United States v. Stephen Esway , 488 F. App'x 969 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0778n.06
No. 11-5142
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jul 18, 2012
UNITED STATES OF AMERICA, ) LEONARD GREEN, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
STEPHEN A. ESWAY, ) KENTUCKY
)
Defendant-Appellant. )
BEFORE: COLE and COOK, Circuit Judges; ROSEN, Chief District Judge.*
PER CURIAM. Stephen A. Esway, a federal prisoner, appeals his conviction and sentence
following a jury trial. Esway was found guilty of wire fraud and sentenced to 57 months of
imprisonment. He was also ordered to pay restitution to Staples, Inc. in the amount of $245,417.18.
Esway argues that the district court erred in calculating the amount of loss for purposes of
determining his offense level, as well as the amount of restitution. He also argues that his counsel
was ineffective in failing to object to these calculations and in failing to inform him of plea offers
by the government.
The evidence at trial showed that Esway had defrauded Staples over a period of years. Esway
would buy expensive software and then “return” educational versions of the software worth hundreds
of dollars less, which the stores did not even carry, using copies of the original receipt and altered
UPC codes, at stores in many different locations. The government showed that Esway had obtained
*
The Honorable Gerald E. Rosen, Chief United States District Judge for the Eastern District
of Michigan, sitting by designation.
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“refunds” totalling $241,861.85 more than the total amount of merchandise he purchased at Staples.
The jury returned a guilty verdict.
The presentence report calculated Esway’s offense level based on an amount of loss between
$200,000 and $400,000. The amount of loss was calculated at $245,417.18, which included
estimated losses to retailers other than Staples that Esway had defrauded on a smaller scale. The
report arrived at a sentencing range of 46 to 57 months. The district court imposed a 57-month
sentence and ordered Esway to pay restitution to Staples in the amount of $245,417,18. Counsel for
Esway made only a general objection to the sentence.
We review the sentence in this case for plain error, because the general objection offered by
defense counsel deprived the district court of the opportunity to correct any error. See United States
v. Simmons, 587 F.3d 348, 357-58 (6th Cir. 2009). Here, the government concedes that the district
court plainly erred in ordering Esway to pay restitution to Staples in an amount that included losses
to other retailers.
Esway objects to both the amount of restitution and the amount of loss on which his offense
level was based. However, he confuses the two concepts, and his arguments regarding the amount
of loss cite to authority governing the calculation of the amount of restitution. For example, United
States v. Jones, 641 F.3d 706, 714 (6th Cir. 2011), and United States v. Sosebee, 419 F.3d 451, 459
(6th Cir. 2005), concern the calculation of restitution, but Esway cites them for propositions
regarding calculation of the amount of loss. The amount of loss is not limited to what was alleged
in the indictment and found by the jury, as is the amount of restitution, but may include relevant
uncharged conduct. See United States v. Maken, 510 F.3d 654, 657-58 (6th Cir. 2007). The court
need only make a reasonable estimate of the amount of loss. United States v. Brawner, 173 F.3d
966, 971 (6th Cir. 1999). In any event, even if the amount of loss had been calculated based only
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on the losses to Staples, it would not have changed the sentencing range calculation. See United
States v. Quigley, 382 F.3d 617, 623 (6th Cir. 2004).
A claim of ineffective assistance of counsel cannot be raised on direct appeal unless the
merits of the claim can be assessed on the record. United States v. Williams, 612 F.3d 500, 508 (6th
Cir.), cert. denied, 131 S. Ct. 367 (2010). Here, Esway argues that his counsel was ineffective in
failing to object to the calculations of the amount of restitution and the amount of loss. The error
in the amount of restitution will be corrected on remand. The claim of error in the amount of loss
is without merit. Esway also argues, in a conclusory fashion, that counsel failed to convey an offer
or offers of plea agreements. There is no evidence on the record from which this claim can be
assessed. Therefore, it cannot be raised on direct appeal.
Accordingly, we affirm the district court’s judgment in part and vacate and remand in part.
On remand, the district court should correct the judgment to indicate that the amount of restitution
owed to Staples is $241,861.85.