Filed: Aug. 01, 2014
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Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0584n.06 No. 13-1408 FILED Aug 01, 2014 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE v. ) EASTERN DISTRICT OF MICHIGAN ) TERRENCE O. WASHINGTON, ) ) Defendant-Appellant. ) Before: COLE, ROGERS, and ALARCÓN*, Circuit Judges. ALARCÓN, Circuit Judge. Defendant-Appellant Terrence O. Washington appeals from
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0584n.06 No. 13-1408 FILED Aug 01, 2014 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE v. ) EASTERN DISTRICT OF MICHIGAN ) TERRENCE O. WASHINGTON, ) ) Defendant-Appellant. ) Before: COLE, ROGERS, and ALARCÓN*, Circuit Judges. ALARCÓN, Circuit Judge. Defendant-Appellant Terrence O. Washington appeals from ..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0584n.06
No. 13-1408 FILED
Aug 01, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) EASTERN DISTRICT OF MICHIGAN
)
TERRENCE O. WASHINGTON, )
)
Defendant-Appellant. )
Before: COLE, ROGERS, and ALARCÓN*, Circuit Judges.
ALARCÓN, Circuit Judge. Defendant-Appellant Terrence O. Washington appeals from the
judgment of conviction imposed following a trial by jury of a violation of 18 U.S.C. § 513(a) for
possession of a counterfeited security and possession of stolen mail in violation of 18 U.S.C. § 1708.
He contends that the district court abused its discretion in admitting hearsay statements. He also
asserts that the evidence was insufficient to persuade a rational trier of fact of his guilt of a violation
of 18 U.S.C. § 513(a).
Washington also seeks vacation of the sentence imposed by the district court. He argues that
the court erred in denying him a two-level reduction for his acceptance of responsibility and in
applying a two-level increase for the number of victims of his crimes. He also asserts that the court
*
The Honorable Arthur L. Alarcón, Senior Judge of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
No. 13-1408
United States v. Washington
erred in applying a three-level increase for his role in his criminal activity. He also challenges the
court’s finding as to the amount of loss of his victims.
We affirm the judgment convicting Washington of the alleged crimes because we are
persuaded that the evidence was sufficient and that no prejudicial error occurred in the district
court’s evidentiary rulings. We vacate the sentence, however, and direct the district court to conduct
further proceedings and make findings regarding the number of victims of Washington’s crimes, the
amount of loss they suffered, and his role in the crimes.
The parties have each waived oral argument. They are well acquainted with the facts
necessary to resolve this appeal. Since we have concluded that the issues raised do not present novel
issues requiring publication of our opinion, we set forth only those facts necessary to address the
legal issues raised by the parties.
I
In January 2012, a grand jury indicted Washington on one count of possession of a
counterfeited security in violation of 18 U.S.C. § 513(a) and one count of possession of stolen mail
in violation of 18 U.S.C. § 1708. Under a Rule 11 Plea Agreement, he agreed to plead guilty to the
§ 513(a) count in exchange for the Government’s agreement to dismiss the § 1708 count. The parties
also agreed that, if the district court decided to impose a sentence higher than 96 months,
Washington could withdraw his guilty plea.
During his plea hearing on March 27, 2012, Washington pled guilty and reserved his rights
to contest the number of victims, the amount of loss, and his role in the offense at sentencing. The
Government did not object. The district court accepted Washington’s guilty plea and took the plea
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agreement, with Washington’s reservations, under advisement pending sentencing. During the
hearing that was to serve as Washington’s sentencing on July 25, 2012, the court rejected the plea
agreement because it found the agreed-to maximum sentence inadequate.1 The court also rejected
Washington’s position that he could plead guilty and still dispute the number of victims, the loss,
and his role in the offense at sentencing.
Washington then opted to proceed to trial. After a two-day trial on November 27–28, 2012,
a jury convicted him on both counts.
