Filed: Mar. 04, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5094 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ROBERT EVERETT YOUNG, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:09-cr-00196-CMH-2) Submitted: February 7, 2011 Decided: March 4, 2011 Before TRAXLER, Chief Judge, and WILKINSON and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. B
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5094 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ROBERT EVERETT YOUNG, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:09-cr-00196-CMH-2) Submitted: February 7, 2011 Decided: March 4, 2011 Before TRAXLER, Chief Judge, and WILKINSON and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Br..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5094
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT EVERETT YOUNG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:09-cr-00196-CMH-2)
Submitted: February 7, 2011 Decided: March 4, 2011
Before TRAXLER, Chief Judge, and WILKINSON and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Grossman, CROWGEY & GROSSMAN, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Lanny A.
Breuer, Assistant Attorney General, Ellen R. Meltzer, Steve A.
Linick, Andrew N. Gentin, Brigham Q. Cannon, U.S. DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Everett Young pled guilty without a plea
agreement to one count of conspiracy to defraud the United
States Department of Defense, in violation of 18 U.S.C. § 371
(2006) (count one), and one count of theft of and aiding and
abetting the theft of the property of the United States, in
violation of 18 U.S.C. §§ 2, 641 (2006) (count two). The
district court calculated Young’s Guidelines sentences at sixty
months’ imprisonment on count one and 120 months’ imprisonment
on count two, see U.S. Sentencing Guidelines Manual (“USSG”)
(2008), and sentenced Young to sixty months’ imprisonment on
count one and a concurrent term of ninety-seven months’
imprisonment on count two. Young appeals his sentence,
asserting that: (1) the district court erred in the manner in
which it ruled on his objections to the presentence report
(“PSR”); (2) the court erred in calculating his Guidelines
sentences; and (3) his sentence is substantively unreasonable.
We affirm.
Young asserts that the district court failed to comply
with Fed. R. Crim. P. 32(i)(3)(B) by failing to make a clear
ruling indicating it was overruling his objections to the PSR.
Young, however, failed to raise an objection based on Rule 32 at
sentencing. Accordingly, we review this issue for plain error.
Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009).
2
Rule 32(i)(3)(B) of the Federal Rules of Criminal
Procedure requires a district court “-for any disputed portion
of the presentence report or other controverted matter-[to] rule
on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” The purpose
of the rule “is to ensure that a record is made as to how the
district court ruled on any alleged inaccuracy in the PSR.”
United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994). This
court has concluded, however, that a district court “need not
articulate findings as to disputed factual allegations with
minute specificity.” United States v. Bolden,
325 F.3d 471, 497
(4th Cir. 2003) (internal quotation marks and alteration
omitted).
Moreover, the district court can satisfy Rule
32(i)(3)(B) by “simply adopt[ing] the findings contained in
[the] PSR, provided that [the court] makes clear which disputed
issues were resolved by its adoption.” Id. (internal quotation
marks omitted). The court may adopt “the PSR’s findings in
toto” if “the context of the ruling makes clear that [it]
intended [by the adoption] to rule on each of the alleged
factual inaccuracies.”
Walker, 29 F.3d at 911 (holding that the
district court’s statement from the bench that it overruled the
objections filed by the defendant, taken together with the
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court’s Statement of Reasons form, satisfied Rule 32 because it
demonstrated that the court was adopting each of the PSR’s
findings) (internal quotation marks omitted).
In this case, after hearing argument on the objections
to the PSR from Young’s counsel and counsel for the Government,
the district court stated that it “f[ound] the [G]uideline
factors to be properly assessed in this case.” In the Statement
of Reasons accompanying the criminal judgment, the district
court indicates that it adopted the factual findings in the PSR.
Implicit in the district court’s acceptance of the factual
findings in the PSR was the court’s rejection of Young’s
objections to them. We therefore conclude that the district
court did not commit error — plain or otherwise — in ruling on
Young’s objections to the PSR.
Next, Young asserts that the district court erred in
applying a twenty-two level enhancement to his base offense
level under USSG § 2B1.1(b)(1)(L) for a loss exceeding
$20,000,000. The district court’s determination of the loss
amount attributable to a defendant is a factual matter reviewed
for clear error. See United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007).
Enhancements under USSG § 2B1.1(b) are to be
determined by the amount of loss suffered as the result of the
fraud. The loss amount is the greater of the actual loss or the
4
intended loss. USSG § 2B1.1, cmt. n.3(A). “Actual loss” is
defined as “the reasonably foreseeable pecuniary harm that
resulted from the offense.” Id., cmt. n.3(A)(i). Further,
Application Note 3(C) to USSG § 2B1.1 provides that the district
court need only make a reasonable estimate of the loss.
