NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0502n.06
Filed: July 18, 2007
Nos. 06-1333, 06-1494
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
RICHARD BURLEY and ) EASTERN DISTRICT OF MICHIGAN
TIMOTHY PIERRE CLARK, )
)
Defendants-Appellants. ) OPINION
)
Before: NORRIS, GILMAN, and SUTTON, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Richard Burley and Timothy Pierre Clark
appeal from their sentences in this bank-fraud case. Both defendants entered guilty pleas to an
indictment that charged each of them with aiding and abetting bank fraud, and with conspiracy to
commit bank fraud, for their roles in a counterfeit check-cashing scheme. Despite their guilty pleas,
neither defendant admitted any of the government’s allegations relating to the sentencing
enhancements or the amount of loss attributable to their fraudulent activity. The district court
imposed a 4-level enhancement on each defendant for his leadership role in the offense, a 16-level
enhancement for a loss amount in excess of one million dollars, and a 2-level enhancement for the
use of device-making equipment in the scheme.
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
On appeal, the defendants challenge the application of these sentencing enhancements and
the reasonableness of their sentences. For the reasons set forth below, we AFFIRM the judgment
of the district court.
I. BACKGROUND
Burley and Clark each were charged in a two-count indictment with aiding and abetting bank
fraud, in violation of 18 U.S.C. §§ 1344 & 2 (Count 1), and with conspiracy to commit bank fraud,
in violation of 18 U.S.C. §§ 1344 & 371 (Count 2). The indictment addressed an alleged counterfeit
check-cashing scheme that operated from approximately July of 1997 until April of 2004.
Specifically, the indictment alleged that Burley and Clark had obtained stolen checks from a
cooperating bank employee, printed counterfeit checks that matched the legitimate personal and
business accounts associated with the stolen checks, and then each distributed the counterfeit checks
to his own cadre of at least six coconspirators for cashing at various banks and businesses. The
indictment alleged that 462 bank accounts at nine financial institutions were defrauded in the total
amount of $1,779,966.10. Under the then-applicable Department of Justice policy, the indictment
contained language that set out the elements of sentencing enhancements for the defendants’ role in
the offense, the amount of loss, and the use of device-making equipment in the offense.
Both Burley and Clark entered guilty pleas to the indictment in September of 2005 without
the benefit of a Rule 11 written plea agreement. The defendants, however, did not concede the
amount of loss or the applicability of any other sentencing enhancement. But Burley admitted before
the district court that he had knowingly provided false identification documents and stolen checks
-2-
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
to coconspirators, and that he had used such items himself to obtain money from at least seven of
the nine financial institutions listed in the indictment. His participation in the scheme lasted from
late 1999 until “around 2004.”
Clark, in turn, admitted that he knowingly purchased fraudulent checks from a friend named
“Dave,” and that he had used the checks, along with false identification cards that he also knowingly
purchased, to buy merchandise from local retail stores. He engaged in this conduct from
“somewhere around August 2000 until November or December” of 2004. Others were involved in
the scheme, but Clark denied that he ever personally received cash in exchange for a fraudulent
check. He admitted, however, that he knew that the checks were produced with computer
equipment. The government acknowledged that the defendants had reserved their right to object to
whatever amount of loss that the government calculated and to any applicable sentencing
enhancements.
According to the government, Khary Lawson and Theodore Washington were among the
coconspirators involved with Burley and Clark in the check counterfeiting and cashing operation.
Lawson, who worked as a check sorter-operator at Comerica Bank in Detroit, was allegedly
approached by Burley in the year 2000 about stealing checks from the bank. Burley offered to pay
Lawson approximately $60 for each stolen check. Lawson initially gave the stolen checks to Burley,
but later also gave them to Clark.
Sometime in late 2001, Lawson learned from Burley that the stolen checks were being
scanned into a computer and that counterfeit checks were being printed. Burley and Clark then
began to pay Lawson a portion of the proceeds from the counterfeit checks that they or their “crews”
-3-
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
of check-cashers were able to successfully cash. The government alleged that Burley and Clark each
ran a crew of at least six people who cashed the counterfeit checks. Crew members received 10
checks per day, for a total of 120 counterfeit checks daily. The check-cashing operation allegedly
operated six days per week.
