Filed: Jun. 18, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4624 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KELVIN QUADE MANRICH, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:11-cr-00122-CCB-20) Submitted: May 17, 2013 Decided: June 18, 2013 Before KING, GREGORY, and DUNCAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Bruce A. Johnson, Jr., LA
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4624 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KELVIN QUADE MANRICH, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:11-cr-00122-CCB-20) Submitted: May 17, 2013 Decided: June 18, 2013 Before KING, GREGORY, and DUNCAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Bruce A. Johnson, Jr., LAW..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4624
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN QUADE MANRICH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00122-CCB-20)
Submitted: May 17, 2013 Decided: June 18, 2013
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Bruce A. Johnson, Jr., LAW OFFICES OF BRUCE A. JOHNSON, JR.,
LLC, Bowie, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Kathleen O. Gavin, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After five days of trial testimony, Kelvin Quade
Manrich, a former officer with the Baltimore Police Department
(“BPD”), entered a straight guilty plea to conspiracy to
obstruct, delay, and affect commerce by extortion by means of
unlawfully obtaining, under color of official right, money and
other property from Hernan Alexis Moreno and Edwin Javier Mejia,
who jointly owned and operated Majestic Auto Repair Shop, LLC,
(“Majestic”), in violation of 18 U.S.C. §§ 371, 1951(a) (2006),
and three substantive counts of the same, in violation of 18
U.S.C. §§ 1951(a), 2 (2006). Manrich was sentenced to forty-one
months’ imprisonment and three years of supervised release.
On appeal, Manrich challenges the calculation of his
advisory Guidelines range. Specifically, Manrich argues that
the district court clearly erred in its application of U.S.
Sentencing Guidelines Manual (“USSG”) §§ 2B1.1(b)(1),
2C1.1(b)(2) (2011), in determining the monetary value reasonably
foreseeable to him. For the reasons that follow, we vacate the
judgment and remand this case for resentencing.
I.
As alleged in the indictment, the overarching purpose
of the underlying conspiracy was to “enrich” the involved BPD
officers and to “benefit” Moreno and Mejia by bribing police
officers to use “their official positions and influence to cause
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vehicles to be towed or otherwise delivered to Majestic for
automobile services and repair.” (J.A. 11). * The scheme was
simple: a BPD officer would respond to the scene of a vehicle
accident; the officer would encourage the vehicle owner to have
Majestic tow the damaged vehicle and/or repair the damage
sustained during the collision. Moreno and Mejia paid the BPD
officers a “referral fee” for directing accident victims to
Majestic. This fee, more appropriately called a kickback,
ranged from $250 to $300 per vehicle.
The record established that Majestic would repair the
damage sustained in the accident. However, for some vehicles,
Majestic would also repair pre-existing damage and/or add damage
to that resulting from the accident. Majestic would then submit
an insurance claim reflecting these fraudulent damages.
Seventeen officers, as well as Moreno and Mejia, were
ultimately arrested. Included in the record are the plea
agreements and stipulated statements of facts agreed to by
Officers Osvaldo Valentine, Jerry Diggs, Jr., Henry Yambo, and
Leonel Rodriguez. In their stipulated statements of facts,
these officers admitted to receiving the following payments from
Majestic: Valentine — $14,400 in checks and an unknown amount
*
Citations to the “J.A.” refer to the joint appendix
submitted in this case.
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in cash; Diggs — $3550 in checks and at least $1500 in cash;
Yambo — $4500, including four checks; and Rodriguez — $8450 in
checks and an unknown amount in cash.
In his post-arrest statement, Manrich admitted
receiving approximately $5000 in kickbacks and knowing that
Valentine, Diggs, Rodriguez, and Yambo were part of the scheme.
Manrich further admitted that he and Valentine split the
referral fee on a few occasions.
II.
