NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0094n.06
Nos. 09-5789 and 09-5855
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Feb 10, 2011
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
GREGORY WILEY, )
)
Defendant-Appellant. )
)
BEFORE: SILER, MOORE, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Gregory Wiley appeals his sentences following his guilty plea convictions for
three counts of access device fraud and one count of aggravated identity theft in relation to access
device fraud. We affirm in part and remand in part.
I.
This case began when Chase Bank informed law enforcement authorities that it was the
apparent victim of a large credit card and identity theft ring operating in the Western District of
Tennessee. Law enforcement officers investigated the claim, and ultimately arrested Gregory Wiley
by following a controlled delivery of a package to his son’s address. Wiley subsequently admitted
his involvement in the scheme; he also told investigators that his partner-in-crime was Gerald Smith.
Nos. 09-5789, 09-5855
USA v. Gregory Wiley
Pursuant to their scheme, Smith obtained stolen credit cards, customer identification
information, and false driver’s licenses. For his part, Wiley completed the false driver’s licenses by
placing his picture on the cards. Thereafter, Smith and Wiley used the credit cards and false
identifications to rent vehicles, make purchases, and obtain cash advances. Wiley shared between
40% and 50% of the proceeds with Smith, and estimated that he personally profited between $10,000
and $15,000 from the scheme.
Wiley was indicted for five counts of access device fraud. He posted bond, but he was later
arrested and charged with two additional counts for continuing to commit credit card fraud while he
was on bond. Wiley pleaded guilty to Counts One and Five of the original Indictment; and he
pleaded guilty to both counts in the subsequent Information for the fraud he committed while on
pre-trial release.
The convictions were combined for sentencing. At the sentencing hearing, the district court
advised Wiley that, according to the presentence report (PSR), he was responsible for a loss of
$195,175.72. The court asked Wiley if he had any questions about the calculations, and Wiley
responded that he thought the loss amount stated in the plea agreement was $15,000. The court then
allowed Wiley to consult with his attorney.
After a recess, the court informed Wiley that the plea agreement did not say anything
regarding the loss amount being $15,000. Wiley was apparently confused between the total loss
caused and the profit realized. He also apparently misread the plea agreement because it does not
mention the sum of $15,000. The court then asked if Wiley had any other questions, and he replied,
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“No.” Wiley’s counsel also stated: “Your Honor, we don’t dispute the calculation of the guidelines
. . . I think they are all in agreement of what we were talking about.”
The court then adopted the presentence report as its findings of fact for purposes of the
hearing. It then sentenced Wiley to 31 months total for both counts in case number 2:07-CR-20221;
10 months on Count One of case number 2:08-CR-20327; and 24 months on Count Two, running
consecutively, for a total sentence of 65 months. It also ordered Wiley to pay $15,000 in restitution
to victims who were yet to be determined.
Wiley timely appeals.
II.
Wiley raises five issues on appeal: (1) whether the district court erred by not including a
schedule of payments in the judgment, and whether the error voids the restitution portion of the
judgment; (2) whether the loss amount used by the district court rendered the sentence procedurally
unreasonable; (3) whether the district court properly applied a two-level enhancement under
U.S.S.G. § 2B1.1(b)(10)(B)(i) for production of a counterfeit driver’s license; (4) whether the district
court properly denied him credit for acceptance of responsibility; and (5) whether the written
judgments should be amended to conform with the oral sentence of imprisonment and order of
$15,000 in restitution. We address these issues, in turn, below.
A.
