United States v. Wesley Anderson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 17, 2020
• Docket: 19-12980
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12930 Non-Argument Calendar ________________________

D.C. Docket No. 6:18-cr-00272-RBD-GJK-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

CHRISTOPHER STEWART,

Defendant-Appellant.

________________________

No. 19-12980 Non-Argument Calendar ________________________

D.C. Docket No. 6:18-cr-00272-RBD-GJK-1

vs. USCA11 Case: 19-12930 Date Filed: 11/17/2020 Page: 2 of 8

WESLEY ANDERSON,

Appeals from the United States District Court for the Middle District of Florida ________________________

(November 17, 2020)

Before JORDAN, JILL PRYOR and BRANCH, Circuit Judges.

PER CURIAM:

Christopher Stewart and Wesley Anderson appeal their respective 57-month

and 84-month sentences. D.E. 36 at 10. First, Mr. Anderson and Mr. Stewart argue

that the district court erred in calculating the loss amount by using the face value of

the counterfeit checks they deposited instead of the actual amount withdrawn from

the banks. D.E. 21 at 10. Second, Mr. Stewart argues that the district court clearly

erred in finding that he was not eligible for a minor role reduction. Id. Finally, Mr.

Stewart contends that the district court clearly erred by considering his criminal

history as an aggravating factor when determining his sentence. Id. After review of

the parties’ briefs and the record, we affirm.

I

We review for clear error a district court’s amount-of-loss determination. See

United States v. Machado, 333 F.3d 1225, 1227 (11th Cir. 2003). Under this

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standard, we will not reverse unless we are left with a definite and firm conviction

that the district court committed a mistake. United States v. White, 335 F.3d 1314,

1319 (11th Cir. 2003).

When a defendant’s offense involves counterfeit checks, a district court does

not clearly err when it uses the full face value of a check to calculate intended loss.

See United States v. Grant, 431 F.3d 760, 765 (11th Cir. 2005) (“[W]e hold when an

individual possesses a stolen check, or a photocopy of a stolen check, for the purpose

of counterfeiting, the district court does not clearly err when it uses the full face

value of that stolen check in making a reasonable calculation of the intended loss.”).

See also United States v. Chukwura, 5 F.3d 1420, 1425 (11th Cir. 1993) (holding

that the district court did not clearly err by calculating the total loss as the aggregate

amount of fraudulent checks, even though the defendant did not withdraw all the

funds from the bank accounts, because the full value of the checks represented the

“intended losses”). We explained in Grant that, “[a]lthough a district court cannot

equate the full face value of stolen checks with intended loss as a matter of law in

every case, it can still find a defendant intended to utilize the full face value of stolen

checks.” Grant, 431 F.3d at 765. “Where the Government presents evidence

indicating the defendant intended to utilize the full face value of the checks, and the

defendant fails to present countervailing evidence, a district court is especially

justified in including the checks’ full face value in its intended loss calculation.” Id.

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Here, the district court did not clearly err by calculating Mr. Stewart’s and Mr.

Anderson’s intended loss amounts based on the full face value of the checks rather

than the amount they actually withdrew from the banks. The face value of the 376

counterfeit checks deposited was $372,417.14, while the actual loss to the banks was

$79,033.30. D.E. 16 at 7. Mr. Anderson and Mr. Stewart argue that the district court

clearly erred by using the full face value calculation, but that general contention is

foreclosed by our precedent in Grant and Chukwura. Their argument that the district

court clearly erred because they never intended to obtain or use the full face value

of the counterfeit checks also fails. First, the government presented sufficient

evidence to show that they were likely to have continued withdrawing money had

Mr. Anderson and Mr. Griffin (a co-conspirator) not been arrested soon after a

majority of the checks were deposited. Second, Mr. Stewart and Mr. Anderson failed

to present sufficient countervailing evidence. Accordingly, we affirm in this respect.

II

We review for clear error a district court’s factual finding that a defendant did

not have a mitigating role in his offense. See United States v. De Varon, 175 F.3d

930, 937-38 (11th Cir. 1999) (en banc). The defendant “bears the burden of proving

a mitigating role in the offense by a preponderance of the evidence.” Id. at 939

(citations omitted).

