F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 3 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-6010
(D.C. No. 98-CR-44)
VICTOR COOPER, a/k/a Joel Mack; (W.D. Okla.)
a/k/a V.J. Simpson,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant-appellant Victor Cooper pleaded guilty to two counts of
submitting false income tax refund claims in violation of 18 U.S.C. § 287 and two
counts of using a false power of attorney in violation of 18 U.S.C. § 495. On
appeal, defendant challenges the district court’s sentencing guidelines
computation of his base offense level, asserting that the sentencing court erred in
(1) denying defendant a three-point reduction of his base offense level for
acceptance of responsibility, and (2) applying a four-point increase for his role as
a leader or organizer in a scheme to defraud the Internal Revenue Service (IRS).
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we
affirm.
We review “the district court’s legal interpretation of the guidelines de
novo.” United States v. Ensminger , 174 F.3d 1143, 1145 (10th Cir. 1999)
(quotations omitted). We “review the district court’s determination that
[d]efendant was an organizer or leader of a criminal activity . . . for clear error,”
and “give due deference to the district court’s application of the guidelines to the
facts.” United States v. Cruz Camacho , 137 F.3d 1220, 1223-24 (10th Cir. 1998).
We also review the district court’s findings as to acceptance of responsibility
under a clear error standard. See United States v. Portillo-Valenzuela , 20 F.3d
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393, 394 (10th Cir. 1994).
While incarcerated in a state prison, defendant, along with inmates Keith
Orange, Kenneth Burrell, and David Hicks, operated a tax refund scheme whereby
they would file false income tax refund claims using the names, addresses, and
social security numbers of fictitious filers. Following investigation by the IRS,
defendant was identified as a major player in this scheme which resulted in
fraudulently obtained refunds in the amount of $216,219.61, of which
$157,618.43 was directly attributable to defendant. In addition to those involved
within the prison, defendant recruited Doris Burrell, the wife of Kenneth Burrell,
and Laura Banks, alleged common-law wife of Keith Orange, to assist in this
scheme. Ms. Burrell used her home address on a number of the fraudulent tax
returns and notarized false power of attorney forms sent to her by defendant.
Defendant wrote letters to Ms. Burrell giving her specific instructions to contact
Laura Banks when the refund checks arrived and to provide Ms. Banks with a
notarized power of attorney. Ms. Burrell was to receive $1,000 for her assistance
in the scheme. Ms. Banks was recruited to use the fraudulent power of attorney
forms to cash the refund checks. In letters to Ms. Banks, defendant provided her
with specific instructions on to whom, and in what amounts, the money from the
refund checks should be distributed.
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At his arraignment, defendant pleaded not guilty to all five counts of the
indictment, and trial was set for August 24, 1998. Defendant subsequently filed a
number of pretrial motions, which were all denied by the district court. On
August 21, 1998, three days before trial, defendant entered a guilty plea to four
counts of the indictment, and the government dismissed the remaining conspiracy
count. The district court then sentenced defendant to sixty months’ imprisonment
on the first two counts and sixty-three months’ imprisonment on the last two
counts, to be served concurrently. The court also entered a restitution order in the
amount of $31,244.09.
First, defendant alleges that the sentencing court erred in granting him only
a two-level downward adjustment for acceptance of responsibility instead of the
three-level adjustment allowed under U.S.S.G. § 3E1.1(b)(2). Defendant
contends that he is entitled to the additional one-level adjustment for timely
notifying the government of his intent to plead guilty. See Section 3E1.1(b)(2).
Here, defendant signed a plea agreement on August 18, 1998, and entered
his guilty plea on August 21, 1998, only three days before his August 24, 1998
trial date. According to the sentencing guidelines, guilty pleas must be made in a
timely fashion in order to save the government the necessity of preparing for trial
and to allow the court to better plan its docket. See § 3E1.1(b)(2). Defendant
asserts that he informed the government early in the proceedings that he would
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enter guilty pleas to all counts except the count of conspiracy, and therefore, the
government was timely informed of his intent to plead guilty. The government
established that it had made extensive trial preparations including flying in three
witnesses to testify against defendant. See United States v. Hopper , 27 F.3d 378,
385 (9th Cir. 1994) (“In the context of subsection (b)(2), the timeliness of a
defendant’s decision to plead guilty will necessarily depend on the extent of trial
preparation already undertaken prior to the plea and the decision’s proximity in
time to the trial date.”). Therefore, contrary to defendant’s argument, we agree
with the sentencing court that while defendant’s “early notice” evinces on-going
plea negotiations, defendant did not tender timely notice of his intent to plead
guilty sufficient to relieve the government of trial preparation on all charges.
“The sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility. For this reason, the determination of the sentencing
judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, comment, n.5.
Therefore, affording deference to the court’s determination that defendant’s guilty
plea only days before trial was not timely, see e.g., Hopper , 27 F.3d at 385
(affirming court’s denial of additional one-level decrease when defendant pleaded
guilty three weeks prior to trial), we determine that the district court’s denial of
an additional one-level decrease was not clearly erroneous.
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Next, defendant asserts that the sentencing court erred in increasing his
base offense level by four points for his leadership and organizational roles in the
crime. The guidelines provide that “[i]f the defendant was an organizer or leader
of a criminal activity that involved five or more participants or was otherwise
extensive, increase by 4 levels.” U.S.S.G. 3B1.1(a). “In order for § 3B1.1 to
apply, the defendant must have exercised some degree of control over others
involved in the commission of the offense or he must have been responsible for
organizing others for the purpose of carrying out the crime.” United States v.
Valdez-Arieta , 127 F.3d 1267, 1271 (10th Cir. 1997) (quotation omitted). The
sentencing guidelines provide certain factors for the court to consider when
determining whether a defendant was a leader or organizer of the criminal
activity. In making this decision, the court considers
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, comment, n.4. The guidelines do not require that each of the
factors be satisfied in order for § 3B1.1 to apply. See Valdez-Arieta , 127 F.3d at
1271.
We have stated that the “wording of § 3B1.1(a) is disjunctive,” allowing
the enhancement “if defendant was either a leader or an organizer.” United States
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v. Tagore , 158 F.3d 1124, 1131 (10th Cir. 1998). In rejecting defendant’s
objection to an enhancement under § 3B1.1(a), the sentencing court found that it
wasn’t necessary to determine if the scheme involved more than five persons
because it was otherwise extensive. The court further found that defendant was
an organizer in that he recruited and directed people on the outside. Defendant’s
presentence report stated that defendant had prepared the majority of the
fraudulent tax forms, often preparing the forms while his cellmate, Burrell, acted
as a lookout. The investigation revealed that defendant obtained the blank power
of attorney forms from the prison library and filled them out to correspond to the
names on the tax forms. The court concluded that these facts, largely unrebutted,
supported a finding that defendant held a role as leader and organizer in the
scheme. We agree. Accordingly, we determine that the record in this case amply
supports the district court’s determination that defendant held a position as a
leader and
organizer in this scheme to defraud the IRS. Therefore, the district court’s four-
point enhancement of defendant’s base offense level under § 3B1.1(a) was not
clear error.
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Defendant’s motion to file a supplemental brief is granted. The judgment
of the United States District Court for the Western District of Oklahoma is
AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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