United States v. Jacob Warner

298 F. App'x 825
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 29, 2008
Docket08-10407
StatusUnpublished

This text of 298 F. App'x 825 (United States v. Jacob Warner) 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. Jacob Warner, 298 F. App'x 825 (11th Cir. 2008).

Opinion

PER CURIAM:

Jacob Warner appeals his 72-month sentence for theft of government property. Warner pleaded guilty to defrauding the Federal Emergency Management Agency in the wake of Hurricane Katrina. He contends that under the sentencing guidelines, the district court erred in three ways: (1) in calculating the loss amount for his conduct under § 2B1.1; (2) in finding that he was a manager or supervisor in the criminal enterprise under § 3B1.1; and (3) in denying him a downward adjustment for acceptance of responsibility under § 3E1.1. We address each contention in that order.

I.

We review the district court’s amount-of-loss determination for clear error. United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir.1999). The government must establish the attributable loss by a preponderance of the evidence. United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.2004).

Loss is the financial quantification of a theft that is used to set a base offense level for the crime under the sentencing guidelines. Courts use either the “actual loss: the reasonably foreseeable pecuniary harm that resulted from the offense” or the “intended loss: the pecuniary harm that was intended to result from the offense,” whichever is greater. U.S.S.G. § 2B1.1, cmt. 3(A)(i-ii). An amount of loss between $10,000 and $30,000 adds four levels to the base offense level for theft. U.S.S.G. § 2Bl.l(b)(l)(C).

Warner pleaded guilty following an indictment that listed $8,358.00 as the total amount of his theft. He argues that $8,358.00 is the correct amount of loss involved in his case, meaning that only two levels of enhancement were appropriate, rather than four. See U.S.S.G. § 2Bl.l(b)(l) (showing that a loss between $5,000 and $10,000 equates to a two-level increase).

U.S.S.G. § lB1.3(a)(l), however, instructs the district court to consider “(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity ... all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” Under this rule, the district court calculated the loss from Warner’s crimes as $25,062.00 — well within the $10,000 to $30,000 range that calls for a four-level increase.

The district court’s calculation of $25,062.00 included $12,358.00 that Warner received in FEMA checks made out to him and $12,704.00 in FEMA checks made out to four other people. Those four people were Ina Allen, William Goldsmith, James Lassie Jr., and Jannell Lassie. Each testified that Warner brought them FEMA checks or introduced them to others who procured the checks. In each instance, Warner took a share of the money for his assistance, usually several hundred dollars per check. That testimony established that Warner at least aided and abetted those frauds, meaning that the $12,704.00 *828 was part of the loss caused by Warner’s crimes under U.S.S.G. § lB1.3(a)(l). Further, FEMA mailed six checks, totalling $12,358.00, to Warner directly. Security cameras photographed Warner cashing three of the checks; the other three were also cashed or deposited, but without photographs being made. Therefore, regardless of his involvement with the fraudulent checks made out to others, Warner himself received more than $12,000 via checks made out specifically to him. That actual loss alone placed Warner in the $10,000 to $30,000 range and justified the four-level increase under U.S.S.G. § 2Bl.l(b)(l)(C). The district court did not err.

II.

We review for clear error the district court’s finding that Warner was a manager or supervisor for enhancement purposes under U.S.S.G. § 3B1.1. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). Under the guidelines, a defendant’s offense level is increased by three if he was “a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(b).

Warner argues that he did not lead or organize the fraud and claims that Eloise Curry — his mother — was the head of the operation. But the district court did not find that Warner was the “organizer or leader;” instead, it found that he was a “manager or supervisor.” To qualify as a “manager or supervisor” the defendant need only assert “control or influence over at least one other participant in the crime.” United States v. Campa, 529 F.3d 980, 1013 (11th Cir.2008) (quotation marks omitted); U.S.S.G. § 3B1.1, cmt. n. 2.

Testimony established that Warner controlled or influenced Ina Allen and Jannell Lassie. Allen testified that Warner had recruited her to collect a FEMA check, asked his cousin to make the fraudulent phone call on her behalf, called her when the check arrived, and drove her to pick up the check, cash it, and pay off his cousin. Warner himself then filched the rest of the money from the check. Similarly, Lassie testified that Warner came to her house, solicited her participation by telling her that a FEMA check had been issued in her name, drove Lassie and her father to retrieve the check and to cash it, and took $800 from the proceeds. Warner does not deny any of this. The trial court did not err in finding that Warner controlled or influenced at least one other participant.

For a “manager or supervisor” enhancement, the guidelines also require that the criminal activity involve “five or more participants or [be] otherwise extensive.” U.S.S.G. § 3Bl.l(b). “ ‘Participant’ is defined as a person who is criminally responsible for the commission of the offense, but need not have been convicted.” United States v. Williams, 527 F.3d 1235, 1248 (11th Cir.2008) (citing U.S.S.G. § 3B1.1, cmt. n. 1) (emphasis omitted). In this case, evidence shows that as many as nine people were involved in this enterprise to defraud FEMA. In fact, five people — Warner, Ina Allen, William Goldsmith, James Lassie Jr., and Nakasha Woods — all explicitly admitted their involvement in the criminal activity and pleaded guilty to related charges. The criminal activity obviously involved at least these five participants. The government thus established both elements of the three-level enhancement for being a manager or supervisor, and the district court did not err in applying it under U.S.S.G. § 3B1.1.

III.

We review for clear error the district court’s judgment denying a downward adjustment for acceptance of responsibility. *829 United States v. Moriarty, 429 F.3d 1012, 1022-23 (11th Cir.2005). Under U.S.S.G. § 3E1.1, a defendant who has “clearly demónstratele!] acceptance of responsibility for his offense” is entitled to a two-level reduction.

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Related

United States v. Cabrera
172 F.3d 1287 (Eleventh Circuit, 1999)
United States v. Sawyer
180 F.3d 1319 (Eleventh Circuit, 1999)
United States v. Luis Enrique Polar
369 F.3d 1248 (Eleventh Circuit, 2004)
United States v. Edwin W. Williams
408 F.3d 745 (Eleventh Circuit, 2005)
United States v. Daniel Francisco Ramirez
426 F.3d 1344 (Eleventh Circuit, 2005)
United States v. Jason M. Moriarty
429 F.3d 1012 (Eleventh Circuit, 2005)
United States v. Williams
527 F.3d 1235 (Eleventh Circuit, 2008)
United States v. Campa
529 F.3d 980 (Eleventh Circuit, 2008)
United States v. Stanley M. Pace
17 F.3d 341 (Eleventh Circuit, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
298 F. App'x 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jacob-warner-ca11-2008.