U.S. v. Crawford, No. 03-15136.

• Decision Date: 02 May 2005
• Docket Number: No. 03-15136.
• Citation: 407 F.3d 1174
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles CRAWFORD Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

407 F.3d 1174

UNITED STATES of America, Plaintiff-Appellant, v. Charles CRAWFORD Jr., Defendant-Appellee.

No. 03-15136.

United States Court of Appeals, Eleventh Circuit.

May 2, 2005.

COPYRIGHT MATERIAL OMITTED

Alan R. Dial, Amy Levin Weil, U.S. Atty., Byung J. Pak, Atlanta, GA, for Plaintiff-Appellant.

George E. Butler, II, Dahlonega, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and MARCUS and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents two issues regarding the application of the Sentencing Guidelines: (1) whether the district court clearly erred when it found that Charles Crawford Jr. did not engage in more than minimal planning when he participated in a five year scheme that defrauded the government of $434,032 and involved over a hundred separate transactions; and (2) whether the district court erred when it granted a downward departure based on Crawford's restitution and remorse, lack of criminal sophistication, and substantial assistance to the government, and because the loss to the government allegedly overstated Crawford's criminality. Because both the large number of transactions and the deliberate steps Crawford took to complete those transactions compel a finding that Crawford did not merely take advantage of a sudden opportunity, we conclude that the district court clearly erred when it found that Crawford did not engage in more than minimal planning. We further conclude that the district court did not apply the correct legal standards regarding several of the grounds relied upon for departure. We vacate Crawford's sentence and remand this case for resentencing in a manner consistent with the Guidelines both as interpreted in this opinion and the advisory manner explicated in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I. BACKGROUND

Crawford owned and operated a food store in Atlanta, Georgia, called "Mr. Wick, Jr." A large volume of Crawford's business came from low-income customers who paid for their food with vouchers from the Georgia Women, Infants, and Children (WIC) supplemental food program. The WIC program, which is administered by state agencies that receive federal grants, assists low-income parents and expectant mothers in obtaining nutrition for their children. Participants in WIC receive vouchers that allow the bearer to purchase food in an amount up to the face value of the voucher, and WIC vendors typically redeem vouchers for an amount less than their face value.

Crawford was approached in 1996 by Edwin Kelley, who offered to sell to Crawford WIC vouchers that Kelley had purchased from residents of public housing projects in Atlanta. Crawford and Kelley agreed that Crawford would pay Kelley for the vouchers in an amount close to the face value of the vouchers, Crawford would then redeem the vouchers, and Kelley would keep 60 percent of the profits and give Crawford 40 percent. Crawford and Kelley engaged in over 100 transactions over a five year period involving vouchers with a total face value of $434,032. The exact number of vouchers that Mr. Wick, Jr. redeemed from the Georgia WIC program is unknown.

In June 2000, an anonymous informant notified the Georgia WIC program of Kelley's activities. An undercover investigation led to Crawford's arrest in October 2002. In a written plea agreement, Crawford pleaded guilty to an information that charged that he, "aided and abetted by others did unlawfully receive, conceal and retain to his own use ... vouchers with a value of more than One Hundred ($100.00) Dollars, knowing said assets and property to have been willfully misapplied and obtained by fraud." Crawford agreed to forfeit an automobile and $146,092 in a Bank of America bank account and make restitution to the Georgia WIC program in an amount to be determined later.

The probation officer who prepared Crawford's Presentence Investigation Report (PSI) determined that the loss to the Georgia WIC program totaled $434,032 and recommended restitution to that agency. Crawford did not dispute these aspects of the PSI. The PSI also recommended that Crawford receive a two level enhancement in his offense level for "more than minimal planning," under United States Sentencing Guideline section 2F1.1(b)(2)(A) & (B). At the sentencing hearing, Crawford objected to the more than minimal planning enhancement and contended that, on each occasion, he took advantage of a sudden opportunity when Kelley offered to sell him WIC vouchers. Crawford also moved for a downward departure based on several factors, including the extent of his restitution and his alleged lack of criminal sophistication.

