United States v. Fowler

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 19, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
Nos. 06-5158; 06-5161
v. (D.Ct. Nos. 03-CR-177-001-HDC;
06-CR-065-001-HDC)
LAVINIA ROSE FOW LER, (N.D. Okla.)

Defendant-Appellant.
____________________________

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

D efendant Lavinia R ose Fowler appeals her sentences stemming from two

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
separate district court proceedings, which we consolidate on appeal. In one

criminal appeal, Number 06-5161, M s. Fow ler appeals her sentence following her

guilty plea to one count of bank fraud and aiding and abetting a criminal in

violation of 18 U.S.C. § 1344(1) and (2), and two counts of making and

possessing counterfeit securities of organizations in violation of 18 U.S.C.

§ 513(a). She contends the district court unreasonably imposed the maximum

sentencing range, under the United States Sentencing Guidelines (“U.S.S.G.” or

“Guidelines”), in sentencing her to forty-one months imprisonment. In another

criminal appeal, Number 06-5158, M s. Fow ler appeals her sentence following

revocation of her supervised release, similarly claiming the district court

unreasonably imposed the maximum Guidelines range in sentencing her to

fourteen months imprisonment. W e exercise jurisdiction pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291 and affirm M s. Fowler’s sentences.

I. Appeal No. 06-5161

A. Factual and Procedural Background
Regarding 41-M onth Sentence

The undisputed relevant facts are as follows. On November 13, 2005,

Elizabeth Kantor, together with M s. Fow ler, rented a hotel room in Tulsa,

Oklahoma, which they intended to use until December 13, 2005, for the purpose

of preparing counterfeit checks. On N ovember 17, 2005, M s. Fow ler and M s.

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Kantor presented a counterfeit check, created by M s. Fowler and made payable to

“Lavinia B. Fowler” in the amount of $5,122.12, for deposit into M s. Kantor’s

bank account at a branch facility of her bank. M s. Kantor endorsed the check and

gave it and a deposit slip to the bank teller, who credited the check to M s.

Kantor’s account. Less than an hour later, M s. Kantor and M s. Fowler went to

another branch facility of the same bank and presented a counter-check for

$3,822.00 made payable to M s. Kantor. After receiving cash for the check, M s.

Kantor and M s. Fow ler divided the money equally and spent it on personal

expenses.

On November 18, 2005, the manager of the hotel asked the police to

remove two men from the room rented by M s. Kantor and M s. Fow ler. Before the

police arrived, M s. Kantor and M s. Fow ler fled the room, failing to pay the hotel

bill. W hen the police searched the room, they found the following items: twenty

completed counterfeit checks totaling $11,074.11; a loaded .25 caliber handgun; a

Citibank M aster Card; blank counterfeit checks; checks made out to “Charlie

M oore”; computer equipment; a plastic laminating device; a computer disk

containing images of men; and thirty-eight counterfeit identification cards from

multiple states in various names.

After leaving the hotel, M s. Kantor contacted authorities and falsely

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reported M s. Fow ler stole her car. On November 26, 2005, police received

inform ation from a confidential informant that M s. Fowler was staying with tw o

men at another hotel in Tulsa, Oklahoma. After the police knocked on her hotel

door, a man with a syringe in his shirt pocket answered. After M s. Fow ler and

the other man came to the door to speak to the officers, she consented to a search

of the room, where police found a computer, scanner, and printer; 2.5 grams of

methamphetamine; twenty-one completed counterfeit checks totaling $13,518.35;

M s. Kantor’s checkbook; and materials on how to make fraudulent identification

cards. An additional counterfeit check in the amount of $469.00 was found in

M s. Kantor’s vehicle located outside of M s. Fow ler’s hotel. M s. Fow ler admitted

to police she paid for the hotel room with two fraudulent checks, identified other

checks she fraudulently created, and provided the password to the computer found

in her hotel room.

M s. Fow ler pled guilty to one count of bank fraud and aiding and abetting a

criminal in violation of 18 U.S.C. § 1344(1) and (2) and two counts of making

and possessing counterfeit securities of organizations in violation of 18 U.S.C.