This court reviews any criminal sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” for reasonableness, “under a deferential abuse-of-
discretion standard.” United States v. King, 673 F.3d 274, 283
(4th Cir.), cert. denied,
133 S. Ct. 216 (2012); see Gall v.
United States,
552 U.S. 38, 51 (2007). Of course, the first
step in procedural reasonableness review is to evaluate the
district court’s Guidelines calculations. Gall, 552 U.S. at 51.
With regard to the calculation of the Guidelines range, “we
review the [sentencing] court’s factual findings for clear
error, its legal conclusions de novo, and unpreserved arguments
for plain error.” United States v. Strieper,
666 F.3d 288, 292
(4th Cir. 2012) (citations omitted).
There is no dispute that Manrich’s base offense level
was fourteen and that two levels were properly added for the
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offense involving more than one bribe. USSG § 2C1.1(a)(1),
(b)(1). It is the application of USSG § 2C1.1(b)(2) that is
contested in this case. This provision provides:
If the value of the payment, the benefit received or
to be received in return for the payment, the value of
anything obtained or to be obtained by a public
official or others acting with a public official, or
the loss to the government from the offense, whichever
is greatest, exceeded $5,000, increase by the number
of levels from the table in § 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount.
USSG § 2C1.1(b)(2). The district court appears to have utilized
the third enumerated measure in that the court added the amounts
Majestic paid to Manrich and the four admitted co-conspirators
to the amounts Majestic received for the fraudulent repairs.
Despite Manrich’s argument to the contrary, we discern
no error in the court’s inclusion of the kickback payments
received by the four acknowledged co-conspirators. Manrich pled
guilty to conspiracy to commit extortion and admitted knowing
that these particular officers were involved in the conspiracy.
Accordingly, the kickback amounts that his co-conspirators
admitted receiving were properly included in the court’s
relevant conduct analysis. See United States v. Offill, 666
F.3d 168, 180 (4th Cir. 2011), cert. denied,
132 S. Ct. 1936
(2012); USSG § 1B1.3(a)(1)(B). That Manrich did not know the
precise number of vehicles that the other officers brought to
Majestic is simply of no moment.
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The district court next increased the value amount by
adding the losses incurred by the insurance companies in paying
fraudulent claims. Because those payments inured to Majestic’s
benefit, the district court properly included them in its
calculation. See, e.g., United States v. Roussel, 705 F.3d 184,
199-200 & n.13 (5th Cir. 2013) (determining the appropriate
“benefit” amount under § 2C1.1(b)(2) by looking at the aggregate
benefit to each member of the conspiracy). To calculate this
amount, the court relied on an exhibit proffered at sentencing
that detailed a sampling of damage claims submitted by Majestic.
According to this exhibit, referred to in the district
court as “Exhibit A,” Majestic received approximately $120,000
for vehicle repairs made between January 2009 and February 2011.
The court ruled that at least one-third of the claim amounts
itemized in Exhibit A were fraudulent and thus added $40,000 to
the value determination. In doing so, the court accepted the
Government’s contention that the value determination was at
least $70,000, which corresponded with an eight-level increase
pursuant to USSG § 2B1.1(b)(1)(E).
But we have found no evidentiary support in the record
for the court’s determination as to the percentage of fraudulent
claim amounts. Although submitted by Manrich, the Government
prepared Exhibit A, and nothing therein justifies the
determination that one-third of each claimed amount was
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fraudulent. Nor did the court indicate that it was relying on
trial testimony from any particular witness to substantiate this
critical finding.
To be sure, the sentencing court “need only make a
reasonable estimate of the loss.” USSG § 2B1.1 cmt. n.3(C); see
United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003)
(recognizing that the loss amount “need not be determined with
precision” (internal quotation marks omitted)). But on the
record as it exists now, we have no basis of which to conclude
that it is a reasonable estimate.
For these reasons, we vacate the criminal judgment as
to Manrich’s sentence and remand this case for resentencing in
accordance with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
VACATED AND REMANDED
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