In this case, the PSR recommended application of the
twenty-two level enhancement under USSG § 2B1.1(b)(1)(L) for a
loss exceeding $20,000,000 based on the determination in the
statement of facts accompanying Young’s guilty plea that the
value of the fuel Young and his co-conspirators stole was
$39,651,936. In his objections to the PSR, Young contended that
it overestimated the loss caused by his offenses. In Young’s
view, the value of the fuel stolen by members of the conspiracy
fell between $21,919,089 and $23,978,018, before any applicable
discounts.
In responding to Young’s objection, the Government
conceded that the statement of facts erroneously stated the loss
amount as $39,651,936. The Government explained that the
$39,651,936 figure was based on the fuel prices set by the
Defense Energy Support Center (“DESC”) — the primary entity
responsible for procuring ground and aviation fuel for the
Department of Defense — as of July 2008, instead of the prices
in effect during October 2007 through May 2008, when Young
participated in the conspiracy. The Government asserted,
5
however, that application of the twenty-two level enhancement
was still appropriate because the value of the fuel, utilizing
DESC prices in effect when Young participated in the conspiracy,
was $26,276,472, well over the $20,000,000 threshold necessary
to warrant the enhancement under USSG § 2B1.1(b)(1)(L). The
district court overruled Young’s objection and adopted the PSR’s
finding that the loss caused by Young’s offenses was
$39,651,936.
Based on the Government’s concession, we conclude that
the district court erred in calculating the loss amount at
$39,651,936. District court errors in sentencing calculations,
however, are subject to review for harmlessness. United
States v. Mehta, 594 F.3d 277, 283 (4th Cir.), cert. denied,
131 S. Ct. 279 (2010). A district court’s error is harmless “if
the resulting sentence was not longer than that to which the
defendant would otherwise be subject.”
Id. (internal quotation
marks and alteration omitted). In determining Young’s sentence,
the district court applied the enhancement corresponding to a
loss range of over $20,000,000 to $50,000,000. Because the
record shows that a reasonable estimate of the loss in this case
would exceed $20,000,000, the district court’s calculation error
did not result in a longer sentence for Young. Young therefore
received the same sentence he would have received had the
district court not erred in its calculation. Because the
6
district court’s error is harmless, Young is entitled to no
relief on this claim.
Young also challenges the district court’s application
of the three-level enhancement under USSG § 3B1.1 for his
aggravating role in the offenses. Section 3B1.1(b) of the
Guidelines provides for a three-level enhancement in a
defendant’s offense level “[i]f the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(b). * In assessing whether a defendant
played an aggravating role in an offense of conviction, “the key
inquiry is whether the defendant's role was that of an organizer
or leader of people, as opposed to that of a manager over the
property, assets, or activities of a criminal organization.”
United States v. Llamas, 599 F.3d 381, 390 (4th Cir. 2010)
(internal quotation marks omitted). “Thus, the aggravating role
adjustment is appropriate where the evidence demonstrates that
the defendant ‘controlled the activities of other participants’
or ‘exercised management responsibility.’”
Id. (quoting United
States v. Bartley,
230 F.3d 667, 674 (4th Cir. 2000)). The
district court’s determination that a defendant played an
*
Young has not asserted that the criminal activity he was
found to have managed involved fewer than five participants or
was not otherwise extensive.
7
aggravating role in an offense is a factual determination we
review for clear error. United States v. Kellam, 568 F.3d 125,
147-48 (4th Cir. 2009).
Young argues that the district court’s determination
that he was a manager was erroneous because the evidence is
insufficient to show that he managed others involved in or the
business of the conspiracy. We disagree. The record shows that
Young participated in a scheme with several others to steal fuel
from the United States Army and sell it on the black market in
Iraq. And although Young joined the conspiracy as an escort for
those stealing the fuel and continued in this role through
December 2007, by late 2007 or early January 2008, his role in
the scheme had changed. From that point through April 2007, he
directed the activities of the scheme’s participants,
coordinating drivers and escorts to steal fuel. Young also was
responsible for collecting and counting proceeds from the scheme
and paying participants. Further, prior to and after he left
Iraq — the situs for the conspiracy — Young took pains to ensure
continuity of operations in the scheme, meeting with the co-
conspirator who took over management of its operations for the
purpose of facilitating the management transition and tutoring
the co-conspirator.
These findings are sufficient to justify the
imposition of the three-level enhancement for Young’s managerial
8
role. See, e.g., Llamas, 599 F.3d at 389-90 (affirming USSG
§ 3B1.1(b) enhancement where the defendant “exercised
supervisory responsibility over” the activities of a call center
by, inter alia, enforcing the center’s rules, punishing non-
compliant operators, and coordinating the operators’
activities);
Bartley, 230 F.3d at 673-74 (affirming USSG
§ 3B1.1(b) enhancement where the defendant directed the
activities of street-level drug dealers and advised them on
sales techniques, set prices and payment terms, arranged
logistics of delivery, and directed the mailing and transport of
drugs). Accordingly, the district court did not clearly err in
applying the three-level enhancement for Young’s aggravating
role.
