F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 12 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6253
(D.C. No. 00-CR-1-L)
RONALD CHARLES REED, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , 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This order and judgment is not binding precedent, except under the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 Ronald Charles Reed pleaded guilty to two counts of using
a counterfeit access device, that is, counterfeit credit cards, in violation of
18 U.S.C. § 1029(a)(1). He was sentenced to fifty-one months in prison followed
by three years’ supervised release on each count, to run concurrently, and was
ordered to pay a fine, a special assessment and restitution. He appeals the district
court’s determination of his sentence. We exercise jurisdiction pursuant to
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm.
The presentence report indicated that Reed manufactured, distributed and
used counterfeit credit cards. Under the United States Sentencing Guidelines
(1998 edition), the base offense level for violation of 18 U.S.C. § 1029(a) was
six. USSG § 2F1.1(a). Special offense characteristics for an intended loss
exceeding $40,000 and more than minimal planning and/or one victim raised the
offense level to thirteen. § 2F1.1(b)(1), (2). The district court determined that
Reed was a leader or organizer of criminal activity and added two levels,
§ 3B1.1(c), but declined to give him an adjustment for acceptance of
responsibility. § 3E1.1. Because Reed’s initial criminal history score failed to
reflect numerous prior convictions, numerous arrests without convictions, and
pending charges, the court determined that an upward departure in Reed’s
criminal history category was warranted, increasing it from Category IV to
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Category VI. §§ 5K2.0, 4A1.3. The resulting sentencing range was forty-one to
fifty-one months, and the court sentenced Reed to fifty-one months.
On appeal, Reed challenges the district court’s decision to increase his
offense level for his role as a leader/organizer, its refusal to grant an adjustment
for acceptance of responsibility, and its upward departure in his criminal history.
He also contends that the sentence imposed violates Apprendi v. New Jersey ,
120 S. Ct. 2348 (2000). We address each of these arguments in turn.
We review the court’s finding that Reed was a leader or organizer of
criminal activity for clear error. United States v. Tagore , 158 F.3d 1124, 1130
(10th Cir. 1998). In determining whether a defendant’s actions warrant this
enhancement,
the court should consider 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 and the degree of control and authority
exercised over others. We have held that section 3B1.1(c) is
satisfied upon a mere showing that the defendant exercised any
degree of direction or control over someone subordinate to him in the
distribution scheme.
United States v. Baez-Acuna , 54 F.3d 634, 638-39 (10th Cir. 1995) (quotations,
citations and alterations omitted). The evidence showed that Reed manufactured
and distributed to several individuals, including his son, counterfeit credit cards
and counterfeit identification, that these individuals recruited at least one other
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person to use the credit cards to buy merchandise or get cash advances, and that
these individuals returned some of the proceeds from the use of the credit cards to
Reed. The fraudulent cards had a limited period of usefulness because they could
be used only until the true owner of the cards received a statement showing
fraudulent charges. This and other evidence created a reasonable inference that
Reed supplied new fraudulent cards to these individuals on an on-going basis and
that he was at the head of this criminal activity because he manufactured the
counterfeit cards and got each operation started. Based on this evidence, we
cannot say that the court’s finding that Reed was a leader or organizer of the
criminal activity was clearly erroneous.
Reed contends that because he timely agreed to plead guilty and save the
government the expense of preparing for trial and because he should not be held
responsible for the conduct of others, the district court clearly erred in denying
him an adjustment for acceptance of responsibility. We review the district court’s
denial of a reduction for acceptance of responsibility for clear error. United
States v. Nichols , 229 F.3d 975, 978 (10th Cir. 2000). Alternatively, he contends
the district court should not have imposed a five-level increase for relevant
conduct. 1
1
The five-level increase actually was for the amount of intended loss, most
of which stemmed from the relevant conduct of others for whom Reed was found
(continued...)
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The district court refused to adjust Reed’s offense level for acceptance
of responsibility because the court concluded he frivolously had denied his
involvement in a variety of relevant conduct--virtually the same activity on
which the court relied in finding him a leader/organizer--until just prior to the
sentencing hearing. In fact, even at the sentencing hearing, Reed continued to
deny his involvement in the relevant conduct (as he does on appeal). But he
withdrew his objections to the presentence report’s recommendations regarding
relevant conduct under the idea, apparently with the backing of the government,
that he would then be able to get a reduction for acceptance of responsibility,
likening his action to an Alford 2 plea.
With respect to his contention regarding the five-level increase for relevant
conduct, Reed’s withdrawal of his objection to the presentence report regarding
relevant conduct acts as an admission of those facts, and we will not consider
this contention on appeal. See United States v. Green , 175 F.3d 822, 837-38
(10th Cir. 1999). Admission of these facts, however, does not necessarily mean
that Reed has accepted responsibility for the relevant conduct. See United States
v. Cruz Camacho , 137 F.3d 1220, 1226 (10th Cir. 1998) (“A defendant who
falsely denies or frivolously contests, relevant conduct that the court determines
1
(...continued)
to be leader or organizer.
2
North Carolina v. Alford , 400 U.S. 25 (1970).
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to be true has acted in a manner inconsistent with acceptance of responsibility.”)
(quotations omitted); see also United States v. Harlan , 35 F.3d 176, 181 (5th Cir.
1994) (holding that “whether a defendant has entered an Alford plea in which he
maintains his innocence and refuses to acknowledge his conduct in the offense is
a relevant factor in the acceptance of responsibility determination”). Moreover,
the timeliness of a defendant’s admission of relevant conduct may also be
considered in the acceptance-of-responsibility determination, USSG § 3E1.1,
cmt. (n.6), and the court noted that Reed’s belated withdrawal of his objections
created unnecessary work for the court and government. Given Reed’s continuing
denial of the relevant conduct and the last-minute withdrawal of his objections,
the court clearly did not err in denying Reed an adjustment for acceptance of
responsibility.
Reed next contends that the court erred in departing upwardly in his
criminal history level because it relied on prior convictions that were too old to
be counted under the Sentencing Guidelines. The district court noted that Reed
had twenty-two prior offenses, but only three were counted in determining his
initial criminal history score because of their age. If all prior convictions had
been counted, Reed would have had thirty-nine criminal history points, well more
than the thirteen required for criminal history Category VI. The court determined
that Reed’s initial criminal history category did not adequately represent his prior
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criminal conduct or the likelihood he would commit other crimes, and therefore
departed upwardly.
Contrary to Reed’s argument, the Sentencing Guidelines do not prohibit the
consideration of offenses outside the applicable time period in USSG § 4A1.2(e)
when determining whether to depart upwardly. United States v. Lowe , 106 F.3d
1498, 1502 (10th Cir. 1997). Moreover, the district court also relied on Reed’s
numerous other arrests and pending charges in deciding to depart. Applying an
abuse-of-discretion standard, Koon v. United States , 518 U.S. 81, 91 (1996),
we see no error in the court’s determination that an upward departure was
warranted.
Finally, Reed contends that use of his relevant conduct to increase his
sentencing range violated Apprendi because this conduct was neither charged in
the indictment nor found by a jury. See Apprendi , 120 S. Ct. at 2362-63 (holding
that “[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.”). The district court did use Reed’s
relevant conduct to increase his sentence, but the sentence it imposed did
not exceed the statutory maximum of ten years for violation of 18 U.S.C.
§ 1029(a)(1). Enhancing a sentence in this manner does not violate Apprendi .
United States v. Heckard , 238 F.3d 1222, 1235-36 (10th Cir. 2001).
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The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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