Washington’s December 11, 2012 Presentence Report (“PSR”) calculated his total offense
level as 31, assigned him a criminal history category of VI, and determined that he was subject to
a guideline range of 188 to 235 months, pursuant to the 2012 Guidelines (“USSG”). The PSR
concluded, however, that the applicable statutory maximums limited his term to 180 months.2
Washington’s total offense level included a 14-level increase for loss of $540,471.40 “combined
between two victims,” the check verification services Certegy Check Services (“Certegy”) and
TeleCheck; a four-level increase for involvement of at least 67 victims; a three-level increase for
his role as a “manager or supervisor” of the criminal activity; and no reduction for acceptance of
responsibility. Before sentencing, the Government stipulated that Washington’s total offense level
in his PSR should have been a 29, based on a two-level increase for involvement of 10 or more, but
1
Before this hearing, Washington filed a Sentencing Memorandum on July 24, 2012. It was the
first of two Sentencing Memoranda that he filed in this case. In it, he objected to the then-current
Presentence Report’s recommendations on the number of victims, the amount of loss, and his role in the
offense. During the hearing, the district court acknowledged that it had reviewed Washington’s objections.
2
The consecutive combination of the statutory maximum sentences of 10 years for violations of
18 U.S.C. § 513(a) and five years for violations of 18 U.S.C. § 1708 amounts to 180 months.
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less than 50, victims. The stipulation resulted in a guideline range of 151 to 188 months with a
statutory maximum sentence of 180 months.
In his Sentencing Memorandum, Washington objected to the PSR’s recommendations on the
number of victims, the amount of loss, his role in the offenses, and his acceptance of responsibility.
During his sentencing hearing on March 26, 2013, Washington expressly raised two
objections to the PSR. First, he objected that the PSR did not give him credit for acceptance of
responsibility because he had “debriefed with the Government a number of times” prior to his plea
agreement, “fully admitted” responsibility in the plea agreement, and “[h]e did not testify at the
trial.” The court denied the objection. It explained that Washington “didn’t fully admit his
responsibility because he did it on his terms, in terms of what he thought would be the victims and
so forth” and that “he didn’t accept responsibility in the sense that the Sentencing Guidelines look
to [as] evidenced by the trial.
Second, Washington objected that “there should not be any increase for number of victims
because the two check clearing companies . . . reimbursed their clients,” leaving only Certegy and
TeleCheck as victims. In response, the Government explained that, during trial, a Certegy fraud
investigator had testified that Certegy had two broad categories of clients, warranty merchants and
self-risk merchants, and that Certegy reimburses the former, but not the latter, category for
erroneously authorized checks. The Government stated that there had been 37 non-reimbursed self-
risk merchant victims.3 The court denied the objection as “supported by all the testimony.
3
The record does not reflect that the Government established the number of self-risk merchants
or their losses at trial or during sentencing. As explained below, the Government concedes on appeal that
there is an issue with the support for its calculation of the number of victims in this matter that requires
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Afterwards, Washington and the court engaged in the following exchange:
THE COURT: Okay. What’s the next one?
[Counsel for Defendant]: Well, your Honor, the other objections really just
go to the calculations and such. You know, based on what I was saying what the
level should be. So every time it was brought up I just --
THE COURT: They’re repeated.
[Counsel for Defendant]: So --
THE COURT: Anything you want to -- I think they have been dealt with, but
anything that you want, that you think --
[Counsel for Defendant]: I would say that’s what’s important, your Honor,
to address.
THE COURT: Okay. So let the record reflect that . . . we have a total offense
level of 29; a criminal history of 6 where the guideline provisions are 151 to 188
[months]. The 188 [months] . . . exceeds the statutory maximum. So it would really
be 180 [months] because that would be the statutory combined maximum.
The court then proceed to impose its sentence.
During his sentencing hearing, Washington did not expressly restate the objections he had
raised in his Sentencing Memorandum to the amount of loss or his role in the offenses.
The court’s total offense figure of 29 indicated that it implicitly adopted the PSR’s
recommendations as adjusted downward by the Government’s stipulation. The court sentenced
remand for resentencing.
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Washington to a term of 180 months. The court also imposed $540,471.40 in restitution, of which
$349,173.72 was to be paid to Certegy and $191,297.68 to TeleCheck.
