United States v. Green

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0673n.06
Filed: September 12, 2007

No. 06-6128

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

United States of America )
Plaintiff-Appellee ) ON APPEAL FROM THE UNITED STATES
) DISTRICT COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
v. )
) OPINION
Stanley Jerome Green )
Defendant-Appellant )
)

BEFORE: SUTTON, McKEAGUE, Circuit Judges; and FORESTER, District Judge*

Forester, District Judge. Following a jury trial in 2003, Stanley Jerome Green was

convicted for conspiring to possess and utter counterfeit securities, possessing and uttering

counterfeit securities, and bank fraud, resulting in a total sentence of 96 months of imprisonment.

On appeal, his conviction was affirmed, but his sentence was vacated and remanded for

resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005). He now appeals his

resentence to 96 months. For the reasons that follow, we affirm.

I. Background

In March 2000, this Court affirmed Green’s 1998 conviction and 37-month sentence for a

counterfeit check cashing scheme. United States v. Green, 210 F.3d 373 (Table), 2000 WL

355640 (6th Cir. 2000). Shortly after being released from that conviction, Green embarked on the

present counterfeit check cashing scheme that involved, at different times from August 2000

*
The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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No. 06-6128
Page 2

through February 2002, a total of nine participants. His second conviction was affirmed, but the

sentence remanded. He was resentenced in August, 2006 with the court imposing a sentence of

60 months’ imprisonment on the conspiracy count and 96 months’ imprisonment on Counts 2-11

of the indictment, to run concurrently. He now appeals this resentence. Additional facts are

reserved for the analysis below.

II. Analysis

Green raises five issues on appeal. First, he claims his Fifth and Sixth Amendment rights

were violated when his sentence was enhanced through judicial fact finding using a preponderance

of the evidence standard. Second, Green challenges a four-point enhancement for his role in the

offense. Third, he argues that application of the 2002 United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”) violated the Ex Post Facto Clause. Fourth, he claims entitlement to

a two-point reduction for acceptance of responsibility and, fifth, he claims his resentence is

unreasonable.

A. Standard of Review

Criminal sentences are reviewed under a reasonableness standard, which contains both

procedural and substantive components. United States v. McGee, ___ F.3d ___, 2007 WL

1989017 at *5 (6th Cir. 2007). “A sentence may be procedurally unreasonable if the district judge

fails to consider the applicable guideline range or neglects to consider the other factors listed in 18

U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence

without such required consideration.” United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007)

(quoting United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)). “In addition, a sentence

may be substantively unreasonable ‘when the district court selects the sentence arbitrarily, bases

the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an
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No. 06-6128
Page 3

unreasonable amount of weight to any pertinent factor.’” Id. A “rebuttable presumption of

reasonableness” is applied to sentences falling within the applicable Guidelines range. United

States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); Rita v. United States, ___ U.S. ___, 127 S.

Ct. 2456, 2462, 168 L.Ed.2d 203 (2007).

Challenges to the interpretation and application of the Guidelines are reviewed de novo, as

are constitutional challenges. United States v. Katzopoulos, 437 F.3d 569, 573-574 (2006).

Factual findings at sentencing are reviewed for clear error. Id. at 574.

B. Judicial Fact Finding and Preponderance of the Evidence Standard

Green contends that the district court’s factual determinations by a preponderance of the

evidence regarding sentencing enhancements violated his Sixth Amendment right to trial by jury

and his Fifth Amendment right to have charges reviewed by a grand jury. Brief for Appellant, pp.

12-14. He acknowledges that the Sixth Circuit has approved this procedure in United States v.

Coffee, 434 F.3d 887, 898 (6th Cir. 2006) and United States v. Gates, 461 F.3d 703, 707-08 (6th

Cir. 2006), but states that the United States Supreme Court has not ruled on the issue. He also

notes that the Third Circuit in United States v. Kikumura, 918 F.2d 1084, 1101 (3rd Cir. 1990)

disagreed with a preponderance standard when the enhancements have a disproportionate effect

on the sentence.

The Government responds with numerous unpublished decisions of this Court and

published decisions from many circuits that are consistent with Coffee and Gates. In Gates, the

offense and enhancements were quite similar to Green’s, and the same argument was rejected.

461 F.3d at 708. Additionally, the Sixth Circuit declined to follow Kikumura in United States v.

Mayle, 334 F.3d 552, 557 (6th Cir. 2003). This Court is bound by controlling decisions of other

panels. Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir. 1985).
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C. Four-point Enhancement for Role in the Offense

Green objects to the four-point enhancement to his sentence as an organizer or leader on

the grounds that there were not five or more participants in the criminal activity “at any given time.”

