United States v. Tonks

574 F.3d 628, 2009 U.S. App. LEXIS 16721, 2009 WL 2244599
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 29, 2009
Docket08-3821
StatusPublished
Cited by7 cases

This text of 574 F.3d 628 (United States v. Tonks) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Tonks, 574 F.3d 628, 2009 U.S. App. LEXIS 16721, 2009 WL 2244599 (8th Cir. 2009).

Opinion

SHEPHERD, Circuit Judge.

The appellant, George Bing Tonks, pled guilty to two counts of wire fraud in violation of 18 U.S.C. § 1343. The district *630 court 1 imposed a sentence of 78 months imprisonment on each count to run consecutively to undischarged terms of imprisonment imposed on Tonks in Pennsylvania and New York. 2 In this appeal, Tonks contends that the district court erred in denying a reduction of his offense level for acceptance of responsibility and in ordering that his sentence run consecutively to the undischarged portions of his New York and Pennsylvania sentences. We affirm.

From August 2002 through June 2003, under Tonks’s direction and with his assistance, Tonks’s fellow schemers contacted an elderly Iowa woman via telephone from Brooklyn, New York. They knowingly and falsely represented to her that she had won a large cash lottery prize but that, in order to receive the proceeds, she was required to pay taxes and other fees upfront. During this time period, the victim was instructed to transfer multiple amounts of cash, purportedly to pay these taxes and fees, to various recipients in the New York City area. The victim was instructed to use a name other than her own in making some of these wire transfers, and she was frequently told not to retain the receipts. Further, she was instructed not to reveal her lottery winnings or discuss the matter with others. The elderly victim did as instructed and, on 16 occasions, wired cash sums totaling over $200,000 to the addresses provided. Tonks and his accomplices retained the proceeds of the scheme, and the victim received nothing.

Tonks was indicted on 19 counts of wire fraud, and he subsequently entered into a plea agreement. The plea agreement provided for Tonks’s guilty plea to two counts of wire fraud, for the United States to move for dismissal of the remaining counts, and for Tonks’s stipulation that he would pay full restitution to the victim. The plea agreement also contained a stipulation of the facts involved in the offense conduct, expressed the expectation that a reduction of offense level would be awarded for acceptance of responsibility, and indicated that the United States would move for an additional offense-level reduction for Tonks’s timely acceptance of responsibility.

At sentencing, the district court noted that the Presentence Investigation Report recommended a two-level decrease in offense level for acceptance of responsibility, see United States Sentencing Commission, Guidelines Manual, § 3El.l(a) (Nov. *631 2002), and contemplated that the United States would move for an additional one-level reduction for Tonks’s timely acceptance of responsibility. Id. § 3El.l(b). The district court asked Tonks if he persisted in his pleas of guilty. In response, Tonks hesitated, then he stated “yes.” When the court inquired as to whether the hesitation indicated that Tonks no longer wished to plead guilty, Tonks stated that, although there was “no actual evidence” against him, he had no choice but to plead guilty because of his “past” and because of witnesses who the government had “made deals with to testify” against him. In response to Tonks’s comments, the district court indicated that it was tentatively declining to grant an aeceptance-of-responsibility adjustment. Tonks’s attorney advised the court that Tonks had agreed to a detailed factual recitation of what had occurred as detailed in the plea agreement and that Tonks’s lack of an objection to a four-level leadership role enhancement was indicative of Tonks’s acceptance of “his involvement and responsibility with respect to this entire scheme.” The United States agreed that, in the plea agreement, Tonks had stipulated to the underlying facts of the case. Further, the United States advised the district court that if the court granted a two-level acceptance-of-responsibility adjustment, the United States would move for an additional reduction of one level pursuant to section 3El.l(b).

At that point, Tonks elected to speak further and launched a rambling attack on federal law enforcement agents who apparently had been involved in the investigation which led to his New York federal prosecution. Tonks accused agents of drugging and torturing him, and he accused various federal prosecutors of misconduct. He further denied guilt with respect to the New York prosecution and complained about the sentence imposed in that case.

Turning to the case at hand, Tonks denied knowledge of the bogus lottery scheme and denied receiving any of the proceeds of the scam perpetrated on the Iowa victim. He denied personal participation in “any type of lottery business” and termed his only culpability as a failure to supervise telemarketers working for him who “stole thousands of dollars from several customers without [his] knowledge.”

The district court found that Tonks’s in-court statements demonstrated that he took no responsibility for the defrauding of the Iowa victim and espoused Tonks’s view that he was the victim. The court stated that Tonks’s comments “basically negate[ ] everything that he said in the Stipulation of Facts that led to the plea agreement.” Accordingly, the court declined to grant an acceptance-of-responsibility adjustment. The court calculated Tonks’s base offense level at 6, see USSG § 2Bl.l(a); assessed a 12-level increase based upon the amount of loss to the victim, see id. § 2Bl.l(b)(l)(G); and added 4 levels due to Tonks’s role as a leader/organizer, see id. § 3Bl.l(a), resulting in an adjusted offense level of 22.

The adjusted offense level of 22, combined with a criminal history category of IV, yielded a sentencing range of 63-78 months. After considering the sentencing factors specified under 18 U.S.C. § 3553(a), the district court imposed a sentence of 78 months imprisonment on each count with the terms of imprisonment to run concurrently with each other but consecutively to the undischarged portion of the terms of imprisonment imposed in the Eastern District of Pennsylvania and the Southern District of New York.

On appeal, Tonks first asserts that the district court erred in denying *632 him an acceptance-of-responsibility adjustment pursuant to section 3E1.1. “A defendant bears the burden of establishing entitlement to a downward adjustment for the acceptance of responsibility.” United States v. Tjaden, 473 F.3d 877, 879 (8th Cir.2007). “We review the District Court’s decision to deny an acceptance-of-responsibility reduction for. clear error,” United States v. Bell, 411 F.3d 960, 963 (8th Cir.2005), and we accord “great deference on review” to this determination by the sentencing court, id. (quoting USSG § 3E1.1, comment, (n.5)).

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Cite This Page — Counsel Stack

Bluebook (online)
574 F.3d 628, 2009 U.S. App. LEXIS 16721, 2009 WL 2244599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tonks-ca8-2009.