Wiley first argues that “[t]he restitution orders of [his] Judgment were erroneous and invalid
as they did not state the specific victims Wiley should pay and the amounts each victim should be
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USA v. Gregory Wiley
paid.” We agree. In United States v. Davis, 306 F.3d 398 (6th Cir. 2002), we adopted the reasoning
of the Fifth Circuit in United States v. Myers, 198 F.3d 160, 169 (5th Cir. 1999) and the Third Circuit
in United States v. Coates, 178 F.3d 681, 683-85 (3d Cir. 1999), holding that a district court’s failure
to issue a schedule of payments after ordering restitution in one lump sum was plain error. Id. at
426. It was therefore plain error for the district court to fail to include a schedule of payments here.
However, Wiley also asserts, without any citation to authority, “given that the restitution
order is invalid and erroneous, that portion of the restitution of the judgment should be vacated and
stricken . . . . [and] this case remanded to the district court for resentencing with no order of
restitution in accordance with the ruling of this Court.” There is no basis for such a remedy. Rather,
consistent with the remedy ordered in Davis, we remand to the district court with instructions to
issue a schedule of payments.
B.
Wiley next argues that the district court “miscalculated [his] relevant conduct for sentencing
purposes by bringing in additional conduct that was not shown should have been attributed to him
. . . [which] render[ed] the sentence procedurally unreasonable.” The argument is that because “[he]
and Smith would . . . split the proceeds either 50% - 50% or 60% - 40% with Wiley getting the 40%
cut” and “[he] profited $10,000 - $15,000 from the fraud,” the total amount of loss attributable to
him could be no more than $37,500. Wiley also claims that there “appears to be a conflict as to loss
attributable to Mr. Wiley . . . . [because] [t]he Presentence Report first states that the losses
attributable to Wiley included several tabular calculations amounting to about $195,000 but then
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USA v. Gregory Wiley
state[s] [that] ‘[t]he accounts involving Wiley resulted in a loss of approximately $107,035.87,’” and
the difference amounts to a two-point change in his base offense level. The government counters
that “since [Wiley] did not object and placed on the record there was no objection to the loss
calculation, he has expressly admitted the loss and cannot now challenge the loss for the first time
on appeal.” We agree with the government.
Wiley’s first argument fails for two reasons. First, and most fundamentally, Wiley’s alleged
profits from the scheme have nothing to do with the “actual loss,” which is the “reasonably
foreseeable pecuniary harm that resulted from the offense,” U.S. Sentencing Guidelines Manual §
2B1.1 (2005), cmt. n.3, and therefore does not help his case. Second, as the government stresses,
it is well-settled in this circuit that “[b]y failing to object to the presentence report,” a defendant
“accept[s] all of the factual allegations contained in it.” United States v. Vonner, 516 F.3d 382,
385-86 (6th Cir. 2008) (en banc); see also United States v. Stafford, 258 F.3d 465, 475 (6th Cir.
2001) (explaining that the district court “has no burden to establish at sentencing a factual issue
which is not in dispute”) (internal quotation marks omitted); United States v. Pruitt, 156 F.3d 638,
648 (6th Cir. 1998); see, e.g., United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005) (holding
that “by explicitly declining to object to the drug amount attributed to him in the PSR, Adkins
admitted that fact”). And that is just what Wiley did here.
The district judge observed at the sentencing hearing that Wiley “started with a level six
because the loss is calculated at $195,175.72 . . . . [and] [u]nder Guideline 2B1.1(f) . . . there is a ten
point enhancement because the loss is greater than [$]120,000 but less than $200,000.” When Wiley
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USA v. Gregory Wiley
questioned why the amount in the plea agreement “was under 15,000” and the amount in the PSR
was “a hundred and ninety five,” the court took a brief recess so Wiley could discuss that question
with his counsel. Following the break, the district court reiterated: “Mr. Wiley had a question and
I’ve given him the opportunity to discuss the matter with Mr. Perkins. I’ve also read into the record
the plea agreement which did not reference $15,000. But are there any other questions about the
report, Mr. Wiley?” Wiley responded: “No, ma’am.” The district court then said: “I don’t show
that there have been any objections filed to the calculations contained in the report. Are there any
latent objections?” Wiley’s counsel responded, “No, ma’am.” In light of this exchange, Wiley’s
argument that his agreed-upon-profit-splits with Smith show that he could only have been
responsible for $37,500.00 fails because he admitted responsibility for the loss of $195,175.72 by
failing to object to the PSR.
