United States v. Brown

279 F. App'x 63
Procedural entryThis page is a short order in United States v. Brown. Read the opinion of the Court — 514 F.3d 256
Court of Appeals for the Second Circuit·Decided May 27, 2008·No. Nos. 06-2233-cr, 06-5029-cr·Published

Opinion

SUMMARY ORDER

This case involves an appeal by Defendantr-Appellant Curlene Reid, in part counseled, and in part pro se, and a motion by Defendant-Appellant Paul Creary’s counsel to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We address Defendant Creary’s counsel’s An^ers motion in a separate order, where we DEFER the motion and ORDER addition-al briefing; furthermore, pursuant to that order, Defendant Paul Creary’s appeal is unconsolidated from the appeal of Defendant Curlene Reid. We therefore limit our analysis below to the merits of Defendant Reid’s appeal.

In January 2006; a jury convicted Reid of the crime charged in her indictment: one count of conspiracy to produce and transfer false identification documents, in violation of 18 U.S.C. § 1028(a)(1), (a)(2), and (f). Prior to sentencing, the United States Probation Officer prepared a Pre[65]*65Sentence Report (“PSR”) which determined that Reid’s guideline sentence should be determined by using a base offense level of 11 pursuant to U.S.S.G. § 2L2.1(a), an enhancement of nine levels because the conspiracy involved more than 100 documents, pursuant to § 2L2.1(b)(2)(C), and a Criminal History Category of I. Relying on these determinations, the PSR calculated a guideline range of 33 to 41 months’ imprisonment, and recommended a sentence of 33 months’ imprisonment. Defendant-Appellant Reid objected to certain factual findings and guideline calculations in the PSR and sought downward adjustments and departures. We assume the parties’ familiarity with the remaining facts,_ proceedings below, and specification of issues on appeal,

Defendant Reid first argues that the district court erred in refusing to give her a two-level reduction in her offense level under U.S.S.G § 3B1.2(b). “[W]e are mindful that a sentencing court’s assessment of the defendant’s role in criminal activity is highly fact-specific and depends upon the nature of the defendant’s relationship to other participants, the importance of the defendant’s actions to the success of the venture, and the defendant’s awareness of the nature and scope of the criminal enterprise.” United States v. Carpenter, 252 F.3d 230, 234 (2d Cir.2001)(internal quotation marks and citation omitted). Furthermore, “[t]he defendant bears the burden of establishing by a preponderance of the evidence that he is entitled to a mitigating role adjustment under section 3B1.2 of the Sentencing Guidelines.” Id. We have said that “[a] reduction [pursuant to U.S.S.G. § 3B1.2] will not be available simply because the defendant played a lesser role than his co-conspirators; to be eligible for a reduction, the defendant’s conduct must be ‘minor’ or ‘minimal’ as compared to the average participant in such a crime.” United States v. Rahman, 189 F.3d 88, 159 (2d Cir.1999) (per curiam),

“As to facts disputed in connection with sentencing, the court is required to make findings sufficient to permit appellate review.” United States v. Thompson, 76 F.3d 442, 456 (2d Cir.1996); see also United States v. LaValley, 999 F.2d 663, 666 (2d Cir.1993). “It is sufficient for these purposes if the court indicates, either at the sentencing hearing or in the bitten judgment, that it is adopting the recommendations in the PSR.” Thompson, 76 F.3d at 456. Here, the district court stated in its bitten Statement of Reasons for the sentence that it was adopting the factual fí^gs of the PSR with one change not relevant on appeal. Because the findings of the PSR were sufficient to support the district court’s decision to deny Reid’s request for a minor role adjustment, Carpenter, 252 F.3d at 235, we deny Reid’s challenge to the district court’s decision not to grant her a two-level reduction for her role in the offense,

Defendant next argues that the district court erred “ enhancing her base offense level by nine levels 011 the grounds that she was accountable for 100 or more fraudulent documents. See U.S.S.G. § 2L2.1(b)(2)(C). “The government must prove and the district court must find a fact relevant to sentencing by a preponderanee of the evidence.” United States v. Proshin, 438 F.3d 235, 238 (2d Cir.2006) (per curiam). We review a district court’s factual findings that an offense involved a certain number of documents for clear error. Id. “It is ... well established that this Court requires a district court to make two particularized findings before a defendant may be held accountable for his co-conspirators’ acts[:] ... 1) that the acts were within the scope of the defendant’s agreement and 2) that they were foresee[66]*66able to the defendant.” United States v. Johnson, 378 F.3d 230, 238 (2d Cir.2004) (emphasis added) (internal citation and quotation omitted). It is important to note ¿i. a « j * j a» i i j £ that a defendant s knowledge of another ... ,, ..... , , , participant s criminal acts is not enough to hold the defendant responsible for those acts” and “the fact that the defendant is aware of the scope of the overall operation is not enough to hold him accountable for the activities of the whole operation. The relevant inquiry is what role the defendant agreed to play in the operation, either by an explicit agreement or implicitly by his conduct.” United States v. Studley, 47 F 3d 569 575 (2d Cir.1995)

Where the sentencing judge does not clearly resolve the factual dispute, we must remand for further findings. See United States v. Reed, 49 F.3d 895, 901 (2d Cir.1995). Here, the district court did not make particularized findings at the sentencing hearing as to either the scope of the criminal activity agreed to by Reid or that the conduct by Reid’s co-conspirators was reasonably foreseeable to Reid; the district court’s Statements of Reasons, however, did state that it was adopting the factual findings of the PSR. Nonetheless, the factual findings of the PSR are insufficient to satisfy the district court’s obligation to make particularized findings with respect to relevant conduct: the PSR does not make any such particularized findings but rather assumes the Government’s position that Reid should be held accountable for the distribution of 100 or more documents, without providing additional evidence to support this assertion, and without providing the necessary two-step analysis outlined above. This is not sufficient to meet our requirements for particularized findings under United States v. Johnson; we therefore must remand Reid’s sentence to the district court so that it can make particularized findings as to whether Reid should be held accountable for 100 or more fraudulent documents.

Finally, Reid argues that her sen- •” tence is unreasonable and excessively long, b We review Guidelines and ^-Guidelines saentences !or reasonableness. See United States v. Fernandez

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