PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 09-3505
_____________
UNITED STATES OF AMERICA
v.
TODD ROBINSON,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 09-cr-00285-001)
District Judge: Honorable Jose L. Linares
Argued March 24, 2010
Before: RENDELL, AMBRO, and FUENTES,
Circuit Judges.
(Filed: April 22, 2010)
Joshua P. Cohn, Esq. [ARGUED]
Cohn, Lifland, Pearlman, Herrmann & Knopf
Park 80 Plaza West One
Saddle Brook, NJ 07663
Counsel for Appellant
Samuel A. Stern, Esq. [ARGUED]
George S. Leone, Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
Todd Robinson pled guilty to conspiring to steal and
convert United States Treasury checks in violation of 18 U.S.C.
§§ 641 and 371. On appeal he challenges the District Court’s
calculation of his sentencing guideline range of 27 to 33 months
imprisonment because in arriving at the range the Court
included the number and dollar amount of checks converted by
another person, Travis Lynn, with whom Robinson contends he
did not conspire. Robinson participated in a scheme led by an
individual named Jerrod Jeffress. Jeffress provided “check-
cashers”– Robinson and three other individuals, including Lynn
– with stolen Treasury checks, as well as fake identification that
matched the names on the checks, and drove them to check-
2
cashing stores.
Robinson pled guilty to an information charging him with
conspiring with “others,” but there was no specific mention in
his plea colloquy of any individual other than Jeffress. At
Robinson’s sentencing, he acknowledged that he personally
attempted to cash five checks, with a total intended loss of
$5,869.00. Robinson maintained that he had no involvement
with any of the other individuals who worked for Jeffress and
that therefore none of their conduct should be attributed to him
for sentencing purposes. Robinson did not dispute, however,
that he knew who Lynn was, that he knew Lynn was working
for Jeffress, or that he and Lynn were in the same check-cashing
facility at the same time on two separate occasions.1 The
government argued at sentencing that Robinson worked with the
other check-cashers, particularly Lynn, and should be held
responsible for their conduct for sentencing purposes. The
District Court accepted the government’s position as to Lynn,
stating, “I think here by virtue of their presence together at the
check-cashing stores on a number of occasions, certainly
[Robinson’s] conduct with co-defendant Lynn, when all taken
into consideration together, makes it certainly appropriate to
apply the enhancement.” A.31. The District Court therefore
considered the total dollar amount of checks Robinson and Lynn
attempted to cash and applied a four-level enhancement to
1
Robinson also did not specifically object to a paragraph in
his Presentence Investigation Report that stated that he
conspired with Jeffress, Lynn, Glenda Blackmon, and Richard
Davis. Presentence Investigation Report 7, ¶28.
3
Robinson’s sentence under United States Sentencing Guidelines
Manual (“USSG”) § 2B1.1(b)(1)(C) (2009) for a loss of more
than $10,000 but less than $30,000, and a two-level
enhancement based on 10 or more victims pursuant to USSG
§ 2B1.1(b)(2)(A)(i).
DISCUSSION 2
Robinson urges that the District Court should have
applied a two-level enhancement under USSG § 2B1.1(b)(1)(B)
for a loss of more than $5,000 but less than $10,000 – based on
the $5,869 loss intended by Robinson alone – and should not
have applied the enhancement for the number of victims.
Robinson contends that the District Court erred in finding that
Lynn’s conduct was reasonably foreseeable to Robinson under
USSG § 1B1.3(a)(1)(B), relying for the first time on appeal on
an Application Note in the Guidelines Manual, specifically
§ 1B1.3, cmt. n. 2(c)(6).
Robinson states that he was operating parallel to, but
independent of, the other check-cashers.3 He contends that
2
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.
3
Robinson also urges that the conspiracy in this case was a
“hub-and-spoke” conspiracy in which several “mini-
conspiracies” revolved around one “point person” and the only
common ground between the “spokes” was their relationship to
4
“interdependence of the defendants (i.e., pooling of resources)
. . . is the appropriate measure by which to gauge joint activity.”
