[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 2, 2005
No. 03-15136
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00156-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
CHARLES CRAWFORD JR.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 2, 2005)
Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
This appeal presents two issues regarding the application of the Sentencing
Guidelines: (1) whether the district court clearly erred when it found that Charles
Crawford Jr. did not engage in more than minimal planning when he participated
in a five year scheme that defrauded the government of $434,032 and involved
over a hundred separate transactions; and (2) whether the district court erred when
it granted a downward departure based on Crawford’s restitution and remorse, lack
of criminal sophistication, and substantial assistance to the government, and
because the loss to the government allegedly overstated Crawford’s criminality.
Because both the large number of transactions and the deliberate steps Crawford
took to complete those transactions compel a finding that Crawford did not merely
take advantage of a sudden opportunity, we conclude that the district court clearly
erred when it found that Crawford did not engage in more than minimal planning.
We further conclude that the district court did not apply the correct legal standards
regarding several of the grounds relied upon for departure. We vacate Crawford’s
sentence and remand this case for resentencing in a manner consistent with the
Guidelines both as interpreted in this opinion and the advisory manner explicated
in United States v. Booker, 543 U.S. —, 125 S. Ct. 738 (2005).
I. BACKGROUND
Crawford owned and operated a food store in Atlanta, Georgia, called “Mr.
Wick, Jr.” A large volume of Crawford’s business came from low-income
customers who paid for their food with vouchers from the Georgia Women,
2
Infants, and Children (WIC) supplemental food program. The WIC program,
which is administered by state agencies that receive federal grants, assists low-
income parents and expectant mothers in obtaining nutrition for their children.
Participants in WIC receive vouchers that allow the bearer to purchase food in an
amount up to the face value of the voucher, and WIC vendors typically redeem
vouchers for an amount less than their face value.
Crawford was approached in 1996 by Edwin Kelley, who offered to sell to
Crawford WIC vouchers that Kelley had purchased from residents of public
housing projects in Atlanta. Crawford and Kelley agreed that Crawford would pay
Kelley for the vouchers in an amount close to the face value of the vouchers,
Crawford would then redeem the vouchers, and Kelley would keep 60 percent of
the profits and give Crawford 40 percent. Crawford and Kelley engaged in over
100 transactions over a five year period involving vouchers with a total face value
of $434,032. The exact number of vouchers that Mr. Wick, Jr. redeemed from the
Georgia WIC program is unknown.
In June 2000, an anonymous informant notified the Georgia WIC program
of Kelley’s activities. An undercover investigation led to Crawford’s arrest in
October 2002. In a written plea agreement, Crawford pleaded guilty to an
information that charged that he, “aided and abetted by others did unlawfully
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receive, conceal and retain to his own use . . . vouchers with a value of more than
One Hundred ($100.00) Dollars, knowing said assets and property to have been
willfully misapplied and obtained by fraud.” Crawford agreed to forfeit an
automobile and $146,092 in a Bank of America bank account and make restitution
to the Georgia WIC program in an amount to be determined later.
The probation officer who prepared Crawford’s Presentence Investigation
Report (PSI) determined that the loss to the Georgia WIC program totaled
$434,032 and recommended restitution to that agency. Crawford did not dispute
these aspects of the PSI. The PSI also recommended that Crawford receive a two
level enhancement in his offense level for “more than minimal planning,” under
United States Sentencing Guideline section 2F1.1(b)(2)(A) & (B). At the
sentencing hearing, Crawford objected to the more than minimal planning
enhancement and contended that, on each occasion, he took advantage of a sudden
opportunity when Kelley offered to sell him WIC vouchers. Crawford also moved
for a downward departure based on several factors, including the extent of his
restitution and his alleged lack of criminal sophistication.
The district court refused to apply the more than minimal planning
enhancement. The district court found that, in each of the more than one hundred
transactions with Kelley, Crawford “took advantage of a situation and the
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opportunity presented.” Crawford “never tried to conceal the offense, nor was he
the one to start [the] scheme . . . .” In addition, the district court granted
Crawford’s motion for a downward departure and reduced Crawford’s offense
level by four. In its order granting the downward departure, the district court
stated that Crawford’s case fell “outside the heartland of other such cases” and that
“all of the grounds taken as a whole warrant downward departure.” The district
court then sentenced Crawford to 60 months’ probation and ordered Crawford to
make $434,032 in restitution to the Georgia WIC program. The government
appeals both the denial of the more than minimal planning enhancement and the
downward departure.
