[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 7, 2006
No. 06-11428 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00104-CR-J-25-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACETA ANYA STREETER,
a.k.a. Star,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 7, 2006)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jaceta Anya Streeter appeals her 84-month sentence imposed following her
conviction for uttering fictitious instruments in violation of 18 U.S. C. §§ 2 and
514. On appeal, Streeter argues that there was insufficient evidence to support
enhancing her sentence for her role as a leader or organizer of a conspiracy
involving five or more persons. Streeter also argues that the district court erred by
including in the loss calculation amounts caused by an alleged co-conspirator
Vernon Maxwell’s conduct. Finally, Streeter argues that her 84-month sentence
was unreasonable when the sentencing guideline range was 41 to 51 months.
BACKGROUND
Streeter was indicted for her participation in a check-cashing scheme. At
trial, her alleged co-conspirators testified against her. According to their
testimony, Streeter and Sabrina Williams organized a scheme in which Williams
printed checks from her computer that persons recruited by Streeter cashed at
banks. Under the scheme, Streeter and Williams paid participants between $20 and
$120 to cash each check and split the remainder between the two of them. At
Streeter’s trial, Maxwell, an alleged co-conspirator, testified to essentially the same
conduct as other participants but could not make an in-court identification of
Streeter as the person who provided him with the checks.
The nineteen count indictment included each fraudulent check as a separate
count and one count of conspiracy. The jury convicted Streeter of six counts of
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passing, uttering, and presenting counterfeit checks and acquitted on an additional
ten counts. Two check fraud counts and the conspiracy count were dismissed at
the government’s motion.
The presentence investigation report (PSI) assigned Streeter a base offense
level of seven pursuant to U.S.S.G. § 2B1.1. The PSI identified 18 fraudulent
check transactions which ranged in amount from $640 to $675. Four points were
added because the offense involved a loss of more than $10,000, but less than
$30,000 pursuant to U.S.S.G. § 2B1.1(b)(1)(C). Another four points were added
for Streeter’s role as a leader or organizer of criminal activity pursuant to U.S.S.G.
§ 3B1.1(a). Two points were added for obstruction of justice pursuant to U.S.S.G.
§ 3C1.1. The resulting adjusted offense level was seventeen. Streeter’s past
convictions and commission of the present crime on supervised release resulted in
a criminal history category of VI. The recommended guideline range was 51-63
months imprisonment.
Streeter objected to the PSI’s calculated loss amount arguing that intended
loss should not be included but only the amounts of checks actually passed. She
also objected to the allegation that she was a leader of the criminal activity and had
obstructed justice. The government moved for an upward departure arguing that
her age and chronic recidivism warranted such a departure under U.S.S.G. § 5K2.0.
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The district court found that the evidence supported a loss in excess of
$10,000 and the enhancement for her role as a leader. The court sustained her
objection to the enhancement for obstruction of justice, reducing the guideline
range to 41 to 51 months. The court then granted the government’s motion for
upward departure. The court sentenced Streeter to 84 months imprisonment to be
followed by five years of supervised release. In addition, Streeter was ordered to
pay $11,806.40 in restitution.
DISCUSSION
I.
Streeter argues that the district court erred in finding that she was a leader
and organizer in the conspiracy. Specifically, Streeter argues that she lacked
control over co-conspirators, she did not actively recruit participants, and she did
not plan or organize the scheme. The district court’s upward adjustment of the
guideline offense level due to Streeter’s status as a leader is a finding of fact
reviewed only for clear error. United States v. Phillips, 287 F.3d 1053, 1055 (11th
Cir. 2002).
The government had the burden to prove by a preponderance of evidence
that Streeter’s role in the conspiracy supported the enhancement. United States v.
Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). To determine whether the
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enhancement applies, the district court considers (1) the exercise of
decision-making authority, (2) the nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the claimed right to a larger share
of the fruits of the crime, (5) the degree of participation in planning or organizing
the offense, (6) the nature and scope of the illegal activity, and (7) the degree of
control and authority exercised over others. U.S.S.G. § 3B1.1 cmt. n. 4.
The district court did not err in finding that Streeter acted as a leader or
organizer in the check cashing scheme. First, the conspiracy involved at least five
participants. In determining the number of participants, the defendant can be
considered one of the required participants. United States v. Holland, 22 F.3d
1040, 1045 (11th Cir. 1994). Even excluding Vernon Maxwell’s participation, as
Streeter argues the district court should have done, the evidence supports the
participation of Williams, Robert Stone, Donna Harmon, and Alane Green in the
scheme. Second, evidence showed that Streeter recruited participants into the
scheme. Both Stone and Green testified that they became involved in the scheme
through Streeter. Williams also testified that Streeter recruited the people to cash
the checks.