II
A
Washington asserts that the district court erred by admitting three alleged hearsay statements
into evidence at trial. This Court “review[s] a district court’s evidentiary rulings only for abuse of
discretion.” United States v. Morales, 687 F.3d 697, 701–02 (6th Cir. 2012) (citation omitted).
“[R]eversal is appropriate only if the abuse of discretion was not harmless error, that is, only if the
erroneous evidentiary ruling affected the outcome of the trial.”
Id. (citation and internal quotation
marks omitted).
First, Washington contends that the court erred in admitting a U.S. Secret Service agent’s
testimony that a Nevada driver’s license was counterfeit:
[Government] Q How do we know that is a counterfeit Nevada driver’s
license?
[Agent Holtz, U.S. Secret Service] A First of all, the number in the upper
right-hand corner . . . I contacted the field office out in Las Vegas.
[Counsel for Defendant]: Objection. Hearsay, your Honor.
[Government]: It’s not being offered for the truth of the matter asserted. It’s
being offered to explain why this agent has rendered [his] opinion . . . .
THE COURT: He may testify.
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A I contacted the field office to see check on the number to see if it was a
legitimate number. I was informed it was not.
. . . As well as the symbol the, the stamp, if you look at it, it’s the upside
down symbol of the state of Michigan.
Agent Holtz’s testimony does include hearsay to the extent he described what the Las Vegas field
office told him about the license in question, but the error is harmless. Agent Holtz also testified that
an upside down State of Michigan seal was affixed to the Nevada license. In light of this uncontested
testimony, Agent Holtz’s prior hearsay testimony cannot be said to have materially affected the
outcome of Washington’s trial.
B
Washington also argues that the court erred in admitting a detective’s testimony about a
related investigation concerning Washington. The transcript reads as follows:
[Detective Bernas, Deerfield Police Department] A I investigated the case
involving Mr. Washington regarding several counterfeit checks and a stay he had at
the Hyatt Hotel.
[Government] Q Do you have an understanding as to why . . . officers from
the Deerfield Police Department investigated activity which you just described[?]
A My understanding is the Hyatt Hotel contacted --
[Counsel for Defendant]: . . . I’m going to object. I think it’s still hearsay.
THE COURT: It is hearsay, but it’s designed to segue I believe as to his
testimony; is that correct?
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[Government]: That is absolutely correct.
THE COURT: He may proceed.
Q What is your understanding?
A My opinion is the Hyatt Hotel contacted Deerfield Police Department
because the subject was staying under the name of Dat Midnightsea. . . . He had
previously stayed there two other times, and every time that this person stayed they
paid with a counterfeit check.
This Court has explained that, “[i]n some circumstances, out of court statements offered for the
limited purpose of explaining why a government investigation was undertaken have been determined
not to be hearsay.” United States v. Martin, 879 F.2d 1368, 1371 (6th cir. 1990) (citing cases). The
context of Detective Bernas’s testimony establishes that his assertion of the police department’s
reason for investigating the activity in question was offered for the limited purpose of explaining
why the Deerfield Police Department’s investigation was undertaken. Under Martin, this is non-
hearsay testimony.
This case is distinguishable from United States v. Nelson, 725 F.3d 615 (6th Cir. 2013). In
that case, police officers testified about a 911 dispatcher’s description of the defendant and the fact
that he had a gun.
Id. at 619. The government argued that statements of the dispatcher were offered
as background and not to show that the defendant had a gun.
Id. at 620. However, we concluded that
the government offered the dispatcher’s statements for the truth of the matter asserted, i.e. that the
defendant possessed a gun.
Id. at 620. Given the context of the case, “a less-detailed statement
indicating that the police received a 911 call” would have been sufficient to explain why the officers
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No. 13-1408
United States v. Washington
investigated the defendant. The context of these cases is different. Nelson involved a garden-variety
response to a 911 call. But here, Detective Bernas’ was describing an ongoing investigation.
Describing an investigation’s background is appropriate when the statement is “necessary to provide
the jury with a coherent narrative explaining complex interactions between criminal defendants,
police officers, and cooperating witnesses.” Id. at 620–21.
