U.S. v. Lamere
| Decision Date | 23 November 1992 |
| Docket Number | Nos. 91-3566,91-3806,s. 91-3566 |
| Citation | 980 F.2d 506 |
| Parties | UNITED STATES of America, Appellee, v. Mark John LAMERE, Appellant. UNITED STATES of America, Appellee, v. Jean-Paul Allen LAMERE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Scott Tilsen, Minneapolis, Minn., argued, for Mark John Lamere; Robert Specter, argued, for Jean-Paul Allen Lamere (Virginia G. Villa, on the brief).
John Lee, Minneapolis, Minn., argued (Kristin Masselink, Legal Intern., on the brief), for appellee.
Before BOWMAN and LOKEN, Circuit Judges, and HUNTER, * Senior District Judge.
This case involves the consolidated appeals of two brothers, Mark John and Jean-Paul Lamere, who were sentenced on counterfeiting convictions. The brothers were charged under a seven count federal indictment on May 22, 1991. Mark John Lamere pled guilty to Count Three of the indictment, attempting to pass a counterfeit obligation of the United States in violation of 18 U.S.C. § 472, and was sentenced to twelve months imprisonment followed by a two year period of supervised release. Jean-Paul Lamere pled guilty to Count Five of the indictment, as it related to the possession and concealment of counterfeit obligations of the United States in violation of 18 U.S.C. § 472, and was sentenced to twelve months imprisonment followed by a two year period of supervised release. Both brothers appeal their sentences on the basis that the district court erred in its application of the United States Sentencing Commission Guidelines (hereinafter "Sentencing Guidelines" or "Guidelines"). 1
On May 15, 1990, Mark John Lamere purchased a Canon color laser copier and had it delivered to a space he rented in Minneapolis, Minnesota. Over the next few days, he made color photo copies of United States currency twenty dollar bills and one hundred dollar bills. On May 19, 1990, Mark John Lamere attempted to pass one of the counterfeit one hundred dollar bills, as payment for a drink at the Perimeter nightclub in Minneapolis. The bartender became suspicious of the bill and called the club manager. The club manager examined the bill and called the police.
Mark John Lamere was arrested and questioned that same evening, at the Hennepin County Jail. At that time, ten identical bills were recovered from his person. Mark John Lamere denied that he knew the bills were counterfeit, stating that he received them the night before from an unidentified man to whom he sold a Rolex watch.
Later the same evening, Mark John Lamere called his brother, Jean-Paul Lamere, from the jail and requested that he remove from Mark John's apartment a portfolio that contained counterfeit money. Jean-Paul retrieved the portfolio, as requested, and stored it in his girlfriend's attic. Approximately four months later, the existence of the portfolio in the girlfriend's attic was reported to the police. Law enforcement officers, acting on the report, recovered a quantity of counterfeit United States currency in the form of one hundred dollar bills and twenty dollar bills in various stages of manufacture: the counterfeit bills consisted of $12,420 in bills with both fronts and backs, $15,560 in bills with fronts only and $11,620 in bills with backs only, amounting to a total of $39,600 in counterfeit currency. Along with the counterfeit bills, a passport of Jean-Paul Lamere and a business card from the copy machine seller were also found.
As a result of the discovery of the counterfeit money in the attic, the Secret Service executed a search warrant on the business space rented by Mark John Lamere and recovered the Canon color laser copier.
Secret service lab tests performed on the seized copier and bills confirmed certain associations between the two.
Mark John Lamere pled guilty to passing counterfeit currency, and Jean-Paul Lamere pled guilty to possessing counterfeit currency, both in violation of 18 U.S.C. § 472. The brothers' sentences were calculated pursuant to § 2B5.1 of the United States Sentencing Guidelines. The offense of conviction for both brothers carried a base offense level of nine. U.S.S.G. § 2B5.1(a). Additionally, it was determined that the face value of the counterfeit currency involved was between $20,000 and $40,000, requiring the addition of four offense levels to the base of nine, resulting in an overall offense level of thirteen. U.S.S.G. §§ 2B5.1(b) and 2F1.1. Over appellants' objections, the district court found the offense level to be appropriate.
