F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 19, 2007 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, Nos. 06-5158; 06-5161 v. (D.Ct. Nos. 03-CR-177-001-HDC; 06-CR-065-001-HDC) LAVINIA ROSE FOW LER, (N.D. Okla.)
Defendant-Appellant. ____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
D efendant Lavinia R ose Fowler appeals her sentences stemming from two
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. separate district court proceedings, which we consolidate on appeal. In one
criminal appeal, Number 06-5161, M s. Fow ler 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, M s. Fow ler 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. W e exercise jurisdiction pursuant to 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291 and affirm M s. Fowler’s sentences.
I. Appeal No. 06-5161
A. Factual and Procedural Background Regarding 41-M onth Sentence
The undisputed relevant facts are as follows. On November 13, 2005,
Elizabeth Kantor, together with M s. Fow ler, rented a hotel room in Tulsa,
Oklahoma, which they intended to use until December 13, 2005, for the purpose
of preparing counterfeit checks. On N ovember 17, 2005, M s. Fow ler and M s.
-2- Kantor presented a counterfeit check, created by M s. Fowler and made payable to
“Lavinia B. Fowler” in the amount of $5,122.12, for deposit into M s. Kantor’s
bank account at a branch facility of her bank. M s. Kantor endorsed the check and
gave it and a deposit slip to the bank teller, who credited the check to M s.
Kantor’s account. Less than an hour later, M s. Kantor and M s. Fowler went to
another branch facility of the same bank and presented a counter-check for
$3,822.00 made payable to M s. Kantor. After receiving cash for the check, M s.
Kantor and M s. Fow ler 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 M s. Kantor and M s. Fow ler. Before the
police arrived, M s. Kantor and M s. Fow ler fled the room, failing to pay the hotel
bill. W hen 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 M aster Card; blank counterfeit checks; checks made out to “Charlie
M oore”; 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, M s. Kantor contacted authorities and falsely
-3- reported M s. Fow ler stole her car. On November 26, 2005, police received
inform ation from a confidential informant that M s. Fowler was staying with tw o
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 M s. Fow ler 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;
M s. Kantor’s checkbook; and materials on how to make fraudulent identification
cards. An additional counterfeit check in the amount of $469.00 was found in
M s. Kantor’s vehicle located outside of M s. Fow ler’s hotel. M s. Fow ler 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.
M s. Fow ler 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
-4- offense increase if the loss caused by the conduct is more than $30,000 and less
than $70,000, the probation officer increased M s. 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 M s. Fow ler’s acceptance of responsibility, resulting in a
total base offense level of thirteen.
In calculating M s. Fow ler’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 M s. Fow ler’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. M s. Fow ler did not object to the presentence
report prior to or at the sentencing hearing.
At sentencing, the district court informed the parties it studied the
-5- presentence report carefully, considered Booker 1 , other Supreme Court precedent,
the applicable Guidelines, and 18 U.S.C. § 3553 2 , and was aware the Guidelines
range w as thirty-three to forty-one months imprisonment based on M s. Fowler’s
offense level and criminal history. The district court also stated “the Guidelines
provide ... a good guidance as to w hat the sentence should be,” it would “impose
a sentence that is sufficient but not greater than is necessary to comply with the
sentencing purposes,” and it had considered “the nature and circumstances of the
offense and the history and characteristics of the defendant.” The district court
then sentenced M s. Fowler to forty-one months imprisonment on each count, to
run concurrently, followed by five years supervised release. M s. Fow ler raised no
contemporaneous objections to the district court’s calculation or explanation of
her sentence, and a judgment was entered on August 4, 2006.
B. Discussion
On appeal, M s. Fow ler claims “imposition of the maximum Guideline
sentence was unreasonable.” In support of her argument, she claims the district
court’s application of § 2B1.1(b)(1)(D), using the actual and intended monetary
1 United States v. Booker, 543 U.S. 220 (2005). 2 During the sentencing hearing, the district court misstated which statute it considered, stating it considered “§ 3353(a).” H owever, given the context in which it discussed the referenced statute, the district court clearly meant 18 U.S.C. § 3553(a). Neither party suggests the district court did not intend to refer to § 3553, and therefore it is not an issue on appeal.
