United States v. Freeman

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 28, 2000
• Docket: 00-3033
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 28 2000 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v. No. 00-3033 CHRISTOPHER FREEMAN, (D.C. No. 99-20057-01) (D. Kan.) Defendant-Appellant.

ORDER AND JUDGMENT*

Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**

A grand jury indicted Defendant Christopher Freeman on thirteen felony counts

related to a conspiracy to roll back the odometers of used cars. Pursuant to a plea

agreement, Defendant pled guilty to conspiracy, in violation of 18 U.S.C. § 371,

knowingly and willfully giving false statements in written disclosures to buyers of used

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore ordered submitted without oral argument. motor vehicles as to the actual mileage of the vehicles, in violation of 49 U.S.C.

§§ 32705(a)(2) & 32709(b), and mail fraud, in violation of 18 U.S.C. §§ 1341 & 1342. In

the plea agreement, the Government stated its intent to recommend a two-level

enhancement for Defendant’s aggravating role in the conspiracy pursuant to U.S.S.G. §

3B1.1(c) (1998). The Government recommended the enhancement based on evidence

that Defendant directed at least two criminal participants in the operation. The district

court found that a preponderance of the evidence supported the recommended

enhancement and imposed a sentence of twenty-seven months. Defendant now appeals.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. When

reviewing sentencing decisions pursuant to U.S.S.G. § 3B1.1(c), we review legal

conclusions de novo, and factual allegations under a clearly erroneous standard. United

States v. Baez-Acuna, 54 F.3d 634, 638 (10th Cir. 1995).1 Applying this standard, we

affirm.

Section 3B1.1(c) allows a two-level sentence enhancement if the defendant was an

organizer, leader, manager, or supervisor of one or more participants in any criminal

At sentencing, the district court must make specific factual findings before 1

imposing an enhancement based on a defendant’s role in the offense. United States v. Wacker, 72 F.3d 1453, 1476 (10th Cir. 1995). In this case, the district court merely announced: “I find that by a preponderance of the evidence on this issue that the § 3B1.1 enhancement is appropriate.” We are required, however, to remand only if we believe the district court would not have imposed the same sentence in the absence of the error. See United States v. Lowe, 106 F.3d 1498, 1502 n.8 (10th Cir. 1997) (quoting United States v. O’Dell, 965 F.2d 937, 939 (10th Cir. 1992)). Moreover, Defendant did not question the adequacy of the district court’s findings.

2 activity. The Sentencing Guidelines define a participant as “a person who is criminally

responsible for the offense, but need not have been convicted.” U.S.S.G. § 3B1.1, cmt.

n.1. Defendant objected to the recommended enhancement arguing the information

contained in the presentence report (“PSR”) was not sufficient to establish that either of

the individuals Defendant allegedly directed were “participants” in Defendant’s criminal

offense. In response to this objection, the Government presented the testimony of Special

Agent Robert Epps who conducted interviews with two of the alleged participants, Mr.

Hedrick and Mr. Shearer.

Defendant argues Agent Epps’ testimony is unreliable hearsay because statements

of co-conspirators are inherently suspect and no other basis exists on which to conclude

that Defendant directed or controlled any other “participants” in the offense.1 We reject

this argument because the PSR establishes facts sufficient to support the district court’s

ruling independent of the testimony at sentencing.

Defendant bears the burden of alleging factual inaccuracies in the PSR. United

States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994). Failure to object to a fact in the

PSR acts as an admission. Id. In this case, the PSR contains factual statements sufficient

to find Mr. Hedrick and Mr. Shearer are “participants” for purposes of Defendant’s

sentence enhancement. Specifically, the PSR states that “Mr. Hedrick and Mr. Shearer

1 We admonish Defendant’s counsel that the failure to provide the Court with pinpoint cites to the specific propositions in his authority has not gone unnoticed.

3 noticed the mileage on odometers had decreased after they delivered the vehicles to

[Defendant].” They both knew they were engaging in an operation that altered odometers

but nevertheless continued to participate in the business. Furthermore, the PSR makes it

clear that Defendant controlled or directed both Mr. Hedrick and Mr. Shearer. Mr.

Shearer would apply for new titles for the vehicles based on fraudulent paperwork

prepared by Defendant. The PSR specifically identifies Mr. Hedrick as someone “who

worked under [Defendant’s] direction.” Mr. Hedrick, posing as the person named on the

title, sold vehicles for Defendant. Defendant set the minimum price to accept for the

vehicle and a sale at a lower price required his approval. Because Defendant never made

factual objections to the PSR, these facts must be treated as admitted. Id.

Accordingly, the judgment of the district court is AFFIRMED.

Entered for the Court,

Bobby R. Baldock Circuit Judge