United States v. Johnson

103 F. App'x 866
Court of Appeals for the Sixth Circuit·Decided July 8, 2004·No. Nos. 02-5984, 03-5251, 03-5252·Published·Cited by 3 cases

Opinion

GIBBONS, Circuit Judge.

Defendants-appellants Grady Johnson and Curtis L. Byrd, Jr. appeal their sentences of eighteen months imprisonment for mail fraud. Johnson and Byrd pled guilty to separate counts of an indictment charging them with violations of 18 U.S.C. §§ 1341 and 1342. The district court used the 1998 edition of the United States Sentencing Guidelines Manual to calculate Johnson’s sentence and the 2002 edition to calculate Byrd’s. On appeal. Johnson contests the district court’s conclusion that he committed a portion of his offense while under a criminal justice sentence. He also argues that the court erred when it used the 1998 edition of the Guidelines Manual to calculate his sentence. Byrd challenges the district court’s use of the 2002 edition of the Guidelines Manual, and he argues that the court failed to consider his ability to pay before assessing a $20,000 fine. For the following reasons, we affirm Johnson’s sentence, vacate Byrd’s sentence, and remand Byrd’s case for resentencing under the 1998 edition of the Guidelines Manual.

I.

On December 18, 2001, a federal grand jury in the Western District of Tennessee returned a nine-count indictment against Johnson, Byrd, Kimberly Hill-Johnson, and Kevin Hill, stemming from the submission of several fraudulent residential loan applications to the National Bank of Commerce (“NBC”) and Southeastern Mortgage of Tennessee. Inc. (“Southeastern Mortgage”). These applications contained false supporting documentation and were submitted to both financial institutions by mail. The indictment charged that “[beginning on or about March 1, [868]*8682000 and continuing to on or about August 4, 2000.” the defendants engaged in a “scheme and artifice to defraud and obtain property” by preparing fraudulent home loan applications and supporting documents. The indictment also alleged that part of the scheme was that NBC and its subsidiaries would rely upon the fraudulent documents in approving home loans.

A. Grady Johnson

Pursuant to a plea agreement, Johnson pled guilty to Count 2 of the indictment on April 25, 2002. Count 2 charged that “on or about May 29, 2000,” Johnson submitted a Uniform Residential Loan Application along with fraudulent supporting documents to NBC in the name of his brother, Milton Johnson. The application was for the purchase of a residence at 6164 Live Oak Cove in Memphis, Tennessee. It was submitted to NBC by mail and dated March 27, 2000. Several falsified documents accompanied the loan application, including a letter explaining Milton Johnson’s lack of credit, a letter reflecting that Milton Johnson had made monthly payments on a $2,000 loan, and a credit reference letter from Memphis Light Gas and Water. According to the presentence investigation report (“PSI”), Johnson’s wife, Kimberly Hill-Johnson, told the investigating officers that the loan application was submitted in Milton Johnson’s name because Johnson could not qualify for the credit needed to purchase the house in his own name.

At sentencing, Johnson admitted to submitting a false credit report with the residential loan application and to signing the application using his brother’s name and social security number. He also testified, contrary to information contained in the PSI, that his brother was aware that he was the sole signatory on the loan. According to the PSI, Milton Johnson told investigators that he thought he was cosigning for the loan and that he did not know the house was solely in his name. In his interview, with investigators, Milton Johnson admitted to signing the closing documents, but denied signing the loan application. Johnson testified that his brother told him that he could use his name and social security number on the loan application and that both of them attended the closing.

Johnson attended the closing on April 18, 2000. four days after he had been placed on diversion by a state court for two separate controlled substance offenses. In calculating Johnson’s criminal history category, the PSI recommended adding two points under United States Sentencing Guidelines Manual § 4A1.1 because Johnson had committed part of his offense while under a criminal justice sentence, giving Johnson a total of seven criminal history points and a criminal history category of IV. The probation officer used the 1998 edition of the Guidelines Manual to calculate Johnson’s offense level “due to ex post facto concerns.” Under § 2F1.1. Johnson’s base offense level was six. His offense level was increased by four because the amount of the loss was more than $20,000 but less than $40.000,1 and by an additional two levels for more than minimal planning under § 2Fl.l(b)(2). Johnson also received a two-point reduction for acceptance of responsibility. With a total offense level of ten and a criminal history category of IV, Johnson’s guideline [869]*869range for imprisonment was 15 to 21 months.

Prior to sentencing, Johnson objected to the two-point increase in his criminal history score under § 4Al.l(d), arguing that the instant offense had been completed by the time he was placed on diversion. He also argued that his guideline range should have been calculated using the 2001 edition of the Guidelines Manual. Under the 2001 version, Johnson’s sentence would have been calculated under § 2B1.1,2 which does not provide for a two-point enhancement for more than minimal planning, as had been the case under § 2Fl.l(b)(2). According to Johnson, if the 2001 edition of the Guidelines had been used, his base offense level would have been six and he would have received a four-point increase under § 2Bl.l(b)(l)(C) because the amount of the loss exceeded $10,000. With a two-point reduction for acceptance of responsibility, Johnson argued that his total offense level using the 2001 Guidelines Manual would have been eight, a two-point decrease from his total offense level under the 1998 edition of the Guidelines Manual. In response, the government argued that Johnson’s total offense level would have remained the same if the 2001 edition had been used because he would have received a two-point enhancement under § 2Bl.l(b)(9)(C)(i) for identity theft for using a means of identification (his brother’s name and social security number) without authorization to obtain another means of identification (the account number of the bank loan).

The district court rejected both of Johnson’s arguments. The court found that Johnson’s attendance at the closing on April 18, 2000 was a continuation of his fraudulent scheme and sustained the two-point enhancement under § 4A1.1. In reaching this conclusion, the court indicated that it was also influenced by the fact that Johnson had pled guilty to conduct occurring “on or about May 29, 2000” when he pled guilty to Count 2 of the indictment. With respect to Johnson’s argument that his guideline range should have been calculated using the 2001 edition of the Guidelines Manual, the district court was persuaded by the government’s argument that Johnson would have received the two-point enhancement under § 2Bl.l(b)(9)(C)(i) and that his total offense level therefore would have been the same even if the 2001 edition had been used. The court then sentenced Johnson to 18 months imprisonment and three years of supervised release, and ordered restitution in the amount of $20,736.34 to NBC.

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Johnson, 103 F. App'x 866 (6th Cir. 2004).

103 F. App'x 866 (United States v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Chavis Douglas
563 F. App'x 371 (Sixth Circuit, 2014)
Meza v. United States
543 U.S. 1098 (Supreme Court, 2005)