-6- loss of $31,450.14 for a six-level offense increase, was unjust because she only
personally benefitted from the cash she received in the amount of $1,911.00 and
unpaid hotel bills totaling $1,266.56. Because the actual loss amount of
$3,177.56 is only ten percent of the intended loss amount and the intended loss
amount is barely over $30,000, she contends the forty-one-month sentence does
not take into consideration the nature and circumstances of her offense or reflect
the seriousness of her crime, promote respect for the law, or provide just
punishment. W hile M s. Fowler concedes that intended loss is a “standard
approach” to calculating the proper Guidelines range, she nevertheless argues in
her case any enhancement under § 2B1.1 should be based only on actual, rather
than intended, loss. She also generally contends her criminal history score of VI
“exact[ed] a substantial price for recidivism.”
W e begin with our standard of review. W e review for reasonableness the
sentence imposed and have determined a presumption of reasonableness attaches
to a sentence, like here, which is within the correctly-calculated Guidelines range.
See United States v. Kristl, 437 F.3d 1050, 1053-55 (10th Cir. 2006) (per curiam).
W e require reasonableness in two respects – “the length of the sentence, as well
as the method by which the sentence was calculated.” Id. at 1055 (emphasis
omitted). W hen a defendant does not object to the method or procedure by which
her sentence was determined, we may reverse the district court’s judgment only in
-7- the presence of plain error. United States v. Ruiz-Terrazas, ___F.3d ___, ___,
2007 W L 576034, at *2 (10th Cir. Feb. 26, 2007) (slip op.); United States v.
Torres-Duenas, 461 F.3d 1178, 1182-83 (10th Cir. 2006), petition for cert. filed
(N ov. 22, 2006) (N o. 06-7990). “Plain error occurs w hen there is (i) error, (ii)
that is plain, which (iii) affects the defendant’s substantial rights, and which (iv)
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Ruiz-Terrazas, 2007 W L 576034, at *2. “W hen reviewing a
district court’s application of the sentencing guidelines, we review legal questions
de novo and any factual findings for clear error, giving due deference to the
district court’s application of the guidelines to the facts.” United States v. Leach,
417 F.3d 1099, 1105 (10th Cir. 2005). In so holding, we have concluded a
district court’s loss calculation, like the one made in this case, is a factual
question we review under the clearly erroneous standard. Id. at 1105 n.8.
W hen a defendant’s “claim is merely that the sentence is unreasonably
long, we do not require the defendant to object in order to preserve the issue.”
Torres-Duenas, 461 F.3d at 1183. Instead, we review for reasonableness the
sentence’s length, as guided by the factors in 18 U.S.C. § 3553(a). See id. The
presumption of reasonableness of a sentence within a properly-calculated
Guidelines range is a deferential standard a defendant may rebut by demonstrating
that the sentence is unreasonable when viewed against the factors in § 3553(a).
-8- Id. “W hen the defendant has not raised any substantial contentions concerning
non-G uidelines § 3553(a) factors and the district court imposes a sentence within
the Guidelines range, our post-Booker precedents do not require the court to
explain on the record how the § 3553(a) factors justify the sentence.” United
States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006), petition for cert.
filed (Jul. 7, 2006) (No. 06-5217). W hile “we will not demand that the district
court recite any magic w ords” to support its conclusions, neither will we
“presume the district court weighed a party’s arguments in light of the § 3553(a)
factors where the record provides no indication that it did so and no clear
explanation of the sentence imposed.” United States v. Sanchez-Juarez, 446 F.3d
1109, 1115-16 (10th Cir. 2006) (quotation marks and citations omitted).
Keeping our standard of review in mind, we first address M s. Fowler’s
contention her enhancement under U.S.S.G. § 2B1.1 should be based only on
actual, rather than intended, loss, which we construe as an attack on the method
of calculation and review for plain error. W e note the commentary to § 2B1.1
explicitly defines “loss” for the purposes of a sentencing enhancement as “the
greater of actual loss or intended loss.” U .S.S.G. § 2B1.1, cmt. n.3(A) (emphasis
added). It further states “intended loss” “means the pecuniary harm that was
intended to result from the offense; and ... includes intended pecuniary harm that
would have been impossible or unlikely to occur.” U .S.S.G. § 2B1.1, cmt.
-9- n.3(A)(ii). W hile we recognize this Guidelines commentary is now advisory,
rather than mandatory, under the principles announced in Booker, it continues to
be a factor the district court must consider in imposing a sentence. See Kristl,
437 F.3d at 1053.
W e have repeatedly affirmed the use of the intended loss calculation
suggested in § 2B1.1. See Leach, 417 F.3d at 1105-06; United States v. Lin, 410
F.3d 1187, 1192-94 (10th Cir. 2005); United States v. Osborne, 332 F.3d 1307,
1313 (10th Cir. 2003). Thus, when calculating intended loss, we have explained
the district court should “focus on the amount that the scheme placed at risk, not
the amount of money ... stolen.” Lin, 410 F.3d at 1192 (quotation marks and
citations omitted). In so doing, it is not required the court make findings w ith
absolute certainty in the determination of a defendant’s intent. Id. at 1193.