§ 513(a). After her guilty plea, a probation officer prepared a presentence report

in which he determined her base offense level was seven under U.S.S.G. § 2B1.1,

but because she possessed a device-making machine, her offense level increased

by two levels. In addition, under § 2B1.1(b)(1)(D), which provides for a six-level

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offense increase if the loss caused by the conduct is more than $30,000 and less

than $70,000, the probation officer increased M s. Fowler’s offense level by six

levels based on his determination the actual and intended loss resulting from her

conduct amounted to $31,450.14. However, he subtracted two offense levels

under § 3E1.1(a) for M s. Fow ler’s acceptance of responsibility, resulting in a

total base offense level of thirteen.

In calculating M s. Fow ler’s criminal history, the probation officer noted her

criminal history points totaled twenty-four, but because she was serving a

suspended sentence during her conduct in the instant offense, he added two more

points. In addition, because the instant offense was committed less than two

years following her release from custody on the prior case, he added one point,

for a total of twenty-seven criminal history points and a criminal history category

of VI. Calculating M s. Fow ler’s total offense level of thirteen, together with a

criminal history category of VI, resulted in a Guidelines range of thirty-three to

forty-one months imprisonment. M s. Fow ler did not object to the presentence

report prior to or at the sentencing hearing.

At sentencing, the district court informed the parties it studied the

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presentence report carefully, considered Booker 1 , other Supreme Court precedent,

the applicable Guidelines, and 18 U.S.C. § 3553 2 , and was aware the Guidelines

range w as thirty-three to forty-one months imprisonment based on M s. Fowler’s

offense level and criminal history. The district court also stated “the Guidelines

provide ... a good guidance as to w hat the sentence should be,” it would “impose

a sentence that is sufficient but not greater than is necessary to comply with the

sentencing purposes,” and it had considered “the nature and circumstances of the

offense and the history and characteristics of the defendant.” The district court

then sentenced M s. Fowler to forty-one months imprisonment on each count, to

run concurrently, followed by five years supervised release. M s. Fow ler raised no

contemporaneous objections to the district court’s calculation or explanation of

her sentence, and a judgment was entered on August 4, 2006.

B. Discussion

On appeal, M s. Fow ler claims “imposition of the maximum Guideline

sentence was unreasonable.” In support of her argument, she claims the district

court’s application of § 2B1.1(b)(1)(D), using the actual and intended monetary

1
United States v. Booker, 543 U.S. 220 (2005).
2
During the sentencing hearing, the district court misstated which statute
it considered, stating it considered “§ 3353(a).” H owever, given the context in
which it discussed the referenced statute, the district court clearly meant 18
U.S.C. § 3553(a). Neither party suggests the district court did not intend to refer
to § 3553, and therefore it is not an issue on appeal.

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loss of $31,450.14 for a six-level offense increase, was unjust because she only

personally benefitted from the cash she received in the amount of $1,911.00 and

unpaid hotel bills totaling $1,266.56. Because the actual loss amount of

$3,177.56 is only ten percent of the intended loss amount and the intended loss

amount is barely over $30,000, she contends the forty-one-month sentence does

not take into consideration the nature and circumstances of her offense or reflect

the seriousness of her crime, promote respect for the law, or provide just

punishment. W hile M s. Fowler concedes that intended loss is a “standard

approach” to calculating the proper Guidelines range, she nevertheless argues in

her case any enhancement under § 2B1.1 should be based only on actual, rather

than intended, loss. She also generally contends her criminal history score of VI

“exact[ed] a substantial price for recidivism.”

W e begin with our standard of review. W e review for reasonableness the

sentence imposed and have determined a presumption of reasonableness attaches

to a sentence, like here, which is within the correctly-calculated Guidelines range.

See United States v. Kristl, 437 F.3d 1050, 1053-55 (10th Cir. 2006) (per curiam).

