United States v. Terrence Washington

575 F. App'x 560
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 1, 2014
Docket13-1408
StatusUnpublished

This text of 575 F. App'x 560 (United States v. Terrence Washington) 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. Terrence Washington, 575 F. App'x 560 (6th Cir. 2014).

Opinion

ALARCÓN, Circuit Judge.

Defendant-Appellant Terrence O. Washington appeals from the judgment of conviction imposed following a trial by jury of a violation of 18 U.S.C. § 513(a) for possession of a counterfeited security and possession of stolen mail in violation of 18 U.S.C. § 1708. He contends that the district court abused its discretion in admitting hearsay statements. He also asserts that the evidence was insufficient to persuade a rational trier of fact of his guilt of a violation of 18 U.S.C. § 513(a).

Washington also seeks vacation of the sentence imposed by the district court. He argues that the court erred in denying him a two-level reduction for his acceptance of responsibility and in applying a *562 two-level increase for the number of victims of his crimes. He also asserts that the court erred in applying a three-level increase for his role in his criminal activity. He also challenges the court’s finding as to the amount of loss of his victims.

We affirm the judgment convicting Washington of the alleged crimes because we are persuaded that the evidence was sufficient and that no prejudicial error occurred in the district court’s evidentiary rulings. We vacate the sentence, however, and direct the district court to conduct further proceedings and make findings regarding the number of victims of Washington’s crimes, the amount of loss they suffered, and his role in the crimes.

The parties have each waived oral argument. They are well acquainted with the facts necessary to resolve this appeal. Since we have concluded that the issues raised do not present novel issues requiring publication of our opinion, we set forth only those facts necessary to address the legal issues raised by the parties.

I

In January 2012, a grand jury indicted Washington on one count of possession of a counterfeited security in violation of 18 U.S.C. § 513(a) and one count of possession of stolen mail in violation of 18 U.S.C. § 1708. Under a Rule 11 Plea Agreement, he agreed to plead guilty to the § 513(a) count in exchange for the Government’s agreement to dismiss the § 1708 count. The parties also agreed that, if the district court decided to impose a sentence higher than 96 months, Washington could withdraw his guilty plea.

During his plea hearing on March 27, 2012, Washington pled guilty and reserved his rights to contest the number of victims, the amount of loss, and his role in the offense at sentencing. The Government did not object. The district court accepted Washington’s guilty plea and took the plea agreement, with Washington’s reservations, under advisement pending sentencing. During the hearing that was to serve as Washington’s sentencing on July 25, 2012, the court rejected the plea agreement because it found the agreed-to maximum sentence inadequate. 1 The court also rejected Washington’s position that he could plead guilty and still dispute the number of victims, the loss, and his role in the offense at sentencing.

Washington then opted to proceed to trial. After a two-day trial on November 27-28, 2012, a jury convicted him on both counts.

Washington’s December 11, 2012 Pre-sentence Report (“PSR”) calculated his total offense level as 31, assigned him a criminal history category of VI, and determined that he was subject to a guideline range of 188 to 235 months, pursuant to the 2012 Guidelines (“USSG”). The PSR concluded, however, that the applicable statutory máximums limited his term to 180 months. 2 Washington’s total offense level included a 14-level increase for loss of $540,471.40 “combined between two victims,” the check verification services Certegy Check Services (“Certegy”) *563 and TeleCheck; a four-level increase for involvement of at least 67 victims; a three-level increase for his role as a “manager or supervisor” of the criminal activity; and no reduction for acceptance of responsibility. Before sentencing, the Government stipulated that Washington’s total offense level in his PSR should have been a 29, based on a two-level increase for involvement of 10 or more, but less than 50, victims. The stipulation resulted in a guideline range of 151 to 188 months with a statutory maximum sentence of 180 months.

In his Sentencing Memorandum, Washington objected to the PSR’s recommendations on the number of victims, the amount of loss, his role in the offenses, and his acceptance of responsibility.

During his sentencing hearing on March 26, 2013, Washington expressly raised two objections to the PSR. First, he objected that the PSR did not give him credit for acceptance of responsibility because he had “debriefed "with the Government a number of times” prior to his plea agreement, “fully admitted” responsibility in the plea agreement, and “[h]e did not testify at the trial.” The court denied the objection. It explained that Washington “didn’t fully admit his responsibility because he did it on his terms, in terms of what he thought would be the victims and so forth” and that “he didn’t accept responsibility in the sense that the Sentencing Guidelines look to [as] evidenced by the trial.”

Second, Washington objected that “there should not be any increase for number of victims because the two check clearing companies ... reimbursed their clients,” leaving only Certegy and Tele-Check as victims. In response, the Government explained that, during trial, a Certegy fraud investigator had testified that Certegy had two broad categories of clients, warranty merchants and self-risk merchants, and that Certegy reimburses the former, but not the latter, category for erroneously authorized checks. The Government stated that there had been 37 non-reimbursed self-risk merchant victims. 3 The court denied the objection as “supported by all the testimony.”

Afterwards, Washington and the court engaged in the following exchange:

THE COURT: Okay. What’s the next one?
[Counsel for Defendant]: Well, your Honor, the other objections really just go to the calculations and such. You know, based on what I was saying what the level should be. So every time it was brought up I just—
THE COURT: They’re repeated.
[Counsel for Defendant]: So—
THE COURT: Anything you want to — I think they have been dealt with, but anything that you want, that you think—
[Counsel for Defendant]: I would say that’s what’s important, your Honor, to address.
THE COURT: Okay. So let the record reflect that ... we have a total offense level of 29; a criminal history of 6 where the guideline provisions are 151 to 188 [months].

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Bluebook (online)
575 F. App'x 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terrence-washington-ca6-2014.