U.S. v. McClain

• Citation: 252 F.3d 1279
• Decision Date: 31 May 2001
• Docket Number: 00-10452,Nos. 00-10346,s. 00-10346
• Parties: (11th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Ronald Eugene McCLAIN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Desmond Adrian Tucker, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1279

252 F.3d 1279 (11th Cir. 2001)

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Eugene McCLAIN, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Desmond Adrian Tucker, Defendant-Appellant.

Nos. 00-10346, 00-10452.

United States Court of Appeals,

Eleventh Circuit.

May 31, 2001.

[Copyrighted Material Omitted] Appeals from the United States District Court for the Northern District of Georgia. (Nos. 99-00249-CR-1-1-JOF, 99-00249-CR-3-1), J. Owen Forrester, Judge.

Before TJOFLAT, BARKETT and MAGILL^*, Circuit Judges.

TJOFLAT, Circuit Judge:

I.

A.

Between May and October of 1998, appellants Ronald Eugene McClain and Desmond Adrian Tucker conspired to create and cash over $80,000 in counterfeit checks drawn on legitimate bank accounts at several federally insured financial institutions. Appellants' modus operandi was to recruit young people, primarily females, to cash the counterfeit checks at various bank branches and business locations within and outside the Northern District of Georgia. Appellants helped their female recruits obtain false identification and transported them to the various locations where they negotiated the checks. After the checks were cashed, McClain and Tucker collected the money and each paid their respective recruits a fee for their services.

In July 1998, appellants brought four female recruits on an extended trip to Macon, Georgia for the purpose of cashing counterfeit checks drawn on the bank account of Blue Bird Body Company. Tucker had recruited two of the four females: Jessica Garrett¹ and Jane Doe, a minor. According to Garrett's statement to police, Tucker asked Doe her age at the time he recruited her to cash the counterfeit checks, and Doe responded that she was twenty years old. In fact, Doe was only sixteen years old.

On or about July 28, 1998, Tucker drove Garrett and Doe to various Macon-area locations to cash counterfeit checks, while McClain drove the other two female recruits to banks and businesses in the same area. A Bibb County Sheriff's deputy arrested the two females who were traveling with McClain after they attempted to cash counterfeit checks at a Publix grocery store; McClain eluded capture.² Later that day, after cashing several counterfeit checks made out to "Taylor Baines," Garrett, Doe, and Tucker were arrested by another deputy.³ A search of the vehicle driven by Tucker revealed $1,924 in currency and a firearm in the passenger compartment, and another $3,000 in the trunk. Garrett told the FBI that Tucker always kept the firearm in the vehicle, either under or beside his seat, when he drove her to cash checks. A search of the shrubbery near the vehicle revealed numerous counterfeit Blue Bird Body Company checks and false identification cards.

B.

On May 25, 1999, a Northern District of Georgia grand jury returned an indictment charging Tucker, McClain, and a co-conspirator named Quincy Lamar King⁴ with one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371,⁵ and multiple counts of bank fraud, in violation of 18 U.S.C. § 1344.⁶ The final count of the indictment charged McClain with an additional conspiracy to commit bank fraud.⁷ On October 5, 1999, McClain pled guilty to the two conspiracy counts, and the remaining counts against him were dismissed pursuant to the terms of his plea agreement. On October 15, 1999, Tucker pled guilty to one count of conspiracy, and the remaining charges were dismissed pursuant to the terms of his plea agreement.

The court sentenced McClain to 37 months' imprisonment on January 7, 2000, and then sentenced Tucker to 24 months' imprisonment on January 18, 2000.⁸ Both McClain's and Tucker's sentences included a two-level enhancement pursuant to U.S.S.G. § 3B1.4 (2000) for using a minor (Doe) to commit a crime.⁹ Tucker's sentence included an additional two-level enhancement pursuant to U.S.S.G. § 2F1.1(b)(7)(B) (2000) for possession of a firearm in connection with the offense.¹⁰

McClain and Tucker filed timely notices of appeal under 18 U.S.C. § 3742(a)(2), asserting that their sentences were imposed as a result of an incorrect application of the sentencing guidelines. Specifically, they both argue that an enhancement for use of a minor to commit a crime requires scienter--an intent to use someone the defendant knows to be a minor to commit the offense. The parties stipulate that neither Tucker nor McClain knew Doe was a minor.¹¹ McClain further argues that he should not receive the two-level enhancement because he did not directly involve Doe in the bank fraud offense. While McClain and Tucker were working together to recruit young women for their scheme, the parties agree that it was Tucker who actually solicited Doe's assistance. Finally, Tucker argues that he should not have received a two-level enhancement for possession of a firearm in connection with the offense, because the firearm in his vehicle was unconnected with the fraud offense. We consider each of these arguments in turn.¹²

II.