But more importantly, the dispatcher’s identification of a gun in the defendant’s possession
in Nelson was critical to the prosecution’s case. “The Government’s other evidence was
circumstantial, and no officer testified to having seen Nelson possess a gun.” Id. at 621. Because the
statement went to “the heart of the government’s case,” we concluded that admitting the statement
was not a harmless error.
Id. But here, there was overwhelming evidence of Washington’s guilt. In
that context, it is much less clear that the government was offering Detective Bernas’ statement for
its truth rather than as background. And even if the statement was offered for its truth, any error was
harmless in light of the substantial evidence of Washington’s guilt.
C
Lastly, Washington alleges that the court erred in admitting the following testimony of
another federal officer about another related investigation concerning Washington:
Q How is it that you have a knowledge of [the Post Office’s investigation
involving Washington]?
[Agent Fix, U.S. Postal Inspection Service] A In August of 2009, I was
contacted by Postal Inspectors out in St. Louis, Missouri. They had -- a business out
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No. 13-1408
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there had some mail that was stolen from them in the weekend of August 15th, 2009.
And then shortly thereafter one of the checks was deposited --
[Counsel for Defendant]: Objection, your Honor. Hearsay.
[Government]: This is not being offered for the truth asserted. All this is
going to show is why --
THE COURT: He may continue.
Q Please continue.
A One of the checks was deposited into an account in the Detroit area. I
began investigating that check. And as my investigation continued . . . I was advised
by one of the inspectors in St. Louis that Agent Holtz of the Secret Service was also
investigating a similar matter. So once we determined that our cases were
overlapping we joined together and assisted with his investigation.
As with Detective Bernas’s testimony above, the context of Agent Fix’s testimony establishes that
his assertion of other postal inspectors’ identification of stolen mail was offered for the limited
purpose of explaining why the Post Office’s investigation was undertaken. Under Martin, this is
non-hearsay testimony.
Washington also argues that, in addition to being hearsay, the three statements referred to
Washington’s prior bad acts in violation of FRE 404(b). However, in each case, Washington’s
lawyer objected to the statements as hearsay, and not as prior bad acts. A specific objection on one
ground will not preserve other grounds on appeal. For example, in United States v. Seymour,
468 F.3d 378, 384 (6th Cir. 2006), a defendant objected to a piece of evidence as unfairly prejudicial
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No. 13-1408
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under FRE 403 at trial. But on appeal, the defendant argued that the evidence was inadmissible
under FRE 414. Id. We held that, as the grounds for the defendant’s objection was not obvious from
context, the defendant had failed to preserve his objection by not specifically invoking FRE 414. We
proceeded to review admission of the evidence for plain error. Because Washington did not object
under FRE 404(b) at trial, this court reviews the admission of those statements for plain error. Given
the substantial evidence of Washington’s guilt—in particular his written confession—Washington
cannot show that any error affected his substantial rights as is required to make a showing of plain
error. See United States v. Barnett,
398 F.3d 516, 526 (6th Cir. 2005).
III
Washington also contends that the Government did not meet its burden to prove a violation
of 18 U.S.C. § 513(a) at trial. In pertinent part, § 513(a) provides, “Whoever makes, utters or
possesses a counterfeited security of . . . an organization . . . with intent to deceive another person,
organization, or government shall be” guilty of an offense against the United States. 18 U.S.C.
§ 513(a). The term “security” includes checks. Id. § 513(c)(3)(A). The term “organization” means
“a legal entity . . . which operates in or the activities of which affect interstate or foreign commerce.”
Id. § 513(c)(4). The section does not define “person.”
Washington maintains that to prove a violation of § 513(a) the Government is required to
establish that the counterfeit checks at issue (1) “be of an organization which operates in or the
activities of which affect interstate or foreign commerce” and (2) “be used with intent to deceive
another person [or] organization which operates in or the activities of which affect interstate or
foreign commerce.” He contends that the Government’s evidence “did not connect the alleged
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misconduct by Washington to checks from an interstate organization nor with an intended target of
an interstate organization.”