Third, evidence indicated that Streeter claimed a right to a larger share of the
fruit of the crime. Under the scheme, Streeter and Williams split the majority of
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the profits while paying the person who actually cashed the check a small portion
of the profits. Finally, evidence indicated that Streeter participated in the planning
of the scheme and exercised authority over others. Williams testified that Streeter
provided the company information under which Williams issued the fraudulent
checks. In addition, co-conspirators indicated that Streeter would deliver these
checks to participants to be cashed. At times, Streeter even drove the participants
to their destination and watched them as they completed their transactions. Given
the evidence in the record, the district court did not err in enhancing Streeter’s
offense level based on her role as a leader or organizer.
II.
Next, Streeter argues that the district court erred in enhancing her sentence
based on a loss amount in the excess of $10,000. Streeter argues that $2, 580 in
forged checks cashed by Vernon Maxwell should not have been included because
his testimony was not credible. If these amounts had been excluded, the loss
amount would fall below the $10,000 threshold. We review the district court’s loss
determination for clear error. United States v. Grant, 431 F.3d 760, 762 (11th Cir.
2005).
Under the guidelines, the district court must consider relevant conduct when
calculating the offense level. U.S.S.G. § 1B1.3. Relevant conduct can include
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conduct for which the defendant was not charged or acquitted. See United States v.
Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997). Furthermore, relevant conduct
includes the acts of others taken in furtherance of jointly undertaken criminal
activity. U.S.S.G. § 1B1.3(a)(1)(B). The government need only prove such
conduct by a preponderance of the evidence. Barakat, 130 F.3d at 1452.
Under § 2B1.1(b)(1)(c), the district court increases the offense level by four
levels when the loss amount is between $10,000 and $30,000. The amount of loss
should be the greater of the actual or intended loss. U.S.S.G. § 2B1.1, cmt. n.3(A).
The district court need only make a reasonable estimation of loss and its
determination is entitled to deference. U.S.S.G. § 2B1.1, cmt. n.3(c).
The district court’s finding of a loss in excess of $10,000 was proven by the
preponderance of the evidence. Although Maxwell was unable to identify Streeter
in court, it is undisputed that Maxwell identified Streeter twice in photographic
line-ups. Furthermore, Maxwell’s conduct was similar to that of the other
participants in the check-cashing scheme. He testified that he was driven to a bank
to cash the check, and that he received a small payment and delivered the
remainder to his contact. In addition, Streeter’s cellmate testified that Streeter had
mentioned Maxwell as a participant in the check-cashing scheme and inquired
about his status. Given the evidence, the district court did not clearly err in
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including the amounts attributable to Maxwell’s participation in Streeter’s relevant
conduct.
III.
Finally, Streeter argues that her sentence outside the guideline range was
unreasonable. After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.
Ed. 2d 621 (2005), we review sentences under the advisory guideline regime for
reasonableness. Reasonableness review is deferential, requiring us to "evaluate
whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in [18 U.S.C.] section 3553(a).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005)(per curiam). Streeter bears the burden of
establishing that her sentence is unreasonable in light of the record and § 3553(a)
sentencing factors. Id. The district court must engage in a two step process. First
it must correctly calculate the defendants guideline range; second, it must consider
the § 3553(a) sentencing factors. Id. at 786. The court is not required to explicitly
consider each of these factors on the record. Id. It is enough for the court to
acknowledge the parties’ arguments and state that it has considered the factors. Id.
The district court here correctly calculated the guideline range, and although
the district court here did not explicitly state that it was considering the § 3553(a)
factors, it did do so in fashioning its sentence. The district court heard the
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government’s arguments regarding Streeter’s criminal history and what
punishment would be adequate deterrence from further criminality. The defense
counsel’s arguments encompassed the unwarranted sentencing disparity factor.
Furthermore, the court recounted Streeter’s criminal history and noted her
supervised release status when committing the current offense. This shows the
court considered the defendant’s criminal history and characteristics. The court
also stated that he was “of the opinion that nothing we do will stop her from doing
[criminal activity]” and that the best alternative was to remove her from society for
as long as possible, reflecting a consideration of the need to protect the public from
further crimes. In addition the court ordered restitution to those banks harmed by
Streeter’s conduct.
The district court correctly calculated the advisory guideline range. Then, in
deciding to part from the range, the court considered the nature and circumstances
of the offense and the history and the characteristics of the defendant; the need for
the sentence imposed to reflect the seriousness of the offense, to promote respect
for the law, and to provide for just punishment; to afford adequate deterrence to
criminal conduct; to protect the public from further crimes of the defendant. See 18
U.S.C. § 3553(a). Therefore, we find that the 84-month sentence was reasonable.
IV.
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After careful consideration of the record and the parties’ arguments, we find
no reversible error in Streeter’s sentence, and therefore we affirm the decision of
the district court.
AFFIRMED.
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