United States v. Whittington

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 22, 2001
• Docket: 00-31334
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31334 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEROME ARTHUR WHITTINGTON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 99-CR-50092-2 -------------------- September 28, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Jerome Arthur Whittington appeals his sentence following a

guilty plea to wire fraud, 18 U.S.C. § 1343. Whittington raises

the following six issues on appeal: (1) whether the district

court erred in its “total loss” determination; (2) whether the

district court erred in upwardly departing pursuant to U.S.S.G.

§§ 3D1.2(d) & 5G1.1; (3) whether the district court erred in

denying a three-point reduction pursuant to U.S.S.G. § 3E1.1;

(4) whether the district court erred when it sentenced

Whittington to a harsher sentence than his codefendant;

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-31334 -2-

(5) whether the district court erred in ordering that restitution

be paid to victims other than the victim involved in the counts

to which he pleaded guilty; and (6) whether Apprendi precluded

sentence enhancement based on facts found by the district court

by only a preponderance of the evidence. For the following

reasons, we affirm.

Issues two, four, five, and six were not raised as

objections in the district court, and, therefore, they are

reviewed for plain error only. See United States v. Alford, 142

F.3d 825, 830 (5th Cir. 1998). Plain error requires Whittington

to show "(1) an error; (2) that is clear or plain; (3) that

affects [his] substantial rights; and (4) that seriously affects

the fairness, integrity or public reputation of judicial

proceedings." United States v. Vasquez, 216 F.3d 456, 459 (5th

Cir.), cert. denied, 531 U.S. 972 (2000).

In his second issue, Whittington complains that the district

court erroneously departed upward when it sentenced him to

consecutive prison terms because 18 U.S.C. § 1343 does not

mandate consecutive sentencing, because the counts to which he

pleaded guilty should have been construed as a single offense,

and because the district court’s decision to upwardly depart was

based on prior charges which had been dismissed pursuant to plea

agreements.

The district court had authority under 18 U.S.C. § 3584(a)

to upwardly depart by imposing consecutive sentences for multiple

terms of imprisonment, despite the apparent mandatory nature of

U.S.S.G. § 5G1.2. See 18 U.S.C. § 3584(a) (“Multiple terms of No. 00-31334 -3-

imprisonment imposed at the same time run concurrently unless the

court orders or the statute mandates that the terms are to run

consecutively.”); see also United States v. Martinez, 950 F.2d

222, 226 (5th Cir. 1991) (resolving the apparent conflict between

18 U.S.C. § 3584(a) and U.S.S.G. § 5G1.2).

The district court’s decision to upwardly depart pursuant to

U.S.S.G. § 4A1.3 was appropriate in light of its determination

that Whittington’s criminal history category did not adequately

reflect the seriousness of his past criminal conduct or the

likelihood that the he would commit other crimes. Section

4A1.3(e), moreover, allows the sentencing court to consider

“prior similar adult criminal conduct not resulting in a criminal

conviction.” The district court’s reliance on prior criminal

conduct not resulting in a conviction was therefore not improper.

Whittington’s argument that he did not receive a “bargain”

from his plea agreement as expected is also meritless because he

acknowledged in the plea agreement that “the maximum punishment

on each count [was] a fine of not more than $240,000 or a term of

imprisonment of not more than 5 years (pursuant to 18 U.S.C.

§ 1343), or both.” Whittington has not demonstrated that the

upward departure was plain error.

In his fourth issue, Whittington complains that his sentence

was much harsher than that of his codefendant, who he argues was

more culpable. “[A] mere disparity of sentences among

codefendants does not, alone, constitute abuse of discretion."

United States v. Lemons, 941 F.2d 309, 320 (5th Cir. 1991) No. 00-31334 -4-

(internal citations and quotation omitted). Whittington has

again failed to demonstrate plain error.

In his fifth issue, Whittington argues pursuant to Hughey v.

United States, 495 U.S. 411 (1990) that it was error for the

district court to order restitution to victims other than the

victim involved in the counts to which he pleaded guilty. Hughey

held that restitution can be awarded under the Victim and Witness

Protection Act (VWPA), 18 U.S.C. § 3663, only for the loss caused

by the specific conduct that is the basis of the offense of

conviction. 495 U.S. at 413.

