United States v. Young

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5094

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROBERT EVERETT YOUNG,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:09-cr-00196-CMH-2)

Submitted: February 7, 2011 Decided: March 4, 2011

Before TRAXLER, Chief Judge, and WILKINSON and AGEE, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

Brian J. Grossman, CROWGEY & GROSSMAN, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Lanny A.
Breuer, Assistant Attorney General, Ellen R. Meltzer, Steve A.
Linick, Andrew N. Gentin, Brigham Q. Cannon, U.S. DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Robert Everett Young pled guilty without a plea

agreement to one count of conspiracy to defraud the United

States Department of Defense, in violation of 18 U.S.C. § 371

(2006) (count one), and one count of theft of and aiding and

abetting the theft of the property of the United States, in

violation of 18 U.S.C. §§ 2, 641 (2006) (count two). The

district court calculated Young’s Guidelines sentences at sixty

months’ imprisonment on count one and 120 months’ imprisonment

on count two, see U.S. Sentencing Guidelines Manual (“USSG”)

(2008), and sentenced Young to sixty months’ imprisonment on

count one and a concurrent term of ninety-seven months’

imprisonment on count two. Young appeals his sentence,

asserting that: (1) the district court erred in the manner in

which it ruled on his objections to the presentence report

(“PSR”); (2) the court erred in calculating his Guidelines

sentences; and (3) his sentence is substantively unreasonable.

We affirm.

Young asserts that the district court failed to comply

with Fed. R. Crim. P. 32(i)(3)(B) by failing to make a clear

ruling indicating it was overruling his objections to the PSR.

Young, however, failed to raise an objection based on Rule 32 at

sentencing. Accordingly, we review this issue for plain error.

Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009).

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 Rule 32(i)(3)(B) of the Federal Rules of Criminal

Procedure requires a district court “-for any disputed portion

of the presentence report or other controverted matter-[to] rule

on the dispute or determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” The purpose

of the rule “is to ensure that a record is made as to how the

district court ruled on any alleged inaccuracy in the PSR.”

United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994). This

court has concluded, however, that a district court “need not

articulate findings as to disputed factual allegations with

minute specificity.” United States v. Bolden, 325 F.3d 471, 497

(4th Cir. 2003) (internal quotation marks and alteration

omitted).

Moreover, the district court can satisfy Rule

32(i)(3)(B) by “simply adopt[ing] the findings contained in

[the] PSR, provided that [the court] makes clear which disputed

issues were resolved by its adoption.” Id. (internal quotation

marks omitted). The court may adopt “the PSR’s findings in

toto” if “the context of the ruling makes clear that [it]

intended [by the adoption] to rule on each of the alleged

factual inaccuracies.” Walker, 29 F.3d at 911 (holding that the

district court’s statement from the bench that it overruled the

objections filed by the defendant, taken together with the

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court’s Statement of Reasons form, satisfied Rule 32 because it

demonstrated that the court was adopting each of the PSR’s

findings) (internal quotation marks omitted).

In this case, after hearing argument on the objections

to the PSR from Young’s counsel and counsel for the Government,

the district court stated that it “f[ound] the [G]uideline

factors to be properly assessed in this case.” In the Statement

of Reasons accompanying the criminal judgment, the district

court indicates that it adopted the factual findings in the PSR.

Implicit in the district court’s acceptance of the factual

findings in the PSR was the court’s rejection of Young’s

objections to them. We therefore conclude that the district

court did not commit error — plain or otherwise — in ruling on

Young’s objections to the PSR.

Next, Young asserts that the district court erred in

applying a twenty-two level enhancement to his base offense

level under USSG § 2B1.1(b)(1)(L) for a loss exceeding

$20,000,000. The district court’s determination of the loss

amount attributable to a defendant is a factual matter reviewed

for clear error. See United States v. Allen, 491 F.3d 178, 193

(4th Cir. 2007).

Enhancements under USSG § 2B1.1(b) are to be

determined by the amount of loss suffered as the result of the

fraud. The loss amount is the greater of the actual loss or the

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intended loss. USSG § 2B1.1, cmt. n.3(A). “Actual loss” is

defined as “the reasonably foreseeable pecuniary harm that

resulted from the offense.” Id., cmt. n.3(A)(i). Further,

Application Note 3(C) to USSG § 2B1.1 provides that the district

court need only make a reasonable estimate of the loss.

In this case, the PSR recommended application of the

twenty-two level enhancement under USSG § 2B1.1(b)(1)(L) for a

loss exceeding $20,000,000 based on the determination in the

statement of facts accompanying Young’s guilty plea that the

value of the fuel Young and his co-conspirators stole was

$39,651,936. In his objections to the PSR, Young contended that

it overestimated the loss caused by his offenses. In Young’s

view, the value of the fuel stolen by members of the conspiracy

fell between $21,919,089 and $23,978,018, before any applicable

discounts.