This Court “review[s] de novo a challenge to the sufficiency of the evidence supporting a
criminal conviction.” United States v. Pritchett, 749 F.3d 417, 430 (6th Cir. 2014) (citation and
internal quotation marks omitted). “In evaluating a sufficiency of the evidence claim, we must
determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’”
Id. at 430–31 (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)) (emphasis in
original).
Washington’s first argument challenges the sufficiency of the evidence that his counterfeited
checks were of an organization that operates in or the activities of which affect interstate commerce.
Without explanation, he states that the trial testimony of the finance manager of the School
Community Health Alliance of Michigan and the chief financial officer of AC Lewis Management
“did not establish [a] sufficient connection to interstate commerce.” The Alliance and AC Lewis
were listed as payors on some of Washington’s counterfeited checks. Washington, nonetheless,
concedes that the Alliance, which operated in Michigan, “disbursed checks to vendors in
Mississippi, Alabama and Delaware” and that AC Lewis, which operated in Louisiana, “had vendors
they pay outside the state of Louisiana.” Br. for Appellant at 46–47. This undisputed testimony
established that both the Alliance and AC Lewis were organizations that operate in, or the activities
of which affect, interstate commerce.
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Washington’s second argument challenges the sufficiency of the evidence regarding the
target of Washington’s deceptive intent. Again without explanation, Washington states that “[t]here
was an insufficient showing that the organizations to whom allegedly counterfeit checks were passed
were themselves engaged in interstate commerce.” In the indictment, though, the grand jury charged
Washington with violating § 513(a) “with the intent to deceive another person or organization.”
Lorenzo Hughes, who worked for Washington by passing counterfeited checks and providing
related support services, testified during trial that he would call Certegy to check on the status of
Washington’s counterfeited checks and “try[] to get them approved for a certain amount.” Certegy’s
fraud investigator testified that the company provided products and services “nationwide.”
Washington did not dispute this testimony.
Hughes also testified that he passed counterfeited checks for Washington at “[n]umerous
stores throughout the Detroit area” by deceiving store employees. He went to stores approved by
Washington, bought goods with checks counterfeited by Washington, and used fake identification
provided by Washington. Hughes testified that, when he went to buy something, “[t]he driver license
number . . . would already be on the check with a number change in order for it to pass through the
clerk.” He explained, “I pretty much had [the license number] on the check before I get into the
store. Once I would present it to the clerk, I make her aware that the driver’s license number is
already on the check. So that way she won’t pay as much attention to my driver’s license number.”
He also explained that Washington “taught” him to alter the number he wrote on the check slightly
from the number on his fake identification “[i]n order to keep using the same ID.” Washington did
not dispute this testimony either.
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Section 513(c)(4) defines an “organization,” in part, by its relationship to interstate
commerce, but it does not do so with respect to a “person.” 18 U.S.C. § 513(c)(4).As a result, §
513(a) does not require the Government to prove an individual victim’s link to interstate commerce.
Id.; see also United States v. Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993) (“Section 513 does not
require the government to demonstrate an individual victim’s connection to interstate commerce.”).
The uncontroverted testimony established that Washington intended to deceive both Certegy, which
operates in interstate commerce, and various individual retail associates.
IV
Washington raises four procedural issues with his sentence. “‘[A]ppellate review of
sentencing decisions is limited to determining whether they are reasonable.’” United States v.
Mackety, 650 F.3d 621, 623 (6th Cir. 2011) (quoting Gall v. United States,
552 U.S. 38, 46 (2007))
(internal quotation marks omitted). We review for abuse of discretion.
Gall, 552 U.S. at 46, 51. If
a court committed errors “such as failing to calculate (or improperly calculating) the Guidelines
range” or “selecting a sentence based on clearly erroneous facts,” it will be found to have imposed
a procedurally unreasonable sentence and abused its discretion.
Id. at 51. We review the court’s
factual findings for clear error. United States v. Moon,
513 F.3d 527, 540 (6th Cir. 2008).
A
Washington asserts that the district court erred in denying him a two-level reduction for his
alleged acceptance of responsibility. He argues that he is “entitled to sentencing credit for
acceptance of responsibility where this matter only went to trial because the District Court rejected
the Rule 11 Plea Agreement.”