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The Sentencing Guidelines permit a district court to decrease a defendant’s

offense level by two if it finds the defendant was a “minor participant” in his criminal

activity. See U.S.S.G. § 3B1.2(b). A minor participant is a defendant “who is less

culpable than most other participants, but whose role could not be described as

minimal.” § 3B1.2, comment. (n.5). In determining whether a minor role reduction

is warranted, a district court (1) “must measure the defendant’s role against the

relevant conduct for which [he] was held accountable at sentencing,” and (2) “may

also measure the defendant’s role against the other participants, to the extent that

they are discernable, in that relevant conduct.” De Varon, 175 F.3d at 945. Relevant

conduct is the “conduct attributed to the defendant in calculating [his] base offense

level.” Id. at 941. A defendant, however, “is not automatically entitled to a minor

role adjustment merely because [he] was somewhat less culpable than the other

discernable participants.” Id. at 944.

In determining whether to apply a mitigating role adjustment, the court should

consider (1) “the degree to which the defendant understood the scope and structure

of the criminal activity,” (2) “the degree to which the defendant participated in

planning or organizing the criminal activity,” (3) “the degree to which the defendant

exercised,” or “influenced the exercise of[,] decision-making authority,” (4) “the

nature and extent of the defendant’s participation in the . . . criminal activity,” and

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(5) “the degree to which the defendant stood to benefit from the criminal activity.”

§ 3B1.2, comment. (n.3(C)).

Here, the district court did not err in declining to apply a mitigating role

adjustment for Mr. Stewart because he failed to prove by a preponderance of the

evidence that he was less culpable than the other members of the conspiracy. See De

Varon, 175 F.3d at 939. The government produced evidence that Mr. Stewart

(1) deposited checks by himself and with his co-conspirators, (2) withdrew funds

from the ATMs, and (3) posted photos on social media holding wads of cash in a

bank parking lot. D.E. 36 at 30. Furthermore, Mr. Stewart was seen entering and

exiting the hotel rooms where Mr. Anderson and Mr. Griffin kept the counterfeit

check production equipment, and his belongings were found in the hotel room after

Mr. Anderson and Mr. Griffin were arrested. Id. at 30-31. Although Mr. Stewart

was not responsible for as many counterfeit check deposits and withdrawals as Mr.

Anderson and Mr. Griffin, this fact alone is not enough to carry his burden of proving

that he was a minor participant in light of the other evidence against him.

Considering these facts, we conclude that the district court did not clearly err in

finding that Mr. Stewart was not eligible for a minor role reduction. Accordingly,

we affirm in this respect as well.

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III

We review the substantive reasonableness of a sentence for abuse of

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). We will vacate a

sentence as substantively unreasonable only if we are “left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc).

A district court abuses its discretion and imposes a substantively unreasonable

sentence when it commits a clear error of judgment in considering appropriate

sentencing factors. See United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th

Cir. 2015). A defendant “bears the burden of showing that the sentence is

unreasonable in light of the entire record, the § 3553(a) factors, and the substantial

deference afforded [to the] sentencing court.” Id. “Although we do not

automatically presume a sentence within the guidelines range is reasonable,” we

ordinarily expect such a sentence “to be reasonable.” United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008) (quoting United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005)). That a sentence is below the statutory maximum term of

imprisonment is another indicator of reasonableness. See United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008).

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Here, the district court did not make a clear error in judgment by focusing on

Mr. Stewart’s criminal history as an aggravating factor when determining his

sentence. Mr. Stewart was 20 years old at the time of sentencing and had 14 criminal

history points based on 8 juvenile convictions and 1 adult conviction. D.E. 36 at 33.

At the time of his arrest, Mr. Stewart had adult charges for marijuana-possession,

possession of a firearm by a delinquent, carrying a concealed firearm, and grand

theft of a firearm. Id. The district court was well within its discretion to give weight

to his lengthy criminal history. Moreover, even after considering Mr. Stewart’s

criminal history, the district court sentenced him to the lowest possible sentence

within the guidelines range, well below the statutory maximum of 30 years’

imprisonment, another indicator of reasonableness. See Hunt, 526 at 746; Gonzalez,

550 F.3d at 1324. Accordingly, we affirm.

IV

The sentences of Mr. Stewart and Mr. Anderson are affirmed.

AFFIRMED.