United States v. Eugene Bilal Anderson

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 19, 2024
• Docket: 23-1127
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0026n.06

Case No. 23-1127

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jan 19, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff - Appellee, ) ON APPEAL FROM THE UNITED ) v. STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF ) EUGENE BILAL ANDERSON, MICHIGAN ) Defendant - Appellant. ) OPINION )

Before: GIBBONS, WHITE, and THAPAR, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Eugene Anderson appeals his fifty-one-month

sentence for counterfeiting United States currency. For the reasons that follow, we affirm.

I.

In March 2021, a federal grand jury returned an indictment charging Anderson with

conspiracy to make and pass counterfeit U.S. currency (Count 1); making counterfeit U.S. currency

(Count 2); and passing counterfeit U.S. currency (Count 3). According to the indictment,

Anderson used several printers, a scanner and a paper cutter to alter legitimate federal reserve notes

so that the bills displayed higher face values. Anderson and his co-defendants then passed the

counterfeit bills at numerous businesses in Southwest Michigan, obtaining “genuine United States

currency and other things of value” in exchange. DE 1, Indictment, Page ID 2. In an interview

following his arrest, Anderson admitted that he had been counterfeiting currency for about two

years. No. 23-1127, United States v. Anderson

At his arraignment, Anderson pled not guilty, and the magistrate judge released him on a

$20,000 appearance bond. As a condition of pretrial release, the magistrate ordered that Anderson

reside at a community correction facility and submit to drug testing and treatment. Roughly two

months after his placement at the assigned facility, Anderson submitted a positive drug test. And

the following day, he absconded. A warrant for Anderson’s arrest then issued, but Anderson

remained missing for the next fourteen months. Finally, in August 2022, police re-apprehended

Anderson while responding to a report of customers attempting to use counterfeit bills at a

McDonald’s restaurant. Shortly after his arrest, Anderson pled guilty to the three-count

indictment.

In advance of sentencing, the United States Probation Office prepared a presentence report.

Two elements of that report provide the backdrop to Anderson’s appeal. First, based on

Anderson’s flight from pretrial supervision, Anderson’s offense level computation (a) included a

two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 and (b) did not include a

two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Second, based on a

term of probation connected with a 2015 check forgery conviction, Anderson’s criminal history

score included a two-point enhancement — pursuant to U.S.S.G. § 4A1.1(d) — for committing

the instant offenses “while under a criminal justice sentence.” DE 130, Presentence Report, Page

ID 669.

At sentencing, Anderson objected only to the probation officer’s failure to credit him for

acceptance of responsibility. After hearing argument from both parties, the district court overruled

the objection. Accepting the probation officer’s calculation of a total offense level of 15 and a

criminal history category of VI, the court then sentenced Anderson to a top-of-the-range sentence

of 51 months’ imprisonment. This appeal timely followed.

-2- No. 23-1127, United States v. Anderson

II.

Anderson challenges the district court’s sentence on two grounds, which we discuss in turn.

A.

Anderson first argues that the district court erred in denying him credit for acceptance of

responsibility because he pled guilty, participated in the presentence interview, and expressed

remorse for his crimes. Before addressing the merits of this argument, we note that the applicable

standard of review in this context remains unsettled. See United States v. Thomas, 933 F.3d 605,

611–12 (6th Cir. 2019) (compiling conflicting cases); see also United States v. Guerrero, 76 F.4th

519, 531 (6th Cir. 2023) (“[T]he standard of review for [appeals from the denial of a reduction

under § 3E1.1] is not entirely clear.”); United States v. Cadieux, 846 F. App’x 389, 392 (6th Cir.

2021) (noting the absence of “clear consensus . . . about what standard of review applies in appeals

challenging the application of [§ 3E1.1]”). Nevertheless, because Anderson’s objection fails even

under de novo review, we, like several panels before us, defer resolution of this open question to

a later date. See, e.g., Cadieux, 846 F. App’x at 392 (“Because Cadieux’s arguments fail even

under de novo review (the most favorable standard to him), we ‘leave resolution of the standard

of review for another day.’”) (quoting Thomas, 933 F.3d at 610). Thus, we turn to the merits.

The Sentencing Guidelines provide for a reduction in a defendant’s offense level “[i]f the

defendant clearly demonstrates acceptance of responsibility for his offense[.]” U.S.S.G.