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A defendant who “clearly demonstrates acceptance of responsibility for his offense” may
receive a two-level reduction in his total offense level. USSG § 3E1.1(a). “This adjustment is not
intended to apply to a defendant who puts the government to its burden of proof at trial by denying
the essential factual elements of guilt . . . .” Id. cmt n.2. A defendant who exercises his right to a trial
may qualify for the reduction in “rare situations”—such as where he “goes to trial to assert and
preserve issues that do not relate to factual guilt.”
Id.
This case is not a “rare situation.” At trial, although he did not testify, Washington disputed
his guilt. In his opening, his counsel declared that “the Government [could] not prove[] its case
beyond a reasonable doubt.” R. 40, Nov. 27, 2012 Tr. at PgID 222. He explained that “the linchpin
of the Government’s case” was the testimony of Lorenzo Hughes, who was “the only . . . individual
who knew Mr. Washington at the time of the events that are the subject of this lawsuit,” and that
Hughes “was caught in the act of committing fraud.”
Id. at 221, 222. He concluded that Hughes “has
much to lose, and he has a person to blame . . . Terrence Washington. And that easily gives rise to
false testimony.”
Id. at 221. During cross examination, Washington’s counsel tried to portray
Hughes as lying about Washington’s culpability. R. 41, Nov. 28, 2012 Tr. at PgID 450–51. And, in
his closing, Washington’s counsel proclaimed, “The defense is that Mr. Washington is not guilty
of either of the two charges against him.”
Id. at 521. At sentencing, the district court did not find an
honest acceptance of responsibility. We are persuaded that this finding was not clearly erroneous.
B
Washington contends that the district court erred in applying a two-level increase for the
number of victims involved, pursuant to USSG § 2B1.1(2)(A)(i), because the PSR attributed all of
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the loss at issue to two victims: Certegy and TeleCheck. He also contends that the Government
failed to provide any support for the alleged number of Certegy’s self-risk merchant victims. The
Government “concedes that the sentencing record, as it stands, does not support the two-level
increase in Washington’s guideline calculation under USSG § 2B1.1(b)(2)(A) for an offense
involving 10 or more victims” and that “the case should be remanded for resentencing.” Br. for U.S.
at 15, 22. It explains that the PSR failed to incorporate a spreadsheet showing that there were
37 self-risk merchant victims and that “the government mistakenly neglected to introduce the
spreadsheet as an exhibit at the sentencing hearing.” Id. at 16. Accordingly, because the record does
not support any sentence enhancement for the number of victims involved pursuant to USSG §
2B1.1(b)(2), we conclude that this part of Washington’s sentence is procedurally unreasonable.
C
Washington further asserts that the district court erred in applying a three-level increase for
his role as a “manager or supervisor” of the criminal activity, pursuant to USSG § 3B1.1(b), because
there was insufficient evidence to support the increase and the court applied it “without explaining
its reasoning.” Similarly, he asserts that the court erred in applying a fourteen-level increase for loss
of $540,471, pursuant to USSG § 2B1.1(b)(1)(H), because “the only evidence adduced at
Washington’s trial was a loss of $34[9],000.00, from the testimony of Certegy’s [fraud
investigator],” which should have resulted in a twelve-level increase. He also contends that the court
“did not explain how it arrived at this higher [loss] figure.” During his sentencing hearing,
Washington did not expressly restate the objections he had raised in his Sentencing Memorandum
to his role in the offenses or the amount of loss. The Government responds that the trial evidence
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supported the role enhancement. It also responds that Washington “waived” his loss objection “by
abandoning it at his sentencing hearing.”4
Washington first objected to his role in and the loss from his offenses during the proceedings
on his plea agreement, which the district court rejected. He then reiterated these objections in his
Sentencing Memorandum. At sentencing, the court noted that it had “stud[ied]” Washington’s
Sentencing Memorandum. After Washington unsuccessfully objected to the PSR’s recommendations
on his acceptance of responsibility and the number of victims at sentencing, he started to raise his
remaining objections. The court, however, interjected that such objections were “repeated” and that
“they have been dealt with.
