United States v. Rosa Stewart

378 F. App'x 904
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 3, 2010
Docket09-12339, 09-12341
StatusUnpublished

This text of 378 F. App'x 904 (United States v. Rosa Stewart) 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. Rosa Stewart, 378 F. App'x 904 (11th Cir. 2010).

Opinion

PER CURIAM:

Rosa Stewart (“Rosa”) and Carlos Stewart (“Carlos”) (collectively “the Stewarts”) pled guilty to conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349, and the district court sentenced them to prison terms of 60 months. They now appeal their sentences, contending (1) that the district court erred in determining their offense levels under the Sentencing Guidelines by refusing to afford them a three-level reduction pursuant to U.S.S.G. § 2Xl.l(b)(2), 1 and (2) that their sentences are unreasonable. We consider these contentions in turn.

I.

The Guideline applicable to conspiracy to commit mail fraud is U.S.S.G. § 2X1.1, which covers attempt, solicitation, and conspiracy offenses not covered by a specific offense Guideline. U.S.S.G. § 2X1.1. When the offense of conviction is a conspiracy, § 2Xl.l(b)(2) provides for a three-level reduction to the defendant’s base offense level:

unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.

*906 U.S.S.G. § 2Xl.l(b)(2). The commentary to § 2X1.1 offers the following clarification:

In most prosecutions for conspiracies or attempts, the substantive offense was substantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforcement authorities or the victim. In such cases, no reduction of the offense level is warranted. Sometimes, however, the arrest occurs well before the defendant or any co-conspirator has completed the acts necessary for the substantive offense. Under such circumstances, a reduction of 3 levels is provided under § 2Xl.l(b)(l) or (2).

U.S.S.G. § 2X1.1, comment, (backg’d).

In United States v. Khawaja, we concluded that defendants convicted of conspiracy to commit money laundering were entitled to the three-level reduction in § 2Xl.l(b)(2) for the following reason:

The record shows that although the conspirators intended to launder $2 million, they managed to launder only $570,556 prior to apprehension. The conspiracy was dependent on the IRS’s fronting of the purported drug money, and the record does not show that at the time the IRS terminated its sting operation, Appellants had arranged for specific transactions to occur in the future. Accordingly, the conspirators had not taken crucial steps (including for example, preparing falsified documentation, securing cashier’s checks, or arranging meetings for the exchange) to launder the remaining balance of $2 million. Consequently, Appellants neither believed that they had completed all the acts necessary on them part nor were they about to complete all such acts for the laundering of the entire $2 million.

118 F.3d 1454, 1458 (11th Cir.1997).

Applying Khawaja, we subsequently held in United States v. Puche that money-laundering conspirators were similarly entitled to the three-level reduction because, although they previously had laundered over $700,000, they had not “taken crucial steps, such as contacting the [undercover] agents or preparing paperwork for more transfers, to launder the remaining six million dollars.” 350 F.3d 1137, 1156 (11th Cir.2003). Indeed, the defendants in Puche specifically told the undercover agent that they “wanted to hold off on [future] transfers” for the time being. Id.

In United States v. Lee, we held that defendants convicted of mail fraud were not entitled to the analogous three-level reduction for attempt offenses in § 2Xl.l(b)(l). 427 F.3d 881, 893-94 (11th Cir.2005); see U.S.S.G. § 2Xl.l(b)(l). We arrived at this conclusion because, although the defendants submitted fraudulent checks that were not honored, they had nonetheless “clearly ... completed all the acts necessary to commit mail fraud” because the fact that those fraudulent checks were not honored was beyond their control. Lee, 427 F.3d at 894 (emphasis added) (explaining that the defendants had mailed several letters and “completed the acts underlying their scheme to defraud”).

More recently, in Watkins, we addressed whether the analogous three-level reduction for solicitation offenses in § 2X1.1(b)(3)(A) applied when the defendant solicited an undercover agent to commit arson. 477 F.3d at 1278; see U.S.S.G. § 2Xl.l(b)(3)(A). After we “adopt[ed] the approach taken in [its] application of § 2Xl.l(b)(2),” the issue became “whether or not the person solicited had taken all the ‘crucial steps’ necessary to demonstrate to the defendant that the offense *907 was about to be completed.” Watkins, 477 F.3d at 1281 (emphasis in original). We ultimately remanded the case to the district court for further findings, because “the only steps taken were a diagram and a discussion about the placement of the incendiary devices. There was no evidence, however, that the undercover officer had obtained the actual devices or the means to complete the arson.” Id.

In this case, the Stewarts and their co-conspirators had taken “crucial steps” towards completing the substantive mail fraud offense at the time law enforcement intervened. This is so because they had established a detailed plan to carry out the offense, they had the means to execute the plan, and they were on the verge of executing the plan. The district court thus did not err by declining to award the Stewarts a three-level reduction, pursuant to § 2Xl.l(b)(2). We therefore turn to the Stewart’s claim that their sentences are substantively unreasonable.

II.

The Stewarts argue that because (1) their 60-month’s prison terms are at least double their correctly-determined Guidelines sentencing ranges, (2) no other codefendant was sentenced above his or her Guidelines sentencing range, (3) the Government did not request a variance from the sentencing range for either Rosa or Carlos, and (4) the district court failed to state with the requisite specificity why such di'amatically enhanced sentences were warranted, their sentences are substantively unreasonable given the sentencing factors of 18 U.S.C. § 3553(a).

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118 F.3d 1454 (Eleventh Circuit, 1997)

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Bluebook (online)
378 F. App'x 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rosa-stewart-ca11-2010.