Wiley’s second argument – that there is “a conflict as to loss attributable to Mr. Wiley . . .
[because] [t]he Presentence Report first states that the losses attributable to Wiley included several
tabular calculations amounting to about $195,000 but then state[s] [that] ‘[t]he accounts involving
Wiley resulted in a loss of approximately $107,035.87’” – is frivolous. The PSR provides that “[t]he
loss attributable to Wiley includes, but is not limited to [everything contained in a four-page chart].”
The chart lists each of the credit card companies defrauded in the scheme, the individual cardholders’
identities, and the individual loss for each card, including $43,985.82 for Chase cards, $107,035.87
for Discover cards, and $44,154.03 for Citigroup-Sears cards, for a total of $195,175.72. The fact
that the summary paragraph under the Discover card losses portion of the chart also redundantly
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USA v. Gregory Wiley
states that Wiley is responsible for all of the Discover card losses shown in the chart (which totaled
$107,035.87), does not create any ambiguity that Wiley was also responsible for the $195,175.72
total of all four cards as expressly stated at the beginning of that same section of the PSR. Therefore,
we reject Wiley’s claim that the district court’s finding of a $195,175.72 loss is procedurally
unreasonable.
C.
Next, Wiley challenges the district court’s application of U.S.S.G. § 2B1.1(b)(10)(B)(i) for
conduct “involv[ing] the production or trafficking of any unauthorized access device or counterfeit
access device” to increase his base offense level by two points. Because this claim was not raised
in the district court in response to the court’s Bostic question, we review it for plain error. See
Vonner, 516 F.3d at 385-89 (applying the United States v. Bostic, 371 F.3d 865 (6th Cir. 2004)
forfeiture rule to procedural-reasonableness claims). When reviewing a claim under a plain error
standard, we reverse only if we conclude that “(1) there is an error; (2) that is plain; (3) which
affected the defendant’s substantial rights; and (4) that seriously affected the fairness, integrity or
public reputation of the judicial proceedings.” United States v. Barnes, 278 F.3d 644, 646 (6th Cir.
2002). Wiley contends that he was over-penalized either because courts are not to “apply any
specific offense characteristic for the transfer, possession, or use of a means of identification when
determining the sentence for the underlying offense” when also imposing a sentence for aggravated
identity theft, U.S.S.G. § 2B1.6, cmt. n.2 (def. br., p.36 (quoting United States v. Lyons, 556 F.3d
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703 (8th Cir. 2009)), or because the production and trafficking in this case were done solely by
Gerald Smith. Neither of these arguments is convincing.
The problem with Wiley’s first argument is that, unlike Lyons, this is not a “trafficking” case,
but a “production” case. As the First and Eighth Circuits held in United States v. Jones, 551 F.3d
19, 25-26 (1st Cir. 2008) and United States v. Jenkins-Watts, 574 F.3d. 950, 962 (8th Cir. 2009),
respectively, U.S.S.G. § 2B1.6 commentary note two does not apply when the evidence shows that
the defendant produced the false identification. See Jones, 551 F.3d at 25-26 (rejecting the argument
where the defendant made counterfeit driver’s licenses usable by fixing bubbles in the licenses’
plastic laminate); Jenkins-Watts, 574 F.3d 950, 962 (rejecting the argument where the defendant
created counterfeit driver’s licenses as part of a fraudulent credit card scheme). This is because the
note does not say anything regarding the “production” of a “means of identity,” but is expressly
limited to offenses involving the “transfer, possession, or use of a means of identification,” because
it is that conduct that would risk double-counting where a defendant is also convicted of Aggravated
Identity Theft, 18 U.S.C. § 1028A(a)(1). Wiley’s citations to United States v. Tatum, 518 F.3d 769
(10th Cir. 2008) and United States v. Hughey, 147 F.3d 423, 434 (5th Cir. 1998) are not to the
contrary, because those cases, dealing with the passing of bad checks, were based on the
parenthetical exclusion “other than a transfer originated solely by paper instrument” which does not
apply here. See 18 U.S.C. § 1029(e)(1).
