United States v. Doxie

• Decision Date: 04 January 2016
• Docket Number: No. 15–11161,15–11161
• Citation: 813 F.3d 1340
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Demarco DOXIE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

813 F.3d 1340

UNITED STATES of America, Plaintiff–Appellee,

v.Demarco DOXIE, Defendant–Appellant.

No. 15–11161

United States Court of Appeals, Eleventh Circuit.

Jan. 4, 2016.

Glenn D. Baker, John Andrew Horn, Jamie L. Mickelson, Lawrence R. Sommerfeld, U.S. Attorney's Office, Atlanta, GA, for Plaintiff–Appellee.

Allison Cobham Dawson, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Defendant–Appellant.

Before HULL, MARTINand ANDERSON, Circuit Judges.

PER CURIAM:

After pleading guilty, Defendant Demarco Doxie appeals his total 53–month sentence for 21 counts of mail fraud, 41 counts of wire fraud, and 4 counts of filing a false tax return, in violation of 18 U.S.C. §§ 1341and 1343, and 26 U.S.C. § 7206(1)respectively. On appeal, Doxie argues that his sentence is procedurally unreasonable because the district court improperly grouped his 66 counts under U.S.S.G. § 3D1.2to determine his total offense level. After review, we find no grouping error and affirm.

I. BACKGROUND

A. Offense Conduct

Between 2007 and 2011, Defendant Doxie was employed by Ennis Paint as its Corporate Environmental Health and Safety Manager. During this time, Doxie defrauded Ennis Paint by creating and submitting fictitious invoices for environmental work ostensibly performed by a company called Outlook. Unbeknownst to Ennis Paint, Doxie was the owner and sole employee of Outlook, and Outlook had not performed the invoiced work. As a result of Doxie's actions, Ennis Paint mailed checks totaling $642,196.00 to the address on Outlook's false invoices, which were then deposited into Outlook's bank account.

In addition to the false invoices, Defendant Doxie charged payments to Outlook for work-related expenses totaling $287,466.33 using an employer-issued corporate credit card, even though Outlook had not actually performed any work. Doxie also used his corporate credit cards to pay for his personal expenses, which totaled $80,194.58.

Meanwhile, for the tax years 2008, 2009, 2010 and 2011, Defendant Doxie did not report the income he received from defrauding Ennis Paint on his income tax returns. Consequently, Doxie underpaid his taxes by a total of $299,750.00.

In 2014, Doxie pled guilty to 21 counts of mail fraud for the false invoices (Counts 1 to 21), 41 counts of wire fraud for the false credit card charges (Counts 22 to 62), and 4 counts of filing a false tax return for the four tax years (Counts 63 to 66).

B. Guidelines Calculations

At sentencing, the district court, over Doxie's objection, grouped the 62 counts of mail fraud and wire fraud together in one group (Group 1) and grouped the 4 counts of filing a false tax return as a second group (Group 2) to determine Doxie's total offense level under Chapter 3 of the Sentencing Guidelines. In particular, for the fraud offenses in Group 1, the district court calculated a base offense level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1); added 16 levels because the loss amount exceeded $1,000,000, but was less than $2,500,000, pursuant to § 2B1.1(b)(1)(I); and added two levels for abuse of a position of trust, pursuant to § 3B1.3, which resulted in an adjusted offense level of 25.

As to the tax offenses in Group 2, the district court calculated a base offense level of 18, pursuant to § 2T1.1(a)(1), because there was a tax loss of more than $200,000, but less than $400,000, and added two levels because the source of the unreported income was from criminal activity, pursuant to § 2T1.1(b)(1), for an adjusted offense level of 20.

Doxie argued the mail and wire fraud counts in Group 1 should be further grouped with the four tax counts in Group 2 under § 3D1.2 (c)or (d). The government argued that neither subsection (c) nor (d) of § 3D1.2required Doxie's tax and fraud counts to be grouped together and that grouping was inappropriate here because the tax and fraud counts involve different types of offense conduct and different societal interests, and thus are not "closely related." The district court agreed with the government and concluded that "the mail and wire fraud counts and the tax failure to report income counts are not grouped" under § 3D1.2(c)or (d).