To convict Whittington of wire fraud, the Government had to

prove a scheme to defraud, rather than specific incidents of

fraud limited to individual victims. See 18 U.S.C. § 1343;

United States v. Stouffer, 986 F.2d 916, 928 (5th Cir. 1993).

Because a fraudulent scheme is an element of Whittington’s wire-

fraud offense, his actions pursuant to that scheme are conduct

underlying the offense of conviction. See Stouffer, 986 F.2d at

928. His indictment, moreover, specifically described the

duration of Whittington’s scheme and the methods used. See id.

The district court’s inclusion of all losses caused by the scheme

therefore satisfied Hughey’s requirement that the district court

focus upon only the specific conduct underlying the offense of

conviction. See id.; see also United States v. Pepper, 51 F.3d

469, 473 (5th Cir. 1995) (restitution awarded pursuant to VWPA to

victims not named in the indictment was proper where fraudulent

scheme was an element of the underlying offense). Whittington

has failed to establish error, plain or otherwise. No. 00-31334 -5-

In his sixth issue, Whittington draws an Apprendi v. New

Jersey, 530 U.S. 466 (2000) analogy and argues that it was

inappropriate for the district court to enhance his sentence

based on facts that were found only by a preponderance of the

evidence. Apprendi, however, does not invalidate a sentencing

court’s factual findings for the purposes of determining the

applicable Sentencing Guidelines where those findings do not

increase the sentence beyond the statutory maximum. United

States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied,

121 S. Ct. 1164 (2001). The district court did not exceed the

maximum sentence on any one of the three counts to which

Whittington pleaded guilty, and, therefore, Apprendi is a

non-issue. See, e.g., United States v. White, 240 F.3d 127, 135

(2d Cir. 2001) (Apprendi is not violated where the maximum

sentence is not exceeded on any individual count). Plain error

has not been established.

To the extent Whittington raised the issue whether he should

receive credit for time served, he failed to brief it, and it is

therefore waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th

Cir. 1993).

Whittington’s first and third issues were raised as

objections in the district court. The district court's

interpretation or application of the Sentencing Guidelines is

therefore reviewed de novo and its factual findings for clear

error. United States. v. Huerta, 182 F.3d 361, 364 (5th Cir.

1999), cert. denied, 528 U.S. 1191 (2000). No. 00-31334 -6-

In his first issue, Whittington argues that the district

court erred in making its “total loss” determination because the

Government supported that determination with evidence

uncorroborated by the alleged victims and because the Government

erroneously assumed that all deposits made into the defendant’s

accounts were unearned and thus the result of fraud. We review a

district court's loss determination for clear error. United

States v. Oates, 122 F.3d 222, 225 (5th Cir. 1997). A district

court’s loss determination is not clearly erroneous as long as it

is plausible in light of the record as a whole. Id.

The Government submitted corroborating evidence of its loss-

determination figures via hard copies of banking records. The

district court credited Whittington for $12,000 in deposits for

which hard copies were unavailable. The district court

furthermore reduced the Government’s total-loss figure by roughly

$80,000 based on the determination that legal services were

performed for some individuals and that some restitution had

already been paid. Whittington has failed to establish that the

district court’s loss determination was clearly erroneous simply

because each victim was not contacted to corroborate the amount

by which each was defrauded.

In his third issue, Whittington argues that the district

court erred in refusing to grant him a three-point reduction

pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility.

Challenges to the denial of a § 3E1.1 acceptance-of-

responsibility reduction are reviewed even more deferentially

than a pure "clearly erroneous" standard, United States v. No. 00-31334 -7-

Gonzales, 19 F.3d 982, 983 (5th Cir. 1994), and the defendant has

the burden of proof, United States v. Tremelling, 43 F.3d 148,

152 (5th Cir. 1995).

We hold that the unrebutted testimony of Joan Parker was

sufficient for the district court to conclude that Whittington

was still engaging in fraudulent conduct even while incarcerated

for the instant offense, and, therefore, a denial of the three-

point reduction was not clearly erroneous.

We therefore AFFIRM the district court. Whittington’s

motions to file a corrected brief and reply brief are GRANTED.

All other motions filed on behalf of either party are DENIED.