Wiley’s second argument also fails because he engaged in the production of counterfeit
access devices as part of the fraudulent credit card scheme that he participated in with Gerald Smith.
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The Guidelines’ commentary defines “production” to include “manufacture, design, alteration,
authentication, duplication, or assembly[,]” U.S.S.G. § 2B1.1 cmt. n.9, and it defines an “access
device” as “any card . . . that can be used, alone or in conjunction with another access device, to
obtain money, goods, services, or any other thing of value . . . . [,]” 18 U.S.C. § 1029(e)(1). In this
case, Wiley received blank driver’s license cards from Smith, produced photographs of himself, and
assembled the false licenses by attaching his photographs to the cards. We hold that this conduct
is “precisely the type of behavior that the guideline attempts to capture under the rubric of
‘production.’” Jones, 551 F.3d at 26. Accordingly, we conclude that the district court did not
plainly err in increasing Wiley’s base offense level pursuant to U.S.S.G. § 2B1.1(b)(10)(B)(i).
D.
Wiley also argues that “[a]lthough he pled guilty and admitted his misconduct to both cases
from his original Indictment and a later Information,” he was wrongly “denied credit for acceptance
due to his re-offending during the pre-trial release on his first Indictment.” We review a district
court’s determination regarding acceptance of responsibility with “great deference” and will not
disturb such a decision unless it is “clearly erroneous.” United States v. Webb, 335 F.3d 534, 538
(6th Cir. 2003) (citations and internal quotation marks omitted). A defendant who enters a guilty
plea is not entitled to an adjustment under this section as a matter of right; he must demonstrate by
a preponderance of the evidence that he deserves the adjustment. United States v. Roberts, 243 F.3d
235, 240-41 (6th Cir. 2001). “Entry of a plea of guilty prior to the commencement of trial combined
with truthfully admitting the conduct comprising the offense of conviction . . . will constitute
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USA v. Gregory Wiley
significant evidence of acceptance of responsibility,” but that “evidence may be outweighed by
conduct of the defendant that is inconsistent with such acceptance of responsibility.” U.S.S.G. §
3E1.1, cmt. n.3. Where, as here, “multiple counts are combined [for sentencing] . . . . a defendant
must accept responsibility for all counts before he is entitled to a reduction in sentence for
acceptance of responsibility.” United States v. Chambers, 195 F.3d 274, 278 (6th Cir. 1999).
In this case, notwithstanding that Wiley pled “guilty to both the indictment and the
information . . . and acknowledg[ed] his conduct as summarized by the prosecutor,” the district court
determined that he was not entitled to credit for acceptance of responsibility. The court explained
that Wiley “did not . . . accept[] responsibility because acceptance of responsibility is more than
pleading guilty, . . . it is withdrawing from further criminal conduct” and Wiley “still took the
initiative to engage in further criminal conduct with full knowledge of the penalties that he was
facing for the ‘07 conduct.” This finding was not clearly erroneous. See U.S.S.G. § 3E1.1,
Application Note 1(a) (listing “voluntary termination or withdrawal from criminal conduct or
associations” as a factor to be considered in determining whether a defendant has accepted
responsibility for his criminal conduct); see also United States v. Reed, 951 F.2d 97, 99-100 (6th Cir.
1991); United States v. McDonald, 22 F.3d 139, 141 (7th Cir. 1994) (“a sentencing judge is not
prohibited from considering a defendant’s conduct, and specifically may consider criminal conduct
or associations engaged in while a defendant is free on bond awaiting trial or sentencing”). We
therefore reject Wiley’s assertion of clear error.
E.