In responding to Young’s objection, the Government

conceded that the statement of facts erroneously stated the loss

amount as $39,651,936. The Government explained that the

$39,651,936 figure was based on the fuel prices set by the

Defense Energy Support Center (“DESC”) — the primary entity

responsible for procuring ground and aviation fuel for the

Department of Defense — as of July 2008, instead of the prices

in effect during October 2007 through May 2008, when Young

participated in the conspiracy. The Government asserted,

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however, that application of the twenty-two level enhancement

was still appropriate because the value of the fuel, utilizing

DESC prices in effect when Young participated in the conspiracy,

was $26,276,472, well over the $20,000,000 threshold necessary

to warrant the enhancement under USSG § 2B1.1(b)(1)(L). The

district court overruled Young’s objection and adopted the PSR’s

finding that the loss caused by Young’s offenses was

$39,651,936.

Based on the Government’s concession, we conclude that

the district court erred in calculating the loss amount at

$39,651,936. District court errors in sentencing calculations,

however, are subject to review for harmlessness. United

States v. Mehta, 594 F.3d 277, 283 (4th Cir.), cert. denied,

131 S. Ct. 279 (2010). A district court’s error is harmless “if

the resulting sentence was not longer than that to which the

defendant would otherwise be subject.” Id. (internal quotation

marks and alteration omitted). In determining Young’s sentence,

the district court applied the enhancement corresponding to a

loss range of over $20,000,000 to $50,000,000. Because the

record shows that a reasonable estimate of the loss in this case

would exceed $20,000,000, the district court’s calculation error

did not result in a longer sentence for Young. Young therefore

received the same sentence he would have received had the

district court not erred in its calculation. Because the

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district court’s error is harmless, Young is entitled to no

relief on this claim.

Young also challenges the district court’s application

of the three-level enhancement under USSG § 3B1.1 for his

aggravating role in the offenses. Section 3B1.1(b) of the

Guidelines provides for a three-level enhancement in a

defendant’s offense level “[i]f the defendant was a manager or

supervisor (but not an organizer or leader) and the criminal

activity involved five or more participants or was otherwise

extensive.” USSG § 3B1.1(b). * In assessing whether a defendant

played an aggravating role in an offense of conviction, “the key

inquiry is whether the defendant's role was that of an organizer

or leader of people, as opposed to that of a manager over the

property, assets, or activities of a criminal organization.”

United States v. Llamas, 599 F.3d 381, 390 (4th Cir. 2010)

(internal quotation marks omitted). “Thus, the aggravating role

adjustment is appropriate where the evidence demonstrates that

the defendant ‘controlled the activities of other participants’

or ‘exercised management responsibility.’” Id. (quoting United

States v. Bartley, 230 F.3d 667, 674 (4th Cir. 2000)). The

district court’s determination that a defendant played an

*
Young has not asserted that the criminal activity he was
found to have managed involved fewer than five participants or
was not otherwise extensive.

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aggravating role in an offense is a factual determination we

review for clear error. United States v. Kellam, 568 F.3d 125,

147-48 (4th Cir. 2009).

Young argues that the district court’s determination

that he was a manager was erroneous because the evidence is

insufficient to show that he managed others involved in or the

business of the conspiracy. We disagree. The record shows that

Young participated in a scheme with several others to steal fuel

from the United States Army and sell it on the black market in

Iraq. And although Young joined the conspiracy as an escort for

those stealing the fuel and continued in this role through

December 2007, by late 2007 or early January 2008, his role in

the scheme had changed. From that point through April 2007, he

directed the activities of the scheme’s participants,

coordinating drivers and escorts to steal fuel. Young also was

responsible for collecting and counting proceeds from the scheme

and paying participants. Further, prior to and after he left

Iraq — the situs for the conspiracy — Young took pains to ensure

continuity of operations in the scheme, meeting with the co-

conspirator who took over management of its operations for the

purpose of facilitating the management transition and tutoring

the co-conspirator.

These findings are sufficient to justify the

imposition of the three-level enhancement for Young’s managerial

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role. See, e.g., Llamas, 599 F.3d at 389-90 (affirming USSG

§ 3B1.1(b) enhancement where the defendant “exercised

supervisory responsibility over” the activities of a call center

by, inter alia, enforcing the center’s rules, punishing non-

compliant operators, and coordinating the operators’

activities); Bartley, 230 F.3d at 673-74 (affirming USSG

§ 3B1.1(b) enhancement where the defendant directed the

activities of street-level drug dealers and advised them on

sales techniques, set prices and payment terms, arranged

logistics of delivery, and directed the mailing and transport of

drugs). Accordingly, the district court did not clearly err in

applying the three-level enhancement for Young’s aggravating

role.