Instead, the court need only make a reasonable estimate of the loss. See Osborne,
332 F.3d at 1313.
Applying these principles, it is clear the district court did not commit any
error in including in the § 2B1.1 loss calculation the intended amount of the
counterfeiting scheme and not merely the smaller amount of money actually
stolen. See Lin, 410 F.3d at 1192. In addition, the evidence in the record
overwhelmingly establishes the intended loss from M s. Fow ler’s counterfeiting
-10- scheme totaled $31,450.14. This amount included the initial counterfeit check in
the amount of $5,122.12 deposited in M s. Kantor’s account, the counterfeit
checks totaling $11,074.11 found in the first hotel room, the counterfeit checks
totaling $13,518.35 found in the second hotel room, the counterfeit check in the
amount of $469.00 found in the vehicle, and unpaid hotel bills in the amount of
$1,266.56. As a result, the district court did not err in relying on § 2B1.1 to
increase M s. Fow ler’s offense level by six levels, given the entire loss amount
exceeded $30,000. Having determined the district court did not commit an error,
our plain error analysis is complete.
Having concluded the district court applied the correct method in
calculating M s. Fowler’s sentence, we turn to her general argument that her forty-
one-m onth sentence is otherw ise unreasonable under the circumstances. As
previously indicated, we do not consider such a claim for plain error. See Torres-
Duenas, 461 F.3d at 1183. However, because M s. Fowler’s forty-one-month
sentence is within the correctly-calculated Guidelines range, a presumption of
reasonableness attaches to her sentence. Id. Our review of the record and M s.
Fowler’s arguments on appeal discloses nothing to rebut this presumption.
M oreover, because M s. Fow ler did not raise any substantial contentions
concerning the § 3553(a) factors, the district court was not required to explain on
the record how the § 3553(a) factors justified the sentence. See Lopez-Flores,
-11- 444 F.3d at 1222. However, as required, the record indicates the district court
considered the applicable § 3553 factors in determining the length of M s.
Fowler’s sentence. See Sanchez-Juarez, 446 F.3d at 1115-16. Because the
presumption of reasonableness of a sentence within a properly-calculated
Guidelines range is a deferential standard, and M s. Fow ler has not rebutted that
presumption with regard to any § 3553(a) factors, we must reject her claim her
forty-one-month sentence is unreasonable.
II. Appeal No. 06-5158
A. Factual and Procedural Background Regarding 14-M onth Sentence
On August 27, 2004, M s. Fowler pled guilty to uttering a forged security in
violation of 18 U.S.C. § 513(a) and received a sixteen-month sentence followed
by three years supervised release. She was released from incarceration and began
serving her three-year supervised release on January 21, 2005. On November 16,
2005, at approximately the same time M s. Fowler commenced the counterfeit
check scheme in her other criminal appeal, her probation officer filed a petition
alleging M s. Fow ler violated the conditions of her supervised release, including
failure to submit monthly reports and notify the probation officer of her change of
residence. In the petition, the probation officer stated M s. Fowler failed to
contact him after A ugust 1, 2005, and that her w hereabouts were unknown to him.
-12- The district court held a hearing concerning the proposed revocation of M s.
Fow ler’s supervised release, at which time M s. Fow ler appeared and admitted
guilt to violation of the conditions of her term of supervision, stipulating to the
facts and allegations in the petition.
Follow ing the hearing, a probation officer prepared a supervised release
revocation and sentencing memorandum. The memorandum pointed out that
under Federal Rule of Criminal Procedure 32.1 and 18 U.S.C. § 3583(e)(2) and
(3) the district court could modify the conditions of release or revoke the term of
supervised release and require M s. Fow ler to serve in prison all or part of the
term of supervised release. It also noted the maximum custody term for violation
of supervised release, a Class C felony, was twenty-four months under 18 U.S.C.
§ 3583(e)(3). In calculating her sentence in accordance with Chapter 7 of the
Guidelines, including § 7B1.4, the probation officer applied M s. Fowler’s
criminal history category of VI, together with her Class C felony, to arrive at a
Guidelines range of eight to fourteen months imprisonment. M s. Fow ler did not
object to the memorandum.
