United States v. Beckford

545 F. App'x 12
CourtCourt of Appeals for the Second Circuit
DecidedOctober 15, 2013
Docket12-3548-cr
StatusUnpublished
Cited by1 cases

This text of 545 F. App'x 12 (United States v. Beckford) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Beckford, 545 F. App'x 12 (2d Cir. 2013).

Opinion

SUMMARY ORDER

Defendant-Appellant Malachi Burris appeals from a January 17, 2013, amended judgment of conviction imposed by the United States District Court for the Eastern District of New York (Irizzary, •/.) following a plea of guilty to a charge of conspiracy to commit mail and wire fraud. The district court sentenced Burris principally to twenty-four months of incarceration, restitution in the amount of $782,718.28 plus interest, and forfeiture in the amount of $88,590. We assume the *14 parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

I. Loss Amount

Burris first contests the district court’s attribution to him of $569,681 in real loss, an amount which reflects all of the loss caused by Burris and by his co-conspirators (the other participants in a group led by Burris’s brother Samuel Burris). “[I]n order to hold a defendant accountable for the acts of others, a district court must make two findings: 1) that the acts were within the scope of the defendant’s agreement and 2) that they were foreseeable to the defendant.” United States v. Studley, 47 F.3d 569, 574 (2d Cir.1995). With respect to the first finding, Studley holds “that the Guidelines ... require the district court to make a particularized finding of the scope of the criminal activity agreed upon by the defendant.” Id. Burris contends that (1) the district court failed to make that particularized finding and (2) there was insufficient evidence for the district court to have found that the scope of his agreement covered all of the criminal activity undertaken by the group. He argues that he should be responsible for only the discrete acts that he himself took to further the conspiracy. We disagree.

In rejecting Burris’s argument that he should not be held accountable for losses caused by his co-conspirators, the district court stated that it “agree[d] with the analysis that ha[d] been set forth by Probation as well as the rationale discussed by the Government in its sentencing memorandum.” App’x at 132. The “analysis that ha[d] been set forth by probation” includes statements (1) that Burris “became involved in the offense from the start, in approximately October 2005,” Pre-sentencing Report (“PSR”) at 11; (2) that “[ajfter January 2008, Malachi Burris reduced his criminal involvement, but he did not withdraw from the offense,” id.; and (3) that “[t]he loss attributable to the defendant included not only the packages he personally picked up, but also the loss that was reasonably foreseeable ... since he was part of a jointly undertaken criminal activity with his brother,” Addendum to the PSR at 2. The “rationale discussed by the Government” includes the statement that “the defendant is responsible for the total loss attributable to the Burris working group as these losses were the reasonably foreseeable result of jointly undertaken activity.” July 12, 2012, Letter from the Gov’t at 6. The district court incorporated those statements into its findings, and through those statements — and the district court’s subsequent statement that “there was enough independent evidence from some of the records that were maintained by apparently the record keeper ... to indicate that Mr. Burris was involved throughout that period of time,” App’x at 139 — the district court made a particularized finding that the entirety of the conspiracy’s activity, from October 2005 until its termination, was jointly undertaken by Malachi Burris. Ultimately, while it would have been advisable for the district court to state its findings more clearly and with more particularity, the record as a whole indicates that the district court found that all of the activity was within the scope of Burris’s conspiratorial agreement.

Further, the district court had sufficient evidence on which to base its finding that Burris agreed to the entire scope of the conspiracy to obtain wireless devices fraudulently. The evidence showed that: (1) Burris picked up fraudulently obtained wireless devices from Rudolph, a co-conspirator who was a FedEx courier, for approximately two months in 2005; (2) Burris would call Rudolph telling her the *15 addresses that would appear on the packages with fraudulently obtained devices so that she would know which ones to set aside; (3) in early 2007, Burris again picked up wireless devices from Rudolph; (4) in 2007, Rudolph introduced Burris to FedEx courier McLean, and Burris told McLean that he would put McLean in contact with Samuel Burris; (5) thereafter, Burris occasionally accompanied co-conspirator Courtney Beckford to pick up packages from McLean; (6) in September, 2008, when Burris asked Beckford whether he “got the rest of the things,” Beck-ford responded that he “got three,” including a “Pearl,” and AT & T records showed that three phones, including a Blackberry Pearl, App’x at 228, had been sent to Beckford’s address; (7) later that month, Burris traveled to Jamaica with Beckford and Samuel Burris, and fraudulently obtained wireless devices were discovered in the luggage of both Burris brothers, while Beckford had in his luggage a list of email addresses, many of which had been provided to AT & T or T-Mobile customer services representatives so that co-conspirators could receive emails with tracking information for the fraudulently ordered phones; (8) in October, 2008, Burris and Beckford discussed the number of phones being ordered by Samuel Burris and Samuel Burris’s difficulty reaching one of the FedEx couriers; (9) records discovered at Beckford’s home referred to 150 wireless devices and referred to eight of those devices as attributable to Burris; and (10) during Burris’s plea allocution, he admitted that he was involved in the conspiracy “during 2007 through 2009.”

Burris argues that many of these events could be construed as innocent. But we do not think that the district court clearly erred in inferring that Burris had agreed to the full scope of the conspiracy. See United States v. Iodice, 525 F.3d 179, 185 (2d Cir.2008) (“Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be clearly erroneous.”) (brackets and internal quotation marks omitted). Moreover, while Burris examines each of the incidents separately and attempts to explain away each one, the district court was correct to “view all the evidence as pieces of a unified whole.” United States v. Nusraty, 867 F.2d 759, 764 (2d Cir.1989). We affirm the district court’s finding that Burris agreed to the entire scope of the conspiracy.

II. Minor Role Adjustment

Burris next contends that the district court improperly denied him a minor role adjustment. This adjustment “applies to a defendant ... who is less culpable than most other participants, but whose role could not be described as minimal.” U.S. Sentencing Guidelines § 3B1.2(b) cmt. n. 5. While “this circuit has not always been consistent in describing the standard of review for role adjustments,” United States v. Labbe, 588 F.3d 139, 145 n.

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Bluebook (online)
545 F. App'x 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-beckford-ca2-2013.