected to the PSR’s
finding regarding the inability to determine the amount of loss,
Brathwaite introduced no evidence at sentencing to contradict the
Government’s testimony that a loss occurred and that the DMV was
going to have to take action to cancel the fraudulent licenses.
Based on the PSR and the testimony presented by the Government, the
district court concluded there was a loss but the amount could not
be reasonably determined.
We conclude the district court correctly determined that
the amount of loss could not be determined as of the time of
sentencing and that the appropriate measure of loss was the gain to
Brathwaite. See USSG § 2B1.1, comment. (n.3(B)) (2005); see also
USSG § 2B1.1, comment. (n.3(C)) (2005) (“The court need only make
a reasonable estimate of the loss. The sentencing judge is in a
unique position to assess the evidence and estimate the loss based
upon that evidence. For this reason, the court’s loss
determination is entitled to appropriate deference.”) (internal
citation omitted). Because the evidence established Brathwaite
gained between $8000 and $9000 as a result of the conspiracy, we
conclude the district court correctly increased Brathwaite’s
offense level by two levels. See USSG § 2B1.1(b)(1)(B).
- 9 -
ii. District court’s alleged application of “reasonableness”
as standard at sentencing
Brathwaite claims the district court erroneously applied
the appellate standard of review in sentencing him to what the
district court believed to be a “reasonable” sentence. We conclude
Brathwaite’s argument, which, in his case, merely puts form over
substance, is meritless.
At the sentencing hearing, the district court
appropriately heard argument regarding Brathwaite’s objections to
the calculation of his guidelines range and adopted the guidelines
range calculated by the PSR as its own. The district court, after
hearing testimony from an acquaintance of Brathwaite regarding
Brathwaite’s past employment and the fact that he is an “excellent
father”, thoroughly discussed the § 3553(a) factors and sentenced
Brathwaite above the guidelines range.
Although the district court did use the term “reasonable”
in describing the sentence it imposed upon Brathwaite, the district
court used this term only to explain it felt the sentence it
imposed was the appropriate one under the circumstances. Nothing
in the transcript of the sentencing hearing reveals the district
court applied an incorrect standard in determining an appropriate
sentence for Brathwaite. In fact, other than challenging the
rationale behind the calculation of his guidelines range,
Brathwaite does not challenge the duration of his sentence.
Because the district court properly calculated the guidelines range
- 10 -
and thoroughly considered the relevant § 3553(a) factors, we
conclude the district court’s use of the term “reasonable” to
describe that sentence is irrelevant. See Moreland, 437 F.3d at
432.
iii. Increase of offense level pursuant to USSG § 3B1.1(b) for
managerial role in conspiracy
In his pro se supplemental brief, Brathwaite claims the
district court erred by increasing his offense level by three
pursuant to USSG § 3B1.1(b) for his managerial role in the
conspiracy. In his supplemental brief, however, Brathwaite
concedes that his role in the conspiracy consisted of his
procurement of purchasers for the fraudulent driver’s licenses, a
duty to refer the purchasers to the Sykeses and another co-
defendant and to collect the payment from the purchasers, and his
responsibility to thereafter divide the payment among his co-
conspirators. Moreover, the Government produced uncontradicted
testimony at the sentencing hearing that Brathwaite instructed
purchasers of the fraudulent driver’s licenses through the process
of applying for the licenses at the DMV.
Because we conclude this activity meets the requirements
of a manager or supervisor of a conspiracy under USSG § 3B1.1(b),
see United States v. Bartley, 230 F.3d 667, 673-74 (4th Cir. 2000)
(holding increase appropriate where defendant arranged the
logistics of marijuana deliveries or payments and coordinated the
activities of others), we conclude the district court did not err
- 11 -
in increasing Brathwaite’s guidelines range based upon his
managerial role in the conspiracy.
iv. District court’s refusal to reduce offense level for
acceptance of responsibility pursuant to USSG § 3E1.1
Brathwaite also claims in his pro se supplemental brief
that the district court erred in refusing to reduce his offense
level for acceptance of responsibility pursuant to USSG § 3E1.1.
Brathwaite claims the Government did not meet its burden of proving
Brathwaite minimized his role in the conspiracy. Brathwaite’s
argument is meritless.
Under USSG § 3E1.1, “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense,” he
qualifies for a two-level reduction in his offense level.
“[M]erely pleading guilty is not sufficient to satisfy the criteria
for a downward adjustment for acceptance of responsibility.”
United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).
Although a defendant is not required to volunteer information, “a
defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.” USSG § 3E1.1.
In this case, the district court correctly determined
that Brathwaite did “not fully and completely accept[]
responsibility for his role in this offense. He has denied being
responsible for being a supervisor and a manager of this operation.
He has tried to put everything off on [his co-defendant].”
- 12 -
Moreover, it was Brathwaite’s burden to establish, by a
preponderance of the evidence, that he “clearly recognized and
affirmatively accepted personal responsibility for his criminal
conduct.” Nale, 101 F.3d at 1005. Brathwaite failed to introduce
evidence, other than pointing to his guilty plea, to establish he
fully accepted responsibility for his managerial role in the
conspiracy. Because we find the district court’s factual
determination is supported by the record, we conclude the district
court did not err in refusing to reduce Brathwaite’s offense level
for acceptance of responsibility.
II. The Sykes Sisters, Nos. 06-4825 and 06-4827
The Sykeses claim the district court imposed unreasonable
sentences upon them because it: (i) applied the wrong legal
standard in determining appropriate sentences; (ii) improperly
included the cost to the DMV in investigating their crimes when
calculating a loss under the guidelines; and (iii) failed to show
it adequately considered all relevant § 3553(a) factors. The
Sykeses’ arguments are meritless.
