US v. Daniel Agyepong
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL K. AGYEPONG, Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00178-JAB-2)
December 29, 2008
February 20, 2009
Before TRAXLER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC, Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Robert M. Hamilton, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Pursuant to a plea agreement, Daniel K. Agyepong pled guilty to conspiracy to use counterfeit and unauthorized access devices (credit of 18 cards and credit card account (a)(2), numbers), (b)(2) in
(Count One), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (2006) (Count Eleven). The district court
sentenced Agyepong to fifteen months' imprisonment on Count One and a consecutive Agyepong twenty-four appeals his months' sentence, imprisonment contending on Count the
district court erred in its loss calculation and in calculating his criminal history. We affirm the loss calculation, but
remand for resentencing for the reasons stated below. In the presentence report ("PSR"), the probation
officer determined that the base offense level for Count One was six, pursuant to USSG § 2B1.1(a)(2). of loss exceeded $10,000, the Finding that the amount officer increased
Agyepong's base offense level by four levels, pursuant to USSG § 2B1.1(b)(1)(C). Because the offense involved the possession
The probation officer did not group Counts One and Eleven, although they were closely related, because Count Eleven, aggravated identity theft, 18 U.S.C. § 1028A(a)(1), (a)(2), carried a mandatory consecutive prison term. U.S. Sentencing Guidelines Manual § 5G1.2(a) (2007); 18 U.S.C. § 1028A(a)(1), (b)(2).
increased Agyepong's offense level by two levels, pursuant to USSG § 2B1.1(b)(1)(A)(i). two-level decrease in The probation officer recommended a offense level for acceptance of
responsibility, pursuant to USSG § 3E1.1(a). criminal convictions, the probation
Based on his prior found that
Agyepong's subtotal criminal history score was three.
the probation officer added two points under USSG § 4A1.1(d), because he found that Agyepong committed the instant offense while on probation; the total criminal history score of five points placed Agyepong in Criminal History Category III. The
guidelines range for offense level ten and criminal history III was ten to sixteen months in prison. Thus, the probation
officer determined that Agyepong's guidelines range for Count One was ten to sixteen months in prison, with a mandatory twoyear consecutive sentence for Count Eleven, pursuant to 18
U.S.C. § 1028A(a)(1), (b)(2). Agyepong offense level for objected a loss to the four-level $10,000 increase based on in the
$26,914.90 loss calculation in the PSR, claiming that he was unaware of the full scope of the scheme and did not realize the credit hearing, card the purchases Government were fraudulent. United At States the sentencing Service
Special Agent James Albert Shively, Jr., who testified about 3
specific transactions. he illegally obtained
Agyepong also testified, admitting that credit card account numbers for
co-conspirator, Ahdi Ghazi Alshare, but denying that he ever personally made purchases with a fraudulent credit card. The district court overruled Agyepong's objections to the loss determinations in the the PSR. of Furthermore, responsibility the court
Without the acceptance of responsibility adjustment, Agyepong's offense level was twelve, resulting in a guidelines range of fifteen fifteen to twenty in months. prison and a on The court sentenced the Agyepong of to the
imprisonment on Count Eleven. Agyepong argues first on appeal that the district
court improperly calculated the amount of loss attributable to him. of In a fraud case, the Government must establish the amount for sentencing purposes by a preponderance of the
United States v. Pierce, 409 F.3d 228, 234 (4th Cir.
This court reviews the amount of loss, to the extent United States v.
that it is a factual matter, for clear error. West, 2 F.3d 66, 71 (4th Cir. 1993).
This deferential standard
of review requires reversal only if this court is "left with the definite and firm conviction that a mistake has been committed." United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005). 4
We find that the district court did not clearly err in its loss calculations. Agyepong calculation of his also challenges history the district court's USSG
§ 4A1.1(d), a defendant who "committed the instant offense while under any criminal justice sentence, including probation," will be assessed two criminal history points. three criminal history points Agyepong In addition to the received for past
criminal convictions, he received two points under § 4A1.1(d) for committing his subject offenses while on probation. He now
contends that the district court erred by assessing these two criminal history points. Because Agyepong did not object to his
criminal history calculation in the district court, we review his claim for plain error. 725, 732 (1993) (error United States v. Olano, 507 U.S. which and was plain, affected the
occurred, rights, or
proceedings"). The subject offenses occurred from April 1, 2004, to September 9, 2004. As the Government concedes, a review of the
PSR reflects that Agyepong was not on probation at the time of the instant offenses and therefore the two criminal history
points were incorrectly applied.
Thus, the district court erred
in calculating Agyepong's guidelines range. 5
criminal history category would be II. (sentencing table), with offense
Under USSG ch. 5, pt. A twelve and criminal
history category II, Agyepong's guidelines range on Count One should have been twelve to eighteen months. The fifteen-month
sentence Agyepong received on this Count is within that range. Nevertheless, the Government concedes that Agyepong is entitled to be resentenced based on this error. We agree.
In United States v. McCrary, 887 F.2d 485 (4th Cir. 1989), we determined when the that the defendant court was entitled a to be of
guidelines range--even when, as here, the sentence imposed fell within the overlap between the correct and erroneous ranges. In
such circumstances, we held that the appellate court "cannot confidently assume" that the factors influencing the district court's selection of a specific term of imprisonment within the erroneous range would necessarily lead the court to select the same term within the correct range. remanded in order report range, that, and the "apprised the Id. at 489. of the of The case was error a in the
presentence guidelines sentence
different the the
district on the
reconsider or on
basis of further proceedings."
underlying McCrary even after United States v. Booker, 543 U.S. 220 (2005). Post-Booker, "a district court should begin all
sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure
nationwide consistency, the Guidelines should be the starting point and the initial benchmark." Gall v. United States, 128 S. Gall thus court may
Ct. 586, 596 (2007) (internal citations omitted). confirms the holding in McCrary that the district
weigh the specific factors relevant to the defendant to arrive at the reasonably the appropriate sentence only after correctly guidelines
Accordingly, district court's
imprisonment on Count One, but its acceptance of the Probation Office's report placing Agyepong in criminal history category III upon an incorrect factual basis for that determination.
That error, based upon a finding that Agyepong was on probation when he was not, affected his right to a determination of the correct guidelines range, the district court's starting point for evaluating his sentence. As in McCrary, we cannot know whether the district court would have imposed the same term of imprisonment had it 7
"appreciated the possibility that an alternative, `overlapping' guideline[s] range might apply." 887 F.2d at 489. But because
the district court sentenced Agyepong to the minimum term of imprisonment under the guidelines range it mistakenly applied, it is reasonable to presume the court would have imposed a lower sentence had it been aware of the correct guidelines range. See
United States v. Price, 516 F.3d 285, 289 n.28 (5th Cir. 2008) (The district court's imposition of the minimum term under the incorrect range "demonstrate[d] `at least a reasonable
probability that the district court would have imposed a lesser sentence if it had properly applied the Guidelines.'")
Accordingly, we find that Agyepong has satisfied the plain error standard of review. Accordingly, although we affirm the district court's loss calculation, we vacate Agyepong's sentence and remand for resentencing Agyepong's denied. legal before under the to correctly file a calculated se guidelines range. are
We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional
contentions the court
process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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