He separates the participants into each month of participation and argues there were not more than

four in any one month. Brief for Appellant, pp. 15-16. He further objects to the district court’s

finding that the activity was “otherwise extensive.” Finally, he argues, alternatively, that a three-

point enhancement as a manager/supervisor was more appropriate.

A district court’s decision concerning a defendant’s role in an offense is reviewed for clear

error. United States v. Gates, 461 F.3d 703, 709 (6th Cir. 2006). “A district court’s determination

regarding a defendant’s role in the offense is reversible only if clearly erroneous.” United States

v. Davis, 306 F.3d 398, 423 (6th Cir. 2002).

In this case, the district court made the following findings regarding role:

[I]n terms of the organizer leader enhancement, I think that applies. Mr. Green was
the organizer and leader and controller of Ms. Carroga, Mr. Fanning, Ms. Simpson,
Mr. Bishop and others, including the Rucker sisters. And that’s more than five. In
any event, it was otherwise extensive. Mr. Green had a pretty sophisticated
operation going, and it was quite extensive based on the facts introduced at trial.

J.A. 424.

The Government correctly notes that four of the participants testified at Green’s trial that

he provided them counterfeit checks and asked them to purchase merchandise for him with the

checks. Brief for Appellee, pp. 32-33. Two of these participants identified at least four other

individuals who passed counterfeit checks provided by Green. Id. Ms. Simpson testified that

Green told her he could manufacture business checks for her to use to buy merchandise from

Nashville merchants. Green told her specifically what electronics to buy and said she could buy

items for herself after she purchased the five items he wanted (J.A. 216-221). Green altered

Simpson’s driver’s license number so she could pass the checks with her own identification (J.A.
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No. 06-6128
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223). They shared most of the items purchased (J.A. 229). He also provided payroll checks for

Simpson and the Rucker sisters to cash (J.A. 230-233). The Government points to substantial

testimony at trial regarding Green’s leadership role and items seized from his property. Brief for

Appellee, pp. 3-20.

Under U.S.S.G. § 3B1.1, a base offense may be increased by four points “[i]f the defendant

was an organizer or leader of a criminal activity that involved five or more participants or was

otherwise extensive.” Nothing in this guideline requires all five participants to be involved in the

criminal activity at the same time. To the contrary, Application Note 3 provides in part: “In

assessing whether an organization is ‘otherwise extensive,’ all persons involved during the course

of the entire offense are to be considered.” U.S.S.G. § 3B1.1 cmt. n. 3 (emphasis added). This

Court has held that the term “extensive” criminal activity focuses on “numerosity.” United States

v. Anthony, 280 F.3d 694, 700 (6th Cir. 2002). Green does not point to any authority in support of

his position, and it is the opinion of this Court that the argument is without merit.

Green next complains that the district court failed to apply the three-point analysis in

Anthony in determining the activity was otherwise extensive because no countable non-participant

was identified. This claim is essentially the same as the preceding one relating to the number of

participants at any given time and is equally without merit.

Finally, Green claims that cases involving similar criminal activity resulted in a three-point

enhancement for manager/supervisor, rather than a four-point enhancement for leader/organizer.

In support, Green points to United States v. Gates, 461 F.3d 703 (6th Cir. 2006), in which Gates

received only a three-point enhancement. Gates, however, was the middleman between the

persons passing fraudulent checks and Conley, who recruited Gates and directed the other

coconspirators. Conley received a four-point enhancement as the organizer of the counterfeit

check cashing conspiracy and an identical 96-month sentence. Id. at 707. Like Conley, Green was
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No. 06-6128
Page 6

the person at the top who recruited participants, provided the counterfeit checks and identification,

and shared in the proceeds. The Government also relies on cases from other jurisdictions involving

similar counterfeit check cashing schemes and activity that resulted in four-point enhancements:

United States v. Robbio, 186 F.3d 37, 45 (1st Cir. 1999); United States v. Mijangos, 240 F.3d 601,

605 (7th Cir. 2001); and United States v. Suitor, 253 F.3d 1206, 1210 (10th Cir. 2001). We find

that Green’s claim lacks merit.

D. Application of the 2002 Guidelines to Some Offenses Committed Prior Thereto

Green contends that the application of the 2002 Guidelines to his resentencing in 2006

violates the Ex Post Facto Clause of the United States Constitution. He claims that the 2000

Edition of the Guidelines should have applied to his offenses and that he was disadvantaged by

use of the 2002 Edition. He notes that the punishment for fraud committed on or after November

1, 2001, was increased when Part F–Offenses Involving Fraud and Deceit was eliminated and

consolidated with Part B–Basic Economic Offenses. Specifically, he says that in 2000, U.S.S.G.