II. STANDARD OF REVIEW
The resolution of this appeal requires the application of two standards of
review. First, a finding by a district court of no minimal planning is a question of
fact that we review for clear error. United States v. Ward, 222 F.3d 909, 910 (11th
Cir. 2000). We cannot find clear error unless “we are left with a definite and firm
conviction that a mistake has been committed.” Glassroth v. Moore, 335 F.3d
1282, 1292 (11th Cir. 2003) (citation and quotation marks omitted). Although the
clear error standard is “purposefully deferential to the district court, we are not
required to rubber stamp the district court’s findings simply because they were
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entered.” McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 409 (5th Cir.
2001). Review for clear error “does not mean no review.” United States v. Pace,
898 F.2d 1218, 1227 (7th Cir. 1990), cert. denied sub nom. Cialoni v. United
States, 497 U.S. 1030, 110 S. Ct. 3286 (1990).
The second standard of review is not deferential. “We review questions of
law arising under the Sentencing Guidelines de novo.” United States v. Bush, 126
F.3d 1298, 1299 (11th Cir. 1997) (per curiam). Whether a factor is a permissible
ground for a downward departure from the Sentencing Guidelines is a question of
law. United States v. Kim, 364 F.3d 1235, 1239-40 (11th Cir. 2004).
This appeal does not raise any issue of a violation of the Sixth Amendment,
as explicated in Booker, nor does either party raise any issue of the application of
the Guidelines in a mandatory, rather than advisory, fashion. Because of the
fundamental change in sentencing appeals effected by Booker, we must determine
whether our pre-Booker standards for reviewing application of the Sentencing
Guidelines still apply. We agree with the Fifth Circuit that Booker does not alter
our review of the application of the Guidelines. See United States v. Villegas, —
F.3d —, 2005 WL 627963 at *4-5 (5th Cir. Mar. 17, 2005). Although Booker
established a “reasonableness” standard for the sentence finally imposed on a
defendant, 543 U.S. at —, 125 S. Ct. at 765, the Supreme Court concluded in
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Booker that district courts must still consider the Guidelines in determining a
defendant’s sentence. Id. at —, 125 S. Ct. at 764-65. Nothing in Booker suggests
that a reasonableness standard should govern review of the interpretation and
application as advisory of the Guidelines by a district court. See Villegas, — F.3d
at —, 2005 WL 627963 at *4. Booker did not affect 18 U.S.C. section 3742(f),
which mandates remand of any case in which the sentence “was imposed as a
result of an incorrect application of the sentencing guidelines . . . .” Id. at —, 2005
WL 627963 at *5.
Although under Booker, the Sentencing Guidelines are an advisory rather
than a mandatory regime, the district court remains obliged to “consult” and “take
into account” the Guidelines in sentencing:
Without the “mandatory” provision, the Act nonetheless requires judges
to take account of the Guidelines together with other sentencing goals.
See 18 U.S.C.A. § 3553(a) (Supp. 2004). The Act nonetheless requires
judges to consider the Guidelines “sentencing range established for . .
. the applicable category of offense committed by the applicable
category of defendant,” § 3553(a)(4), the pertinent Sentencing
Commission policy statements, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims, §§
3553(a)(1), (3), (5)-(7) (main ed. and Supp. 2004). And the Act
nonetheless requires judges to impose sentences that reflect the
seriousness of the offense, promote respect for the law, provide just
punishment, afford adequate deterrence, protect the public, and
effectively provide the defendant with needed educational or vocational
training and medical care. § 3553(a)(2) (main ed. and Supp. 2004).
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Booker, 543 U.S. at —, 125 S. Ct. at 764-65. In short, after Booker, “[t]he district
courts, while not bound to apply the Guidelines, must consult those Guidelines
and take them into account when sentencing.” Id. at —, 125 S. Ct. at 767.
This consultation requirement, at a minimum, obliges the district court to
calculate correctly the sentencing range prescribed by the Guidelines:
After Booker, the Federal Sentencing Guidelines remain an essential
consideration in the imposition of federal sentences, albeit along with
the factors in § 3553(a). A sentencing court under Booker still must
consider the Guidelines, and, such consideration necessarily requires the
sentencing court to calculate the Guidelines sentencing range in the
same manner as before Booker.
