U.S. v. Crouch

• Decision Date: 03 May 2002
• Docket Number: No. 00-3853.,00-3853.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry C. CROUCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

288 F.3d 907

UNITED STATES of America, Plaintiff-Appellee, v. Jerry C. CROUCH, Defendant-Appellant.

No. 00-3853.

United States Court of Appeals, Sixth Circuit.

Submitted December 6, 2001.

Decided and Filed May 3, 2002.

J. Richard Chema (briefed), U.S. Attorney Office, Dayton, OH, for Plaintiff-Appellee.

Martin S. Pinales (briefed), John P. Feldmeier (briefed), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, for Defendant-Appellant.

Before: SILER and BATCHELDER, Circuit Judges; HOOD, District Judge.^*

OPINION

BATCHELDER, Circuit Judge.

Defendant-Appellant Jerry C. Crouch appeals the sentence imposed by the district court after his conviction on charges of conspiracy to conduct an illegal gambling business, in violation of 18 U.S.C. §§ 371 and 1955; engaging in monetary transactions with criminally derived property of value greater than $10,000, in violation of 18 U.S.C. § 1957; and making false statements on his income tax returns, in violation of 26 U.S.C. § 7206. Because we find no plain error with regard to the application of the specific offense characteristic under United States Sentencing Guidelines (U.S.S.G.) § 2S1.2(b)(2), and because we lack jurisdiction to review the district court's refusal to depart downward as requested by the defendant, we will affirm the judgment of the district court.

Crouch and seven co-defendants were named in a 56-count indictment charging conspiracy to conduct an illegal gambling business and to launder money; operating an illegal gambling business; money laundering; engaging in monetary transactions with property derived from a specified unlawful activity-the illegal gambling business; and filing false federal tax returns. The indictment also contained a forfeiture count. Crouch was named in 50 of the indictment's 56 counts. Pursuant to a written plea agreement, Crouch pleaded guilty to one count of conspiracy to operate an illegal gambling business, one count of engaging in a monetary transaction with property derived from a specified unlawful activity, namely the gambling business, and one count of filing a false federal tax return.

The presentence report recommended that the offenses be grouped, and that the guideline for the offense of engaging in illegal monetary transactions, U.S.S.G. § 2S1.2, which carried the highest base offense level, be used to set the base offense level. The report also recommended that the specific offense characteristic found in section 2S1.2(b)(2) be applied to determine the adjusted level, based on the amount of money involved in the illegal monetary transactions. Crouch filed several objections to the presentence report. In addition to objecting to a number of factual statements contained in the report, he raised two specific objections to the sentence calculation and recommendation in the report: first, that he should not receive a four-level upward adjustment for his role in the offense, and second, that because sentencing under the money laundering guidelines rather than under the gambling offense guidelines overstated the gravity of his offenses, the district court should make a substantial downward departure. Crouch also filed a motion for downward departure on the latter grounds, i.e., that his substantive offense was really gambling, and he therefore was entitled to a substantial downward departure because the guidelines under which he was being sentenced were the guidelines for money laundering, which overstated the seriousness of the offense. At no time did Crouch raise any objection to the application of the specific offense characteristic under U.S.S.G. § 2S1.2(b)(2).

The district court conducted a sentencing hearing and specifically dealt with each of Crouch's objections to the presentence report. The court declined to impose the four-level adjustment for a leadership role in the offense, and instead imposed only a two-level adjustment. Because Crouch had pleaded guilty to the offense of engaging in a monetary transaction in property derived from specified unlawful activity, the court held that the guideline for that activity, namely section 2S1.2, was the appropriate guideline, and resulted in a base offense level of 17. Applying the specific offense characteristic of section 2S1.2(b)(2), which requires that if the value of the funds involved in the monetary transactions was greater than $100,000, the offense level must be increased according to the schedule contained in section 2S1.1(b)(2), the district court added three levels because the total value of the funds involved in the illegal transactions exceeded $350,000 but was less than $600,000. The court specifically addressed Crouch's motion for downward departure and denied the motion. The court sentenced Crouch to 24 months' imprisonment.

We turn first to Crouch's claim that the district court erred in applying the specific offense characteristic of section 2S1.2(b)(2). It is well established in this circuit that although we have discretion to review for plain error objections to sentencing that the defendant failed to raise before the district court, we may not exercise that discretion unless the defendant demonstrates that the district court's decision was plainly erroneous. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998). To establish plain error, Crouch must show:

(1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defenda...