Following law enforcement raids on the locations where Burley and Clark had been making
the counterfeit checks, Burley allegedly approached Washington in November of 2002 about renting
a room in Washington’s duplex. Washington agreed, and Burley and Clark then set up their
computer, scanner, printer, and other identification-making equipment in the rented room, using the
machines to make and print counterfeit checks.
Both Lawson and Washington accepted Rule 11 plea agreements after they were eventually
arrested and charged as part of the scheme. Lawson was convicted of aiding and abetting bank fraud,
sentenced to 12 months of home confinement followed by five years of supervised release, found
responsible for an amount of loss of $1,779,996.10, and ordered to make restitution in that amount.
Washington was also convicted of aiding and abetting bank fraud, sentenced to six months of home
confinement, followed by six months in the Community Correction Center and five years of
supervised release, found responsible for an amount of loss of $364,459.18, and ordered to make
restitution in that amount.
The district court held a joint sentencing hearing for Burley and Clark in December of 2005.
Presentence Reports (PSRs) had been prepared for both of them, calculating each defendant’s
offense level at 26 with a criminal history category of IV. At the sentencing hearing, the government
acknowledged that it bore the burden of proving both the amount of loss and the applicability of the
-4-
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
sentence enhancements by a preponderance of the evidence. The government presented the
testimony of Todd Gilevich, a Special Agent with the Secret Service who was in charge of the case.
Further testimony came from Lajoy Hughes, Lamarr Jones, Frank Smith, and Theodore Washington,
all of whom had participated in the check-cashing scheme.
Gilevich testified about the loss amount that resulted from the scheme. He referred to a
spreadsheet prepared by a member of the Detroit Metro Identity Fraud Task Force, a joint federal,
state, and local operation that investigated identity-fraud cases in the Detroit area during the time that
the defendants were pursuing their scheme. The spreadsheet calculated loss data based on the period
of time that Lawson was employed by Comerica Bank, witness testimony, account information, and
other evidence gathered during the investigation. Listed on the spreadsheet are all of the checks
allegedly passed during the conspiracy, including the account name, the fraudulent payee, the
suspected check-casher, and the affected bank.
Gilevich conceded that Clark’s name did not appear anywhere on the spreadsheet, but said
that he was aware of at least 12 checks cashed by Clark, each in the range of $100 to $200, for a total
of no more than $2,000. In contrast, the spreadsheet identified Burley as the suspected casher of
numerous checks at three of the banks affected. He was linked to checks in the total amount of
approximately $80,000.
Gilevich also testified about the history of the investigation into the check-cashing scheme.
A suspect named Orlando Marshall was interviewed about the scheme while under arrest in August
of 2001. Marshall did not identify Burley as one of the primary people involved, but instead
recounted that he had met Clark in 1998 and began cashing checks for him later that year. Clark,
-5-
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
however, was incarcerated beginning in September of 2000. While Clark was in prison, Marshall
began to print his own counterfeit checks. Marshall died in late 2001 or early 2002, prior to any of
the indictments in the present case.
Lamarr Jones was another witness at the sentencing hearing. Jones had been a check-casher
in the scheme but, because he agreed to testify, was not indicted. According to Jones, he began
cashing checks in approximately 2002 to pay back $3,000 that he had stolen from Burley in 2000.
Jones recounted that he saw Burley use the computer equipment at Washington’s duplex to make
and print counterfeit checks, but that he saw Burley print only three to six checks. Although Jones
was able to describe the process of making a counterfeit check, he denied that he had ever used the
computer equipment or made his own checks.
Lajoy Hughes, who had children by Jones and had formerly been engaged to him, testified
at the hearing that she knew that Jones was cashing counterfeit checks. Hughes was Orlando
Marshall’s sister. She denied ever cashing checks herself or giving checks to Jones to cash, but
admitted driving Jones to banks where he cashed fraudulent checks. Although she claimed to have
heard Burley and Lawson discussing checks in approximately 1998 or 1999, she denied seeing any
checks at that time. She also said that she had seen Burley making counterfeit checks in
Washington’s duplex, although she admitted that she had been told not to come inside the house.
Frank Smith came to the sentencing hearing as part of a plea agreement in a separate bank-
fraud case. Smith had previously testified before a Grand Jury regarding the check-cashing scheme
in question, but had failed to disclose his full criminal history in that testimony. At the sentencing
hearing, Smith said that he cashed checks for Clark. He also admitted knowing Burley. But he
-6-
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
stated that he never cashed checks for Burley, never saw Burley cash a check, and never heard Burley
discuss checks.