§ 2F1.1 provided a six-level increase if the loss was more than $70,000, whereas U.S.S.G. §

2B1.1, which applies to bank fraud committed after November 2001, provided an eight-level

increase. He also notes a two-point enhancement under §2F1.1(b)(3) for schemes to defraud more

than one victim in the 2000 Edition, but a four-point enhancement under § 2B1.1(b)(2)(B) for

offenses involving 50 or more victims. Green acknowledges that the 2001 - 2006 editions of the

Guidelines are the same in this regard. Brief for Appellant, p. 22. He does not argue there was

any increase in punishment after November 2001.

Green’s counterfeit check cashing scheme and conspiracy began in August 2000 and

continued through February 2002. He acknowledges this Court’s decision in United States v.

Buckner, 9 F.3d 452, 454 (6th Cir. 1993), that “[w]hen an offense begins before but continues after

the effective date of a Guideline or amendments thereto, the most recent guideline applies.” He
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No. 06-6128
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argues, however, that the United States Supreme Court has not considered the issue of “continuing

offenses” such as conspiracy and application of the Ex Post Facto clause under those

circumstances. Brief for Appellant, p. 24.

The United States relies on U.S.S.G. § 1B1.11 stating that a revised edition of the

Guidelines is to be applied to both offenses when one is committed before and the second after

the revised edition became effective. It also relies on this Court’s decisions in United States v.

Milton, 27 F.3d 203, 210 (6th Cir. 1994) (use only one manual); United States v. Buckner, 9 F.3d

452, 454 (1993) (“When an offense begins before but continues after the effective date of a

Guideline or amendments thereto, the most recent Guideline applies”); and United States v.

Hebeka, 89 F.3d 279, 285, (6th Cir. 1996) (sentencing Guidelines apply to a food stamp fraud

scheme stretching over six years, during which Guidelines were adopted). Buckner involved a

continuing bank fraud scheme and is controlling in this case. What is more, since Green received

concurrent sentences on each of these counts (some of which warranted sentencing under the

2002 Guidelines), any error would be harmless.

E. Denial of Two-point Reduction for Acceptance of Responsibility

In reviewing the denial of a decrease for acceptance of responsibility, this Court applies the

overall deferential scope of review in Buford v. United States, 532 U.S. 59, 64-65 (2001). United

States v. Bolden, 479 F.3d 455, 464 (6th Cir. 2007). “[W]ith respect to purely factual components

of the acceptance of responsibility determination, we reject such determinations only if they are

clearly erroneous.” Id.

Because Green gave the government proffers on September 13 and 16, 2002, before trial,

he argues he is entitled to a two-level reduction for acceptance of responsibility. Green claims he

only went to trial because he believed he was not guilty of “bank fraud” in that he intended for

merchants to bear the loss, not the banks. He acknowledges this Court’s decision in United States
United States v. Green
No. 06-6128
Page 8

v. Reaume, 338 F.3d 577 (6th Cir. 2003), in which a reduction for acceptance of responsibility was

unwarranted where the defendant admitted the underlying conduct but denied intent to defraud a

bank. Green attempts to distinguish that case factually on the basis that Reaume opened bank

accounts and wrote checks against insufficient funds in the accounts, whereas Green purchased

merchandise with counterfeit checks.

Reaume recognized that “under rare circumstances, a defendant may clearly demonstrate

an acceptance of responsibility despite exercising his constitutional right to trial.” Id. at 583. The

example was a defendant going to trial “to assert issues that do not relate to factual guilt.” Id.

Reaume, like Green, claimed he intended to defraud merchants, not banks. This Court agreed

with the government that Reaume’s “specific intent to defraud the Bank is a factual matter” and

was “an essential factual element of guilt.” Id.

In the present case, Green testified at his sentencing:

[B]asically I never committed bank fraud even though I got proven guilty by a jury.
If you look at the element of the offense of bank fraud, I never committed it. That
was one of the reasons, the main reason I went to trial because look at the crime
and look at the elements of the offense of bank fraud. ... You know, the mens rea,
the actus reus I never committed any of that.

J.A. 425-426.

The Government urges that this is not one of those “rare circumstances” contemplated by

U.S.S.G. § 3E1.1. Green put the United States to its burden of proof on the essential factual

elements of all counts, not just the bank fraud counts. Moreover, his specific intent to defraud a

financial institution was a factual matter. The Government also relies on the following Sixth Circuit

authority denying the reduction, in addition to Reaume: United States v. Mahan, 190 F.3d 416,

426-27 (6th Cir. 1999) (defendant went to trial to contest factual guilt and continued to downplay

role after conviction); and United States v. Chalkias, 971 F.2d 1206, 1216 (6th Cir. 1992)
United States v. Green
No. 06-6128
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(defendants who attempted to minimize their roles in a drug conspiracy before, during, and after

trial were not entitled to reduction for acceptance of responsibility).

