United States v. Haynes

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2003
• Docket: 02-40967
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 1, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-40967 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STONE HAYNES, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:99-CR-129-ALL --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Stone Haynes, Jr. pleaded guilty to counts one and three of a

superseding indictment charging him with wire and mail fraud.

Haynes was sentenced to concurrent 24-month terms of imprisonment

and to concurrent three-year periods of supervised release. Haynes

was ordered to pay restitution in the amount of $3,021.74 to

Service Life and Casualty Insurance Company (“SLCIC”) and $6,717.62

to General Motors Acceptance Corporation (“GMAC”). Haynes has

appealed his sentence.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-40967 -2-

Haynes complains that the district court would not permit Dr.

Daniel Carlson, a prison psychologist, to testify by telephone at

the sentencing hearing. Haynes contends that the testimony was

pertinent to the question of whether the district court could

depart downward under U.S.S.G. § 5K2.13 (2000).

Under FED. R. CRIM. R. 32(c)(1), the question of whether

parties may introduce testimony at the sentencing hearing is within

the discretion of the sentencing court. See United States v.

Edwards, 65 F.3d 430, 432 (5th Cir. 1995). Because Dr. Carlson’s

reports do not support the conclusion that Haynes’s depression

prevented him from understanding the wrongfulness of his behavior,

from exercising the power of reason, or from controlling behavior

that he knew was wrongful, see U.S.S.G. § 5K2.13, comment. (n.1)

(2000), there is no reason to believe that his testimony would have

been relevant to the question of whether Haynes “committed the

offense while suffering from a significantly reduced mental

capacity.” See U.S.S.G. § 5K2.13. The district court did not

abuse its discretion.

Haynes contends that the district court erred in determining

the amount of the loss in calculating the offense level for the

mail fraud count. In determining how many points should be added

to Haynes’s offense level under U.S.S.G. § 2F1.1(b)(1) (2000), the

district court determined that SLCIC had sustained a $13,021.70

loss resulting from the filing by Haynes of forged disability No. 02-40967 -3-

progress reports. Haynes has not shown that the district court

erred reversibly in determining the loss sustained by SLCIC.

The district court considered as relevant conduct a $13,027.52

intended loss incurred by GMAC related to checks tendered by

Haynes, to pay off two loans, which were returned to GMAC marked

“NSF.” Haynes’s schemes to defraud SLCIC and GMAC, if adjudicated,

would be grouped under U.S.S.G. § 3D1.2(d) (2000), since the court

determined reasonably that the schemes are a part of the same

“course of conduct.” See U.S.S.G. § 1B1.3(a); U.S.S.G. § 1B1.3,

comment. (n. 9 (B)). Accordingly, the district court did not

clearly err in considering the loss suffered by GMAC as relevant

conduct in determining Haynes’s offense level. See U.S.S.G.

§ 1B1.3(a) (2000); see also United States v. Anderson, 174 F.3d

515, 526 (5th Cir. 1999) (standard of review).

Haynes complains also that the district court erred by

overruling his objection to the probation officer’s finding that

Haynes had previously submitted a $16,626.67 NSF check to GMAC to

pay off a loan. The district court held that the information did

not affect the guideline calculation, but could be considered,

nevertheless, under U.S.S.G. § 1B1.4. No error has been shown.

the amount of the loss for purposes of calculating the offense

level for the wire fraud count. Haynes contends that the district

court erred by finding that his fraud scheme against Edward Jones

was committed during the period when he was defrauding SLCIC and No. 02-40967 -4-

GMAC. Haynes contends that the finding implies incorrectly that

the offense was planned for an extended period of time. The

district court stated that it had not found that the fraud was

“extensive,” but only that the fraud was contemporaneous with the

fraud perpetrated against SLCIC and GMAC. No error has been shown.

Haynes contends that the amount of the loss suffered by Edward

Jones should have been reduced by sums which he contends were owed

to him by Edward Jones. The amount of the intended loss, for

purposes of determining offense level, was the amount of the money

unlawfully taken. See U.S.S.G. § 2F1.1, comment (n.8) (2000)).