United States v. Shelton, 400 F.3d 1325, 1332 n.9 (11th Cir. 2005). In other
words, as was the case before Booker, the district court must calculate the
Guidelines range accurately. A misinterpretation of the Guidelines by a district
court “effectively means that [the district court] has not properly consulted the
Guidelines . . . .” United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005);
accord Villegas, — F.3d at —, 2005 WL 627963 at *7 (“Although the district
court on remand is not bound by the Guidelines, it must consider them, and in
doing so, it ordinarily is required to calculate the proper Guidelines range.”).
After it has made this calculation, the district court may impose a more severe or
more lenient sentence as long as the sentence is reasonable, see Booker, 543 U.S.
8
at —, 125 S. Ct. at 767 (“The courts of appeals review sentencing decisions for
unreasonableness.”), but the requirement of consultation itself is inescapable.
III. DISCUSSION
Both of the sentencing decisions of the district court were erroneous. The
district court ignored the startling number of transactions between Crawford and
Kelley over a five-year period and Crawford’s actions in maintaining the scheme
when it refused to apply the more than minimal planning enhancement. The
district court also misapplied the Sentencing Guidelines when it granted the
downward departure. We address each sentencing error in turn.
A. More than Minimal Planning
Section 2F1.1(b)(2)(A) of the Sentencing Guidelines (2000 edition)
mandates a two-level increase in the offense level for a defendant who has
engaged in “more than minimal planning” for the commission of the offense. The
commentary to the application instructions in section 1B1.1 explains that this
enhancement involves serial behavior especially in financial crimes:
“More than minimal planning” means more planning than is typical for
commission of the offense in a simple form. “More than minimal
planning” also exists if significant affirmative steps were taken to
conceal the offense. . . .
“More than minimal planning” is deemed present in any case involving
repeated acts over a period of time, unless it is clear that each instance
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was purely opportune. Consequently, this adjustment will apply
especially frequently in property offenses.
In a theft, going to a secluded area of a store to conceal the stolen item
in one’s pocket would not alone constitute more than minimal planning.
However, repeated instances of such thefts on several occasions would
constitute more than minimal planning. . . .
In an embezzlement, a single taking accomplished by a false book entry
would constitute only minimal planning. On the other hand, creating
purchase orders to, and invoices from, a dummy corporation for
merchandise that was never delivered would constitute more than
minimal planning, as would several instances of taking money, each
accompanied by false entries.
U.S.S.G. § 1B1.1 cmt. n.1(f). “[C]ommentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915
(1993).
The inquiry for more than minimal planning is not limited to the elements of
a particular offense or the completion of the offense itself. A series of acts “that
together constitute a single offense under a particular criminal statute does not
thereby cease to be a series of acts under the ‘more than minimal planning’
guideline . . .; such repeated acts indicate greater culpability and are in fact the
target of the ‘more than minimal planning’ enhancement.” Bush, 126 F.3d at 1300
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n.1. We have, for example, rejected an argument that “three separate instances of
embezzlement should be deemed to be a single act for purposes of the ‘more than
minimal planning’ guideline, because the separate instances of embezzlement
constitute one ‘offense.’” Id. The enhancement requires “a more holistic view” of
the defendant’s conduct “in light of the entire scheme . . . engaged in by [the
defendant] in order to commit the offense.” United States v. Duclos, 214 F.3d 27,
32 (1st Cir. 2000).
If the government proves that an offense involved repeated acts over a
period of time, more than minimal planning is “deemed present.” U.S.S.G. §
1B1.1 cmt. n.1(f). Put another way, a presumption of more than minimal planning
arises whenever repeated acts over a period of time are proved. That presumption
can be rebutted, however, if it is clear that each instance was “purely opportune.”
If, for example, several fraudulent transactions occur over a period of two years,
more than minimal planning will be deemed present unless it is clear that each one
of the several transactions was purely opportune. Cf. United States v. McCoy, 242
F.3d 399, 405 n.10 (D.C. Cir. 2001).
The enhancement for more than minimal planning is an acknowledgment
that “purposeful criminal conduct demands greater punishment” than conduct
undertaken without “the opportunity to consider the criminality of [the] act and its
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consequences.” United States v. Scroggins, 880 F.2d 1204, 1213 (11th Cir. 1989).
Planning for a particular offense or engaging in acts to conceal the offense
evidences an awareness that the actions are criminal and a disregard for the
harmful consequences of those actions. The presumption of more than minimal
planning for repeated acts is a reflection of common sense. Serial behavior of a
criminal evidences his deliberation despite a lack of direct evidence of his mental
operations. See Bush, 126 F.3d at 1300.