A. District Court’s Alleged Application of “Reasonableness”
as Sentencing Standard
We conclude the district court did not apply the
incorrect legal standard in determining appropriate sentences for
the Sykes sisters. The district court, after hearing argument on
the appropriate guidelines ranges, adjusted the guidelines ranges
as it felt appropriate and thoroughly considered the § 3553(a)
- 13 -
factors. The mere fact the district court sentenced the Sykeses to
what it believed to be “reasonable” sentences instead of stating on
the record it was imposing sentences that were “sufficient, but not
greater than necessary, to comply with the purposes of
§ 3553(a)(2)” in accordance with Davenport, 445 F.3d at 370, does
not make the sentences unreasonable. The Sykeses’ argument to the
contrary merely puts form over substance. Accordingly, we
conclude the district court did not apply the incorrect legal
standard in sentencing the Sykeses. See Moreland, 437 F.3d at 432-
34.
B. Calculation of Loss Under USSG § 2B1.1(b)
We also conclude the district court did not improperly
include the cost to the DMV in investigating the Sykeses’ crimes
when calculating loss under the guidelines. As with Brathwaite,
the district court determined a loss amount could not reasonably be
calculated under USSG § 2B1.1(b). The district court, finding the
Government’s witnesses’ testimony regarding the actions taken by
the DMV to obtain and cancel the fraudulent licenses generated by
the Sykes sisters to be “extremely credible and straightforward,”
appropriately determined gain to the Sykeses to be the correct
measure of loss pursuant to USSG § 2B1.1, comment. (n.3(B)).
Although the Sykeses argue the district court incorrectly
included the costs to the Government in investigating and
prosecuting their crimes in violation of USSG § 2B1.1, comment.
- 14 -
(n.3(D)(ii)) (2005) (“Loss shall not include . . . [c]osts to the
government of, and costs incurred by victims primarily to aid the
government in, the prosecution and criminal investigation of an
offense.”), this argument is contradicted by the record. The
district court explicitly stated it was not including costs to the
Government in investigating the Sykeses’ crimes in its calculation
of loss. The mere fact the district court stated it considered the
victims of the Sykeses’ crimes to be “twofold, not only the system,
but some of these individuals who are having their identities used
and trying to straighten out this situation” does not, as the
Sykeses would have the court believe, lead to the conclusion the
district court included these costs in its calculation. Rather,
the district court made this statement to support its conclusion
the loss amount was incalculable and that, pursuant to USSG
§ 2B1.1, comment. (n.3(B)), it was required to look to the Sykeses’
gain in calculating their guidelines ranges. Accordingly, we
reject the Sykeses’ argument that the district court improperly
included the cost of the DMV’s investigation as part of the loss
attributed to their crimes.
C. Validity of Sentence Variances
We reject the Sykeses’ argument that their sentences are
unreasonable because the district court did not adequately explain
its reasons for varying from their guidelines ranges. Although the
district court did vary from the guidelines ranges and imposed
- 15 -
sentences double the maximum provided by the ranges,* the district
court did not do so without first explaining why it was varying.
Rather, after adjusting the Sykeses’ guidelines ranges, the
district court thoroughly discussed the § 3553(a) factors as they
pertained to the Sykes sisters and sentenced them accordingly.
With regard to Teshara Sykes, the district court first
discussed the “nature and circumstances of the offense and the
history and characteristics of the defendant,” and determined that
the “nature and circumstances of the offense weigh heavily against
this defendant, given the position that she was in at the
Department of Motor Vehicles, which is a position of trust, and the
extensiveness of her activities, together with her sister and”
another co-defendant. The district court continued that “at this
point . . . the authorities have barely scratched the surface in
trying to right these wrongs, and that the harm at this point in my
opinion is just immeasurable.” Although the district court found
that Teshara Sykes’ lack of a criminal history weighed in her
favor, it also determined that her college education and background
weighed against her; although Teshara Sykes is a bright woman who
comes from a stable background, the district court found she used
her intelligence to commit her crimes. Because the loss to the
*
The Sykeses’ guidelines ranges were both calculated at
twenty-four to thirty months for each charge. The district court
sentenced the Sykeses’ to sixty months on each charge, all terms to
run concurrently.
- 16 -
system and the impact that fraudulent driver’s licenses can have on
the system is vast, the district court felt compelled to vary
Teshara Sykes’ sentence above the guidelines range.
With regard to Tonita Sykes, the district court also
considered the “nature and circumstances of the offense and the
history and characteristics of the defendant” which, in the
district court’s opinion, “weigh[ed] quite heavily against” her.
The district court found that the “residual harm to the system is
immeasurable in a case such as this,” and based on Tonita Sykes’
abuse of her position of trust with the DMV and the “significant
level of disruption to a government function,” coupled with the
“residual damage to the citizens of this country . . . for every
one of those licenses that [was] issued falsely,” felt compelled to
sentence her to double the maximum under her guidelines range. The
district court also took into consideration Tonita Sykes’ lack of
a criminal history, but found the fact that she used her
intelligence and higher education to commit her crimes to be a
factor against her favor.
Although the Sykes sisters generally argue the district
court did not appropriately consider “all of the relevant § 3553(a)
factors,” the Sykeses do not point to which factors the district
court failed to consider. On the contrary, we conclude the
district court thoroughly discussed each and every relevant
§ 3553(a) factor. In any event, a district court “need not
- 17 -
explicitly discuss every § 3553(a) factor on the record.” United
States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006), petition for
cert. filed, __ U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659).
Accordingly, we conclude the Sykeses’ sentences are reasonable.
Based on the foregoing, we grant Brathwaite’s motion to
file a pro se supplemental brief and 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 argument would not aid the decisional process.
AFFIRMED
- 18 -