USA v. Danny Bush

Filing

Opinion issued by court as to Appellant Danny Robert Bush. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-15136

Date Filed: 10/03/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15136
Non-Argument Calendar
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D.C. Docket No. 3:14-cr-00043-CAR-CHW-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY ROBERT BUSH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(October 3, 2016)

Before JORDAN, JULIE CARNES, and EDMONDSON, Circuit Judges.

Case: 15-15136

Date Filed: 10/03/2016

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PER CURIAM:

Danny Bush appeals his 60-month sentence after he pleaded guilty to one
count of possession with intent to use five or more fraudulent identifications, in
violation of 18 U.S.C. § 1028(a)(3). He argues that the district court erred when it
included a $45,000 check found on a co-defendant’s computer in the loss amount
attributed to him under U.S.S.G. § 2B1.1(b). He also argues that the district court
erred when it imposed a four-level enhancement for being an organizer or leader of
the criminal activity under U.S.S.G. § 3B1.1(a).

I.

We review for clear error a district court's determination of loss. United
States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011). Where a fact pattern
gives rise to two reasonable and different constructions, “the factfinder’s choice
between them cannot be clearly erroneous.” United States v. Saingerard, 621 F.3d
1341, 1343 (11th Cir. 2010). Also, “[f]or a finding to be clearly erroneous, [we]
must be left with a definite and firm conviction that a mistake has been
committed.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)
(quotation omitted).

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Under the Sentencing Guidelines, a defendant is held responsible for the loss
that he “knew or, under the circumstances, reasonably should have known, was a
potential result of the offense.” U.S.S.G. § 2B1.1, comment. (n.3(A)(iv)). “A
defendant may be held responsible for the reasonably foreseeable acts of his coconspirators in furtherance of the conspiracy.” United States v. Baldwin, 774 F.3d
711, 727 (11th Cir. 2014), cert. denied, 135 S. Ct. 1882 (2015). “A district court
must determine the scope of the defendant's criminal activity prior to considering
all reasonably foreseeable acts of co-conspirators.” Id. To determine the scope of
a defendant’s criminal activity, the district court may consider any explicit or
implicit agreement “fairly inferred from the conduct of the defendant and others.”
Id.
The undisputed facts support the district court’s decision to attribute the
$45,000 check to Bush: it was “in furtherance of the jointly undertaken criminal
activity and [was] reasonably foreseeable” to him. See id. at 731. The scope of the
conspiracy included the creation of fraudulent checks using computer software,
and Bush’s chief role was to provide expertise on how to fabricate the checks. The
conspiracy involved the use of checks that were drawn on multiple sources using a
variety of names, including -- in at least one instance -- the real name of one of the
conspirators. It was therefore reasonably foreseeable to Bush that files containing
fraudulent checks would exist on Bolton’s computer, even if the check was drawn
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on an account that was not used before and used Bolton’s actual name. That the
check was not in a format that was usable as a check when it was found does not
mean that the conspirators had no intention or plan to convert the check to a
useable format at some point in the future.
Given all the circumstances, the district court did not clearly err when it
attributed the $45,000 check on Bolton’s computer to Bush.

II.

We review for clear error the factual finding that a defendant was an
organizer or leader. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir.
2005).
Pursuant to § 3B1.1(a), a district court may increase a defendant’s offense
level by four levels where “the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). The government bears the burden of proving by a
preponderance of the evidence that the defendant played such a role in the offense.
United States v. Glinton, 154 F.3d 1245, 1260 (11th Cir. 1998). In determining the
defendant’s role in the offense, the district court must consider these factors:
(1) [T]he exercise of decision making authority, (2) the nature of
participation in the commission of the offense, (3) the recruitment of
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accomplices, (4) the claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or organizing the
offense, (6) the nature and scope of the illegal activity, and (7) the
degree of control and authority exercised over others.
United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010); see U.S.S.G.
§ 3B1.1, comment. (n.4).
It is not required, however, that all these considerations exist in any one
case. Ramirez, 426 F.3d at 1356. Moreover, the defendant “does not have to be
the sole leader or kingpin of the conspiracy in order to be considered an organizer
or leader within the meaning of the Guidelines.” United States v. Vallejo, 297 F.3d
1154, 1169 (11th Cir. 2002). For the enhancement to apply, the defendant must
only have been the organizer or leader of at least one other participant. Jennings,
599 F.3d at 1253; see U.S.S.G. § 3B1.1, comment. (n.2). A defendant’s
subordinate role to another conspirator does not absolve him of the supervisory
role he played in the conspiracy. See United States v. Jones, 933 F.2d 1541, 154647 (11th Cir. 1991) (affirming an enhancement under U.S.S.G. § 3B1.1(b)).
The evidence supports the district court’s determination that Bush was an
organizer or leader of the criminal group: Bush satisfies many of the six factors.
See Jennings, 599 F.3d at 1253. Bush received a greater portion of the proceeds
and helped recruit runners. The runners reported to both Bush and Bolton for their
assignments, and Bush gave instructions to the runners about where to cash the
checks. Bush helped secure the stolen identities that the runners would assume to
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cash the checks. He also provided key advice to Bolton on how to plan and
organize the check fabrication and the check cashings to help the criminal activity
run more effectively. That Bush was not the only leader does not preclude the use
of the enhancement. See Vallejo, 297 F.3d at 1169.
Accordingly, the district court did not clearly err when it imposed the fourlevel enhancement for being an organizer or leader.
AFFIRMED.

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