United States v. Gadsden

644 F. App'x 987
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 4, 2016
DocketNo. 14-15487
StatusPublished
Cited by1 cases

This text of 644 F. App'x 987 (United States v. Gadsden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Gadsden, 644 F. App'x 987 (11th Cir. 2016).

Opinion

PER CURIAM:

Derrick Gadsden appeals his 240-month sentence for conspiracy to commit wire fraud under 18 U.S.C. §§ 1343 and 1349. Gadsden pleaded guilty to opening or causing others to open checking accounts with minimum deposit amounts and then using bad checks from those accounts to make purchases. He now challenges how his sentence was calculated. First, Gadsden argues that the district court’s loss calculation was not supported by sufficient evidence. Second, he argues that the district court improperly counted victims and losses from times during the conspiracy when he was incarcerated. Third, Gadsden argues that he was not a leader or organizer of the conspiracy. Finally, he argues that the conspiracy did not involve sophisticated means. After careful review, we affirm.

I.

First, Gadsden argues that the district court’s loss calculation was not supported by sufficient evidence. We review a district court’s loss calculation for clear error. United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir.2011). The sentencing court “need only make a reasonable estimate of the loss, given the available information,” though its calculation must be supported by “reliable and specific evidence.” Id. (quotations omitted). If the loss amount is greater than $400,000 but not more than $1,000,000, the defendant’s offense level increases by 14. USSG § 2B1.1(b)(1) (2013). If the loss amount is greater than $1,000,000 but not more than $2,500,000, the offense level increases by 16. Id.

The district court did not clearly err in calculating the loss amount. The court relied on the testimony of Secret Service Agent Leighton Greenlee, who used a mul-tifactor analysis to trace bad checks to the conspiracy. A bad check was included in the loss amount only if it satisfied specific criteria, such as being: from a local bank account opened with a minimum deposit; overnighted to the account holder; written just after the account was opened; mailed to an address linked to the conspirators; used for a high-cost purchase; or used at a frequently victimized store.1 Agent Greenlee created a spreadsheet listing checks that fit this pattern and excluded any that did not. He arrived at a total loss amount of $1,418,264.50. The district court considered this testimony and established the loss amount as $1,000,000. Neither party objected to the court’s calculation.

The evidence at sentencing was sufficient to support the district court’s reason[989]*989able estimate of the loss amount. Agent Greenlee calculated a loss amount based on a variety of factors as well as his investigation of the conspiracy. The district court reduced the amount calculated by Agent Greenlee by almost 30 percent, adding a margin of error for any checks that Agent Greenlee may have mistakenly attributed to the conspiracy. The district court’s calculation triggered a lower enhancement level for Gadsden. We cannot say that the district court clearly erred in determining the loss amount.

II.

Second, Gadsden argues that the district court improperly counted victims and losses from portions of the conspiracy that occurred while he was incarcerated on other charges. We review a district court’s findings of fact for clear error and its application of those facts to justify a sentencing enhancement de novo. United States v. Creel, 783 F.3d 1357, 1359 (11th Cir.2015). The base offense level for a defendant involved in a conspiracy is determined on the basis of “all reasonably foreseeable acts and omissions of others in furtherance of the [conspiracy] 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.” USSG § 1B1.3(a)(1)(B) (2013). The Guidelines provide a four-level enhancement for offenses that involved 50 or more victims. Id. § 2B1.1(b)(2)(B).

“A conspirator’s participation in a conspiracy is presumed to continue until all activity related to the conspiracy ceases.” United States v. Odom, 252 F.3d 1289, 1299 (11th Cir.2001). “Since conspiracy is a continuing offense, a defendant who has joined a conspiracy continues to violate the law through every moment of [the conspiracy’s] existence, and he becomes responsible for the acts of his co-conspirators in pursuit of their common plot.” Smith v. United States, 568 U.S. -, -, 133 S.Ct. 714, 719, 184 L.Ed.2d 570 (2013) (alteration in original) (quotation and citations omitted). A defendant may avoid such liability only by withdrawing from the conspiracy, which requires him to prove that he: (1) took affirmative acts inconsistent with the object of the conspiracy, and (2) either communicated those acts or his desire to withdraw to his co-conspirators, or disclosed the scheme to law enforcement, Odom, 252 F.3d at 1299. “Mere cessation of participation is not sufficient to establish withdrawal.” United States v. Arias, 431 F.3d 1327, 1341 (11th Cir.2005).

The district court did not clearly err by counting the losses and victims from portions of the conspiracy that occurred while Gadsden was incarcerated. Gadsden presented no evidence showing that he withdrew from the conspiracy while incarcerated. • To the extent he argues that his imprisonment was tantamount to withdrawal, we have rejected this argument. See United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir.1991). Thus, Gadsden’s continued participation in the conspiracy was presumed. See Odom, 252 F.3d at 1299. Because his co-conspirators’ perpetuation of the scheme was reasonably foreseeable, Gadsden remained responsible for the associated losses and victims.2

III.

Third, Gadsden argues that he was not a leader or organizer of the conspiracy. Whether a defendant had a leadership role [990]*990is a finding of fact that we review for clear error. Barrington, 648 F.3d at 1200. The Guidelines provide a four-level enhancement “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” USSG § 3B1.1(a) (2013). Courts should consider the following factors when weighing the defendant’s role:

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

Id. § 3B1.1, cmt. n. 4 (2013). All these factors need not be present — they “are merely considerations for the sentencing judge,” though “the exercise of some authority in the organization” is required. United States v. Martinez,

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644 F. App'x 987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gadsden-ca11-2016.