Young also asserts that he should have received a
reduction under USSG § 3B1.2 for his mitigating role. Under
USSG § 3B1.2(a)-(b), a defendant who is a “minimal participant”
in criminal activity may have his offense level reduced by four
levels, and a defendant who is a “minor participant” may have
his offense level reduced by two levels. Cases falling between
subsections (a) and (b) warrant a three-level reduction. USSG
§ 3B1.2. In deciding whether the defendant played a minor or
minimal role, the “critical inquiry” is “whether the defendant’s
conduct is material or essential to committing the offense.”
United States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001)
9
(internal quotation marks omitted). We review for clear error
the district court’s decision that a defendant did not have a
mitigating role in an offense. See United States v. Kiulin,
360 F.3d 456, 463 (4th Cir. 2004).
We conclude that the district court reasonably did not
grant Young a reduction under USSG § 3B1.2 because the record
shows that he was a manager in the fuel theft conspiracy.
Young’s managerial activities demonstrate that his role cannot
be defined as either minor or minimal. Accordingly, the
district court did not clearly err in refusing to apply a
reduction for Young’s mitigating role.
Young asserts that he should have received a two-level
reduction under USSG § 3E1.1(a) for acceptance of
responsibility. A two-level reduction in a defendant’s offense
level is warranted if he clearly demonstrates acceptance of
responsibility for his offenses. USSG § 3E1.1(a). An
adjustment for acceptance of responsibility does not result
automatically from the entry of a guilty plea; rather, in order
to receive such a reduction, “the defendant must prove by a
preponderance of the evidence that he has clearly recognized and
affirmatively accepted personal responsibility for his criminal
conduct.” United States v. May, 359 F.3d 683, 693 (4th Cir.
2004) (internal quotation marks omitted). In determining
whether an adjustment is warranted, the district court may
10
consider whether the defendant has “truthfully admitt[ed] the
conduct comprising the offense(s) of conviction, and truthfully
admitt[ed] or not falsely den[ied] any additional relevant
conduct for which the defendant is accountable under [USSG]
§ 1B1.3.” USSG § 3E1.1, cmt. n.1(a).
Young asserts that he is entitled to a reduction for
acceptance of responsibility based on a statement he submitted
to the Probation Office after pleading guilty in which he
admitted his role in the fuel theft conspiracy. The PSR,
however, recommended against application of the two-level
reduction for acceptance of responsibility because, after
pleading guilty, Young “backtrack[ed]” from his admissions of
guilt in the statement of facts and the statement given to the
Probation Office. Specifically, Young denied his knowledge of
the scheme’s illegality, the amount of profits gained from the
scheme, and the length of his participation in it. These
denials demonstrate Young’s attempt to minimize his culpability.
Accordingly, we conclude that the district court did not clearly
err in refusing to grant a two-level reduction under USSG
§ 3E1.1(a). See May, 359 F.3d at 694.
Next, Young challenges the district court’s refusal to
grant a downward departure based on his extraordinary acceptance
of responsibility, see USSG § 5K2.0, p.s. However, a district
court’s refusal to depart from the applicable Guidelines
11
sentence does not provide a basis for appeal under 18 U.S.C.
§ 3742 (2006), “unless the court failed to understand its
authority to do so.” United States v. Brewer, 520 F.3d 367, 371
(4th Cir. 2008). Young does not suggest that the district court
misunderstood its authority to depart. Accordingly, this claim
is not reviewable on appeal.
Finally, Young claims that his sentence is
substantively unreasonable, asserting that the 18 U.S.C.
§ 3553(a) (2006) factors support the imposition of a sentence
less than ninety-seven months’ imprisonment. In determining
whether a sentence is substantively reasonable, this court
“tak[es] into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.”
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(internal quotation marks omitted). We also give deference to
the district court’s decision that the § 3553(a) factors justify
a variant sentence and to the extent of that variance. Even if
this court would have imposed a different sentence, this fact
alone is not sufficient to justify reversing the district court.
Id. at 473-74. Further, this court accords a sentence within a
properly-calculated Guidelines range an appellate presumption of
reasonableness. United States v. Abu Ali,
528 F.3d 210, 261
(4th Cir. 2008). Such a presumption is rebutted only by showing
“that the sentence is unreasonable when measured against the
12
§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
After review of the record and Young’s brief on
appeal, we conclude that he has failed both to overcome the
appellate presumption of reasonableness accorded the sixty-month
sentence on count one and to show why this court should not give
deference to the district court’s decision that the § 3553(a)
factors justified the below-Guidelines sentence of ninety-seven
months’ imprisonment on count two.
We therefore affirm the district court’s amended
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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