United States v. Charles Robinson Berry

258 F.3d 971, 2001 Cal. Daily Op. Serv. 6571, 2001 Daily Journal DAR 8053, 2001 U.S. App. LEXIS 17167, 2001 WL 868276
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 2, 2001
Docket00-30222
StatusPublished
Cited by91 cases

This text of 258 F.3d 971 (United States v. Charles Robinson Berry) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Charles Robinson Berry, 258 F.3d 971, 2001 Cal. Daily Op. Serv. 6571, 2001 Daily Journal DAR 8053, 2001 U.S. App. LEXIS 17167, 2001 WL 868276 (9th Cir. 2001).

Opinion

TROTT, Circuit Judge:

Defendant Charles Robinson Berry appeals his thirty-month sentence for possession of stolen mail in violation of 18 U.S.C. §§ 1708 and 2. Berry challenges the district court’s finding that he was an organizer or leader for purposes of United States Sentencing Guidelines § 3Bl.l(a) (“U.S.S.G. § 3Bl.l(a)”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and AFFIRM the sentence imposed by the district court.

I

Background

On December 20, 1999, a Washington State Patrol trooper conducted a routine traffic stop after observing Berry “burning rubber” and speeding. The officer learned that Berry was driving with a suspended driver’s license and placed him under arrest. A search of Berry’s vehicle incident to his arrest revealed numerous pieces of stolen mail around the driver’s seat. Berry told the officer that the car and the mail inside it belonged to Michael Froman. Berry was apparently released from police custody without further inquiry into the stolen mail.

Nine days later, a King County Sheriff deputy investigating a report that stolen mail had been found on rural property observed two men standing by a vehicle *974 with its hatch open. Upon seeing the deputy, the two individuals slammed the hatch closed and ran into a nearby residence. This suspicious behavior prompted the deputy to contact the owner of the residence, who informed the officer that the two men were Berry and Israel Osborne. The deputy returned to the car and saw a large quantity of mail through the hatchback window. After obtaining consent from the vehicle’s owner to search the car, the deputy recovered hundreds of pieces of stolen mail.

On January 10, 2000, Osborne was located and interviewed by King County police and postal investigators regarding the stolen mail that was recovered from the hatchback. Osborne confessed to participating with Berry and a woman named Jennifer Lockwood in the theft of mail and the negotiation of stolen checks. Osborne advised the interviewing officers that he was given stolen checks by Berry, who instructed him to deposit the checks into his personal bank account and withhold $100 in cash from each check. Osborne would then give the cash to Berry in exchange for twenty dollars and drugs. Osborne also informed the police that he had burned approximately 200 pieces of stolen mail at the instruction of Berry.

Subsequently, on January 31, 2000, Berry allegedly solicited the aid of a woman named Laureen Johnson to purchase a set of tires and rims from a Les Schwab Tire store with a stolen credit card. When Johnson attempted to use the stolen credit card, the Les Schwab employees immediately notified the police. Although Johnson was quickly apprehended, Berry successfully fled the scene upon the officers’ arrival. The police searched Johnson and found her to be in possession of Berry’s identification, a partial book of stolen checks, and five other stolen credit cards. Johnson informed the police that Berry forced her to accompany him to the tire store and use the stolen credit card because the card bore a woman’s name. Johnson stated that she aided Berry because he had assaulted her in the past when she had refused to engage in illegal activity and that she feared he would do it again. She allegedly was not to receive any compensation from Berry for her efforts. Johnson also confessed to her involvement in prior mail thefts with Berry and admitted that she had allowed him to run stolen checks through her bank account.

Berry was arrested shortly thereafter and was interviewed by police investigators. Berry admitted to stealing mail on several occasions and depositing stolen checks into his own account and to being involved in the deposit of stolen checks into the accounts of Osborne, Froman, and a homeless, mentally handicapped individual named Doug Cowin. Regarding the purchase of tires with a stolen credit card, Berry informed police that he brought Johnson with him to carry out the transaction because the card was in a woman’s name. He stated that he told Johnson that if she bought the tires with the stolen credit card, he would allow her to use the card to buy things for herself.

Froman later revealed that Berry had approached him about the possibility of running stolen checks through his personal bank account. Froman accepted Berry’s proposal and, like Osborne and Johnson, deposited stolen checks given to him by Berry into his personal account. Also paralleling the testimony of Osborne and Johnson, Froman advised the police that Berry reaped the majority of the proceeds from this criminal activity.

On February 24, 2000, a grand jury in the Western District of Washington returned a one-count indictment charging Berry, Lockwood, and Osborne with possession of stolen mail in violation of 18 *975 U.S.C. §§ 1708 and 2. Berry entered a guilty plea to this charge on April 20, 2000. The guilty plea came pursuant to a plea agreement whereby the government agreed (1) not to prosecute Berry for any other offenses previously committed in the district; (2) to recommend a downward adjustment in the offense level for acceptance of responsibility; and (3) to reserve the total loss figure for determination at sentencing.

Following the entry of Berry’s guilty plea, the court ordered the preparation of a presentencing report (“PSR”). Relying in large measure on the separate statements of his partners in crime, the PSR recommended that because Berry was the leader or organizer of criminal activity that involved five or more participants, his offense level should be increased four levels pursuant to U.S.S.G. § 3Bl.l(a). Berry entered an objection to the PSR that was supported by a personal declaration presenting facts undermining the applicability of U.S.S.G. § 3Bl.l(a). In the declaration, Berry stated that Froman, Cowin, Johnson and Osborne all solicited him to run stolen checks through their accounts. He also stated that he did not receive the majority of the money recovered from the stolen checks, but rather that the person who deposited the stolen checks into their account received between seventy and eighty percent of the recovered funds.

The sentencing hearing for Berry was held on July 7, 2000. Neither Berry nor the government requested that the court conduct an evidentiary hearing prior to sentencing. At the sentencing hearing, Berry reiterated his objection to the PSR’s recommendation that his sentence be enhanced pursuant to U.S.S.G. § 3Bl.l(a). Specifically, Berry argued that the only evidence supporting the application of the enhancement came from unreliable hearsay statements made by his co-defendants. Berry also asked the court to reduce his criminal history category from a III to a I so as to more accurately reflect the true nature of his criminal history. Expressly relying on the findings in the PSR, the district court rejected Berry’s argument regarding the applicability of U.S.S.G.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Shawn Cody
Ninth Circuit, 2024
United States v. Eric Long
Ninth Circuit, 2024
United States v. Kielan Franklin
18 F.4th 1105 (Ninth Circuit, 2021)
United States v. Padilla-Galarza
990 F.3d 60 (First Circuit, 2021)
United States v. Wei Lin
Ninth Circuit, 2020
United States v. Armando Vera
893 F.3d 689 (Ninth Circuit, 2018)
United States v. Daniel Morgan
696 F. App'x 309 (Ninth Circuit, 2017)
United States v. Larry Sept, Jr.
695 F. App'x 262 (Ninth Circuit, 2017)
United States v. Nieves-Mercado
847 F.3d 37 (First Circuit, 2017)
United States v. Jose Pena
675 F. App'x 735 (Ninth Circuit, 2017)
United States v. Juan Angulo-Cabrera
665 F. App'x 601 (Ninth Circuit, 2016)
United States v. Jesus Pimentel-Lopez
828 F.3d 1173 (Ninth Circuit, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
258 F.3d 971, 2001 Cal. Daily Op. Serv. 6571, 2001 Daily Journal DAR 8053, 2001 U.S. App. LEXIS 17167, 2001 WL 868276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-robinson-berry-ca9-2001.