United States v. Mapp , 311 F. App'x 738 ( 2008 )


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  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 08a0328n.06
    Filed: June 10, 2008
    No. 07-3173
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                               )
    )
    Plaintiff-Appellee,                              )
    )
    v.                                                      )    ON APPEAL FROM THE UNITED
    )    STATES DISTRICT COURT FOR
    DEANGELO MAPP,                                          )    THE NORTHERN DISTRICT OF
    )    OHIO
    Defendant-Appellant.                             )
    )
    Before: BOGGS, Chief Judge; MARTIN and SILER, Circuit Judges.
    PER CURIAM. Deangelo Mapp appeals his sentence of 24 months’ imprisonment imposed
    after he pleaded guilty to a single count of bank fraud in violation of 18 U.S.C. §§ 1344 and 2. He
    argues that the district court erred by (1) failing to find that his criminal history category (“CHC”)
    over-represented his past criminal conduct, (2) denying his request for a downward departure, (3)
    denying his request for a downward variance, and (4) refusing to reduce his offense level for his
    allegedly minor role in the offense. The United States claims that this appeal is barred by a waiver
    provision in the plea agreement. We AFFIRM. In doing so, we find it unnecessary to express an
    opinion on the validity of the appeal waiver provision because Mapp’s arguments are patently
    without merit.
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    BACKGROUND
    Jacqueline West, Melvin West, Gwen Mapp, and Deangelo Mapp defrauded Key Bank and
    obtained moneys under the custody and control of Key Bank, the deposits of which were then
    insured by the Federal Deposit Insurance Corporation, by means of false and fraudulent pretenses
    and representations. As a processor in the Trust Department, it was Jacqueline West’s duty to issue
    checks as directed by the trustees. When a check needed to be reissued, West would issue the check
    to one of her relatives involved in the scheme, Melvin West (husband), Gwen Mapp (sister), and
    Deangelo Mapp (brother-in-law), instead of reissuing it to the intended recipient. To conceal the
    scheme, Jacqueline West created fictitious work orders indicating that the check needed to be
    reissued to one of her relatives. The Wests and the Mapps fraudulently cashed eight checks, causing
    Key Bank to suffer a total loss of $101,689.99. Deangelo Mapp cashed one check for $35,042.47.
    All four of the participants in the scheme were indicted and Deangelo Mapp pleaded guilty
    to a single count of bank fraud in violation of 18 U.S.C. §§ 1344 and 2. His base offense level was
    6, pursuant to USSG § 2B1.1, but was increased by 6 levels because he caused a loss greater than
    $30,000, pursuant to USSG § 2B1.1(b)(1)(D), and his offense level was reduced by 2 levels because
    he accepted responsibility, pursuant to USSG § 3E1.1(a). He had 21 criminal history points, but only
    19 points could be counted because only four of his six convictions for minor offenses were
    countable under USSG § 4A1.1(c). With an offense level of 10 and a CHC of VI, Mapp’s
    Guidelines range was 24-30 months’ imprisonment.
    Mapp filed a sentencing memorandum objecting to his presentence report. He argued that
    he was entitled to a downward departure or variance because his CHC over-represented his criminal
    history and likelihood of recidivism. He argued that his Guidelines range of 24-30 months’
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    imprisonment was unreasonable because other participants in the scheme received lighter sentences.
    The district court rejected his arguments and sentenced him to 24 months’ imprisonment, the bottom
    of his Guidelines range, three years of supervised release, and restitution in the amount of
    $35,042.47 to Key Bank.
    ANALYSIS
    Over-representation of Criminal History Claim
    USSG § 4A1.3 states that “[i]f reliable information indicates that the defendant's criminal
    history category substantially over-represents the seriousness of the defendant's criminal history or
    the likelihood that the defendant will commit other crimes, a downward departure may be
    warranted.” Mapp contends that the district court should have found that his CHC substantially
    over-represented the likelihood that he will commit other crimes and it should have granted him a
    downward departure based on that finding. We find this argument wholly without merit.
    Mapp’s extensive criminal history spans three decades and encompasses very serious
    offenses, including drug trafficking, carrying a concealed weapon with violence specification,
    assault, and resisting arrest. He tested positive for cocaine and marijuana in 2006 and he failed to
    appear for later drug tests. He was on probation for a state offense when he participated in the
    scheme to defraud Key Bank. His argument that his criminal history is over-represented because
    many of his offenses were resolved on the same day has no merit. The reason that so many of his
    offenses were resolved on the same day is that he failed to appear in court for the many offenses he
    committed in 1992 and 1993, including drug trafficking and carrying a concealed weapon with
    violence specification, and he was not apprehended until 1994. Once he was apprehended, he
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    pleaded guilty or nolo contendre to all of the charges on the same day and he served six years in
    prison before being paroled in 2000.
    Refusal to Grant a Downward Departure
    Mapp argues that the district court erred by refusing to grant him a downward departure at
    sentencing. He argued that he was entitled to a downward departure because his father left his family
    when he was in the third grade and because most of his crimes involved drugs. However, “we shall
    not review decisions of a district court not to depart downward unless the record reflects that the
    district court was not aware of or did not understand its discretion to make such a departure.” United
    States v. Puckett, 
    422 F.3d 340
    , 345 (6th Cir. 2005). Here, the district court was clearly aware of and
    understood its discretion to make a downward departure. The district court exhaustively discussed
    the § 3553(a) factors, the relevant Booker considerations, and the advisory nature of the Guidelines.
    Refusal to Grant a Variance
    Mapp argues that the district court should have granted him a variance because the other
    participants in the scheme received lighter sentences. We review the district court’s sentencing
    determination for reasonableness. United States v. Thomas, 
    498 F.3d 336
    , 339 (6th Cir. 2007). The
    reasonableness of a sentence is reviewed under a “deferential abuse-of-discretion standard” in light
    of the “uniqueness of the individual case.” Gall v. United States, 
    128 S. Ct. 586
    , 598 (2007). Mapp’s
    variance argument essentially challenges the substantive reasonableness of his sentence. Regarding
    the substantive reasonableness inquiry, we have applied a rebuttable presumption of reasonableness
    to sentences falling within the applicable Guidelines range. United States v. Liou, 
    491 F.3d 334
    , 337
    (6th Cir. 2007).
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    Mapp’s sentence was reasonable and the district court did not err by refusing to grant a
    downward variance. He received a harsher sentence than his co-defendants because he had a higher
    CHC. Jacqueline West, who Mapp claims masterminded the scheme, was sentenced to 12 months
    plus one day of imprisonment, three years of supervised release, and $101,689.93 in restitution.
    Gwen Mapp received five months’ imprisonment, three years of supervised release, and $101,689.93
    in restitution. Melvin West, who cashed one check for $371, received a sentence of one day in
    custody, three years of supervised release, and $371 in restitution. Jacqueline West had a CHC of
    I and Gwen Mapp had a CHC of III. Melvin West cashed one check for $371 while Mapp cashed
    one check for $35,042.47, causing Key Bank a much greater loss. The district court properly
    discussed and considered the § 3553(a) factors and the advisory nature of the Guidelines.
    Refusal to Grant a Reduction for Minor Role in the Offense
    Mapp argues that the district court erred by failing to reduce his offense level based on his
    allegedly minor role in the offense. However, he failed to raise this argument before the district
    court. Therefore, it is waived. Union Planters Nat’l Bank of Memphis v. Commercial Credit Bus.
    Loans, 
    651 F.2d 1174
    , 1187 (6th Cir. 1981) (“It is axiomatic that an issue not presented to the trial
    court cannot be raised for the first time on appeal”).
    AFFIRMED.
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