W e require reasonableness in two respects – “the length of the sentence, as well

as the method by which the sentence was calculated.” Id. at 1055 (emphasis

omitted). W hen a defendant does not object to the method or procedure by which

her sentence was determined, we may reverse the district court’s judgment only in

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the presence of plain error. United States v. Ruiz-Terrazas, ___F.3d ___, ___,

2007 W L 576034, at *2 (10th Cir. Feb. 26, 2007) (slip op.); United States v.

Torres-Duenas, 461 F.3d 1178, 1182-83 (10th Cir. 2006), petition for cert. filed

(N ov. 22, 2006) (N o. 06-7990). “Plain error occurs w hen there is (i) error, (ii)

that is plain, which (iii) affects the defendant’s substantial rights, and which (iv)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Ruiz-Terrazas, 2007 W L 576034, at *2. “W hen reviewing a

district court’s application of the sentencing guidelines, we review legal questions

de novo and any factual findings for clear error, giving due deference to the

district court’s application of the guidelines to the facts.” United States v. Leach,

417 F.3d 1099, 1105 (10th Cir. 2005). In so holding, we have concluded a

district court’s loss calculation, like the one made in this case, is a factual

question we review under the clearly erroneous standard. Id. at 1105 n.8.

W hen a defendant’s “claim is merely that the sentence is unreasonably

long, we do not require the defendant to object in order to preserve the issue.”

Torres-Duenas, 461 F.3d at 1183. Instead, we review for reasonableness the

sentence’s length, as guided by the factors in 18 U.S.C. § 3553(a). See id. The

presumption of reasonableness of a sentence within a properly-calculated

Guidelines range is a deferential standard a defendant may rebut by demonstrating

that the sentence is unreasonable when viewed against the factors in § 3553(a).

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Id. “W hen the defendant has not raised any substantial contentions concerning

non-G uidelines § 3553(a) factors and the district court imposes a sentence within

the Guidelines range, our post-Booker precedents do not require the court to

explain on the record how the § 3553(a) factors justify the sentence.” United

States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006), petition for cert.

filed (Jul. 7, 2006) (No. 06-5217). W hile “we will not demand that the district

court recite any magic w ords” to support its conclusions, neither will we

“presume the district court weighed a party’s arguments in light of the § 3553(a)

factors where the record provides no indication that it did so and no clear

explanation of the sentence imposed.” United States v. Sanchez-Juarez, 446 F.3d

1109, 1115-16 (10th Cir. 2006) (quotation marks and citations omitted).

Keeping our standard of review in mind, we first address M s. Fowler’s

contention her enhancement under U.S.S.G. § 2B1.1 should be based only on

actual, rather than intended, loss, which we construe as an attack on the method

of calculation and review for plain error. W e note the commentary to § 2B1.1

explicitly defines “loss” for the purposes of a sentencing enhancement as “the

greater of actual loss or intended loss.” U .S.S.G. § 2B1.1, cmt. n.3(A) (emphasis

added). It further states “intended loss” “means the pecuniary harm that was

intended to result from the offense; and ... includes intended pecuniary harm that

would have been impossible or unlikely to occur.” U .S.S.G. § 2B1.1, cmt.

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n.3(A)(ii). W hile we recognize this Guidelines commentary is now advisory,

rather than mandatory, under the principles announced in Booker, it continues to

be a factor the district court must consider in imposing a sentence. See Kristl,

437 F.3d at 1053.

W e have repeatedly affirmed the use of the intended loss calculation

suggested in § 2B1.1. See Leach, 417 F.3d at 1105-06; United States v. Lin, 410

F.3d 1187, 1192-94 (10th Cir. 2005); United States v. Osborne, 332 F.3d 1307,

1313 (10th Cir. 2003). Thus, when calculating intended loss, we have explained

the district court should “focus on the amount that the scheme placed at risk, not

the amount of money ... stolen.” Lin, 410 F.3d at 1192 (quotation marks and

citations omitted). In so doing, it is not required the court make findings w ith

absolute certainty in the determination of a defendant’s intent. Id. at 1193.