Finally, Washington testified at the hearing that Burley approached him in November of 2002
and asked to rent space for some computer equipment. He described using the computer equipment
to make false identification cards for both Jones and Hughes, knowing that the cards would be
employed in cashing checks. In addition, Washington said that he had seen Burley and Clark make
counterfeit checks at his house on multiple occasions, and that he saw Jones make and print
counterfeit checks more than 25 times. He also had seen Hughes in the house with Jones, but stated
that whenever Burley was there, she stayed outside.
Following the sentencing hearing, the district court issued a written opinion containing its
findings regarding the amount of loss and the applicability of the sentencing enhancements. Relying
on both the hearing testimony and on the grand jury testimony of Hughes, Jones, and Smith, the
court determined that three sentencing enhancements applied to the defendants. The court attributed
almost the entire loss amount set forth in the PSRs to each defendant, finding that Clark was
responsible for a loss amount of $1,683,587.72 and that Burley was responsible for a loss amount
of $1,779,966.10. Because Clark had been incarcerated for approximately six months between 1999
and 2000, the court held him responsible for a lesser loss amount. The court’s finding subjected both
Burley and Clark to a 16-level enhancement based on a loss amount in excess of one million dollars.
In addition, the court decided that both defendants were subject to a four-level enhancement for
playing a leadership role in the scheme and a two-level enhancement for using device-making
equipment to prepare the counterfeit checks.
-7-
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
In sentencing memoranda, both Burley and Clark objected to the PSRs’ calculation of the
amount of loss and to the sentencing enhancements. They renewed those objections, which the
district court overruled, at the sentencing hearing. Clark was sentenced to 110 months of
imprisonment on the count of aiding and abetting bank fraud, a concurrent term of 60 months’
imprisonment on the conspiracy count, and a three-year term of supervised release. He was also
ordered to make restitution in the amount of $1,683,587.72. Burley was sentenced to a term of 92
months of imprisonment on the count of aiding and abetting bank fraud, a concurrent term of 60
months’ imprisonment on the conspiracy charge, and a three-year term of supervised release. He was
also ordered to make restitution in the amount of $1,779,996.10.
On appeal, the defendants argue that their Sixth Amendment rights were violated when the
district court increased their sentences based on facts not admitted at the plea hearing or proved
beyond a reasonable doubt. They also contend that the district court erred in finding that they were
responsible for a loss amount greater than one million dollars under U.S.S.G. § 2B1.1(b)(1)(I) and
in finding that they were leaders in the scheme under U.S.S.G. § 3B1.1(a). Finally, they assert that
the sentences imposed were both procedurally and substantively unreasonable.
II. ANALYSIS
A. Factual findings by the sentencing court
Burley and Clark both contend that the district court violated their Sixth Amendment rights
in making factual findings by a preponderance of the evidence when it determined the amount of
loss, the role that they played in the offense, and that they used device-making equipment. Instead,
-8-
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
they assert that United States v. Booker, 543 U.S. 220 (2005), requires the district court to use the
beyond-a-reasonable-doubt standard when making factual findings that will increase the sentence
beyond the Guidelines range indicated without such additional facts.
This court has rejected the defendants’ argument in previous cases, holding instead that
“Booker did not eliminate judicial fact-finding.” United States v. Coffee, 434 F.3d 887, 898 (6th Cir.
2006). Our caselaw makes clear “that a district court may make its own factual findings regarding
relevant sentencing factors, and consider those factors in determining a defendant’s sentence.”
United States v. Gardiner, 463 F.3d 445, 461 (6th Cir. 2006). Moreover, “the district court does not
violate Booker if it considered the guidelines to be advisory and not mandatory.” United States v.
Kosinski, 480 F.3d 769, 775 (6th Cir. 2007) (brackets omitted). Under the post-Booker advisory
Guidelines regime, a sentencing enhancement that is based on reliable information, supported by a
preponderance of the evidence, and does not exceed the statutory maximum sentence for the offense
is constitutional. Id.