At the subsequent sentencing hearing, the district court revoked M s.
Fow ler’s supervised release and sentenced her to fourteen months incarceration,
to run consecutively to her forty-one-month sentence in her other criminal case.
-13- In imposing a fourteen-month sentence, the district court expressly stated it
considered the applicable Guidelines and our decision in United States v. Lee, 957
F.2d 770, 771 (10th Cir. 1992), which requires consideration of the advisory
policy statements in Chapter 7 on supervised release issues, and that it was
imposing a fourteen-month sentence to provide just punishment for M s. Fowler’s
supervised release violations and as a deterrent to future criminal conduct. It
further stated the sentence length w as based on the serious nature of M s. Fowler’s
refusal to submit to supervision by the probation officer. M s. Fow ler raised no
contemporaneous objection to the district court’s calculation or explanation of her
sentence and a judgment was entered on August 4, 2006.
On appeal, M s. Fow ler claims the district court’s “imposition of the
maximum Guideline sentence was unreasonable,” when viewed under the
principle that a sentence imposed follow ing revocation of supervised release must
be “reasoned and reasonable.” In support, she points out her fourteen-month
sentence for a Class C violation of her supervised release is only two months less
than her initial sixteen-month sentence for the more “substantive crime” of
uttering a forged security. She contends her sentence is unreasonably high for
merely failing to report to her probation officer for three months and should not
result in a sentence comparable to her original felony sentence. W hile she does
-14- not dispute the calculation of the Guidelines range of eight to fourteen months or
that the district court generally considered the § 3553(a) factors, she contends the
sentence imposed “went beyond what was reasonable to address those factors.”
She also contends a lesser sentence would have adequately punished her failure to
report and also deterred future criminal conduct.
Under 18 U.S.C. § 3583(e)(3), when a person violates a condition of his or
her supervised release, the district court may revoke the term of supervised
release and impose prison time. United States v. Kelley, 359 F.3d 1302, 1304
(10th Cir. 2004). A sentence imposed in excess of that recommended by Chapter
7 of the Guidelines policy statements will be upheld “if it can be determined from
the record to have been reasoned and reasonable.” United States v. Rodriquez-
Quintanilla, 442 F.3d 1254, 1258 (10th Cir. 2006) (quotation marks and citation
omitted). In reviewing a sentence imposed after revocation of supervised release,
we review the district court’s factual findings for clear error and its legal
conclusions de novo. 3 Kelley, 359 F.3d at 1304. In imposing a sentence
following revocation of supervised release, a district court is required to consider
both Chapter 7’s policy statements as well as a number of other factors provided
3 Because M s. Fow ler is not contesting the fact her sentence was imposed consecutively to her other sentence, we need not discuss the recent incongruence in our precedent on the applicable standard of review when reviewing the imposition of consecutive sentences. See United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006).
-15- in 18 U.S.C. § 3553(a). See Cordova, 461 F.3d at 1188. However, when the
district court “properly considers the relevant Guidelines range and sentences the
defendant within that range, the sentence is presumptively reasonable,” unless the
defendant “rebut[s] this presumption by demonstrating that the sentence is
unreasonable in light of the other sentencing factors laid out in § 3553(a).”
Kristl, 437 F.3d at 1055.
In this case, the district court did not impose a sentence in excess of the
recommended Guidelines policy statements. Instead, because M s. Fowler’s
fourteen-month sentence falls within the applicable advisory Guidelines range,
her sentence is presumptively reasonable. In attempting to rebut this presumption
with respect to the § 3553(a) factors, she admits the district court generally
considered those factors, but concentrates her efforts on the fact her fourteen-
month sentence on revocation of her supervised release is only two months less
than her original sixteen-month sentence for her prior felony. However, as the
district court explained, it imposed the maximum Guidelines sentence of fourteen
months imprisonment to deter future criminal conduct and as “just punishment”
for M s. Fowler’s supervised release violations, which included the serious nature
of her refusal to submit to supervision by the probation officer. W e agree flagrant
evasion of probation supervision was a serious violation of her supervised release,
and therefore, we cannot say imposition of the maximum Guidelines sentence was
-16- unreasonable. Under the circumstances presented, M s. Fowler has not overcome
the requisite presumption of reasonableness attached to her fourteen-month
sentence.
III. Conclusion
For these reasons, we A FFIRM M s. Fow ler’s sentences in both her
criminal appeals, Numbers 06-5161 and 06-6158.
Entered by the C ourt:
W ADE BRO RBY United States Circuit Judge
-17-