Appellant’s Br. 15. Because Robinson’s role in the scheme was
not dependent upon the success of the other check-cashers, nor
did they share any profits, he argues that he should be held
accountable for sentencing purposes for only the checks he
himself tried to cash.4
the person at the “hub” of the conspiracy. Appellant’s Br. 12
(citing United States v. Kemp, 500 F.3d 257, 287-93 (3d Cir.
2007)). In Kemp, we emphasized that in a hub-and-spoke
conspiracy there is a lack of interdependence between the
spokes in that their role in the scheme is not dependent upon
others, nor are they aided by or at all interested in the success of
the others. 500 F.3d at 290. Robinson contends that there was
no showing of any “material interdependent conspiratorial
activity” between himself and any other check-cashers.
Appellant’s Br. 13. However, in Kemp we defined this type of
interdependence as a requirement for a conspiracy conviction,
not a sentencing enhancement.
4
In footnote 11 of his appellate brief, Robinson contends that
he is entitled to an evidentiary hearing to decide whether his
appearance with another individual in a check-cashing place is
sufficient to apply an enhancement under USSG § 1B1.3.
However, he does not contest that he was in a check-cashing
place at the same time as Lynn, so an evidentiary hearing would
not be probative. The sufficiency of this evidence for
sentencing purposes is disputed, but the facts are not.
5
It is undisputed that Robinson and Lynn were at a check-
cashing store together on two occasions, that Robinson knew
Lynn, and that Robinson knew Lynn was cashing stolen
Treasury checks supplied by Jeffress. Based on these facts, the
government urges that it was not clearly erroneous for the
District Court to conclude by a preponderance of the evidence
that Lynn’s conduct was foreseeable to Robinson and was in
furtherance of jointly undertaken criminal activity, and was thus
relevant for sentencing purposes.
We review a district court’s application of sentencing
enhancements for abuse of discretion. United States v. Kennedy,
554 F.3d 415, 426 (3d Cir. 2009).
Under USSG § 1B1.3(a)(1)(B), Robinson’s guideline
offense level is determined, in relevant part, by considering:
in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity . . . .
The application notes to the guidelines clarify this by stating:
[i]n the case of a jointly undertaken criminal
activity, subsection (a)(1)(B) provides that a
defendant is accountable for the conduct (acts and
omissions) of others that was both:
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(i) in furtherance of the jointly undertaken
criminal activity; and
(ii) reasonably foreseeable in connection with that
criminal activity.
....
In determining the scope of the criminal activity
that the particular defendant agreed to jointly
undertake (i.e., the scope of the specific conduct
and objectives embraced by the defendant's
agreement), the court may consider any explicit
agreement or implicit agreement fairly inferred
from the conduct of the defendant and others.
United States Sentencing Guidelines Manual § 1B1.3, cmt. n. 2
(emphasis added).
We have summarized these guidelines by saying, “[i]n
order to be included in determining the defendant's offense
level, the loss resulting from the acts or omissions of others
must be: ‘(1) in furtherance of the jointly undertaken activity;
(2) within the scope of the defendant's agreement; and (3)
reasonably foreseeable in connection with the criminal activity
the defendant agreed to undertake.’” United States v. Gricco,
277 F.3d 339, 356 (3d Cir. 2002) (quoting United States v.
Duliga, 204 F.3d 97, 100 (3d Cir. 2000)).
7
The issue before the District Court at sentencing was
whether the checks Lynn cashed were in furtherance of criminal
activity jointly undertaken by, and reasonably foreseeable to,
Robinson. In determining the scope of the joint criminal
undertaking, the District Court could consider an “implicit
agreement fairly inferred from” Robinson and Lynn’s conduct.
United States Sentencing Guidelines Manual § 1B1.3, cmt. n.2.
The guidelines specifically state that the joint criminal activity
does not have to be charged as a conspiracy. Id. at
§ 1B1.3(a)(1)(B); see also United States v. Jarvis, 258 F.3d 235,
245 (3d Cir. 2001) (finding that losses of victims that the
defendant was not held responsible for in terms of his conviction
may nonetheless properly be considered under a preponderance
of the evidence standard as relevant sentencing information
under USSG § 1B1.3(a)).