The exception to this rule is narrow. “Purely opportune” means “spur of the
moment” conduct, in response “to a sudden, fortuitous opportunity of which the
defendant took advantage without deliberation.” McCoy, 242 F.3d at 405
(citations omitted); see also United States v. Rust, 976 F.2d 55, 57 (1st Cir. 1992);
United States v. Monaco, 23 F.3d 793, 797-98 (3d Cir. 1994); United States v.
Lutz, 154 F.3d 581, 590 (6th Cir. 1998). The exception of purely opportune
conduct from the more than minimal planning enhancement reflects the lesser
culpability of defendants who have not knowingly considered the consequences of
their actions. Cf. Bush, 126 F.3d at 1300 n.1.
The exception also requires a close temporal relation between a fortuitous
opportunity and an act that takes advantage of the opportunity. A delay between
the opportunity and the act makes it unlikely that the conduct was impulsive,
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because delay allows time for thought; deliberate action is “slow, unhurried, and
steady as though allowing time for decision on each individual action involved.”
Merriam-Webster’s Collegiate Dictionary 304 (10th ed. 2001). Direct evidence
that the defendant deliberated about or planned his actions before he took
advantage of an opportunity will also negate the inference. See McCoy, 242 F.3d
at 405. The exception for purely opportune conduct will not apply unless each
repeated act was undertaken impulsively and without deliberation.
The district court found that each of the over 100 instances in which
Crawford bought vouchers from Kelley was purely opportune. That determination
was clearly erroneous. The sheer number of transactions alone makes it highly
unlikely that each transaction was purely opportune. Crawford wrote 184 checks
to Kelley between April 12, 1996, and March 22, 2001, totaling $434,032.
Crawford’s counsel asserted at the sentencing hearing that “each and every time
[Kelley sold WIC vouchers to Crawford] Mr. Crawford thought it was the last
time,” but that assertion, although incredible, misses the point.
Over nearly five years, Crawford had many opportunities to consider the
consequences of his actions, yet he did not voluntarily cease his participation in
the scheme. On 184 occasions, Crawford wrote Kelley checks for the WIC
vouchers. After he cashed or deposited the checks, Kelley returned to the store
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with the 40 percent share he owed Crawford. That delay in the receipt of his share
gave Crawford time to consider his actions. Crawford also had the opportunity to
deliberate whether to redeem the WIC vouchers. That delay presented yet another
opportunity for Crawford to consider the significance and illegality of his conduct.
Crawford’s receipt, concealment, and retention for his own use of fraudulently
obtained WIC vouchers to defraud the WIC program of $434,032 cannot be called
“spur of the moment conduct, in response to a sudden, fortuitous opportunity of
which [Crawford] took advantage without deliberation.” McCoy, 242 F.3d at 405
(citations omitted). The district court clearly erred when it determined that
Crawford did not engage in more than minimal planning.
B. Downward Departure
At his sentencing hearing, Crawford asserted several grounds for a
downward departure from his applicable guideline range. Crawford first
contended that although he made $140,000 from the voucher scheme, he turned
over roughly $200,000 plus the proceeds of the sale of his store to the government.
Crawford argued that he was thus eligible for a departure based on extraordinary
acceptance of responsibility and extraordinary remorse. Crawford also sought a
departure on three other grounds: (1) lack of criminal sophistication, because he
paid Kelley by easily-traced checks instead of cash; (2) assistance to the
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government, even though the government did not file a substantial assistance
motion; and (3) that the amount of loss overstated Crawford’s criminality and took
his case outside the heartland of similar cases. Crawford argued that all of these
factors, along with the extraordinary remorse factor, could be combined to justify
an offense level that would allow probation.
The district court granted a downward departure and held that “all of the
grounds taken as a whole warrant a downward departure” because the case fell
“outside the heartland of other such cases.” The district court based its decision
on “ a combination of factors” but emphasized Crawford’s testimony at the
sentencing hearing and Crawford’s donation to the government of the proceeds
from the sale of his business. After the downward departure, Crawford’s guideline
range was 0-6 months, and the district court sentenced Crawford to 60 months’
probation and ordered him to pay $434,032 in restitution.
Several of the grounds relied upon by the district court were impermissible
grounds for a departure in calculating the advisory guideline range. Each of those
errors rested on a misunderstanding of the law. Because the district court relied
upon a “combination of factors” to justify the downward departure, we cannot
presume that the district court would have granted the downward departure in the
absence of those errors. To guide the district court on remand in its calculation of
15
an advisory guideline range, we address each factor in turn.