The district court in the present case conducted an extensive sentencing hearing at which five
witnesses testified. It also reviewed the parties’ sentencing memoranda, the amount-of-loss
spreadsheet, the grand jury transcripts, law enforcement reports, and the PSRs to make its factual
findings. See United States v. Ferguson, 456 F.3d 660, 665 (6th Cir. 2006) (finding a district court’s
sentencing determination appropriate where it held a sentencing hearing and relied on the PSR in
determining the facts used to calculate the Guidelines range). The district court also described the
Guidelines range as “a factor for the Court to look to in deciding what . . . a proportionate sentence
should be.” (Emphasis added.) Thus, in keeping with this court’s post-Booker caselaw, we conclude
-9-
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
that the district court acted within its authority in finding the facts used to calculate Burley’s and
Clark’s Guidelines ranges.
B. Sentencing enhancements
1. Leadership roles
Burley and Clark contend that the district court clearly erred in finding that they were leaders
or organizers in the check-cashing scheme. Under the Guidelines, a sentencing court must increase
a defendant’s offense level by four levels “[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a).
“An upward departure may be warranted . . . in the case of a defendant who did not organize [or]
lead . . . another participant, but who nevertheless exercised management responsibility over the
property, assets, or activities of a criminal organization.” U.S.S.G. § 3B1.1 cmt. n.2. The
government bears the burden of establishing the factors supporting the enhancement by a
preponderance of the evidence. United States v. Barton, 455 F.3d 649, 658 (6th Cir. 2006) (holding
that Booker did not change the burden of proof for enhancements).
Under the caselaw of this circuit, the standard of review for a district court’s application of
§ 3B1.1(a) is unsettled. See, e.g., United States v. Milan, No. 05-6209, 2007 WL 627870, at *3 (6th
Cir. Mar. 2, 2007) (upholding the application of a § 3B1.1(a) enhancement under both deferential
and de novo review); see also United States v. McDaniel, 398 F.3d 540, 551 & n.10 (6th Cir. 2005)
(declining to resolve the question of the applicable standard of review). This court has traditionally
“reviewed the district court’s factual findings for clear error and its legal conclusions de novo.”
McDaniel, 398 F.3d at 551 n.10. In Buford v. United States, 532 U.S. 59, 66 (2001), however, the
- 10 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
Supreme Court ruled that “in light of the fact-bound nature of the legal decision,” an appellate court
should review deferentially a district court’s application of § 4B1.2 (the crime-of-violence
enhancement). This court has thus “reserve[d] judgment as to whether the district court’s application
of § 3B1.1 . . . should be reviewed deferentially or de novo.” United States v. Henley, 360 F.3d 509,
516 (6th Cir. 2004); see also Milan, No. 05-6209, 2007 WL 627870, at *3 (same). For the reasons
set forth below, we again have no need to resolve this issue in the present case.
Burley and Clark both objected in the district court to the application of the leadership
enhancement. In applying the § 3B1.1(a) enhancement to the defendants, however, the district court
found that the evidence was more than sufficient to identify Burley and Clark as leaders in the
check-cashing scheme under the preponderance standard.
With reference to Clark, the district court noted “the large amount of money, the number of
people” involved in the scheme, “the planning that had to take place” in organizing the scheme, “and
the history of similar kinds of offenses committed by Mr. Clark over the years” as support for
applying the § 3B1.1(a) enhancement. It also characterized Clark as “the real brains obviously
behind the operation.”
With reference to Burley, the district court stated that although “it might not be fair to
characterize Mr. Burley as the brains behind the operation, . . . he did a lot of heavy lifting.” The
court found that “the main distinction . . . between the activities of Mr. Clark and Mr. Burley
compared to some of the others who have been prosecuted . . . is just that the level of activity in
relation to this fraud was so much greater.” Specifically, Burley “participated in the recruitment
obviously of a number of people including Mr. Lawson,” “leased the premises for Mr. Clark where
- 11 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
the equipment was maintained,” “participated in the operation of the equipment,” and “had his own
group of runners.”
Burley disputes the credibility of the witnesses, including Hughes, Jones, and Smith, who
identified him as having between five and seven people working in his check-cashing “crew.” But
even if we were to assume for the sake of argument that the district court erred in relying on the
testimony of Hughes, Jones, and Smith, there was still sufficient evidence in the record to support
a finding that Burley “exercised management responsibility over the property, assets, or activities”
of the scheme, U.S.S.G. § 3B1.1(a), cmt. 2, because Burley does not dispute that he rented space
from Washington for the computer equipment or that he made and printed counterfeit checks.