Mark John Lamere's offense level was increased by two additional levels, pursuant to U.S.S.G. § 3C1.1, upon a determination that he willfully obstructed or impeded justice in that he "directed another ... to conceal evidence which resulted in a material hindrance to the official investigation, prosecution and sentencing." Similarly, Jean-Paul Lamere's offense level was adjusted upward two levels, upon a determination that "he attempted to conceal evidence which resulted in a material hindrance to the official investigation, prosecution and sentencing." Again, over appellants' objections, the district court found these adjustments to be appropriate. 2
Mark John Lamere and Jean-Paul Lamere now appeal. They both contend that the district court erred in its determination of the amount of counterfeit currency involved, for the purpose of sentencing. Additionally, both brothers contend, on slightly different grounds, that the district court erred in applying a two point enhancement for obstruction of justice.
A defendant may appeal a sentence that was imposed as a result of an incorrect application of the sentencing guidelines. 18 U.S.C. § 3742(a)(2). Correct application of the Sentencing Guidelines is a question of law subject to de novo review by this Court. United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.1990). Review of the factual determinations, upon which the sentencing court bases its sentence, is, however, subject to the clearly erroneous standard of review. United States v. Phillippi, 911 F.2d 149, 152 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 702, 112 L.Ed.2d 691 (1991).
After appellants pled guilty to the above-referenced counterfeiting offenses, the district court applied Guideline 2B5.1, which provides for a base offense level of nine, U.S.S.G. § 2B5.1(a), and further states that, if the face value of the counterfeit currency exceeds $2,000, the sentencing court shall increase the offense level according to the table found at Guideline 2F1.1 (Fraud and Deceit), U.S.S.G. § 2B5.1(b)(1).
It has been held that the reference in Guideline 2B5.1 to the "table" contained in the fraud and deceit guideline (U.S.S.G. § 2F1.1(b)(1)) limits the sentencing court's reference to the table only, and not the entire fraud and deceit guideline. United States v. Payne, 952 F.2d 827, 830 (4th Cir.1991); see also U.S.S.G. § 1B1.5, comment (n. 1) ( ) In Payne, the Fourth Circuit held it was error for the sentencing court to consider additional offense enhancements contained in U.S.S.G. 2F1.1(b)(2) and remanded the matter back to the district court for recalculation of the sentence. 952 F.2d at 830. While this Court is not bound by the Fourth Circuit's determination, we do not, and need not, take issue with it.
In this case, after describing the state of the counterfeit currency at issue, the sentencing court found that there was a combined total of $39,600 in counterfeit currency. The court went on to explain this finding, in part, by reference to Application Note 7 to 2F1.1, which instructs that: in keeping with the Commission's policy of attempts, "if a probable or intended loss that the defendant was attempting to inflict can be determined, that figure should be used if it was larger than the actual loss included." Sent. Tr. at 27, United States v. Mark John Lamere, Jean-Paul Allen Lamere, No. 3-91 CR 73(01)(02) (D.Minn. Nov. 13, 1991) (emphasis added); compare U.S.S.G. § 1B1.5, comment (n. 1). The court reasoned that, since none of the currency in question was destroyed and, in fact, was relocated for safe keeping, appellants' conduct suggested that all the counterfeit bills were of some value and intended to be used or completed at a later date.
Appellants argue that the sentencing court's reference to Application Note 7 is, under Payne, supra, error as a matter of law. We disagree.
The Guidelines at § 2F1.1(b)(1) set out the following table:
Loss (Apply the Greatest) Increase in Level
(A) $2,000 or less no increase
(B) More than $2,000 add 1
(C) More than $5,000 add 2
(D) More than $10,000 add 3
(E) More than $20,000 add 4
(F) More than $40,000 add 5
(G) More than $70,000 add 6
(H) More than $120,000 add 7
(I) More than $200,000 add 8
(J) More than $350,000 add 9
(K) More than $500,000 add 10
(L) More than $800,000 add 11
(M) More than $1,500,000 add 12
(N) More than $2,500,000 add 13
(O) More than $5,000,000 add 14
(P) More than $10,000,000 add 15
(Q) More than $20,000,000 add 16
(R) More than $40,000,000 add 17
(S) More than $80,000,000 add 18
U.S.S.G. § 2F1.1(b)(1). Determining that the amount of counterfeit currency was more than $20,000 but less than $40,000, the sentencing court added four offense levels to the base offense.
Appellants' argument that the direction in § 2B5.1, to refer to the table found in § 2F1.1, amounts to a reference to a specific subsection--the "table"--and, thus, prohibits the court from referring to or considering Application Note 7 is misplaced. Indeed, the explicit reference to the "table" in § 2F1.1 could be read as referring only to the...
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