Young also asserts that he should have received a

reduction under USSG § 3B1.2 for his mitigating role. Under

USSG § 3B1.2(a)-(b), a defendant who is a “minimal participant”

in criminal activity may have his offense level reduced by four

levels, and a defendant who is a “minor participant” may have

his offense level reduced by two levels. Cases falling between

subsections (a) and (b) warrant a three-level reduction. USSG

§ 3B1.2. In deciding whether the defendant played a minor or

minimal role, the “critical inquiry” is “whether the defendant’s

conduct is material or essential to committing the offense.”

United States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001)

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(internal quotation marks omitted). We review for clear error

the district court’s decision that a defendant did not have a

mitigating role in an offense. See United States v. Kiulin,

360 F.3d 456, 463 (4th Cir. 2004).

We conclude that the district court reasonably did not

grant Young a reduction under USSG § 3B1.2 because the record

shows that he was a manager in the fuel theft conspiracy.

Young’s managerial activities demonstrate that his role cannot

be defined as either minor or minimal. Accordingly, the

district court did not clearly err in refusing to apply a

reduction for Young’s mitigating role.

Young asserts that he should have received a two-level

reduction under USSG § 3E1.1(a) for acceptance of

responsibility. A two-level reduction in a defendant’s offense

level is warranted if he clearly demonstrates acceptance of

responsibility for his offenses. USSG § 3E1.1(a). An

adjustment for acceptance of responsibility does not result

automatically from the entry of a guilty plea; rather, in order

to receive such a reduction, “the defendant must prove by a

preponderance of the evidence that he has clearly recognized and

affirmatively accepted personal responsibility for his criminal

conduct.” United States v. May, 359 F.3d 683, 693 (4th Cir.

2004) (internal quotation marks omitted). In determining

whether an adjustment is warranted, the district court may

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consider whether the defendant has “truthfully admitt[ed] the

conduct comprising the offense(s) of conviction, and truthfully

admitt[ed] or not falsely den[ied] any additional relevant

conduct for which the defendant is accountable under [USSG]

§ 1B1.3.” USSG § 3E1.1, cmt. n.1(a).

Young asserts that he is entitled to a reduction for

acceptance of responsibility based on a statement he submitted

to the Probation Office after pleading guilty in which he

admitted his role in the fuel theft conspiracy. The PSR,

however, recommended against application of the two-level

reduction for acceptance of responsibility because, after

pleading guilty, Young “backtrack[ed]” from his admissions of

guilt in the statement of facts and the statement given to the

Probation Office. Specifically, Young denied his knowledge of

the scheme’s illegality, the amount of profits gained from the

scheme, and the length of his participation in it. These

denials demonstrate Young’s attempt to minimize his culpability.

Accordingly, we conclude that the district court did not clearly

err in refusing to grant a two-level reduction under USSG

§ 3E1.1(a). See May, 359 F.3d at 694.

Next, Young challenges the district court’s refusal to

grant a downward departure based on his extraordinary acceptance

of responsibility, see USSG § 5K2.0, p.s. However, a district

court’s refusal to depart from the applicable Guidelines

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sentence does not provide a basis for appeal under 18 U.S.C.

§ 3742 (2006), “unless the court failed to understand its

authority to do so.” United States v. Brewer, 520 F.3d 367, 371

(4th Cir. 2008). Young does not suggest that the district court

misunderstood its authority to depart. Accordingly, this claim

is not reviewable on appeal.

Finally, Young claims that his sentence is

substantively unreasonable, asserting that the 18 U.S.C.

§ 3553(a) (2006) factors support the imposition of a sentence

less than ninety-seven months’ imprisonment. In determining

whether a sentence is substantively reasonable, this court

“tak[es] into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.”

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)

(internal quotation marks omitted). We also give deference to

the district court’s decision that the § 3553(a) factors justify

a variant sentence and to the extent of that variance. Even if

this court would have imposed a different sentence, this fact

alone is not sufficient to justify reversing the district court.

Id. at 473-74. Further, this court accords a sentence within a

properly-calculated Guidelines range an appellate presumption of

reasonableness. United States v. Abu Ali, 528 F.3d 210, 261

(4th Cir. 2008). Such a presumption is rebutted only by showing

“that the sentence is unreasonable when measured against the

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§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d

375, 379 (4th Cir. 2006) (internal quotation marks omitted).

After review of the record and Young’s brief on

appeal, we conclude that he has failed both to overcome the

appellate presumption of reasonableness accorded the sixty-month

sentence on count one and to show why this court should not give

deference to the district court’s decision that the § 3553(a)

factors justified the below-Guidelines sentence of ninety-seven

months’ imprisonment on count two.

We therefore affirm the district court’s amended

judgment. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

AFFIRMED

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