Based on the evidence considered by the district court in both its written opinion and at the
February 27, 2006 sentencing hearing, the district court concluded that the defendants were
organizers or leaders under U.S.S.G. § 3B1.1(a). We find no error in that determination even under
the de novo standard of review, and would obviously reach the same conclusion under a more
deferential standard.
2. Amount of loss
Burley and Clark next contend that the district court erred when it found them each to be
responsible for a loss amount in excess of one million dollars, resulting in a 16-level sentencing
enhancement under U.S.S.G. § 2B1.1(b)(1)(I). “Under the Guidelines, the district court is to
determine the amount of loss by a preponderance of the evidence, and the district court’s findings
are not to be overturned unless they are clearly erroneous.” United States v. Triana, 468 F.3d 308,
321 (6th Cir. 2006). But “whether those facts as determined by the district court warrant the
- 12 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
application of a particular guideline provision is purely a legal question and is reviewed de novo by
this court.” Id.
The comments to U.S.S.G. § 2B1.1(b) set forth the general rule that “loss is the greater of
actual loss or intended loss,” where “actual loss” is “the reasonably foreseeable pecuniary harm that
resulted from the offense.” Id. at cmt. 3(A)(i). “[R]easonably foreseeable pecuniary harm means
pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known,
was a potential result of the offense.” Id. at cmt. 3(A)(iv). The commentary to § 2B1.1 also explains
that the district court “need only make a reasonable estimate of the loss . . . based on available
information.” Id. at cmt. 3(C). Both Burley’s and Clark’s respective PSRs recommended applying
a 16-level enhancement because the actual loss was more than $1,000,000 but less than $2,500,000.
Burley contends that the district court simply adopted the findings of his PSR as to the
amount of loss without making an independent finding of fact. This was erroneous, according to
Burley, because “the PSR cannot be substituted for a ruling on a disputed matter.” See United States
v. Darwich, 337 F.3d 645, 667 (6th Cir. 2003). But Burley concedes that the district court referred
to additional material beyond the PSR in making its amount-of-loss determination.
Burley particularly disputes the finding that he managed a check-cashing crew. He instead
characterizes the evidence as establishing “that there were separate, distinct, and independent groups
of individuals that manufactured checks, passed them at institutions and stores, and distributed the
proceeds among [each] group exclusively.” Burley further contends that Agent Gilevich’s testimony
established that the spreadsheet identified Burley only as a suspected check-casher for approximately
$80,000 worth of checks from three of the nine banks involved. Accordingly, Burley argues that
- 13 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
none of the other losses can be attributed to him because “the full scope of the conspiratorial
activities were both unknown and unfor[e]seen” by him. But both his PSR and the witness testimony
identified Burley as the person who recruited Lawson to steal legitimate checks, who rented space
for the computer equipment from Washington, and as one of the people who printed and distributed
counterfeit checks to a check-cashing crew. His argument on this ground therefore fails.
Clark, on the other hand, argues that the district court erred in finding him responsible for
over one million dollars in loss because the loss amount did not “reflect economic reality.” He
contends that Gilevich’s testimony constituted the only “direct and uncontested evidence on the
amount of loss,” and that this testimony established that Clark was responsible for only $2,000 of
loss. As with Burley, however, ample evidence in the record indicates that Clark was responsible
for a substantially greater amount of loss. Lawson’s plea agreement stated that he gave stolen checks
to Clark, who then used them to create counterfeit checks. The law enforcement investigative
reports reveal that Clark had multiple individuals working for him as check-cashers. Testimony also
established that Clark had been making counterfeit checks for a period of more than five years. We
therefore conclude that the district court did not err in calculating the amount of loss as to each
defendant in accordance with Agent Gilevich’s spreadsheet.
3. Device-making equipment
Burley and Clark further contend that the district court erred when it applied a two-level
enhancement to their Guidelines sentences for the use of device-making equipment under U.S.S.G.
§ 2B1.1(b)(10)(1). The government argues that the defendants have abandoned this claim, noting
- 14 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
that Clark specifically conceded that there was sufficient evidence to support the
device-making-equipment enhancement as set forth in his PSR.