§ 3E1.1(a). And when a defendant pleads guilty and admits the conduct comprising the offense

of conviction, he provides “significant evidence of acceptance of responsibility.” U.S.S.G. § 3E1.1

cmt. n.3. But this does not mean that a defendant who pleads guilty is “entitled to an [acceptance

of responsibility] adjustment . . . as a matter of right.” Id. Instead, the Guidelines commentary

provides district courts with a variety of relevant factors to weigh, including the voluntariness of

-3- No. 23-1127, United States v. Anderson

the defendant’s withdrawal from criminal conduct, the timeliness of his acceptance of

responsibility, and the consistency — or inconsistency — of his conduct with his professed

acceptance of responsibility. U.S.S.G. § 3E1.1 cmt. nn. 1(b), 1(h) and 3. And of particular

relevance here, conduct which justifies application of a § 3C1.1 enhancement for obstruction of

justice “ordinarily indicates that the defendant has not accepted responsibility for his criminal

conduct.” U.S.S.G. § 3E1.1 cmt. n.4. For “[o]nly in an ‘extraordinary’ case may a defendant

receive both an offense-level increase for obstruction and an offense-level decrease for acceptance

of responsibility.” Thomas, 933 F.3d at 612 (quoting § 3E1.1 cmt. n.4).

Anderson contends that his conduct represents one such extraordinary case. Specifically,

Anderson highlights that after his re-arrest, he “[pled] guilty to all charges,” “was totally

forthcoming in terms of his involvement in the offense conduct,” and “expressed sincere remorse.”

CA6 R. 14, Appellant Br., at 10. Anderson also draws a parallel between his conduct and that of

the defendant in United States v. Gregory, 315 F.3d 637 (6th Cir. 2003), who this court held was

entitled to credit for acceptance of responsibility, despite his attempt to shield his co-defendant

from prosecution by instructing her not to cooperate with law enforcement. Id. at 640–41. Like

Gregory, Anderson argues that he too “abandoned his attempt to obstruct justice and made a great

effort to accept responsibility,” entitling him to a two-level reduction under § 3E1.1(a). CA6 R.

14, Appellant Br., at 12.

We find Anderson’s contentions meritless, for several reasons. First, neither the timeliness

nor voluntariness of Anderson’s acceptance of responsibility supports application of the § 3E1.1(a)

reduction. After his failed drug test and flight from pretrial supervision, Anderson remained a

fugitive from justice for over fourteen months. On any one of the 428 days he spent at large,

Anderson could have turned himself in and willingly accepted responsibility for his actions. But

-4- No. 23-1127, United States v. Anderson

Anderson did not do so, choosing to instead force law enforcement to catch him. And even at that

juncture, when police had found him and his re-apprehension was all but guaranteed, Anderson

continued to skirt responsibility by providing arresting officers with a false name and date of birth.

Moreover, at the time of his arrest, Anderson was again in possession of counterfeit currency.

These actions are patently inconsistent with acceptance of responsibility, and they reflect an

unavoidable truth: Anderson did not voluntarily own up to his actions; he merely ran out of

options. See United States v. Starks, 64 F. App’x 501, 502 (6th Cir. 2003) (denying credit for

acceptance of responsibility where defendant absconded from pretrial detention for nine months.)

On top of this, Anderson fails to demonstrate that any of his post-arrest conduct renders his

case “extraordinary.” U.S.S.G. § 3E1.1 cmt. n.4. “To qualify as an extraordinary circumstance, a

defendant must do something more than merely plead guilty following his obstruction of justice.”

Starks, 64 F. App’x at 502; see also United States v. Harper, 246 F.3d 520, 528 (6th Cir. 2001)

(“[I]t is the ordinary case in which a defendant pleads guilty after his attempts to obstruct justice

are thwarted.”), overruled on other grounds by United States v. Leachman, 309 F.3d 377 (6th Cir.

2002). Here, the only evidence of “extraordinary” conduct that Anderson musters is his guilty

plea, his participation in the presentence investigation process, and his expressions of remorse.

These acts, though praiseworthy, constitute an entirely ordinary course of conduct for those faced

with a criminal indictment. Had Anderson quickly turned himself in after his escape, his

immediate change of heart might have provided grounds for deeming his actions “extraordinary.”

