UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4126
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LOQUANN JOHNSON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:08-cr-00206-JFM-4)
Argued: January 29, 2010 Decided: March 5, 2010
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Michael and Judge King joined.
ARGUED: Dwight Everette Crawley, Washington, D.C., for
Appellant. Solette Allison Magnelli, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Loquann Johnson pled guilty to one count of conspiracy to
commit mail fraud and one count of aiding and abetting
aggravated identity theft. The district court sentenced Johnson
to 134 months imprisonment, and he now appeals his sentence
arguing the court improperly calculated his advisory sentencing
range. The government has moved to dismiss the appeal, arguing
that Johnson waived his appellate rights. For the following
reasons, we deny the government’s motion to dismiss and affirm
the sentence.
I.
The government indicted Johnson on one count of conspiracy
to commit mail fraud in violation of 18 U.S.C. § 1349 (Count 1),
and two counts of aggravated identity theft in violation of 18
U.S.C. § 1028A(a)(1) (Counts 2 and 7). Johnson pled guilty to
Counts 1 and 2 without a plea agreement. The basic conspiracy
Johnson pled guilty to involved stealing checks and personal
identification information from mailboxes and using the
information to create fake identification documents. With these
fake identification documents, Johnson and his co-conspirators
would cash checks at check-cashing establishments.
At sentencing, the district court set a base offense level
of 7 for mail fraud, see U.S.S.G. § 2B1.1(a)(1), and imposed the
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following enhancements: (1) a 14-level enhancement for an
extrapolated loss that exceeded $400,000, see U.S.S.G.
§ 2B1.1(b)(1)(H); (2) a 6-level enhancement because the crime
involved more than 250 victims, see U.S.S.G. § 2B1.1(b)(2)(c);
and a 4-level enhancement because Johnson was an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive, see U.S.S.G.
§ 3B1.1(a). Johnson received a 3-level reduction for acceptance
of responsibility, resulting in an adjusted offense level of 28.
Based on that offense level and a criminal history category IV,
Johnson’s Guidelines range for Count 1 was calculated to be 110-
137 months. Count 2 carried a mandatory consecutive sentence of
24 months.
The district court adopted the findings of the presentence
report. After considering the factors set forth in 18 U.S.C.
§ 3553(a), the court imposed a 134-month sentence, consisting of
110 months on Count 1 and 24 months on Count 2. The government
subsequently moved to dismiss Count 7 of the Indictment.
Johnson timely appealed, contending that the district court
improperly enhanced his sentence, and the government has moved
to dismiss his appeal because of an appellate waiver.
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II.
The issue of whether a defendant has waived his right of
appeal in connection with a plea proceeding “is a matter of law
that we review de novo.” United States v. Brown, 232 F.3d 399,
403 (4th Cir. 2000). In assessing whether a district court has
properly applied the Guidelines - including the application of
enhancements - “we review the district court's legal conclusions
de novo and its factual findings for clear error.” United States
v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
A.
We first consider the government’s assertion that this
appeal must be dismissed because Johnson waived his right to
appeal. In support of this argument, the government points to
the following exchange that occurred during the plea colloquy:
[Government Attorney]: Your Honor, I’m not sure at
this point, but I thought [defense counsel] was going
to waive the defendant’s right to appeal any sentence
based on Counts 1 and 2, is that not my understanding?
There was some discussion of this. I just want to
clarify for the record.
[Defense counsel]: Your Honor, he would waive so long
as the sentence is legal. . . .
The Court: Okay. So, Mr. Johnson, there is no plea
agreement. So this – none of this is binding . . . .
***
The Court: And although there’s no formal agreement
to that effect, at this point it is anticipated that
neither you nor the Government at this point intend to
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appeal any sentence I impose, provided the sentence is
legal; is that correct?
[Government Attorney]: That’s correct.
[Defense Attorney]: That’s correct, Your Honor.
The Court: Do you understand that, Mr. Johnson?
The Defendant: Yes, I do.
J.A. 53-56. (emphasis added). Based on this exchange, the
government argues that Johnson waived his right to an appeal.
We disagree.
We will enforce an appeal waiver so long as the waiver is
given knowingly and intelligently. See United States v. Blick,
408 F.3d 162, 169 (4th Cir. 2005). Whether Johnson knowingly
and intelligently agreed to waive his right of appeal must be
“evaluated by reference to the totality of the circumstances.”
Id. (internal citation and quotation marks omitted). An
important factor in such an evaluation is whether the district
court sufficiently explained the waiver to the defendant during
the Rule 11 colloquy. See United States v. Manigan, 592 F.3d
621, 627 (4th Cir. 2010). Specifically, Rule 11 mandates that a
district court, before accepting a plea of guilty, must “inform
the defendant of, and determine that the defendant understands,
. . . any . . . provision waiving the right to appeal.”