Instead, the court need only make a reasonable estimate of the loss. See Osborne,

332 F.3d at 1313.

Applying these principles, it is clear the district court did not commit any

error in including in the § 2B1.1 loss calculation the intended amount of the

counterfeiting scheme and not merely the smaller amount of money actually

stolen. See Lin, 410 F.3d at 1192. In addition, the evidence in the record

overwhelmingly establishes the intended loss from M s. Fow ler’s counterfeiting

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scheme totaled $31,450.14. This amount included the initial counterfeit check in

the amount of $5,122.12 deposited in M s. Kantor’s account, the counterfeit

checks totaling $11,074.11 found in the first hotel room, the counterfeit checks

totaling $13,518.35 found in the second hotel room, the counterfeit check in the

amount of $469.00 found in the vehicle, and unpaid hotel bills in the amount of

$1,266.56. As a result, the district court did not err in relying on § 2B1.1 to

increase M s. Fow ler’s offense level by six levels, given the entire loss amount

exceeded $30,000. Having determined the district court did not commit an error,

our plain error analysis is complete.

Having concluded the district court applied the correct method in

calculating M s. Fowler’s sentence, we turn to her general argument that her forty-

one-m onth sentence is otherw ise unreasonable under the circumstances. As

previously indicated, we do not consider such a claim for plain error. See Torres-

Duenas, 461 F.3d at 1183. However, because M s. Fowler’s forty-one-month

sentence is within the correctly-calculated Guidelines range, a presumption of

reasonableness attaches to her sentence. Id. Our review of the record and M s.

Fowler’s arguments on appeal discloses nothing to rebut this presumption.

M oreover, because M s. Fow ler did not raise any substantial contentions

concerning the § 3553(a) factors, the district court was not required to explain on

the record how the § 3553(a) factors justified the sentence. See Lopez-Flores,

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444 F.3d at 1222. However, as required, the record indicates the district court

considered the applicable § 3553 factors in determining the length of M s.

Fowler’s sentence. See Sanchez-Juarez, 446 F.3d at 1115-16. Because the

presumption of reasonableness of a sentence within a properly-calculated

Guidelines range is a deferential standard, and M s. Fow ler has not rebutted that

presumption with regard to any § 3553(a) factors, we must reject her claim her

forty-one-month sentence is unreasonable.

II. Appeal No. 06-5158

A. Factual and Procedural Background
Regarding 14-M onth Sentence

On August 27, 2004, M s. Fowler pled guilty to uttering a forged security in

violation of 18 U.S.C. § 513(a) and received a sixteen-month sentence followed

by three years supervised release. She was released from incarceration and began

serving her three-year supervised release on January 21, 2005. On November 16,

2005, at approximately the same time M s. Fowler commenced the counterfeit

check scheme in her other criminal appeal, her probation officer filed a petition

alleging M s. Fow ler violated the conditions of her supervised release, including

failure to submit monthly reports and notify the probation officer of her change of

residence. In the petition, the probation officer stated M s. Fowler failed to

contact him after A ugust 1, 2005, and that her w hereabouts were unknown to him.

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The district court held a hearing concerning the proposed revocation of M s.

Fow ler’s supervised release, at which time M s. Fow ler appeared and admitted

guilt to violation of the conditions of her term of supervision, stipulating to the

facts and allegations in the petition.

Follow ing the hearing, a probation officer prepared a supervised release

revocation and sentencing memorandum. The memorandum pointed out that

under Federal Rule of Criminal Procedure 32.1 and 18 U.S.C. § 3583(e)(2) and

(3) the district court could modify the conditions of release or revoke the term of

supervised release and require M s. Fow ler to serve in prison all or part of the

term of supervised release. It also noted the maximum custody term for violation

of supervised release, a Class C felony, was twenty-four months under 18 U.S.C.

§ 3583(e)(3). In calculating her sentence in accordance with Chapter 7 of the

Guidelines, including § 7B1.4, the probation officer applied M s. Fowler’s

criminal history category of VI, together with her Class C felony, to arrive at a

Guidelines range of eight to fourteen months imprisonment. M s. Fow ler did not

object to the memorandum.

At the subsequent sentencing hearing, the district court revoked M s.

Fow ler’s supervised release and sentenced her to fourteen months incarceration,

to run consecutively to her forty-one-month sentence in her other criminal case.