See Harper, 246 F.3d at 528 (“For example, if a defendant awaiting trial escapes from custody but

then immediately turns himself into authorities, this could constitute an ‘extraordinary’ case in

which a defendant accepts responsibility subsequent to an attempt to obstruct justice.”). But

Anderson chose a different path. His guilty plea and expressions of remorse demonstrate little

-5- No. 23-1127, United States v. Anderson

more than resignation to the failure of his attempted obstruction, and they fall well short of

extraordinary. Id.

Finally, Anderson’s reliance on our decision in Gregory is misplaced. There, Kenneth

Gregory, a prisoner at Federal Correctional Institute, Memphis, enlisted his sister’s help smuggling

drugs into prison. Gregory, 315 F.3d at 639. Prison officials quickly foiled the scheme, and when

interviewed by federal investigators, Gregory admitted his culpability and agreed to cooperate in

their investigation. Id. Hoping to keep his accomplice out of trouble, however, Gregory later sent

his sister a letter advising her not to cooperate with law enforcement and suggesting innocent

explanations that she could use to defend her conduct. Id. But on the very same day that he sent

the letter, Gregory reversed course. Id. During an interview with federal investigators, Gregory

called his sister, encouraged her to cooperate in the investigation, and put her on the phone with

the federal agent who was interviewing him. Id.

Despite his attempted obstruction, for which Gregory received a two-level enhancement

under U.S.S.G. § 3C1.1, a panel of this court found that Gregory was entitled to credit for

acceptance of responsibility as well. Gregory, 315 F.3d at 640–41. The court analogized

Gregory’s actions to those of the defendant in United States v. Williams, 176 F.3d 301 (6th Cir.

1999), who received a downward adjustment under § 3E1.1 after he “recanted his trial testimony

and moved to withdraw his plea agreement, subjecting the court to a hearing on the issue, before

restating his original position and accepting responsibility.” Id. at 641 (quoting Williams, 176 F.3d

at 311). And the court observed that not only had Gregory “never denied his own responsibility

and guilt,” but further that “[a]ll of [Gregory’s] obstructive conduct [had] predated his indictment.”

Id. Given these “extraordinary” circumstances, the court remanded Gregory’s case for

-6- No. 23-1127, United States v. Anderson

resentencing with instructions to downwardly adjust his offense level for acceptance of

responsibility. Id. at 644.

The circumstances surrounding Anderson’s ultimate admission of guilt contrast markedly

with the facts this court confronted in Gregory. Notwithstanding his inculpatory statements to

police during his first arrest, Anderson initially denied his own responsibility and guilt by pleading

not guilty. And unlike Gregory, most of Anderson’s obstructive conduct postdated his indictment.

Furthermore, Anderson’s obstructive conduct lasted well over a year, while Gregory managed to

nullify his attempted obstruction within a matter of hours. Finally, and perhaps most importantly,

Gregory voluntarily reversed his attempted obstruction, while Anderson surrendered to law

enforcement only when left with no other option. Anderson no doubt had the opportunity to

demonstrate the same extraordinary conduct that Gregory exhibited, but he chose not to.

Accordingly, the district court did not err in denying him credit for acceptance of responsibility

under § 3E1.1.

B.

Anderson next objects to the calculation of his criminal history score, challenging the

district court’s conclusion that his offense conduct overlapped with his probationary period for a

prior conviction. Because Anderson failed to raise this objection before the district court, we

review his criminal history scoring for plain error. United States v. Vonner, 516 F.3d 382, 385

(6th Cir. 2008) (en banc). To meet this burden, Anderson must show that the district court’s

calculation constituted (1) an error, (2) that is obvious and clear, (3) that affected his substantial

rights, and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.

United States v. Prater, 766 F.3d 501, 518 (6th Cir. 2014). We find that Anderson fails to make

such a showing.

-7- No. 23-1127, United States v. Anderson

The Sentencing Guidelines instruct the district courts to add two points to a defendant’s

criminal history score “if the defendant committed the instant offense while under any criminal

justice sentence, including probation.” U.S.S.G. § 4A1.1(d).1 The parties agree that Anderson

completed the term of probation connected with his 2015 check forgery conviction in June 2019.