The district court refused to apply the more than minimal planning enhancement. The district court found that, in each of the more than one hundred transactions with Kelley, Crawford "took advantage of a situation and the opportunity presented." Crawford "never tried to conceal the offense, nor was he the one to start [the] scheme . . . ." In addition, the district court granted Crawford's motion for a downward departure and reduced Crawford's offense level by four. In its order granting the downward departure, the district court stated that Crawford's case fell "outside the heartland of other such cases" and that "all of the grounds taken as a whole warrant downward departure." The district court then sentenced Crawford to 60 months' probation and ordered Crawford to make $434,032 in restitution to the Georgia WIC program. The government appeals both the denial of the more than minimal planning enhancement and the downward departure.

II. STANDARD OF REVIEW

The resolution of this appeal requires the application of two standards of review. First, a finding by a district court of no minimal planning is a question of fact that we review for clear error. United States v. Ward, 222 F.3d 909, 910 (11th Cir.2000). We cannot find clear error unless "we are left with a definite and firm conviction that a mistake has been committed." Glassroth v. Moore, 335 F.3d 1282, 1292 (11th Cir.2003) (citation and quotation marks omitted). Although the clear error standard is "purposefully deferential to the district court, we are not required to rubber stamp the district court's findings simply because they were entered." McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 409 (5th Cir.2001). Review for clear error "does not mean no review." United States v. Pace, 898 F.2d 1218, 1227 (7th Cir.1990), cert. denied sub nom. Cialoni v. United States, 497 U.S. 1030, 110 S.Ct. 3286, 111 L.Ed.2d 795 (1990).

The second standard of review is not deferential. "We review questions of law arising under the Sentencing Guidelines de novo." United States v. Bush, 126 F.3d 1298, 1299 (11th Cir.1997) (per curiam). Whether a factor is a permissible ground for a downward departure from the Sentencing Guidelines is a question of law. United States v. Kim, 364 F.3d 1235, 1239-40 (11th Cir.2004).

This appeal does not raise any issue of a violation of the Sixth Amendment, as explicated in Booker, nor does either party raise any issue of the application of the Guidelines in a mandatory, rather than advisory, fashion. Because of the fundamental change in sentencing appeals effected by Booker, we must determine whether our pre-Booker standards for reviewing application of the Sentencing Guidelines still apply. We agree with the Fifth Circuit that Booker does not alter our review of the application of the Guidelines. See United States v. Villegas, 404 F.3d 355, 361-62, 2005 WL 627963 at *4-5 (5th Cir.2005). Although Booker established a "reasonableness" standard for the sentence finally imposed on a defendant, 125 S.Ct. at 765, the Supreme Court concluded in Booker that district courts must still consider the Guidelines in determining a defendant's sentence. 125 S.Ct. at 764-65. Nothing in Booker suggests that a reasonableness standard should govern review of the interpretation and application as advisory of the Guidelines by a district court. See Villegas, 404 F.3d at 361, 2005 WL 627963 at *4. Booker did not affect 18 U.S.C. section 3742(f), which mandates remand of any case in which the sentence "was imposed as a result of an incorrect application of the sentencing guidelines...." Id. at 362, 2005 WL 627963 at *5.

Although under Booker, the Sentencing Guidelines are an advisory rather than a mandatory regime, the district court remains obliged to "consult" and "take into account" the Guidelines in sentencing:

Without the "mandatory" provision, the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals. See 18 U.S.C.A. § 3553(a) (Supp.2004). The Act nonetheless requires judges to consider the Guidelines "sentencing range established for ... the applicable category of offense committed by the applicable category of defendant," § 3553(a)(4), the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims, §§ 3553(a)(1), (3), (5)-(7) (main ed. and Supp.2004). And the Act nonetheless requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care. § 3553(a)(2) (main ed. and Supp.2004).

Booker, 125 S.Ct. at 764-65. In short, after Booker, "[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id. at 767.

This consultation requirement, at a minimum, obliges the district court to calculate correctly the sentencing range prescribed by the Guidelines:

After Booker, the Federal Sentencing Guidelines remain an essential consideration in the imposition...