Burley, for his part, simply states in conclusory fashion that “there was insufficient reliable
information provided” to the district court to support this enhancement. The record contains
evidence, however, that Burley rented space from Washington for the computer equipment, and that
Jones and Hughes saw Burley using computer equipment to make and print counterfeit checks.
Issues such as this that are presented in a “perfunctory manner, unaccompanied by some effort at
developed argumentation,” are deemed waived. See United States v. Layne, 192 F.3d 556, 566 (6th
Cir. 1999). We therefore conclude that the defendants have abandoned their challenge to the
U.S.S.G. § 2B1.1(b)(10)(1) enhancement.
C. Reasonableness review
Finally, Burley and Clark contend that their sentences are unreasonable. As a preliminary
matter, a sentence within the advisory Sentencing Guidelines range is deemed presumptively
reasonable. Rita v. United States, ___ S. Ct. ___, 2007 WL 1772146, *8-9 (June 21, 2007) (holding
that a federal appellate court may apply a nonbinding presumption of reasonableness to a
within-Guidelines sentence). A district court, however, must also consider the factors listed in 18
U.S.C. § 3553(a) before imposing a sentence. United States v. Williams, 436 F.3d 707, 708 (6th Cir.
2006). The court must then “impose a sentence sufficient, but not greater than necessary, to comply
with the purposes set forth” in § 3553(a). United States v. Foreman, 436 F.3d 638, 644 (6th Cir.
2006) (quoting 18 U.S.C. § 3553(a)(2)). In addition, district courts are directed to consider the
nature and circumstances of the offense, the history and characteristics of the defendant, the need to
- 15 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
avoid unwarranted sentencing disparities between defendants who have similar records and have
been found guilty of similar conduct, and the need to provide restitution to the victims of the offense.
18 U.S.C. § 3553(a)(1)-(7). But the district court is not required to engage in a “ritual incantation”
of the various factors. United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005).
Reasonableness review encompasses “both substantive and procedural components.” United
States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006). Procedural unreasonableness occurs where “the
district judge fails to consider the applicable Guidelines range or neglects to consider the other
factors listed in 18 U.S.C. § 3553(a),” but rather “selects what the judge deems an appropriate
sentence.” Ferguson, 456 F.3d at 664 (citations and quotation marks omitted). Substantive
unreasonableness occurs where the district court “selects the sentence arbitrarily, bases the sentence
on impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable
amount of weight to any pertinent factor.” Id. (citations and brackets omitted). But see United
States v. Bailey, __ F.3d __, __, 2007 WL 1713327, at *6 n.1 (6th Cir. June 15, 2007) (discussing
the distinction between substantive and procedural reasonableness and noting (1) that “[i]n many
ways, the procedural and substantive components, as delineated by Ferguson and subsequent cases,
appear to overlap” and (2) that our cases have not treated the issue consistently).
Both defendants raise concerns about the very significant disparity between the sentences
imposed on them and the sentences imposed on Lawson and Washington. As previously noted, the
Guidelines range for Lawson was 41 to 51 months’ incarceration, but he was sentenced to 12 months
of home confinement. Washington’s plea agreement calculated his Guidelines range as 27 to 33
- 16 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
months’ incarceration, but he was sentenced to 6 months in a community corrections center with 6
months of home confinement to follow.
The government noted that both Lawson and Washington cooperated with the prosecution
and accordingly received motions for downward departure pursuant to U.S.S.G. § 5K1.1. Even so,
the government still sought 33 to 41 months’ imprisonment for Lawson and 22 to 26 months’
imprisonment for Washington. At oral argument, the government conceded that it did not appeal
from either Lawson’s or Washington’s sentences, although it had the right to do so. We find the
relatively light sentences received by Lawson and Washington puzzling, but the reasonableness of
their sentences are not before us. What is before us are the sentences of Burley and Clark, and we
find neither to be unreasonable for the reasons set forth below.
1. Richard Burley
The district court calculated Burley’s applicable Guidelines range as between 92 and 115
months of imprisonment. Because the court imposed a sentence of 92 months, that sentence carries
a presumption of reasonableness. See Rita, 2007 WL 1772146, at *8-9. But sentencing a defendant
to a within-Guidelines term of imprisonment does not relieve the district court of its responsibility
to explain its reasons for imposing that sentence. United States v. Richardson, 437 F.3d 550, 554
(6th Cir. 2006). A defendant is entitled to resentencing if the district court simply provides a list of
the defendant’s characteristics “without any accompanying analysis.” United States v. Jackson, 408
F.3d 301, 305 (6th Cir. 2005) (vacating a sentence as unreasonable for lack of any analysis).
