United States v. Dowden , 178 F. App'x 370 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 28, 2006
Charles R. Fulbruge III
Clerk
No. 04-30821
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COREY DOWDEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CR-79-2-F
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Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Corey Dowden was convicted by a jury of conspiracy to commit
mail fraud and identity theft and of two counts of mail fraud.
The district court sentenced Dowden to concurrent 33-month terms
of imprisonment and to concurrent three-year periods of
supervised release. Dowden was ordered to pay restitution in the
amount of $290,865.59. Dowden gave timely notice of his appeal.
Dowden contends that the Government failed to prove that he
committed identity theft or mail fraud or that he knew that James
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-30821
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Knox, his business partner, was using stolen identities to obtain
loans fraudulently. We review this question under the rational-
juror standard. See United States v. Villarreal, 324 F.3d 319,
322 (5th Cir. 2003). Dowden must show that no reasonable juror
could have found that the evidence established his guilt beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979).
To prove a conspiracy under 18 U.S.C. § 371, the Government
must prove beyond a reasonable doubt “(1) an agreement between
two or more people, (2) to commit a crime against the United
States, and (3) an overt act by one of the conspirators to
further the objectives of the conspiracy.” United States v.
Morrow, 177 F.3d 272, 286 (5th Cir. 1999) (quotation marks
omitted). The Government need not present direct evidence of an
actual agreement between the coconspirators, but a conspiracy may
be inferred from circumstantial evidence. United States v.
Stephens, 964 F.2d 424, 427 (5th Cir. 1992). Moreover, the
Government need not prove that a conspirator had knowledge of all
the details of the conspiracy, as long as knowledge of the
essential elements of the conspiracy is proven. United States v.
Judd, 889 F.2d 1410, 1415 (5th Cir. 1989). Mere association or
presence is not by itself sufficient to prove knowing
participation in a conspiracy. United States v. Cortinas, 142
F.3d 242, 249 (5th Cir. 1998).
No. 04-30821
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Knox testified that Dowden was a knowing and active
participant in each of the fraudulent loan transactions and that
the two men were equal partners. A reasonable juror could have
believed that testimony and this court must view the evidence in
the light most favorable to the Government. See Jackson, 443
U.S. at 319. Knox’s testimony alone is sufficient to uphold the
verdict. See United States v. Medina, 161 F.3d 867, 872–73 (5th
Cir. 1998). Knox’s testimony was corroborated by the testimony
of the victims and other fact witnesses. We conclude that the
evidence was sufficient.
Dowden contends that the district court erred by limiting
his cross examination of a Government witness when it refused to
permit him to show the witness Knox’s photograph in response to
her testimony that she had never met Knox. Dowden has not shown
that the district court’s ruling was clearly prejudicial. United
States v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998).
Dowden contends that his sentence was imposed illegally in
light of United States v. Booker, 543 U.S. 220 (2005).** Because
Dowden preserved this issue by invoking Blakely v. Washington,
542 U.S. 296 (2004), our review is for harmless error. See
United States v. Rodriguez-Mesa, ___ F.3d ___ , 2006 WL 633280,
**
Dowden’s Booker-based challenge of the district court’s
restitution order is foreclosed. See United States v. Garza, 429
F.3d 165, 170 (5th Cir. 2005), cert. denied, 126 S. Ct. 1444
(2006).
No. 04-30821
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*5 (5th Cir. Mar. 15, 2006) (No. 04-41757); United States v.
Walters, 418 F.3d 461, 463 (5th Cir. 2005).
The district court erred in sentencing Moreno pursuant to
the mandatory Sentencing Guidelines. See United States v. Woods,
440 F.3d 255, 257 (5th Cir. Feb. 13, 2006) (No. 04-11058); see
also United States v. Garza-Lopez, 410 F.3d 268, 275 n.2 (5th
Cir.) (when vacating a sentence due to a misapplication of the
then-mandatory Guidelines, it is not necessary to address Sixth
Amendment claim), cert. denied, 126 S. Ct. 298 (2005). Because
the error was preserved, the Government bears the “heavy burden”
of showing that the error is harmless. See Woods, 440 F.3d at
257–59. The Government has not carried its burden. A sentence
at the top of the guideline range is not sufficient, without
more, to show that Booker error was harmless. See id. at 258–59.
Nor is the fact that the district court narrowly refused an
upward departure from the guideline range. See id. at 260–61.
The district court’s stated reasons do not reveal whether the
district court would have imposed the same sentence under an
advisory guidelines regime. See id. at 262.
Although Dowden has been released from custody, his Booker-
based challenge of his sentence is not moot. See United States
v. Johnson, 529 U.S. 53, 60 (2000) (recognizing that trial court
may modify an individual’s conditions of supervised release at
any time after one year under 18 U.S.C. § 3583(e)(1) if warranted
by conduct of defendant and interests of justice). We neither
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express nor intimate any view as to whether the terms of Dowden’s
supervised release should be modified.
The convictions are AFFIRMED. The sentence is VACATED and
case REMANDED FOR RESENTENCING.