Filed: Dec. 12, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT December 12, 2005 Charles R. Fulbruge III Clerk No. 04-41206 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RONALD KENDRIC McCOY, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Texas (4:04-CR-38-RAS-ALL) Before KING, Chief Judge, and BARKSDALE and PRADO, Circuit Judges. PER CURIAM:* Primarily at issue is whether, pursuant to our plain-error revi
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT December 12, 2005 Charles R. Fulbruge III Clerk No. 04-41206 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RONALD KENDRIC McCOY, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Texas (4:04-CR-38-RAS-ALL) Before KING, Chief Judge, and BARKSDALE and PRADO, Circuit Judges. PER CURIAM:* Primarily at issue is whether, pursuant to our plain-error revie..
More
United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-41206
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD KENDRIC McCOY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:04-CR-38-RAS-ALL)
Before KING, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Primarily at issue is whether, pursuant to our plain-error
review, the district court reversibly erred by sentencing Ronald K.
McCoy based on an amount of loss greater than that authorized by
the non-binding amount in his plea agreement. AFFIRMED.
I.
In March 2004, McCoy was indicted on 11 counts for mail and
wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343. On 29
April 2004, pursuant to a written plea agreement, McCoy pleaded
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
guilty to the first count, which charged he defrauded purchasers on
eBay (a popular internet auction site) by purporting to sell items
he did not intend to deliver.
In the plea agreement, McCoy and the Government made a non-
binding stipulation that, for Sentencing Guidelines purposes, the
total loss resulting from the offense was $119,870.35. In the
factual resume for the plea, however, McCoy acknowledged losses to
victims totaling over $140,000.
In the presentence investigation report (PSR), the total loss
was calculated as $139,232.21. Accordingly, the probation officer
assigned McCoy a base offense level of seven. (The plea agreement’s
$119,870.35 total differed from the PSR’s $139,232.21 because the
PSR utilized the factual resume, which included two additional
frauds committed by McCoy. Although the individually enumerated
losses totaled $140,209.92 in the factual resume, the PSR stated
the total loss as $139,232.21. The Government claims this was due
to the probation officer’s giving McCoy credit for a duplication in
transactions listed in two different sections of the factual
resume. Because there is no difference for Guidelines purposes for
the two amounts, the disparity is irrelevant. U.S.S.G. §
2B1.1(b)(1)(F) (2004).)
To the base offense level of seven, the PSR added: ten
levels, pursuant to U.S.S.G. § 2B1.1(1)(F), because the loss amount
was between $120,000 and $200,000; and two levels, pursuant to
2
U.S.S.G. § 2B1.1(b)(2), because the offense involved 34 victims.
The PSR recommended a three-level reduction for acceptance of
responsibility.
The district court denied the reduction, finding that McCoy
had violated the terms of his release and engaged in fraudulent
conduct after entering his guilty plea. Accordingly, based on an
offense level of 19 and a criminal history category of II, McCoy’s
sentencing range was 33 to 41 months. He was sentenced to 40
months imprisonment.
II.
For the first time on appeal, McCoy claims the district court
committed two types of error under United States v. Booker, 125 S.
Ct. 738 (2005). Because McCoy failed to raise these issues in
district court, we review only for plain error. United States v.
Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S. Ct. 43
(2005). For that review, we determine whether there was a “clear”
or “obvious” error that affected McCoy’s substantial rights.
Johnson v. United States,
520 U.S. 461, 466-67 (1997);
Mares, 402
F.3d at 520-21. If so, we have discretion whether to correct the
error; generally, we will not do so unless it “seriously affect[ed]
the fairness, integrity, or public reputation of judicial
proceedings”.
Mares, 402 F.3d at 520 (internal citation and
quotation marks omitted).
3
First, McCoy claims structural error because the mandatory
sentencing guidelines were used in determining his sentence. The
requisite error is lacking; this claim is foreclosed by United
States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied,
126 S. Ct. 194 (2005).
Second, McCoy claims his sentencing enhancement was based on
a factor neither admitted nor found by a jury beyond a reasonable
doubt. See Booker, 125 S. Ct. at 756;
Mares 402 F.3d at 521. The
Government responds that there was no error because McCoy
stipulated to all of the facts upon which the district court based
the sentence.