In sentencing Burley, however, the district court considered his PSR, the evidence from the
sentencing hearings, argument from both the government and from Burley’s counsel, a statement by
- 17 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
Burley himself, and the Sentencing Guidelines. Burley argues in response that the PSR
overrepresents his criminal history, that he was a latecomer to the scheme and not the “mastermind,”
and that he took responsibility for his conduct by entering a guilty plea in a timely fashion.
Accordingly, Burley contended that a downward variance from the Guidelines range would be
appropriate.
The district court sought clarification from counsel and the Probation Department on how
Burley’s criminal history category was calculated. After a discussion, the court stated that the
similarity of Burley’s previous criminal activity did not “diminish[] his involvement in the criminal
offense,” and concluded that “the guideline range . . . fairly account[s] for the sentence that would
be proportionate[] and just.” The court found that Burley might not have been “the brains behind
the operation,” but noted that his “level of activity in relation to this fraud was so much greater” than
some of the other coconspirators. Burley, the district court emphasized, had “many, many
opportunities along the line . . . to drop out of the ongoing criminal activity,” but did not do so.
Accordingly, the court concluded that the Guidelines range of 92 to 115 months “responds to the
magnitude of the offense and the need for deterrence” of both Burley and of others. Satisfied that
the PSR’s recommendation was correct, the court then imposed a sentence of 92 months, at the low
end of the applicable range.
We conclude that Burley’s sentence satisfies the standard for reasonableness. The district
court was aware that the Guidelines are only advisory and it adequately accounted for the § 3553(a)
factors. Although the court could have perhaps done more in analyzing the factors in relation to this
particular defendant and in linking Burley with the sentence imposed, we conclude that it sufficiently
- 18 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
explained the basis for its ruling. See Rita, 2007 WL 1772146, at *12 (“[W]hen a judge decides
simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy
explanation.”); id. at *13 (“Where a matter is as conceptually simple as in the case at hand and the
record makes clear that the sentencing judge considered the evidence and arguments, we do not
believe the law requires the judge to write more extensively.”).
2. Timothy Pierre Clark
The district court calculated Clark’s applicable Guidelines range as between 110 and 137
months of imprisonment. He was sentenced to 110 months, which carries a presumption of
reasonableness because it is within the Guidelines range. See Rita, 2007 WL 1772146, at *8-9.
Clark asked for leniency on the ground that others who were, in his words, “equally, if not[] more
culpable to him” had been sentenced far below their Guidelines range. He specifically focused on
Lawson, who received a sentence of 12 months’ home confinement despite having a Guidelines
range of 41 to 51 months of imprisonment.
The district court rejected this request, distinguishing Lawson’s conduct because “it didn’t
require a whole lot of him to take the checks and turn them over to Mr. Clark and Mr. Burley.”
Instead, the court concluded that Clark was “[t]he real brains behind the operation.” Clark was
responsible for planning the scheme, acquiring the counterfeiting equipment, and recruiting
check-cashers. The court further noted that “the sentencing direction that the Court has is to treat
these folks individually and to focus on a sentence that’s proportionate to the violation and the
violator.” After noting the large amount of loss, the number of people involved in the offense, the
planning required for the scheme, and Clark’s history of convictions for similar types of offenses,
- 19 -
Nos. 06-1333, 06-1494
U.S. v. Burley, U.S. v. Clark
the court determined that “the guideline range is a range that the Court should look to in imposing
a sentence.” Clark’s criminal history, the court noted, also indicated that he had not learned from
his past convictions.
As with Burley’s sentence, we conclude that Clark’s sentence also meets the standard for
reasonableness. The district court was “aware that [the] ultimate sentencing authority rested with
the sentencing court, not the guidelines[,]” and adequately accounted for the § 3553(a) factors.
United States v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006). Although the court again could have
perhaps done more in analyzing the factors in relation to this particular defendant and in linking
Clark with the sentence imposed, we conclude that it sufficiently explained the basis for its ruling.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
- 20 -