United States v. Berry

50 F. App'x 251
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 1, 2002
DocketNos. 01-1726, 01-1727, 01-1762
StatusPublished
Cited by1 cases

This text of 50 F. App'x 251 (United States v. Berry) 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. Berry, 50 F. App'x 251 (6th Cir. 2002).

Opinion

ORDER

These are three consolidated appeals taken from individual judgment and commitment orders in a multiple-defendant criminal prosecution. The parties have briefed the issues through counsel and have agreed to waive oral argument. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

In April 2000, a federal grand jury indicted fourteen individual defendants for their part in a large-scale conspiracy to defraud credit card companies. Three of the named defendants, Rahim Abdulla Berry, Barbara Mitchell, and Carolyn Jemison, elected to plead guilty and the district court accepted their pleas. The court found Berry guilty of conspiracy (18 U.S.C. § 371), identity theft and aiding and abetting (18 U.S.C. §§ 1028 & 2), credit card fraud and aiding and abetting (18 U.S.C. §§ 1029 & 2), band fraud and aiding and abetting (18 U.S.C. §§ 1344 & [252]*2522), and wire fraud and aiding and abetting (18 U.S.C. §§ 1343 & 2). The court found Mitchell guilty of conspiracy (18 U.S.C. § 371). The court found Jemison guilty of conspiracy (18 U.S.C. § 371), and credit card fraud and aiding and abetting (18 U.S.C. §§ 1029 & 2). The individual sentences will be set forth in assigning a leadership enhancement. USSG § 3B1.1, comment, (n.4). A de novo review of the conspiracy and Berry’s documented and admitted role in the offense supports the district court’s decision. This appeal lacks merit.

Case No. 01-1727

This appeal has been taken by Barbara Mitchell and presents a challenge to the district court’s decision to impose upon Mitchell a restitution obligation and to the constitutionality of Mitchell’s plea in light of the allegedly unexpected restitution order. A cursory examination of the record and law reveals the meritless nature of these two claims.

Mitchell is the only one of the three defendants in these consolidated appeals who entered into a formal plea agreement with the United States. Mitchell agreed to plead guilty to Count 1 of the indictment, the overarching conspiracy, and committed to a de-briefing with law enforcement authorities. In exchange, the parties agreed on certain sentencing considerations, including a sentencing cap of twenty-seven months, and left open the possibility of downward adjustments or departures in recognition of Mitchell’s cooperation and acceptance of responsibility. The agreement explicitly contemplated Mitchell’s exposure to a sizable restitution obligation, of up to $1.5 million.

The parties reviewed the terms of the plea agreement at the plea colloquy. Mitchell later acknowledged the district court’s repeated explanations to her of the concept and amount of the agreed-upon restitution order and the nuances of the attendant joint and several liability. In addition, the district court faithfully and exhaustively complied with its duty under Criminal Rule 11 to insure that Mitchell entered a knowing, voluntary plea. Mitchell failed to register any objections to the pre-sentence report. The district court subsequently sentenced Mitchell to the judgment of record that included an order of restitution for which she was jointly and severally liable in the amount of $1.5 million.

On appeal, counsel for Mitchell raises two issues. First, counsel contends that the district court erred in failing to consider Mitchell’s financial situation prior to imposing the restitution order. In addition, counsel argues that Mitchell’s plea was involuntary because she was unaware of the exact amount of the restitution order to be imposed.

The first claim has no basis in law. This court reviews the propriety of a restitution order de novo and the amount of restitution ordered for abuse of discretion. United States v. Vandeberg, 201 F.3d 805, 812 (6th Cir.2000). Counsel for the United States properly notes that an argument directed to the defendant’s ability to satisfy a restitution order is based in law that was superseded in 1996 by the cuirent versions of the applicable statutes. In April 1996, Congress passed the Antiterrorism and Death Penalty Act of 1996 which, in part, included the Mandatory Victims Restitution Act (“MVRA”). The MVRA added Section 3663A to Title 18, requiring mandatory restitution to victims of certain crimes, including offenses against property under Title 18 and including any offense committed by fraud or deceit. For these specified offenses under 18 U.S.C. § 3663A, a district court “shall order” full restitution, which must be im[253]*253posed “without consideration of the economic circumstances of the defendant.” 18 U.S.C. §§ 3663A(a)(l) and 3664(f)(1)(A); United States v. Schulte, 264 F.3d 656, 661 (6th Cir.2001). Thus, Mitchell was not entitled to put her financial situation in issue in this context.

The second appellate claim is specious. A cursory review of the plea agreement and the colloquy transcript shows that the district court judge bent over backwards to explain to Mitchell the amount and concept of the restitution order to be imposed and that the court thereafter faithfully imposed the award as described. For counsel to argue otherwise borders on the frivolous. This appeal lacks merit.

Case No. 01-1762

This appeal was taken by Carolyn Jemison. Counsel for Jemison raises two issues for appellate review, both of them presenting challenges to the concept of holding Jemison responsible for the total amount of loss attributable to the conspiracy. Jemison has filed a pro se brief with this court in which she argues that her conviction was the product of ineffective assistance of counsel. An examination of the record and law shows that the issues raised by counsel lack merit and that Jemison’s ineffective counsel claim is not ripe for consideration by this court.

Jemison agreed to plead guilty “straight up” to the overarching conspiracy charge, Count 1, and she also agreed to plead to three other individual counts of credit card fraud and aiding and abetting, after rejecting a plea bargain that would have required her to submit to a de-briefing by the United States. The district court conducted a plea colloquy with Jemison and engaged her in a general discussion of the aims and operation of the conspiracy.

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Related

Berry v. United States
537 U.S. 1222 (Supreme Court, 2003)

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Bluebook (online)
50 F. App'x 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-berry-ca6-2002.