[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 18, 2006
No. 06-13159 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00004-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD SMILEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 18, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Richard Smiley appeals his 37-month sentence imposed after he pled guilty
to one count of conspiring to possess a counterfeit security, commit mail fraud,
commit wire fraud, and launder money, in violation of 18 U.S.C. § 371. On
appeal, Smiley argues that the district court erred by finding facts that were not
admitted or proven to a jury and by incorrectly calculating the number of victims
involved in his offense. After review, we affirm.
I. BACKGROUND
Smiley and a co-defendant, James Patrick Densmore, set up a business
together ostensibly to sell commercial trucks. As part of their scheme, Smiley and
Densmore solicited investments from people by promising a quick 200 percent
return. These funds were supposed to be used to complete a deal with Xerox
Corporation. However, no such deal existed. Instead, Smiley deposited the money
in the company bank account and then made large cash withdrawals. The
investments made to Smiley and Densmore totaled $1,214,000.
Smiley was indicted by a grand jury on the following nine counts relating to
the fraud scheme: (1) conspiring to possess a counterfeit security, commit mail
fraud, commit wire fraud, and launder money, in violation of 18 U.S.C. § 371
(Count One); (2) possessing a counterfeit security, in violation of 18 U.S.C.
§ 513(a) (Count Two); (3) committing mail fraud, in violation 18 U.S.C. § 1341
(Counts Three and Four); and (4) committing wire fraud, in violation of 18 U.S.C.
2
§ 1343 (Counts Five through Nine). Pursuant to a plea agreement, Smiley pled
guilty to the conspiracy count.
The presentence investigation report (“PSI”) listed investments made by the
following people identified as victims in the indictment:
Smiley’s Father and Stepmother $154,000
John Hill $744,000
Thomas and Sarah Cooper $100,000
Fred and Emma Dunn $116,000
Robert Ballew $100,000
Total $1,214,000
The PSI also listed Peter Berryman and Charlie and Shirley Morgan as “individuals
[who] also experienced losses due to Smiley’s and Densmore’s conduct in the
conspiracy.” The PSI noted that Berryman’s $20,000 investment was repaid by
Smiley’s father and that Charlie and Shirley Morgan, Smiley’s in-laws, had been
repaid $3,500 of their $76,000 investment by Smiley and did not wish to pursue
court-ordered restitution. The PSI indicated that, due to their investments with
Smiley: (1) Smiley’s father and stepmother suffered additional losses of $30,000
due to tax penalities and early withdrawal fees; (2) Thomas and Sarah Cooper
suffered additional losses of $25,000 in loan fees, interest and attorney’s fees; (3)
Dunn lost $2,000 in attorney’s fees; and (4) Ballew suffered $11,000 in losses due
to the fees of an attorney and private investigator. The total loss the PSI attributed
to Smiley and Densmore was $1,290,000.
3
The PSI assigned Smiley a base offense level of 6, pursuant to U.S.S.G.
§ 2B1.1(a)(2). The PSI recommended a 16-level increase because Smiley’s
offense involved more than $1,000,000 but less than $2,500,000, pursuant to
U.S.S.G. § 2B1.1(b)(1)(I). The PSI also recommended a 2-level increase, pursuant
to U.S. S. G. § 2B1.1(b)(2)(A)(i), because the offense involved more than ten but
less than fifty victims. Finally, the PSI recommended a 3-level reduction, pursuant
to U.S.S.C. § 3E1.1(a) and (b), for acceptance of responsibility. With a total
offense level of 21, and a criminal history category of I, the PSI recommended an
advisory guidelines range of 37 to 46 months’ imprisonment.
Prior to sentencing, Smiley objected to the PSI’s application of the
enhancements for the number of victims and the amount of money involved in the
offense. He also raised the following objections to the way the PSI calculated the
total monetary loss: (1) the omission of the fact that Fred and Emma Dunn had
been repaid $15,000; (2) the inclusion of tax penalties, early withdrawal fees, loan
fees, interest, private investigator fees and attorney’s fees in the total monetary
loss; and (3) the inclusion in the loss calculation money that was loaned to Smiley
by his in-laws and money that was repaid. Smiley did not raise an objection based
on United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). The government
filed a motion for a downward departure, pursuant to U.S.S.G. § 5K1.1, based on
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Smiley’s substantial assistance.