Rule 32 of the Federal Rules of Criminal Procedure provides that, at sentencing, district
courts “must--for any disputed portion of the presentence report or other controverted matter--rule
on the dispute or determine that a ruling is unnecessary because the matter will not affect sentencing,
or because the court will not consider the matter in sentencing[.]” Fed. R. Crim. P. 32(i)(3)(B)
(emphasis added). “This Court requires literal compliance with Rule 32 when sentencing issues are
contested by the parties.” United States v. Nelson, 356 F.3d 719, 722 (6th Cir. 2004) (citing cases).
Because Washington objected to his role in the offenses and the amount of loss, the district
court was required to address his objections, pursuant to Rule 32. See United States v. Poulsen, 655
F.3d 492, 512–13 (6th Cir. 2011) (“The Sixth Circuit requires ‘literal compliance’ with Rule 32, so
when matters are contested the court must explain its [loss] calculation methods.” (quoting Nelson,
4
The Government does not make the same “waiver” argument concerning Washington’s role
objection.
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United States v. Washington
356 F.3d at 722–23)); United States v. Darwich,
337 F.3d 645, 667 (6th Cir. 2003) (stating, where
disputed matter would affect sentencing, “Because the matter of leadership role was disputed by
[defendant] in his objections to the PSR, the district court had an obligation under Rule 32(i)(3) to
issue a ruling on the disputed matter . . . .”). The record of Washington’s March 26, 2013 sentencing
hearing does not show that the district court either expressly ruled on the disputes concerning
Washington’s role or loss or expressly determined that such rulings were unnecessary.5
Additionally, the record does not support the district court’s statement that Washington’s
remaining role and loss objections “ha[d] been dealt with” previously. Prior to Washington’s March
26 sentencing hearing, Washington had only one other opportunity to raise these objections—his
July 25, 2012 hearing. At Washington’s July 25 hearing, though, the court rejected the parties’ plea
agreement only and, therefore, had no occasion to address Washington’s objections. In light of this,
it is unclear how the court determined that Washington’s remaining objections were foreclosed
because it provided no explanation on the record.
5
The Government concedes that the district court “did not make a specific finding on loss
amount.” Br. for U.S. at 21.
Additionally, although the court noted that Washington “w[as] obviously a leader” as it imposed
its sentence, this statement does not address the Washington’s role objection. A determination that a
defendant was a “leader of a criminal activity that involved five or more participants or was otherwise
extensive” results in a four-level increase, while a determination that a defendant was “ manager or
supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or
was otherwise extensive” results in a three-level increase. USSG § 3B1.1(a) & (b) (2012) (emphasis
added). Washington’s December 11, 2012 PSR recommenced that the court find that Washington was a
“manager or supervisor (but not an organizer or leader)” and, therefore, subject to a three-level increase.
As described above, the court’s total offense figure of 29 indicated that it implicitly adopted the PSR’s
recommendations, including its three-level role enhancement, as adjusted downward by the Government’s
stipulation. Moreover, the court provided no explanation on the record for stating that Washington was a
“leader.”
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No. 13-1408
United States v. Washington
The court’s sentence was, therefore, procedurally unreasonable because it erred in not
addressing Washington’s role and loss objections. These errors affected Washington’s substantial
rights because they may have caused him to receive a more severe sentence than he should have
received under the Guidelines. See Fed. R. Crim. P. 52(a); United States v. Johnson, 467 F.3d 559,
564 (6th Cir. 2006) (noting that an error at sentencing is harmless where it did not cause the
defendant to receive a more severe sentence).
V
For the reasons set forth above, we AFFIRM Washington’s conviction, but we VACATE
his sentence, and we REMAND for resentencing. On remand, the district court should determine
whether Washington is subject to sentencing enhancements for (i) the number of victims involved
in his offenses, (ii) his role in the offenses, and (iii) the amount of loss stemming from his offenses
in accordance with Rule 32(i)(3)(B).
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