United States v. Graham

28 F. App'x 349
Procedural entryThis page is a short order in United States v. Graham. Read the opinion of the Court — 59 F. App'x 660
Court of Appeals for the Sixth Circuit·Decided December 21, 2001·No. No. 00-5973·Published

Opinion

OPINION

EDGAR, Chief District Judge.

Defendant-appellant Linnel Carl Graham appeals his sentence. A jury convicted Graham of knowingly possessing counterfeit Federal Reserve Notes in violation of 18 U.S.C. § 472. He appeals on the grounds that (1) the facts relied upon by the district court in its imposition of sentencing enhancements for relevant conduct and obstruction of justice must be proved beyond a reasonable doubt to the jury pursuant to the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) the district court erred in its factual findings that determined Graham’s relevant conduct pursuant to U.S.S.G. § 1B1.3; and (3) the district court erred by enhancing Graham’s offense level for obstruction of justice pursuant to U.S.S.G. § 3C1.1. We AFFIRM the district court.

I. BACKGROUND

Graham was indicted for the manufacture and possession of counterfeit Federal Reserve Notes in violation of 18 U.S.C. §§ 471, 472. Prior to trial, Graham faced the charge of criminal possession of counterfeit in state court, to which he pleaded guilty.

During the federal jury trial, the government presented proof through the testimony of United States Secret Service Special Agent Steven Mixon, Graham’s partner in crime, Bertrel Holt, and Jeremy Morris, an acquaintance of Graham who corroborated that Graham was the printer of counterfeit money. Their testimony established that during the summer of 1998, Graham and Holt began a counterfeiting operation whereby they produced several thousands of counterfeit dollars that they sold to various individuals for a reduced price.

Holt was arrested by the United States Secret Service for selling counterfeit currency to an informant. The agents seized the currency sold to the informant, other currency found in Holt’s vehicle, and several uncut sheets of paper, some of which were blank and some of which had four counterfeit one hundred dollar bills copied on them. Graham’s fingerprints were later found on the uncut sheets of paper. A total of $12,000.00 in counterfeit bills was seized from Holt. The Secret Service later recovered $31,000.00 in counterfeit bills that had the same serial numbers as the counterfeit currency seized from Holt. Holt also told Agent Mixon about Graham’s involvement in another counterfeit manufacturing scheme with Derico Houston in which the two men attempted to sell $50,000.00 in counterfeit currency to another individual in the Memphis area.

Trial testimony revealed that after his arrest, Holt arranged a meeting with Graham, the source of the counterfeit currency. During the meeting, Graham set the selling price for the counterfeit money. Secret Service agents arrested Graham soon after. Agent Mixon found a counterfeit hundred dollar bill and a counterfeit twenty dollar bill in a credit card compartment in Graham’s wallet. Graham indicated to the agents that he had obtained the counterfeit money from Holt. The serial numbers on Graham’s bills matched those on the counterfeit seized from Holt. According to Agent Mixon, Graham stated that the only reason why he still had the [351]*351counterfeit money was because he “hadn’t found the right person to pass it off to yet.”

Graham testified on his own behalf at trial. Graham denied any involvement in printing or making counterfeit money with Holt, although he admitted that Holt had shown him some counterfeit money on one occasion. He stated that he did not know the bills found in his wallet were counterfeit and denied making the statement about finding “the right person to pass it off to yet.” Graham testified that he pleaded guilty to criminal possession of counterfeit bills in state court only to avoid a jail sentence and that he was totally innocent of the charges.

A jury convicted Graham on the charge of possession of counterfeit in violation of 18 U.S.C. § 472, yet acquitted him of manufacturing counterfeit Federal Reserve Notes. At the sentencing hearing, the district court concluded that the testimony of Agent Mixon was credible and that the “testimony of Graham was false.” The district court emphasized that the testimony of Holt was not generally believable, but that he found Holt was telling the truth about some things, specifically, that Graham was, in fact, the printer of the counterfeit. After concluding that the government’s contention was supported by a preponderance of the evidence, the district court enhanced Graham’s offense level for obstruction of justice and increased the base offense level to account for the total face value of counterfeit produced by Graham, i.e., $93,000.00. Graham challenged at sentencing the adjustments to the base offense level but not the standard the district court applied. Graham was subsequently sentenced to 33 months imprisonment. A timely notice of appeal followed.

II. ANALYSIS

A. Apprendi

Where there was no objection to a challenged determination in the district court, such as the Apprendi challenge here, review is for plain error. See United States v. Page, 232 F.3d 536, 543-44 (6th Cir.2000), cert. denied, 532 U.S. 1056, 121 S.Ct. 2202, 149 L.Ed.2d 1032 (2001); FED. R. CRIM. P. 52(b).

In Apprendi, the Supreme Court reexamined and confirmed as a rule of constitutional law the principle first expressed in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490; see United States v. Munoz, 233 F.3d 410, 413-14 (6th Cir.2000); United States v. Corrado, 227 F.3d 528, 542 (6th Cir.2000). When Graham committed his offense of conviction, 18 U.S.C. § 472 provided for a penalty of not more than fifteen years (or 180 months) of imprisonment. Because Graham’s 33-month sentence is less than the statutory maximum, Apprendi is not applicable. See Munoz, 233 F.3d at 413-14; Corrado, 227 F.3d at 542. Therefore, the district court did not err in utilizing a preponderance of the evidence standard.

B. Relevant Conduct

The base offense level for counterfeit offenses is governed by U.S.S.G. § 2B5.1. This guideline directs the court to increase the base offense level where the face value of the counterfeit items exceeds $2,000.00, pursuant to the table in U.S.S.G. § 2F1.1.

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United States v. Graham, 28 F. App'x 349 (6th Cir. 2001).

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