United States v. Johntez Randle

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, C. Arlen Beam and Lavenski R. Smith (UNPUBLISHED) [4430796] [15-1955]

United States Court of Appeals
For the Eighth Circuit
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No. 15-1955
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Johntez Randle
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: April 11, 2016
Filed: July 27, 2016
[Unpublished]
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Before LOKEN, BEAM, and SMITH, Circuit Judges.
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PER CURIAM.
Johntez Randle appeals his sentence, following a guilty plea, for conspiracy to
deal in counterfeit currency, and aiding and abetting uttering counterfeit obligations.

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Randle argues the district court1 erred in calculating the amount of loss and by
assessing him an enhancement for being a manager or leader in the conspiracy.
Officials first became aware of Randle and the counterfeit conspiracy in August
2012 during a traffic stop of Randle's vehicle. Counterfeit bills were found in
Randle's and the driver's possession. During the entirety of 2013 and continuing until
issuance of the indictment in May 2014, Randle and others associated with him,
attempted to, and did, pass counterfeit bills at numerous fast food and retail locations
primarily in Minnesota. Randle and six others were charged in a nine-count
indictment with conspiracy to deal in counterfeit currency, uttering counterfeit
obligations, and aiding and abetting uttering counterfeit obligations, in violation of
18 U.S.C. §§ 2, 371, 472, and 473. Randle pleaded guilty to Counts 1 (conspiracy)
and 3 (aiding and abetting).
The case agent for the counterfeit investigation, United States Secret Service
Special Agent Steven Amelse, testified at Randle's sentencing hearing. Amelse
testified that he interviewed Randle's six co-conspirators,2 and all indicated that the
source of counterfeit money was Randle. Indeed, several members of the conspiracy
told Amelse that Randle kept the information on how to make the counterfeit notes
to himself. Through surveillance, law enforcement determined that Randle used
simple resume paper to make sheets of counterfeit bills, and then Randle used an XACTO knife (found during a search incident to arrest) to cut the sheets into individual
bills. The co-conspirators testified that Randle provided them with counterfeit bills,
and it was their role to purchase items with the bills, exchange the items for cash, and
then return the cash to Randle. Randle gave them a portion of the proceeds for their

1

The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
2

While only seven co-conspirators were indicted in the instant case, Amelse
indicated that approximately twenty people were involved in the conspiracy.
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efforts. One co-conspirator testified that Randle instructed him to leave the
counterfeit bill and flee the retail establishment if a cashier detected the fraud or
became suspicious.
One of the two disputes in this sentencing appeal is the amount of loss properly
attributed to Randle. Amelse explained how the government arrived at its loss
calculation. Amelse compiled a spreadsheet of serial numbers on counterfeit bills
known to have been passed by Randle or a member of the conspiracy, either by way
of video surveillance from the retail location, or through police reports of counterfeit
bills seized from a member of the conspiracy. The amount attributable to the
conspiracy from these direct sources totaled approximately $16,000. However,
whenever counterfeit bills are discovered in interstate commerce, they are sent to a
centralized tracking system known as the Field Investigative Reporting System
(FIRS). Through FIRS, the Secret Service documents each counterfeit bill's serial
number, its denomination, the date it was sent to FIRS, and the city where it was
passed or discovered. In addition to the $16,000 loss amount discovered through
direct surveillance and seizure, Amelse also received, via FIRS, counterfeit bills with
serial numbers identical to those used in Randle's counterfeit conspiracy. When the
FIRS totals were added, the government contended that the loss attributable to the
conspiracy amounted to more than $85,000. These loss amounts, the various serial
numbers used in the conspiracy and the locations where the bills were passed were
all detailed in Amelse's spreadsheet, Government's Exhibit l, which was explicated
at the sentencing hearing.
In addition to the loss amount, Randle also objected at sentencing to the district
court's assessment of his role in the offense. Randle was assessed a three-level
enhancement for being a manager or leader in the conspiracy. The district court made
this determination based upon testimony from Amelse detailing how Randle produced
the counterfeit bills, sold them, and recruited others to pass them and return proceeds
to him. After hearing testimony and arguments on Randle's objections to loss amount
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and his role in the offense, the district court agreed with the government that the loss
amount was in excess of $85,000, that Randle was a manager or leader in the
conspiracy, and sentenced him to 51 months, the bottom of his Guidelines range. The
district court did so after giving Randle the benefit of a proposed change to the
Guidelines loss tables that was due to take effect, but was not yet operative. Randle
appeals, arguing that the loss amount should have been $16,000, and that he was not
a manager or leader.
We review the district court's factual findings, including its determination of
the amount of loss and a defendant's role in the offense, for clear error, and its
application of the Guidelines to the facts de novo. United States v. Hawkins, 796
F.3d 843, 871, 872 (8th Cir. 2015), cert. denied sub nom. United States v. Heurung,
No. 15-8968, 2016 WL 2945304 (May 23, 2016). It is the government's burden to
prove amount of loss, but the district court need only make a reasonable estimate of
that loss. United States v. Markert, 774 F.3d 922, 925 (8th Cir. 2014). The
evidentiary standard for sentence-enhancing fact-finding in this particular case is by
a preponderance of the evidence. United States v. Beckman, 787 F.3d 466, 494 (8th
Cir.), cert. denied, 136 S. Ct. 160 (2015).
Randle challenges the amount of loss, arguing that any amounts over $16,000
are too speculative to be included in the loss total. We disagree. Amelse carefully
explained that counterfeit bill amounts were only added to Exhibit 1 if the bill
contained a serial number known to have been used in the conspiracy. This was not
using "extrapolation" to arrive at the amount of loss as contended by Randle. Instead
it was a reasonable method to measure the scope of a conspiracy; a task that can be
difficult because not all counterfeit bills are immediately discovered as fake by either
merchants or authorities. While it is theoretically possible that another counterfeiter
coincidentally used the same serial numbers as the ones used in Randle's conspiracy,
it seems both speculative and unlikely, and certainly does not push the needle back
to less than a preponderance of the evidence. Cf. United States v. Hodge, 588 F.3d
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970, 974 n.4 (8th Cir. 2009) (noting it was "unlikely" that someone with a "grudge"
had hacked into the defendant's computer and submitted false claims on her behalf).
Nor did the district court err in assessing Randle a role enhancement. Randle
adduced testimony at the sentencing hearing to the effect that there were several
members of the conspiracy who provided counterfeit bills, directed the actions of
others, and perhaps also produced counterfeit bills. Nonetheless, there was also
testimony that Randle performed these actions. Randle need not be the only manager
or leader to be assessed the role enhancement. United States v. Irlmeier, 750 F.3d
759, 764 (8th Cir. 2014). The key factors are control and organization, id., and the
evidence at sentencing indicated by a preponderance of the evidence that Randle
exerted both. The district court did not err in assessing the three-level enhancement
for Randle's role in the offense.
We affirm the district court.
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