The district court denied the adjustment as follows:

Mr. Green went to trial, and he hasn’t truthfully admitted the offenses of conviction.
In fact, he’s continued to deny the essential facts dealing with the bank fraud and
his role in the offense, so I am overruling the objection regarding acceptance of
responsibility.

J.A. 414. We do not find that the district court was clearly erroneous in denying a reduction for

acceptance of responsibility.

F. Reasonableness of the Sentence

Green claims his sentence is substantively and procedurally unreasonable; however, his

argument appears to focus on substantive unreasonableness for failure to give proper weight to

§ 3553(a) factors. Brief for Appellant, pp. 29-30. Green’s sentence is within the Guidelines range

of 77 to 96 months (J.A. 431) and, thereby, is entitled to a presumption of reasonableness.

Williams, 436 F.3d at 708; Rita, 127 S.Ct. at 2462.

At the end of the sentencing hearing, the court said:

Mr. Green, it is the judgment of the Court that the following sentence be imposed.
I am going to commit you to the custody of the Bureau of Prisons to be imprisoned
for a total term of 96 months. The reason for this is really what you had stated
which is that you were convicted in this Court and [sic] matter of just a few months
you engaged in the same conduct, and you are right back here before [sic]. That’s
the basis for the sentence. It is to promote respect for the law, reflect the
seriousness of the offense and to protect the public and afford adequate
deterrence.

J.A. 432.

Green claims the district court punished him for recidivism without considering other

characteristics such as his rehabilitation in prison, his education, and his positive attitude. The

factual evidence on which he relies, however, is post-sentencing conduct. J.A. 427-428, 498-528.

This court has held that post-sentencing events or conduct cannot be considered under the limited
United States v. Green
No. 06-6128
Page 10

scope of a Booker remand. United States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006); United

States v. Keller, ___ F.3d ___, 2007 WL 2254442 at *7 (6th Cir. 2007). The district court

acknowledged Green’s post-sentencing rehabilitation and said, “I am pulling for you.” J.A. 432.

The district court’s failure to rely on improper, post-sentencing conduct does not support vacating

Green’s sentence.

Green also argues that the district court failed to consider the disparity between his present

sentence and his 37-month sentence in 1998 for similar conduct, as well as the substantially

shorter sentences of his codefendants. The United States responds that the disparities between

Green’s sentence and those of his co-defendants were supported by Green’s leadership role in the

offenses, by his participation in the conspiracy from August 2000 through February 2002, by his

failure to accept responsibility, and by the substantial assistance provided by his codefendants.

Brief for Appellee, p. 48. This Court also notes that Green’s sentence was significantly increased

by other uncommon factors, such as a loss exceeding $70,000, more than fifty victims, commission

of the offense while under criminal justice sentence, and commission of the offense within two

years of release. J.A. 430, 441. In United States v. Gates, 461 F.3d 703, 707 (6th Cir. 2006),

defendant Conley was the organizer of a counterfeit check-cashing conspiracy and received an

identical sentence of 96-months’ imprisonment. His cooperating manager and codefendant, Gates,

was sentenced to thirty-two months. Id. at 706.

In the present case, the record reflects that the district court considered Green’s legal and

factual arguments regarding sentencing. J.A. 410-432. It rejected his arguments regarding judicial

fact-finding and use of the 2002 Guidelines (J.A. 410-412), deleted paragraphs of the presentence

report (J.A. 412-413), heard evidence regarding the number of checks and amount of the loss (J.A.

414-420), heard arguments and ruled on the enhancements (J.A. 423-424), heard Green insist that

he never committed bank fraud but that he had been rehabilitated (J.A. 425-429), and articulated
United States v. Green
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Page 11

that it considered the Guidelines and each of the § 3553(a) factors (J.A. 420-432). To the extent

that Green claims his sentence was procedurally unreasonable, we disagree. A sentencing court

is not required to analyze every frivolous and non-frivolous argument a defendant makes. United

States v. McGee, ___ F.3d ___, 2007 WL 1989017, at *6 (6th Cir. July 11, 1007); United States

v. Liou, 491 F.3d 334, 339, n. 4 (6th Cir. 2007) (“Rita contravenes such a strong technical

requirement”). The district court demonstrated that it understood Green’s claims but did not believe

they outweighed other § 3553(a) factors that were more pertinent.

III. Conclusion

For the foregoing reasons, we AFFIRM the sentencing decision of the district court.