Booker error occurs when a defendant’s “sentence was enhanced
based on findings made by the judge that went beyond the facts
admitted by the defendant or found by the jury”. Mares, 402 F.3d
at 521. McCoy contends incorrectly that the district court based
its amount-of-loss finding on an amount not admitted by McCoy.
McCoy’s signed factual resume, filed the same day as his plea
agreement, listed individual loss amounts. For example, the resume
stated:
I did knowingly cause to be transmitted
in interstate commerce, by means of wire
communication ... the fraudulent wire transfer
of funds ... totaling $40,125.46 for various
sales transactions involving eBay.
....
... I, for the purpose of executing and
attempting to execute the scheme and artifice
4
[to defraud], knowingly caused to be delivered
by the United States Postal Service ... an
envelope, containing three (3) checks totaling
$9,200 ....
....
... I ... caused to be delivered by the
United States Postal Service ... an envelope,
containing $11,139.57 ....
The unwritten sum of all listed amounts was more than $140,000.
Also, at his plea hearing, McCoy orally agreed to the facts
contained in that resume. Although McCoy and the Government
stipulated to $119,870.35 of loss in the plea agreement, it stated:
“The government and the defendant agree that this stipulation is
not binding on the United States Probation Office or the Court.”
(Emphasis added.) At the plea hearing, the district court
verified: McCoy agreed that the total loss was $119,870.35, but
also agreed that the total was not binding. Therefore, because
McCoy had admitted at the plea hearing to a loss amount of more
than $140,000, the district court acted within its discretion at
sentencing by accepting the probation officer’s recommendation of
$139,232.21 as the loss amount.
McCoy directs us to United States v. Borders, 992 F.2d 563
(5th Cir. 1993), for guidance on whether the district court
committed Booker error by sentencing him under a different loss
amount than that stated in his plea agreement. In Borders, a 28
U.S.C. § 2255 motion maintained, inter alia, that movant’s counsel
was ineffective because he erroneously stated that movant had
5
pleaded guilty to conspiracy to distribute 1,000 pounds of
marijuana. Id. at 567. Although the PSR stated that the amount
involved was 1,000 pounds (approximately 454 kilograms), the plea
agreement stated that movant conspired to distribute less than 50
kilograms.
Id. at 564-65.
Our court stated that it “might be inclined to accept the
government’s argument” that the 1,000 pounds was the correct amount
for sentencing purposes “had the plea agreement not contained
language expressly limiting the quantity of drugs to which [the
movant] was pleading guilty and had it not contained a provision
that the government would not enhance the defendant’s sentence”.
Id. at 567. The case was remanded for an evidentiary hearing on,
inter alia, interpretation of the plea agreement.
Id. at 569.
Unlike the plea agreement in Borders, McCoy’s did not limit
the court regarding the loss amount. Instead, his agreement
stated: although the parties agreed that the loss amount was
$119,870.35, that amount was not binding on either the district
court or the probation officer.
In this regard, McCoy contends that his plea agreement and his
factual resume conflict, giving rise to ambiguity that should be
interpreted in his favor. See United States v. Harvey, 791 F.2d
294, 300 (4th Cir. 1986) (stating that courts may hold “the
Government to a greater degree of responsibility than the defendant
6
... for imprecisions or ambiguities in plea agreements”). This
contention fails because his plea agreement stated that the
district court and McCoy’s probation officer were not bound by the
$119,870.35 stipulation; thus, the court was free to sentence him
based on the greater amount of loss admitted in McCoy’s factual
resume.
Therefore, McCoy’s stipulation to the individual loss amounts
in his factual resume (which totaled more than $140,000) and his
acknowledgment at the plea hearing that he had done so permitted
the district court to base his sentence on $139,232.21, rather than
the non-binding $119,870.35 stated in the plea agreement.
Accordingly, the district court did not commit Booker error in
sentencing McCoy. McCoy’s having failed to show the requisite
error, we need not consider the balance of our plain error
standard.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
7