They disagree, however, as to when Anderson’s offense conduct in the instant case began. Citing

the indictment and the government’s factual recitation at his change-of-plea hearing, Anderson

contends that he pled guilty to “conduct occurring between September 28, 2019, and January 20,

2020,” thus ruling out any overlap with his term of probation. CA6 R. 14, Appellant Br., at 14.

The government, on the other hand, contends that Anderson’s offense conduct includes all

“relevant conduct” as defined by U.S.S.G. § 1B1.3, which would capture both (1) the 2018 and

2019 counterfeiting that Anderson admitted to when initially arrested and (2) Anderson’s

production and use of a counterfeit bill at a CVS in March 2019. We find that the government’s

position represents the correct application of the Sentencing Guidelines.

The application notes to § 4A1.1(d) state that the provision’s two-point increase applies “if

the defendant committed any part of the instant offense (i.e., any relevant conduct) while under

any criminal justice sentence.” U.S.S.G. § 4A1.1(d) cmt. n.4 (emphasis added).2 In this case, the

1 Note that the district court sentenced Anderson under the 2021 version of the Sentencing Guidelines, so we reference and cite to the 2021 version in this opinion. The provision discussed herein, § 4A1.1(d) in the 2021 version, is now codified in the 2023 Sentencing Guidelines at § 4A1.1(e). 2 The government raises (and dismisses) the possibility that application note 4 impermissibly expands § 4A1.1(d)’s scope, as would run contrary to Kisor v. Wilkie, 139 S. Ct. 2400 (2019). But Anderson makes no such argument. See Georgia-Pac. Consumer Prods. LP v. NCR Corp., 40 F.4th 481, 483 (6th Cir. 2022) (“Generally, an argument not raised in an appellate brief or at oral argument is forfeited[.]”). And even he did, his burden under plain error review would be to point to “binding case law that answers the question” in his favor. Bullard v. United States, 937 F.3d 654, 663 (6th Cir. 2019) (quoting United States v. Al-Maliki, 787 F.3d 784, 795 (6th Cir. 2015)). Of course, he has not done this either. Accordingly, we leave discussion of the propriety -8- No. 23-1127, United States v. Anderson

three counts to which Anderson pled guilty were grouped under § 3D1.2(d). Under § 1B1.3(a)(2),

therefore, Anderson’s “relevant conduct” includes “all acts and omissions [that he] committed,

aided, abetted, counseled, commanded, induced, procured, or willfully caused,” § 1B1.3(a)(1)(A),

and which involved “the same course of conduct or common scheme or plan as the offense of

conviction.” § 1B1.3(a)(2). Anderson’s counterfeiting activities prior to June 2019 constituted

“the same course of conduct” as his late 2019 and early 2020 counterfeiting if the two were

“sufficiently connected or related to each other as to warrant the conclusion that they [were] part

of a single episode, spree, or ongoing series of offenses.” § 1B1.3(a)(2) cmt. n.5(B)(ii).

Alternatively, Anderson’s prior counterfeiting made up a “common scheme or plan” with his later

counterfeiting if the two were “substantially connected to each other by at least one common factor,

such as common victims, common accomplices, common purpose, or similar modus operandi.”

§ 1B1.3(a)(2) cmt. n.5(B)(i).

Applying the foregoing Guideline provisions and interpretive comments, we conclude that

Anderson committed part of the instant offense while on probation for his 2015 conviction.

Anderson’s earlier counterfeiting activities involved common accomplices (his co-defendants), a

common purpose (the acquisition of cash and valuable items), and an identical modus operandi

(passing counterfeit bills at local businesses). § 1B1.3(a)(2) cmt. n.5(B)(i). These uncharged

offenses of making and passing counterfeit currency thus made up a common scheme or plan with

the conduct for which Anderson was in fact charged, and they therefore constitute relevant conduct

under the Guidelines. § 1B1.3(a)(2). Because this relevant conduct occurred before June 2019

(i.e., while Anderson was serving a probationary sentence), the district court properly concluded

of application note 4’s interpretation of § 4A1.1(d) (now application note 5’s interpretation of § 4A1.1(e)) for another day. -9- No. 23-1127, United States v. Anderson

that Anderson was subject to a two-point increase in his criminal history score under § 4A1.1(d).

The district court therefore did not plainly err.

III.

For the foregoing reasons, we affirm Anderson’s sentence.

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