US v. Daniel Agyepong

Filing 920090220

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4053

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)

Submitted:

December 29, 2008

Decided:

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Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

violation

U.S.C.

§ 1019(a)(1),

(2006)

(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

Eleven.

that

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

probation

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).

2

or

use

of

device-making

equipment,

the

probation

officer

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

officer

Agyepong's subtotal criminal history score was three.

However,

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

greater

than

$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

called

Secret

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

denied

Agyepong

acceptance

reduction.

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

months

Count

One,

bottom

guidelines

range,

consecutive

twenty-four

months'

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

loss

evidence. 2005).

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

criminal

category.

Under

§ 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

defendant's fairness,

substantial integrity,

"seriously reputation

affects of

public

judicial

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

Without

these

criminal

history

points,

Agyepong's

criminal history category would be II. (sentencing table), with offense

Under USSG ch. 5, pt. A twelve and criminal

level

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

resentenced imprisonment

district an

imposed

sentence

under

erroneously

calculated

sentencing

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

applicability court

different the the

district on the

[could]

reconsider or on

imposed,

either

[existing]

record

basis of further proceedings."

Id. 6

The

Supreme

Court

has

endorsed

the

principle

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

determining range.

starting

point--i.e.,

the

correct

Accordingly, district court's

the

error of

in a

this

case

is

not term

the of

imposition

fifteen-month

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

motions

pro

supplemental

brief

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED

8