United States v. Johnson

58 F. App'x 60
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 6, 2003
DocketNo. 01-5528
StatusPublished

This text of 58 F. App'x 60 (United States v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Johnson, 58 F. App'x 60 (6th Cir. 2003).

Opinion

CLAY, Circuit Judge.

Defendant, Antoinette L. Johnson, appeals from the judgment of conviction and sentence entered by the district court on March 30, 2001, following Defendant’s guilty-plea conviction to one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371, and one count of bank fraud in violation of 18 U.S.C. § 1344, for which Defendant was sentenced to concurrent terms of sixteen months’ imprisonment and a total of five years’ supervised release, and ordered to pay $26,358 in restitution.

[61]*61On appeal, Defendant raises three challenges all in connection with her sentence and restitution order. For the reasons set forth below, we AFFIRM Defendant’s sentence and restitution order.

STATEMENT OF FACTS

Procedural History

On August 9, 2000, a federal grand jury sitting in the Western District of Tennessee returned a six-count indictment against Defendant. Count one charged Defendant and co-defendant, Patrick Crawford, with conspiracy to commit bank fraud in violation of 18 U.S.C. § 371. Counts two through five charged Defendant and Crawford with aiding and abetting each other in substantive violations of the federal bank fraud statute, 18 U.S.C. §§ 1344 and 2. Count six of the indictment charged Defendant alone with bank fraud in violation of 18 U.S.C. § 1344.

Defendant executed a written plea agreement on January 2, 2001, to counts one and six of the indictment. The district court sentenced Defendant on March 30, 2001, to concurrent terms of sixteen months’ imprisonment to be followed by a total of six years’ supervised release, and ordered Defendant to pay $26,358 in restitution. This timely appeal ensued.

Facts

At all times relevant to this case, Defendant was employed as an intermediate account technician at Union Planters Bank (“the Bank”) and was responsible for handling invoices received from vendors who performed work. In this capacity, Defendant had the authority to open vendor accounts. Defendant was dating co-defendant Crawford, and opened a vendor account styled “Patrick M. Crawford, LLP,” on the Bank’s Accounts Payable Online System. According to the indictment, once the account was open. Defendant in some instances issued checks payable to Crawford, while in other instances Defendant made electronic transfers to Crawford’s account by creating fraudulent invoices for non-existent expenses and charging the expenses to various cost centers within the Bank. The first fraudulent invoice submitted by Defendant was for $680, and was allegedly done at Crawford’s behest so that he could pay his rent. Defendant admits to destroying the fraudulent invoices used to obtain money for Crawford’s account once the Bank became aware of the activity, but claims that she was only responsible for submitting and processing the invoice for $680. According to the indictment, the Bank paid out a total of $18,858 to Crawford’s bogus account based on the fraudulent invoices, and it is undisputed that Crawford received all of the monies.

In addition, Defendant created fraudulent invoices under another vendor account number and caused the Bank to issue an expense check to Toyota Motor Credit Corporation for $7,500, which Defendant used to purchase a car. This act served as the basis for count six of the indictment.

Defendant pleaded guilty to counts one and six of the indictment and, the day after her guilty plea was entered. Defendant was interviewed by government agents. When asked by the agents about the car that Defendant purchased with the $7,500, Defendant replied that the vehicle had been repossessed while in her possession. Defendant later admitted, however, that the vehicle had been repossessed from another individual who had purchased it from Defendant.

DISCUSSION

I. DENIAL OF A REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY

This Court reviews a district court’s factual findings at sentencing for clear error, [62]*62and its application of the sentencing guidelines de novo. United States v. Pierce, 17 F.3d 146, 151 (6th Cir.1994). Where the facts are undisputed, which is not the case here, the question of whether the district court properly applied the sentencing guidelines to a particular set of facts is a question of law which the court reviews de novo. United States v. Tilford, 224 F.3d 865, 867 (6th Cir.2000).

Section 3E1.1 of the United States Sentencing Guidelines provides for a two or three level reduction in a defendant’s offense level if the defendant “clearly demonstrates acceptance of responsibility for his offense.” USSG § 3El.l(a) and (b). Application note 3 to § 3E1.1 provides that

[e]ntry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under § 3B1.3 ... will constitute significant evidence of acceptance responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.

USSG § 3E1.1 comment, (n.3). Application note 1 to § 3E1.1 lists eight factors that a district court may consider in determining the appropriateness of an adjustment under this section, among which is “truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable.... ” USSG § 3E1.1 comment. (n.l(a)). A district court’s findings as to the applicability of § 3E1.1 are entitled to great deference on review and “a challenge will be successful only in extraordinary circumstances.” United States v. Downs, 955 F.2d 397, 400 (6th Cir.1992); see also USSG § 3E1.1 comment, (n.5) (“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.”).

In denying Defendant’s request for a two-level reduction for acceptance of responsibility, the district court considered testimony from the Bank’s manager, Shirley Austin, as to how invoices were paid and payments were credited to accounts. The district court also considered testimony from Defendant that she had only approved the $680 invoice payment to Crawford’s account, and that she was unaware of how the other invoice payments were credited to Crawford’s account.

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Bluebook (online)
58 F. App'x 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnson-ca6-2003.