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In imposing a fourteen-month sentence, the district court expressly stated it

considered the applicable Guidelines and our decision in United States v. Lee, 957

F.2d 770, 771 (10th Cir. 1992), which requires consideration of the advisory

policy statements in Chapter 7 on supervised release issues, and that it was

imposing a fourteen-month sentence to provide just punishment for M s. Fowler’s

supervised release violations and as a deterrent to future criminal conduct. It

further stated the sentence length w as based on the serious nature of M s. Fowler’s

refusal to submit to supervision by the probation officer. M s. Fow ler raised no

contemporaneous objection to the district court’s calculation or explanation of her

sentence and a judgment was entered on August 4, 2006.

B. Discussion

On appeal, M s. Fow ler claims the district court’s “imposition of the

maximum Guideline sentence was unreasonable,” when viewed under the

principle that a sentence imposed follow ing revocation of supervised release must

be “reasoned and reasonable.” In support, she points out her fourteen-month

sentence for a Class C violation of her supervised release is only two months less

than her initial sixteen-month sentence for the more “substantive crime” of

uttering a forged security. She contends her sentence is unreasonably high for

merely failing to report to her probation officer for three months and should not

result in a sentence comparable to her original felony sentence. W hile she does

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not dispute the calculation of the Guidelines range of eight to fourteen months or

that the district court generally considered the § 3553(a) factors, she contends the

sentence imposed “went beyond what was reasonable to address those factors.”

She also contends a lesser sentence would have adequately punished her failure to

report and also deterred future criminal conduct.

Under 18 U.S.C. § 3583(e)(3), when a person violates a condition of his or

her supervised release, the district court may revoke the term of supervised

release and impose prison time. United States v. Kelley, 359 F.3d 1302, 1304

(10th Cir. 2004). A sentence imposed in excess of that recommended by Chapter

7 of the Guidelines policy statements will be upheld “if it can be determined from

the record to have been reasoned and reasonable.” United States v. Rodriquez-

Quintanilla, 442 F.3d 1254, 1258 (10th Cir. 2006) (quotation marks and citation

omitted). In reviewing a sentence imposed after revocation of supervised release,

we review the district court’s factual findings for clear error and its legal

conclusions de novo. 3 Kelley, 359 F.3d at 1304. In imposing a sentence

following revocation of supervised release, a district court is required to consider

both Chapter 7’s policy statements as well as a number of other factors provided

3
Because M s. Fow ler is not contesting the fact her sentence was imposed
consecutively to her other sentence, we need not discuss the recent incongruence
in our precedent on the applicable standard of review when reviewing the
imposition of consecutive sentences. See United States v. Cordova, 461 F.3d
1184, 1188 (10th Cir. 2006).

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in 18 U.S.C. § 3553(a). See Cordova, 461 F.3d at 1188. However, when the

district court “properly considers the relevant Guidelines range and sentences the

defendant within that range, the sentence is presumptively reasonable,” unless the

defendant “rebut[s] this presumption by demonstrating that the sentence is

unreasonable in light of the other sentencing factors laid out in § 3553(a).”

Kristl, 437 F.3d at 1055.

In this case, the district court did not impose a sentence in excess of the

recommended Guidelines policy statements. Instead, because M s. Fowler’s

fourteen-month sentence falls within the applicable advisory Guidelines range,

her sentence is presumptively reasonable. In attempting to rebut this presumption

with respect to the § 3553(a) factors, she admits the district court generally

considered those factors, but concentrates her efforts on the fact her fourteen-

month sentence on revocation of her supervised release is only two months less

than her original sixteen-month sentence for her prior felony. However, as the

district court explained, it imposed the maximum Guidelines sentence of fourteen

months imprisonment to deter future criminal conduct and as “just punishment”

for M s. Fowler’s supervised release violations, which included the serious nature

of her refusal to submit to supervision by the probation officer. W e agree flagrant

evasion of probation supervision was a serious violation of her supervised release,

and therefore, we cannot say imposition of the maximum Guidelines sentence was

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unreasonable. Under the circumstances presented, M s. Fowler has not overcome

the requisite presumption of reasonableness attached to her fourteen-month

sentence.

III. Conclusion

For these reasons, we A FFIRM M s. Fow ler’s sentences in both her

criminal appeals, Numbers 06-5161 and 06-6158.

Entered by the C ourt:

W ADE BRO RBY
United States Circuit Judge

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