United States v. Elias

107 F. App'x 634
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 25, 2004
DocketNo. 03-5028
StatusPublished
Cited by10 cases

This text of 107 F. App'x 634 (United States v. Elias) 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. Elias, 107 F. App'x 634 (6th Cir. 2004).

Opinion

GIBBONS, Circuit Judge.

Fernando Elias was recruited into a check cashing operation, in which Elias and others were provided with fraudulent identification and counterfeit checks to cash at various banks in Louisville, Kentucky. After negotiating the forged checks, Elias turned over the acquired cash to his recruiter, who then paid him for his service. Elias was charged with two counts of bank fraud in the United States District Court for the Western District of Kentucky. He pled guilty to both counts and was sentenced to twenty-four months imprisonment. For the purpose of sentencing Elias, the district court calculated the amount of loss as the total amount of counterfeit checks that Elias and his team members (who cashed checks at the same time and location as Elias) negotiated. On appeal, Elias claims that the district court should have attributed to him only the counterfeit checks that he personally cashed. Elias also contends that the district court should have applied a mitigating role adjustment and reduced his offense level during sentencing. For the reasons set forth below, we affirm the decision of the district court.

I.

Around June 2000, Elias was recruited in Los Angeles, California, to participate in a scheme to pass counterfeit checks.1 His recruiter, a man named “John,” arranged for Elias and other “team members”— Michael Nelson and Du Huynh — to travel [636]*636to Louisville, Kentucky, where they would cash forged checks at various local banks. John not only arranged for the team’s transportation and lodging, but he also supervised them during the operation. In Louisville, John delivered the team, which included Elias, to target banks, provided them with counterfeit checks and accompanying false identification, and instructed them to cash the checks provided. All team members entered a particular bank at the same time. John instructed the team that they were to exit the bank if the transaction lasted longer than five minutes or if bank employees seemed to become suspicious. After the team members succeeded in cashing the counterfeit checks, they handed over the proceeds to John. John then paid Nelson, Huynh, and Elias around $200 to $250 for each check negotiated.

Elias and his team executed the Louisville scheme beginning in December 2000. On December 13 and 14, 2000, Elias, Nelson, and Huynh cashed counterfeit checks — -totaling $37,948.61 — at PNC Bank branches in Louisville. On January 12, 2001, the scheme continued when Elias and Huynh cashed another series of fraudulent payroll checks at various Bank One branches in Louisville. The checks negotiated by Elias and Huynh on that day totaled $14,345.31. Therefore, the total amount acquired during the Louisville operation, in which Elias was a participant, was $52,293.92.

On July 1, 2002, Elias was charged with two counts of bank fraud, in violation of 18 U.S.C. § 1344, in the U.S. District Court for the Western District of Kentucky. He entered into a plea agreement pursuant to Fed.R.Crim.P. 11 as to both counts and was sentenced by the district court to a term of twenty-four months in prison on each of the two counts, to be served concurrently, and a five year term of supervised release. Elias was also ordered to pay a $200 assessment and $18,307.55 in restitution. In determining Elias’s sentence, the court concluded that the amount of the loss was $52,293.92. Elias filed a timely notice of appeal of the district court’s judgment.

II.

Elias argues that in calculating his offense level, the district court improperly ascribed to him losses resulting from forged checks cashed by his co-participants, Nelson and Huynh. He claims that the district court should have only considered losses of approximately $18,000 from the counterfeit checks that he personally negotiated. The United States Sentencing Guidelines provide that relevant conduct, which is used to determine the applicable guideline range, includes

in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.

U.S.S.G. § lB1.3(a)(l)(B). The district court found that Elias had engaged in jointly undertaken criminal activity because he was “not acting on his own” but instead was part of a group that traveled to Louisville and together cashed counterfeit checks. As a result, the district court considered the combined losses of Elias and his group in Louisville — $52,293.92—in calculating Elias’s offense level. The Sentencing Guidelines provide that for offenses involving counterfeit instruments, [637]*637the base offense level is six with an increase of six levels if the loss was greater than $30,000, but no more than $70,000. U.S.S.G. § 2Bl.l(a)(2) & (b)(1)(D). Elias challenges the application of this six level increase to him because his own conduct resulted in a loss of approximately $18,000.

This court reviews the district court’s interpretation of the Sentencing Guidelines de novo, while findings of fact made during sentencing are reviewed for clear error. United States v. Canestraro, 282 F.3d 427, 431 (6th Cir.2002). Therefore, we review a district court’s “finding that the criminal acts of others in a jointly undertaken criminal activity are reasonably foreseeable and in furtherance of the jointly undertaken criminal activity” for clear error. United States v. Tocco, 306 F.3d 279, 284 (6th Cir.2002) (citing Canestraro, 282 F.3d at 433; United States v. Hamilton, 263 F.3d 645, 654 (6th Cir.2001)). “A finding is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting United States v. Charles, 138 F.3d 257, 262 (6th Cir.1998)).

For a defendant to be held accountable for the conduct of others through jointly undertaken criminal activity, “(1) the conduct must be in furtherance of the jointly undertaken criminal activity; and (2) the conduct must be reasonably foreseeable in connection with that criminal activity.” United States v. Campbell, 279 F.3d 392, 399 (6th Cir.2002) (citing U.S.S.G. § 1B1.3, cmt. n. 2). Application Note Two of U.S.S.G. § 1B1.3, which provides this test, also states that:

In order to determine the defendant’s accountability for the conduct of others under [U.S.S.G.

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

Related

United States v. David Donadeo
910 F.3d 886 (Sixth Circuit, 2018)
United States v. Wilfred Griffith
663 F. App'x 446 (Sixth Circuit, 2016)
United States v. Keelan Harris
636 F. App'x 922 (Sixth Circuit, 2016)
United States v. Jimmy Valentine
553 F. App'x 591 (Sixth Circuit, 2014)
United States v. Deonte Sullins
529 F. App'x 584 (Sixth Circuit, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
107 F. App'x 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-elias-ca6-2004.