Then, using Group 1's offense level of 25 because it was the higher offense level, the district court imposed a one-level multi-count increase pursuant to § 3D1.4, for an combined offense level of 26. The effect of the district court's grouping decision was to increase Doxie's offense level by one level and his advisory guidelines range from 46 to 57 months to 51 to 63 months.¹

After a two-point reduction for acceptance of responsibility, pursuant to § 3E1.1(a), Doxie's total offense level was 24. With a criminal history category of I, Doxie's advisory guidelines range was 51 to 63 months.

After considering the parties' arguments, an extended allocution from Doxie, and the 18 U.S.C. § 3553(a)factors, the district court imposed 53–month sentences on Counts 1 through 62 and 36–month sentences on Counts 63 through 66, all to run concurrently, followed by 3 years' supervised release. Doxie timely appealed his sentence. The only issue on appeal is whether the tax counts should have been grouped with the mail and wire fraud counts.

II. DISCUSSION

A. Grouping Counts Under U.S.S.G. § 3D1.2

Although the Sentencing Guidelines are now advisory after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court still must calculate the advisory guidelines range correctly. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.2008). A sentence based on a miscalculated advisory guidelines range is procedurally unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).²

In Part D of Chapter 3, the Sentencing Guidelines provide rules for grouping multiple counts together. According to the Introductory Commentary, the underlying goals of Part D are "to provide incremental punishment for significant additional criminal conduct," and "to limit the significance of the formal charging decision and to prevent multiple punishment for substantially identical offense conduct." See U.S.S.G. ch.3, pt. D, introductory cmt. To that end, when a defendant is convicted of multiple counts, the Sentencing Guidelines instruct the district court to group "closely related" counts of conviction according to the rules in § 3D1.2before determining each group's offense level and the combined offense level for all the counts. See U.S.S.G. § 3D1.1; see also United States v. Marseille,

377 F.3d 1249, 1254 (11th Cir.2004).

Under § 3D1.2"counts are to be grouped together for purposes of calculating the appropriate guideline range whenever they involve 'substantially the same harm.' " United States v. Register, 678 F.3d 1262, 1266 (11th Cir.2012)(quoting § 3D1.2). Section 3D1.2further provides circumstances in which counts involve substantially the same harm, as follows:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

U.S.S.G. § 3D1.2(a)–(d). "Counts involving different victims (or societal harms in the case of 'victimless crimes') are grouped together only as provided in subsection (c) or (d)." U.S.S.G. § 3D1.2cmt. background. Because the "decision as to whether to group [multiple counts] together may not always be clear cut," the Background Commentary to § 3D1.2instructs courts to "look to the underlying policy of this Part as stated in the Introductory Commentary" when "interpreting this Part and resolving ambiguities." Id.

On appeal, the parties agree that neither (a) nor (b) of § 3D1.2applies because the victim of Doxie's fraud counts, Ennis Paint, is distinct from the victim of his tax counts, the Internal Revenue Service. Doxie argues, however, that the district court should have grouped his tax counts together with his mail and wire fraud counts under either § 3D1.2(c)or (d).

B. U.S.S.G. § 3D1.2(c)and (d)

Section 3D1.2(c)calls for grouping counts where "conduct that represents a separate count, e.g., bodily injury or obstruction of justice, is also a specific offense characteristic in or other adjustment to another count." Id. § 3D1.2cmt. n.5. Subsection (c) is intended to prevent double counting of offense behavior, but it "applies only if the offenses are closely related." Id.; see also United States v. Jimenez–Cardenas, 684 F.3d 1237, 1239–40 (11th Cir.2012)(concluding that the defendant's illegal reentry and possession of a firearm counts harmed different societal interests and were not sufficiently closely related to warrant grouping under § 3D1.2(c)).

Section 3D1.2(d)calls for grouping of "crimes where the guidelines are based primarily on quantity or contemplate continuing behavior," such as property crimes and drug offenses. U.S.S.G. § 3D1.2cmt. n.6. Subsection (d) contains a list of guidelines covering offenses that "are to be grouped" and another list of guidelines covering offenses that are explicitly excluded. Id. § 3D1.2(d). Included in the first, "to be grouped" list are both § 2B1.1and § 2T1.1, the guidelines applicable to wire and mail fraud and filing a false tax return, respectively. Id.

It is well-settled in this Circuit, however, that "the 'mere listing' of ... offenses as types that 'are to be grouped does not automatically necessitate grouping [under subsection (d)].' " United States v. Keen, 676 F.3d 981, 998 (11th Cir.2012)(quoting in...