United States v. Blair-Torbett

230 F. App'x 483
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 5, 2007
DocketNo. 04-6520
StatusPublished
Cited by1 cases

This text of 230 F. App'x 483 (United States v. Blair-Torbett) 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. Blair-Torbett, 230 F. App'x 483 (6th Cir. 2007).

Opinion

PER CURIAM.

Defendant-Appellant Dianna Blair-Torbett appeals the sentence imposed by the district court after her guilty plea for violations of Title 18 U.S.C. § 2314. Although the sentencing occurred prior to the Supreme Court’s opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Blair-Torbett relies on Booker on appeal, contending that (1) her 72-month sentence was improper because facts not admitted by her during her plea were used to increase her sentence in violation of the Fifth and Sixth Amendments of the United States Constitution; (2) the Booker error was not harmless pursuant to United States v. Christopher, 415 F.3d 590, 593-94 (6th Cir.2005); and (3) the district court erred by ordering restitution for loss amounts exceeding the loss caused by the specific conduct to which she pled guilty, in violation of the Victim and Witness Protection Act, 18 U.S.C. § 3663(a)(2).1

For the reasons set forth below, we conclude that error resulted from the district court’s mandatory application of the sentencing guidelines. See, United States v. Barnett, 398 F.3d 516 (6th Cir.), cert. dismissed, 545 U.S. 1163, 126 S.Ct. 33, 162 L.Ed.2d 931 (2005). But, after careful consideration, we further conclude that the error is harmless and we therefore affirm. United States v. Brown, 444 F.3d 519 (6th Cir.2006); United States v. Christopher, 415 F.3d 590 (6th Cir.2005).

Factual & Procedural Background

On April 22, 2003, an indictment was filed charging Blair-Torbett and co-defendant, William D. Brannon, with twenty-one counts of transporting sums of money across state lines in violation of 18 U.S.C. § 2314 from April 23, 1998 through September 26, 2000. Blair-Torbett admitted, while under oath, the truth of the statement of facts presented at the sentencing hearing.

Co-defendant Brannon was tried to a jury and convicted on Counts One through Fourteen, Sixteen, and Eighteen through Twenty-One. He was sentenced to ninety-seven months.

Before her trial, Blair-Torbett filed a notice of intent to plead guilty and entered a plea of guilty to Counts One and Fourteen of the indictment. There was no written plea agreement, but the United States indicated that after she was sentenced on Counts One and Fourteen, Counts Two through Thirteen and Counts Fifteen through Twenty-One would be dismissed.

[485]*485Prior to the guilty plea hearing, the United States had filed a written document entitled “Factual Basis for Plea of Dianna Blair-Torbett,” which provides:

If this case were to go to trial, the proof would show that the defendant, Dianna Blair-Torbett, devised and intended to devise a scheme to defraud investors from beginning at least as early as June 5, 1997, and continuing until on or about July 26, 2002. The defendant operated through various entities, including McMinn Consultants, Ltd.; Asset Management Associates; International Ventures, Ltd.; Capitol Reserve Society; and International Ventures Associates. The defendant conducted business from her residence in Etowah, Tennessee, which is within the Eastern District of Tennessee.
The substance of the scheme was that the defendant would falsely represent to potential investors that, among other things, her entities would double or triple the investor’s money within a short period of time, typically six months, and that the investment would receive a 24% annual interest payment. Moreover, the defendant claimed that the investments would be “secured” and “collateralized” by “gold concentrate” located in vaults maintained on the premises of West Texas Metals in El Paso, Texas. The defendant purported to require a minimum investment of $50,000.
Beginning on or about June 5, 1997, the defendant participated in the scheme with William Devers Brannon, a sometime resident of Knoxville, Tennessee, and the owner and operator of West Texas Metals located in El Paso, Texas. Ms. Blair-Torbett entered into a number of contracts with the defendant, one of which they executed in June 1997, that required her to pay $1,200,000,000 per year as minimum payment for a term of five years. Ms. Blair-Torbett agreed to act as the financing arm of West Texas Metals and Brannon.
Thereafter, during the period August to November 1997, the defendant Bran-non, d.b.a. Golden West Estates, purchased magnetite from Cobra Mining Company in New Mexico. The magnetite cost $20 a ton. McMinn Consultants, using investor money, purchased the magnetite and it was shipped to West Texas Metals in El Paso and placed in vaults also paid for by McMinn Consultants with investor funds. This magnetite was described by both the defendants, Brannon and Blair-Torbett, as being “gold concentrate.” Investors were advised that their investments were backed by this gold concentrate, which the defendant Brannon valued in the millions of dollars. Defendant Bran-non also claimed that the West Texas Metals property contained gold with an “estimated in ground value per appraisal of $45,513,000.”
Numerous investors fell victim to this scheme. In particular, Dr. Jerry Tuggle invested $50,000 on or about April 23, 1998 by sending check number 0224 from the State of Alabama to the State of Tennessee. In addition, another investor, the St. Paul’s Community Baptist Church, located in Brooklyn, New York, invested hundreds of thousands of dollars with the defendant. On or about January 28, 1999, the St. Paul’s Community Baptist Church issued check number 111 in the amount of $301,000 payable to McMinn Consultants, which check was transported across state lines from the State of New York to McMinn Consultants in the Eastern District of Tennessee.

At the hearing, the following exchange occurred:

[486]*486DEFENSE COUNSEL: We-would offer a couple of corrections, or clarifications, if you will. And the first one would be, in the first sentence of the document, that says — that begins, “If this case were to go to trial,” the dates that are alleged in this state that the fraudulent behavior began beginning at least as early as June 5th 1997 and continuing until on or about July 26th, 2002. And we would suggest that that later date of July 26th 2002, is more possibly until July 26th, 2002(sic).
The second correction or comment that we would make would be in the first paragraph on Page 2, and it would be the second sentence of that paragraph, that begins that “Ms. Blair Torbett entered into a number of contracts with the defendant,” and that would be the defendant Mr. Brannon, “one of which they executed in June 1997, that required her to pay $1,000,200,000 per year.” We would—

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Bluebook (online)
230 F. App'x 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-blair-torbett-ca6-2007.