A.

"The district court's interpretation of the sentencing guidelines is subject to de novo review on appeal, while its factual findings must be accepted unless clearly erroneous." United States v. Pompey, 17 F.3d 351, 353 (11th Cir.1994); see also United States v. Anderson, 200 F.3d 1344, 1347 (11th Cir.2000); 18 U.S.C. § 3742(e). Thus, we review de novo the district court's determinations that a section 3B1.4 enhancement does not require scienter and that section 3B1.4 may be applied to a co-conspirator who could reasonably have foreseen the use of a minor in furtherance of the criminal enterprise. We review for clear error the court's factual determinations that use of a minor in the check-cashing scheme was reasonably foreseeable as to McClain, and that the firearm found in the vehicle driven by Tucker was possessed "in connection with the offense."

B.

In the statute enabling U.S.S.G. § 3B1.4, Congress adopted the following language:

SEC. 140008. SOLICITATION OF MINOR TO COMMIT CRIME

(a) Directive to Sentencing Commission--

(1) The United States Sentencing Commission shall promulgate guidelines or amend existing guidelines to provide that a defendant ... who has been convicted of an offense shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense.

(2) The Commission shall provide that the guideline enhancement ... shall apply for any offense in relation to which the defendant has solicited, procured, recruited, counseled, encouraged, trained, directed, commanded, intimidated, or otherwise used or attempted to use any person less than 18 years of age with the intent that the minor would commit a Federal offense.

Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 140008(a), 108 Stat. 1796, 2033. In response to this congressional directive, the Sentencing Commission drafted Amendment 527 to the Sentencing Guidelines, which was enacted as U.S.S.G. § 3B1.4 ("Using a Minor to Commit a Crime") and became effective on November 1, 1995.¹³ See U.S.S.G. app. C (2000).

According to section 3B1.4, "[i]f the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense," the district court must "increase [the defendant's base offense level] by 2 levels." While appellants argue that section 3B1.4 requires scienter--a defendant's knowledge that the person assisting him in the offense is a minor--we cannot agree.

"The Sentencing Guidelines hav[e] the force and effect of law, [and] are to be construed as if they were a statute, giving the words used their common meaning, absent a clearly expressed manifestation of contrary intent." United States v. Maria, 186 F.3d 65, 70 (2d Cir.1999) (alterations and emphasis in original) (quotation omitted). Thus, we are guided by the judicial interpretation of a federal criminal statute similar in language and purpose to U.S.S.G. § 3B1.4. 21 U.S.C. § 861(a), enacted as part of the Juvenile Drug Trafficking Act of 1986, provides:

It shall be unlawful for any person at least eighteen years of age to knowingly and intentionally--

. . . .

(2) employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to assist in avoiding detection or apprehension for any [listed federal drug offense] by any ... law enforcement official[.]

In United States v. Chin, 981 F.2d 1275 (D.C.Cir.1992), a panel opinion authored by then-Judge Ruth Bader Ginsberg, the court was called upon to decide whether a conviction under section 861(a) requires proof that the defendant acted with knowledge of the minor's age. The court noted initially that the statute was "not a model of meticulous drafting," and that "[o]ne cannot tell from the words alone whether the person's juvenile status must be known and 'intended,' or whether it suffices that the act of using a person to avoid detection be 'knowing [] and intentional[]'." Chin, 981 F.2d at 1279 (second and third alterations in original). In accordance with the "protective purpose" of the Juvenile Drug Trafficking Act, however, the court stated that "it would not make sense to construe the 'use-of-a-juvenile' provisions to invite blindness by drugdealers to the age of youths they employ." Id. at 1280. Rather, "[t]he objective of protecting juveniles as a class strongly indicates that Congress meant to impose on the drug dealer the burden of inquiry and the risk of misjudgment." Id.; accord United States v. Williams, 922 F.2d 737, 739 (11th Cir.1991) (holding that 21 U.S.C. § 845(b) (recodified at 21 U.S.C. § 861(a)) does not contain a scienter requirement, as requiring knowledge of the minor's age "would ... permit drug dealers to close their eyes as to the age of the minors who become part of the operation, without fear of reprisal") (quotation omitted). Thus, the court held that a defendant need...