Here, there was evidence from which the District Court
could reasonably infer that there was an implicit agreement
between Robinson and Lynn to cash stolen checks for Jeffress.5
5
In United States v. Perez, we upheld the district court’s
finding of an implicit agreement based largely on the fact that
defendant Edmundo Batoon was often in drug-dealer Lirio Del
Rosario’s apartment where drugs were stored and sold. 280
F.3d 318, 353-54 (3d Cir. 2002). In Perez, the district court
found Batoon responsible for the full amount of drugs in the
apartment for sentencing purposes because it determined that
Batoon provided security to Del Rosario. Id. at 353. On appeal,
Batoon argued that he never agreed to provide security. We
dismissed this argument stating:
8
Robinson and Lynn knew each other, Robinson knew Lynn was
cashing stolen checks for Jeffress, and they were in the same
check-cashing store at the same time on two occasions.
Moreover, there was evidence that Jeffress drove the check-
cashers to and from the check-cashing location, so an inference
could be drawn that Robinson and Lynn came and went to the
location together. After reasonably inferring from Robinson
and Lynn’s conduct that an implicit agreement existed between
the two, it follows that the checks Lynn cashed were reasonably
foreseeable to Robinson and were in furtherance of their joint
criminal activity. Therefore, the District Court did not clearly
err in finding by a preponderance of the evidence that Robinson
and Lynn were engaged in joint criminal activity, that the
checks Lynn cashed were within the scope of and in
furtherance of their agreement and were reasonably foreseeable
Batoon's argument fails to recognize that the
agreement can be explicit or an “implicit
agreement fairly inferred from the conduct of the
defendant and others.” U.S. Sentencing
Guidelines Manual § 1B1.3, cmt. n. 2. Here, from
Batoon's conduct (specifically his remaining in
Del Rosario's apartment for a significant amount
of time while several others came and went), the
District Court found an implied agreement
between Del Rosario and Batoon to provide
security.
Id. at 353-54.
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to Robinson, and that therefore Robinson was responsible for
the checks Lynn cashed for sentencing purposes.
Lastly, Robinson contends that the victim-based
enhancement should not have been applied to his sentence
because it was not applied to his co-defendant Davis’ sentence,
despite the Probation Department’s having found Davis
criminally responsible for 25 out of the 27 checks involved in
the scheme. Robinson urges that a district court, in determining
an appropriate sentence, is to consider “the need to avoid
unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
18 U.S.C.A. § 3553(a)(6). Robinson contends that by not
applying the same enhancement to his co-defendant Davis, the
District Court ignored § 3553(a)(6). We disagree.
In order for us to conclude that the District Court erred
in not considering the need to avoid unwarranted sentencing
disparities, Robinson would need to show that he was similarly
situated to Davis. See United States v. Charles, 467 F.3d 828,
833 (3d Cir. 2006) (“[The defendant] has not shown that any of
the defendants in the District Court cases to which he cites are
similarly situated to him for purposes of comparing career
offenders with a history of institutional misconduct, . . . and
therefore relevant for a § 3553(a)(6) comparison. Even if he
had, a mere similarity would not be enough to overcome the
high level of deference we accord sentencing judges.”); United
States v. Parker, 462 F.3d 273, 277-78 (3d Cir. 2006)
(“Although § 3553(a) does not require district courts to
consider sentencing disparity among co-defendants, it also does
not prohibit them from doing so,” but “§ 3553(a)(6) by its
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terms plainly applies only where co-defendants are similarly
situated.”). Robinson extracts certain information from Davis’
Presentence Report, prepared by the Probation Department.
However, Robinson fails to discuss any specifics of Davis’ plea
agreement, sentencing arguments, or the District Court’s
sentencing analysis. We have no basis for concluding that the
District Court viewed Davis’ conduct similarly to Robinson’s
in terms of the victims, particularly because Robinson’s victim
enhancement resulted from his being responsible for Lynn’s
conduct as well. We cannot conclude that Robinson’s sentence
was unreasonable based on the mere allegation of a difference
between the Court’s sentencing calculations in the two cases.
For the foregoing reasons we will AFFIRM the
Judgment and Commitment Order of the District Court.
11