United States v. Andrews

88 F. App'x 903
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 27, 2004
DocketNo. 03-3194
StatusPublished
Cited by3 cases

This text of 88 F. App'x 903 (United States v. Andrews) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Andrews, 88 F. App'x 903 (6th Cir. 2004).

Opinion

OPINION

McKEAGUE, District Judge.

Defendant-Appellant Robert J. Andrews appeals from a criminal judgment and commitment entered by the district court. The parties have waived oral argument. Appellant argues that the district court erred by (1) applying a two-level enhancement to his base offense level pursuant to United States Sentencing Guidelines § 3Bl.l(c); (2) assessing restitution in the amount of $75,000.00; and (3) concluding that there were more than ten victims. For the following reasons, we AFFIRM.

I.

Appellant was a licensed attorney in Ohio and president of Eagle Creek Construction, a company that employed individuals to work on federally funded construction projects. On November 6, 2002, Appellant pled guilty to one count of submitting materially false statements to the United States Department of Labor and United States Department of Housing and Urban Development, in violation of Title 18, United States Code, Section 1001(a)(2).

On January 23, 2003, a sentencing hearing was held during which both the government and Appellant submitted evidence to support their respective positions on Appellant’s role as an organizer or leader in the offense as well as on the amount of loss that should be attributable to Appellant’s illegal actions. The government presented its evidence through the testimony of Vern G. Waldo (‘Waldo”), an investigator for the United States Department of Labor. The defense presented its evidence through the testimony of Appellant.

Waldo testified about false certified payroll forms submitted by Appellant pursu[905]*905ant to HUD-funded government contracts. Those contracts required Appellant to rehabilitate the foundations of old Army-barracks buildings. As part of the investigation, Waldo received copies of Appellant’s contracts and copies of certified payroll forms remitted to Appellant’s funding agency, the general contractor. The certified payroll forms contained the employee’s name, his hourly wage, his hours worked, and the wages paid to him. During Waldo’s testimony, defense counsel objected to the admission of hearsay testimony. The district court overruled the objection, reasoning that the evidence rules do not generally apply to sentencing hearings.

Waldo then proceeded to testify that Appellant admitted that he had not paid the prevailing wage to his employees, an issue not disputed by the defense diming the sentencing hearing. Waldo further testified that Appellant’s secretary, Sue Schieble (“Schieble”), admitted to government agents that she handled the paperwork for the business and basically ran the office. Schieble’s responsibilities included collecting employees’ time sheets, calculating wages for each employee, completing the certified payrolls for Appellant’s signature, and paying each employee either by cash or check. In completing the certified payrolls, Schieble wrote that the employees were being paid approximately $21.00 per hour. The employees were, however, receiving between $7.00 to $10.00 per hour, which Schieble at times provided to them, either by checks or cash. Waldo also testified that employees he had interviewed during the investigation corroborated Schieble’s statements to the government.

In addition, Waldo testified that two employees informed him, in separate interviews, that Schieble was involved in shredding business records that were part of some investigation. Waldo testified that one employee told him that he saw Schieble and her daughter shredding business records in the office and that Schieble asked the employee to throw the records in the dumpster. A second employee, according to Waldo’s testimony, was directed by Appellant and Schieble to dispose of business records.

Appellant testified that he never informed Schieble that he was underpaying the employees on the job. He also testified that although Schieble collected the time sheets and completed the certified payrolls, Appellant himself made the actual payments to the employees. Finally, Appellant denied that either he or his secretary were involved in the destruction of documents.

The government and Appellant also provided evidence to support their respective positions on the amount of loss that should be attributable to Appellant’s illegal actions. Waldo provided the district court with a loss estimation for 16 employees who worked for Appellant, six of whom Waldo personally interviewed. Waldo estimated the total loss attributable to Appellant’s failure to pay the 16 employees the prevailing wage was $278,751.48. For the six employees Waldo personally interviewed, he testified the loss figure was $150,543.63. Appellant testified that the loss figure was less than $50,500.

After the evidence was presented, the district court imposed a two-level enhancement under U.S.S.G. § 3Bl.l(e), concluding that Appellant supervised his secretary. The court also determined the loss attributable to Appellant’s illegal activities was $75,000. Finally, the court concluded that there were more than ten victims but less than 50.

On appeal, Appellant challenges the district court’s findings. First, he contends that the court committed clear error in imposing the enhancement under § 3Bl.l(c). Next, Appellant argues that [906]*906the district court abused its discretion in determining both the existence, the amount of restitution, and the amount of loss. Finally, Appellant argues that the court erred in concluding that there were more than 10 victims.

II.

A. ENHANCEMENT FOR LEADERSHIP ROLE

The Supreme Court’s decision in Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001) has created some ambiguity as to the proper standard of review in evaluating a district court’s imposition of a section 3B1.1 enhancement. See United States v. Solorio, 337 F.3d 580, 600 (6th Cir.2003)(noting that prior to the Supreme Court’s decision in Buford, a district court’s factual findings were reviewed for clear error while legal conclusions were reviewed de novo). Because we would affirm under deferential or de novo review in this case, we need not determine which standard of review applies to the district court’s application of section 3B1.1.

Section § 3B1.1 of the United States Sentencing Guidelines provides:

Based on the defendant’s role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If 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, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

U.S.S.G. § 3Bl.l(a-c). This court has explained that to enhance a sentence under § 3B1.1, the district court should make a factual finding that defendant had supervised at least one person. Caseslorente, 220 F.3d at 736.

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Bluebook (online)
88 F. App'x 903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-andrews-ca6-2004.