1. Extraordinary Remorse and Restitution
We have recently held that extraordinary remorse and restitution is a
discouraged but not prohibited ground for a downward departure. Kim, 364 F.3d
at 1240-41. In Kim, we rejected the interpretation proposed by the government
that would have deemed restitution involuntary if it is not done before the
initiation of criminal proceedings. Id. at 1242 n.9, 1243. We instead adopted a
test that considers the degree of voluntariness, the lengths to which the defendant
went to make restitution, the percentage of funds restored, the timing of the
restitution, and whether the defendant’s motive showed sincere remorse and
acceptance of responsibility. Id. at 1244-45.
The district court did not have the benefit of the Kim decision when it made
its ruling that granted the downward departure. Although the district court was
permitted to apply a departure for extraordinary remorse in some circumstances,
the record does not allow us to speculate as to how the district court would have
weighed all of the Kim factors. On remand, the district court must apply the Kim
test when it considers, in its calculation of an advisory guideline range, whether to
apply a downward departure based on this factor.
2. Lack of Criminal Sophistication
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Section 2F1.1 of the Guidelines contains a two-level specific offense level
characteristic for offenses committed using extraordinary means. That
enhancement penalizes the use of sophisticated means, not the use of
unsophisticated means. See United States v. Schlaen, 300 F.3d 1313, 1319 (11th
Cir. 2002), cert. denied, 540 U.S. 853, 124 S. Ct. 140 (2003). A defendant who
uses unsophisticated means is not to be rewarded for lack of imagination, but
instead avoids the enhancement. Id. Lack of criminal sophistication is not a
permissible ground for a downward departure in calculating an advisory guideline
range.
3. Substantial Assistance to the Government
The Guidelines allow for a downward departure “[u]pon motion of the
government” if the defendant provided substantial assistance to the government.
U.S.S.G. § 5K1.1. A sentencing court cannot depart from an advisory guideline
range absent a motion from the government. United States v. Forney, 9 F.3d 1492,
1499 (11th Cir. 1993). Because the government did not file a substantial
assistance motion, any assistance Crawford might have provided the government
was not a permissible ground for a downward departure in calculating an advisory
guideline range.
4. Loss Amount Overstated Criminality
17
The commentary to the Guidelines provides that, in a few instances, the
amount of loss calculated under the Guidelines may overstate the seriousness of
the offense. U.S.S.G. § 2F1.1 cmt. n.11. If so, a downward departure can be
applied. Id. The example given is when a defendant attempts to pass a negotiable
instrument so obviously fraudulent that no one would seriously consider honoring
it. Id. The example suggests that this departure typically applies in cases where
there is no meaningful chance that the attempted crime would have succeeded to
the extent indicated by the stated loss. See, e.g., United States v. LeRose, 219
F.3d 335, 339 (4th Cir. 2000).
Unlike the other factors relied upon by the district court to justify the
downward departure, the reliance on this factor by the district court was not
necessarily legally erroneous. This factor can be, in some circumstances, a
permissible ground for a downward departure. Because the other downward
departure errors require us to vacate Crawford’s sentence, we do not decide
whether the district court justifiably relied on this factor. We note, however, that
the amount of loss appears proportionate to the criminal acts committed by
Crawford. Cf. id.
5. Summary
The district court committed several legal errors in its decision that a
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downward departure was warranted. We cannot presume that, in the absence of
those errors, the district court would have decided that a downward departure was
warranted in calculating an advisory guideline range. We remand this case to
allow the district court to revisit the downward departure issue under the correct
legal standards.
IV. CONCLUSION
The district court clearly erred when it refused to apply the more than
minimal planning enhancement. The district court also made several errors in its
interpretation of the Guidelines that led to the downward departure. Because
district courts are required under Booker to consult the Guidelines, and because
true consultation cannot be based on an erroneous understanding of the
Guidelines, the district court erred in failing to consult properly the Guidelines.
We, therefore, vacate Crawford’s sentence and remand this case to the district
court for resentencing. On remand, the district court must calculate an advisory
guideline range that includes the more than minimal planning enhancement and
considers whether to grant a downward departure from that advisory guideline
range consistent with this opinion.
VACATED AND REMANDED.
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EDMONDSON, Chief Judge, concurs in the result that the sentence should
be vacated and the case remanded for resentencing.
20