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Finally, Wiley argues that “[t]he written judgments should be amended to conform as to the
sentence of Imprisonment and of $15,000 restitution.” We have held that when there is a
discrepancy between an orally imposed sentence and the written judgment, the oral sentence
generally controls. See United States v. Cofield, 233 F.3d 405, 406-07 (6th Cir. 2000) (noting the
“widely-accepted rule” that “if there is a discrepancy between the oral pronouncement of a criminal
sentence and the written judgment, the oral sentence generally controls”). “The reason for the
primacy of the oral sentence lies in the fact that ‘[a] defendant is present only when being sentenced
from the bench.’” United States v. Penson, 526 F.3d 331, 334 (6th Cir. 2008) (alteration in original)
(quoting United States v. Villano, 816 F.2d 1448, 1452 (10th Cir. 1987)). Of course, “[w]here there
is ambiguity [in the oral sentence],” courts may look to the written judgment to “divine the intent
of the sentencing judge.” United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir. 1988). But where
an “oral pronouncement of sentence [is] unambiguous . . . . the written judgment is viewed as a
clerical mistake which may be corrected by the district court at any time pursuant to Fed. R. Crim.
P. 36.” United States v. Johnson, 24 F. App’x 417, 420 (6th Cir. 2001).
Here, Wiley claims that “[t]he orally ordered restitution in the amount of $15,000 was
[wrongly] stated as two [written] judgments of restitution in the amount of $15,000 each, [for] a total
of $30,000.” We agree. The written judgments provide that “[t]he defendant shall pay the following
total criminal monetary penalties in accordance with the schedule of payments . . . . [including]
Total Restitution [of] $15,000.00”; and, under the heading “RESTITUTION,” the judgments each
list “$15,000.00, Victims to be determined.” Because the judgments refer to “total” restitution, they
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might be read as consistent with the oral sentence inasmuch as the $15,000 is a “total” for all four
crimes. However, that reading is untenable, as each of the judgments also includes a “total”
assessment of “$200,” which is not an aggregate amount for all four crimes, but rather the usual $100
“special assessment” for each of the two crimes listed in each of the two judgments, for a grand total
of $400. We therefore conclude that the written judgments produce a sentence that is inconsistent
with the oral sentence because they suggest that Wiley owes $30,000 in restitution.
Wiley also claims that “[e]ach of the sentences of imprisonment is to run consecutive to the
other, so that logically neither sentence can begin as each is initiated by the completion of the other,
which is contingent on the other, and so on” which “conflict[s]” with the district court’s stated
intention to impose a “‘gross sentence’ of 65 months.” We find this argument unpersuasive. The
respective judgments provide:
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of
Prisons to be imprisoned for a term of 31 Months as to Counts 1 and 5 to be served
concurrently to each other, and consecutively to the sentence imposed in Information
2:08CR20327-01 (10 Months as to Count 1, and 24 Months as to Count 2,
consecutive) for a total term of 65 Months.
(Case 2:07-cr-20221-BBD, R. 75, p. 3.)
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of
Prisons to be imprisoned for a term 10 Months as to Count 1, and 24 Months as to
Count 2 to be served consecutively to each other, and consecutively to the sentence
imposed in Indictment 2:07CR20221-01 (31 Months as to Counts 1 and 5,
concurrent) for a total term of 65 Months.
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(Case 2:08-cr-20327-BBD, R. 17, p. 3.)
These paragraphs are not inconsistent with the oral sentence. Instead, they state correctly that
the 34-month total sentence in case number 2:08-CR-20327-01 is to run consecutively with the 31-
month total sentence in case number 2:07-CF-20221-01 for a total of 65 months. Wiley’s assertion
that “logically neither sentence can begin as each is initiated by the completion of the other, which
is contingent on the other” is itself illogical. The fact that the sentences are consecutive does not
mean that they are contingent. There is no condition precedent to the running of either sentence; they
simply cannot run at the same time. Accordingly, we reject Wiley’s claim that the written terms of
imprisonment should be amended to match the oral sentence.
III.
For these reasons, we remand to the district court with instructions to issue a schedule of
restitution payments and to correct the clerical errors in the written judgments regarding the total
amount of restitution. In all other respects, we affirm the judgments of the district court.
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