United States v. Fowler

222 F. App'x 738
Court of Appeals for the Tenth Circuit·Decided March 19, 2007·No. Nos. 06-5158, 06-5161·Published

Opinion

ORDER AND JUDGMENT*

WADE BRORBY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this [740] appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Defendant Lavinia Rose Fowler appeals her sentences stemming from two separate district court proceedings, which we consolidate on appeal. In one criminal appeal, Number 06-5161, Ms. Fowler appeals her sentence following her guilty plea to one count of bank fraud and aiding and abetting a criminal in violation of 18 U.S.C. § 1344(1) and (2), and two counts of making and possessing counterfeit securities of organizations in violation of 18 U.S.C. § 513(a). She contends the district court unreasonably imposed the maximum sentencing range, under the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), in sentencing her to forty-one months imprisonment. In another criminal appeal, Number 06-5158, Ms. Fowler appeals her sentence following revocation of her supervised release, similarly claiming the district court unreasonably imposed the maximum Guidelines range in sentencing her to fourteen months imprisonment. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm Ms. Fowler’s sentences.

I. Appeal No. 06-5161

A. Factual and Procedural Background Regarding 41-Month Sentence

The undisputed relevant facts are as follows. On November 13, 2005, Elizabeth Kantor, together with Ms. Fowler, rented a hotel room in Tulsa, Oklahoma, which they intended to use until December 13, 2005, for the purpose of preparing counterfeit checks. On November 17, 2005, Ms. Fowler and Ms. Kantor presented a counterfeit check, created by Ms. Fowler and made payable to “Lavinia B. Fowler” in the amount of $5,122.12, for deposit into Ms. Kantor’s bank account at a branch facility of her bank. Ms. Kantor endorsed the check and gave it and a deposit slip to the bank teller, who credited the check to Ms. Kantor’s account. Less than an hour later, Ms. Kantor and Ms. Fowler went to another branch facility of the same bank and presented a counter-check for $3,822.00 made payable to Ms. Kantor. After receiving cash for the check, Ms. Kantor and Ms. Fowler divided the money equally and spent it on personal expenses.

On November 18, 2005, the manager of the hotel asked the police to remove two men from the room rented by Ms. Kantor and Ms. Fowler. Before the police arrived, Ms. Kantor and Ms. Fowler fled the room, failing to pay the hotel bill. When the police searched the room, they found the following items: twenty completed counterfeit checks totaling $11,074.11; a loaded .25 caliber handgun; a Citibank Master Card; blank counterfeit checks; checks made out to “Charlie Moore”; computer equipment; a plastic laminating device; a computer disk containing images of men; and thirty-eight counterfeit identification cards from multiple states in various names.

After leaving the hotel, Ms. Kantor contacted authorities and falsely reported Ms. Fowler stole her car. On November 26, 2005, police received information from a confidential informant that Ms. Fowler was staying with two men at another hotel in Tulsa, Oklahoma. After the police knocked on her hotel door, a man with a syringe in his shirt pocket answered. After Ms. Fowler and the other man came to the door to speak to the officers, she consented to a search of the room, where police found a computer, scanner, and printer; 2.5 grams of methamphetamine; twenty-one completed counterfeit checks totaling $13,518.35; Ms. Kantor’s checkbook; and materials on how to make fraudulent identification cards. An additional counterfeit check in the amount of [741] $469.00 was found in Ms. Kantor’s vehicle located outside of Ms. Fowler’s hotel. Ms. Fowler admitted to police she paid for the hotel room with two fraudulent checks, identified other checks she fraudulently created, and provided the password to the computer found in her hotel room.

Ms. Fowler pled guilty to one count of bank fraud and aiding and abetting a criminal in violation of 18 U.S.C. § 1344(1) and (2) and two counts of making and possessing counterfeit securities of organizations in violation of 18 U.S.C. § 513(a). After her guilty plea, a probation officer prepared a presentence report in which he determined her base offense level was seven under U.S.S.G. § 2B1.1, but because she possessed a device-making machine, her offense level increased by two levels. In addition, under § 2B1.1(b)(1)(D), which provides for a six-level offense increase if the loss caused by the conduct is more than $30,000 and less than $70,000, the probation officer increased Ms. Fowler’s offense level by six levels based on his determination the actual and intended loss resulting from her conduct amounted to $31,450.14. However, he subtracted two offense levels under § 3E1.1(a) for Ms. Fowler’s acceptance of responsibility, resulting in a total base offense level of thirteen.

In calculating Ms. Fowler’s criminal history, the probation officer noted her criminal history points totaled twenty-four, but because she was serving a suspended sentence during her conduct in the instant offense, he added two more points. In addition, because the instant offense was committed less than two years following her release from custody on the prior case, he added one point, for a total of twenty-seven criminal history points and a criminal history category of VI. Calculating Ms. Fowler’s total offense level of thirteen, together with a criminal history category of VI, resulted in a Guidelines range of thirty-three to forty-one months imprisonment. Ms. Fowler did not object to the presentence report prior to or at the sentencing hearing.

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