The district court’s ruling was not clearly erroneous. See United

States v. Ismoila, 100 F.3d 380, 396–97 (5th Cir. 1996).

the amount of restitution. Haynes contends that he settled SLCIC’s

civil claim against him for $10,000 and was given a full release

and that he settled GMAC’s claims for $17,500 and was given a full

release. Haynes contends that the district court should not have

ordered restitution to those parties because they have released him

from further liability. Under the Mandatory Victim Restitution Act

(“MVRA”), when sentencing a defendant convicted for an offense

against property under Title 18 by fraud and deceit, the district

court must order the defendant to make restitution to the victim of

the offense. 18 U.S.C. § 3663A(a)(1) & (c)(1)(A)(ii). The

district court was required, under the MVRA, to “order the full

amount of restitution.” United States v. Myers, 198 F.3d 160, 168 No. 02-40967 -5-

(5th Cir. 1999); see 18 U.S.C. § 3664(f)(1)(A); see also United

States v. Sheinbaum, 136 F.3d 443, 448 (5th Cir. 1998).

Haynes contends also that restitution should not have been

ordered to GMAC because GMAC was not a victim of the crime for

which he pleaded guilty. Under the MVRA, “The court shall also

order, if agreed to by the parties in a plea agreement, restitution

to persons other than the victim of the offense.” 18 U.S.C.

§ 3663A(a)(3). Haynes’s plea agreement contains such a provision.

Haynes complains that his offense level was not adjusted for

his acceptance of responsibility. The district court refused to

adjust Haynes’s offense level because Haynes made self-serving

statements justifying his conduct during his debriefing with the

probation officer, and because Haynes did not enter a guilty plea

until the Friday before the trial, which was scheduled on the

following Monday. Haynes argues that he accepted responsibility

for his conduct by pleading guilty. A timely guilty plea does not

automatically entitle a defendant to a decrease in his offense

level for acceptance of responsibility. United States v. Pierce,

237 F.3d 693, 694 (5th Cir. 2001). Rather, “the sentencing judge

is in a unique position to evaluate a defendant’s acceptance of

responsibility. For this reason, the determination of the

sentencing judge is entitled to great deference on review.”

U.S.S.G. § 3E1.1, comment. (n.5) (2000). Moreover, specious

arguments made by Haynes in his reply brief, such as his argument

that he forged Dr. Ray’s signature on the disability progress No. 02-40967 -6-

reports “merely as a convenience,” indicates that Haynes still has

not accepted responsibility for his conduct. No error has been

shown.

Haynes contends that the district court erred by raising his

offense level, pursuant to U.S.S.G. § 2F1.1(b)(2) (2000), because

the offense involved more than minimal planning. In overruling

Haynes’s objection, the district court reasoned that Haynes had

taken affirmative steps to conceal the fraudulent stock

transaction, that the wire fraud transaction involved repeated

fraudulent acts, and that there was more than one victim. The

district court’s ruling was not clearly erroneous. See United

States v. Barndt, 913 F.2d 201, 204 (5th Cir. 1990).

offense level, pursuant to U.S.S.G. § 3B1.3 (2000), because

Haynes’s position as a stockbroker facilitated the commission or

concealment of the wire fraud offense. Haynes contends that any

customer of the brokerage firm could have committed the same

offense and that his position did not involve managerial

discretion. In overruling Haynes’s objection, the district court

reasoned that Haynes was not like any other customer. Haynes

“could not be the broker handling a stock transaction for himself.

He did it that way to avoid another broker detecting his NSF check.

Therefore, it was his position that allowed him to complete the

transaction.” Haynes had a position of trust within the firm and

was given “considerable latitude. He was allowed to operate his No. 02-40967 -7-

own office without supervision and [unlike employees who are not

brokers] was given access to the company’s computer system, which

allowed him to purchase and sell stock.” The district court’s

ruling was not clearly erroneous. See United States v. Deville,

278 F.3d 500, 508 (5th Cir. 2002); see also U.S.S.G. § 3B1.3,

comment. (n.1) (2000).

Haynes complains that the district court overruled his

objections to the paragraphs in the presentence report in which the

offense level was totaled. In a similar fashion, Haynes complains

that the district court erred in calculating his guideline

imprisonment range and in determining his eligibility for

probation. Because these arguments are predicated on Haynes’s

other issues, which are without merit for reasons discussed above,

no error has been shown.

Haynes also complains that the district court erred by

overruling his objection to the probation officer’s recommendation

that the district court could consider, as a basis for an upward

departure, the fact that Haynes was involved in another,

contemporaneous fraud scheme against First Bank and Trust. The

district court did not depart upward. Thus, Haynes has not shown

that the district court erred.

For the foregoing reasons, the judgment is AFFIRMED.