At sentencing, Smiley reiterated his objections. Again, Smiley did not raise
a Booker objection. The district court overruled Smiley’s objections and adopted
the PSI and PSI Addendum. The district court noted that even if Smiley had repaid
$15,000 to the Morgans, the sentencing calculations would be the same. The
district court also stated that it did not find persuasive the fact that Smiley had not
benefitted from much of the money. The district court denied the government’s
motion for a downward departure and imposed a 37-month sentence. In addition,
the district court ordered Smiley to pay $1,214,000 in restitution, jointly and
severally with Densmore. Smiley filed this appeal.
II. DISCUSSION
For the first time on appeal, Smiley cites Booker and argues that the district
court violated his Sixth Amendment rights when it enhanced his sentence based on
facts not alleged in his indictment nor admitted by him during his guilty plea,
namely the $1,290,000 loss amount and the number of victims to his offense.
Smiley specifically notes that four of the victims – Peter Berryman, Emma Dunn
and Charlie and Shirley Morgan – were not identified in the indictment and that the
indictment alleged a loss of only $689,000.1
1
Because Smiley raises his Booker argument for the first time on appeal, we review only
for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 545
5
It is well-settled in this Circuit that, when the district court applies the
guidelines in an advisory manner, nothing in Booker prohibits the district court
from imposing guidelines enhancements based on facts found by the judge by a
preponderance of the evidence. See United States v. Chau, 426 F.3d 1318, 1323-
24 (11th Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.),
cert. denied, 545 U.S. 1127, 125 S. Ct. 2935 (2005). For this reason, Smiley’s
reliance on United States v. Yagar, 404 F.3d 967 (6th Cir. 2005), in which the
Sixth Circuit reached a contrary conclusion, is unavailing. The district court
sentenced Smiley under the advisory guidelines. Therefore, the district court’s
findings relating to the loss amount and the number of victims did not violate
Smiley’s Sixth Amendment rights.
Smiley also argues that the district court erred in finding that his offense
involved ten or more victims.2 The Sentencing Guidelines provide for a 2-level
enhancement if the offense involved ten or more victims. U.S.S.G.
U.S. 1127, 125 S. Ct. 2935 (2005); see also United States v. Dowling, 403 F.3d 1242, 1245-46
(11th Cir.), cert. denied, 126 S. Ct. 462 (2005) (explaining that to preserve a Booker claim for
appellate review, the defendant must either refer to the Sixth Amendment, Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) or its progeny, or the right to have a jury decide a
disputed fact, or raise a challenge to the role of the judge as factfinder with regard to sentencing).
Plain error exists if “there is: (1) error, (2) that is plain, and (3) that affects substantial rights.”
Id. (quotation marks omitted). We will recognize such error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quotation marks omitted).
2
We review a district court’s application and interpretation of the guidelines de novo, but
review the factual findings only for clear error. United States v. Owens, 447 F.3d 1345, 1346
(11th Cir. 2006).
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§ 2B1.1(b)(2)(A)(i). The commentary to § 2B1.1(b)(2) defines a victim as “any
person who sustained any part of the actual loss . . . .” Id. at cmt. n.1. An actual
loss is further defined as “reasonably foreseeable pecuniary harm that resulted
from the offense.” Id. at cmt. n.3(A)(i).
Smiley contends that Peter Berryman and Charlie and Shirley Morgan are
not victims because Berryman was repaid all of the money he gave to Smiley and
Densmore by Smiley’s father and the Morgans were repaid a portion of the money
they gave Smiley and Densmore. However, this Court has ruled that victims who
are reimbursed for their losses are still victims for purposes of § 2B1.1(b)(2).
United States v. Lee, 427 F.3d 881, 894-95 (11th Cir. 2005), cert. denied, 126 S.
Ct. 1447 (2006). We likewise reject Smiley’s contention that the Morgans are not
victims because they are not seeking court-ordered restitution. The fact that the
Morgans elect not to seek restitution does not mean that they did not sustain an
actual loss. The district court did not clearly err in finding that Smiley’s offense
involved ten or more victims.
For these reasons, we affirm Smiley’s 37-month sentence.3
AFFIRMED.
3
In his appellate brief, Smiley twice states that his restitution should be lowered.
However, these statements are merely passing references unsupported by argument or citation to
authority. Therefore, we do not address them. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005).
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