Fed.R.Crim.P. 11(b)(1)(N).
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After reviewing the record, we find that Johnson did not
waive his right to appeal. First, we note there is no explicit
appellate waiver provision to establish that Johnson clearly
waived his right to appeal. See United States v. General, 278
F.3d 389, 400 (4th Cir. 2002) (enforcing waiver where the
appellate waiver provision in the plea agreement was unambiguous
and plainly embodied in the agreement). Second, the Rule 11
colloquy is insufficient to establish a waiver of Johnson’s
right to appeal. See Manigan, 592. F.3d at 627-28 (holding that
although defendant had waived his right to appeal in a formal
plea agreement, the waiver was insufficient because the Rule 11
colloquy did not demonstrate that the waiver was given knowingly
and intelligently). Here, the district court’s statement that
“it is anticipated that neither you nor the Government at this
point intend to appeal any sentence I impose” is too ambiguous
to demonstrate that Johnson knowingly waived his appellate
rights. Our conclusion is buttressed by the court’s parting
words at sentencing that “[i]f anybody believes I’ve erred . . .
they have the right to appeal.” J.A. 156; see Manigan, 592 F.3d
at 628 (noting “[w]hen a district court has advised a defendant
that, contrary to the plea agreement, he is entitled to appeal
his sentence, the defendant can hardly be said to have knowingly
waived his right of appeal”) (internal citation omitted).
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Accordingly, we deny the government’s motion to dismiss and
proceed to consider the merits of Johnson’s appeal.
B.
Johnson contends that the district court erred in
calculating his advisory sentencing range. He first argues that
the court committed clear error when it assigned a 14-point
enhancement to his offense level based on the loss amount
because the government failed to show that the victims sustained
$400,000 in losses during the conspiracy. In applying the
enhancement, pursuant to U.S.S.G. § 2B1.1(b)(1)(H), the court
relied on the testimony of a postal inspector that he used a
random sample of 35 (out of 400) victims to approximate the loss
amount. For the 35 victims, there was more than $34,000.00 in
losses, resulting in an approximate loss per victim of $980.00.
By multiplying the approximate loss per victim by the number of
known victims (400), the loss amount exceeded $400,000. Johnson
contends that the government’s evidence is lacking because it
extrapolated the losses from 35 of the victims to all 400
victims rather than showing each of the 400 victims’ losses.
The Guidelines permit district courts to estimate losses.
See U.S.S.G. § 2B1.1 cmt. n. 3(C) (noting “[t]he court need only
make a reasonable estimate of the loss” taking into account
“[t]he approximate number of victims multiplied by the average
loss to each victim”). Further, we have held that extrapolation
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is an acceptable method to use in making a reasonable estimate
of loss under the Guidelines. See United States v. Pierce, 409
F.3d 228, 234 (4th Cir. 2005) (finding the district court did
not clearly err in finding a loss amount based on extrapolated
information). In light of this authority, and based on our
review of the record, we are satisfied that the court did not
err in calculating the loss amount.
Johnson next argues that the district court clearly erred
by applying a 6-level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(2)(c) because the crime involved more than 250
victims. Johnson contends that there is an insufficient basis
to find this number of victims. We disagree. The court applied
this enhancement based on the postal inspector’s testimony that
although the precise number of victims could not be established
and more victims were coming forward, the number of victims
identified at that point was greater than 500 persons. The
postal inspector testified that more than 50 victims had
actually been interviewed and that more than 300 real and
assigned social security numbers were reflected on a single
typewriter ribbon seized from one of the co-conspirators.
Moreover, the government submitted more than 400 names and
addresses of victims targeted for mail theft by these co-
conspirators. Based on this evidence, we do not believe the
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district court clearly erred in finding there were more than 250
victims of this conspiracy.
Finally, Johnson contends that the district court clearly
erred by applying a 4-level enhancement for his role as an
organizer and leader in the offense pursuant to U.S.S.G.
§ 3B1.1(a). Rather, Johnson argues that the court should have
found he was only a manager and/or supervisor, which would have
only warranted a 3-level enhancement. In support of his
argument, he contends that he was not an organizer or leader
because he did not possess the actual tools or implements
necessary to make the fraudulent documents.
Under the Guidelines, the district court, in distinguishing
a leadership and organization role from one of mere management
or supervision, should consider factors that include:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. In applying this enhancement, the
court based its decision on the testimony of the postal
inspector who stated that Johnson was one of the longest
standing members of the conspiracy, scouted and participated in
every part of the conspiracy, recruited other people to
participate in the conspiracy, paid proceeds to other members,
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and directed and trained members of the conspiracy. In light of
this evidence, we do not believe the district court clearly
erred in finding Johnson was an organizer and leader of the
conspiracy.
III.
For the foregoing reasons, we deny the government’s motion
to dismiss the appeal and affirm the sentence imposed by the
district court.
AFFIRMED
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