U.S. v. Dorcely

• Decision Date: 21 July 2006
• Docket Number: No. 05-3130.,05-3130.
• Citation: 454 F.3d 366
• Parties: UNITED STATES of America, Appellee v. Daniel DORCELY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

454 F.3d 366

UNITED STATES of America, Appellee v. Daniel DORCELY, Appellant.

No. 05-3130.

United States Court of Appeals, District of Columbia Circuit.

Argued April 25, 2006.

Decided July 21, 2006.

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Appeal from the United States District Court for the District of Columbia (No. 01cr00454-04).

Melissa J. Stofko argued the cause for the appellant. Peter M. Brody, appointed by the court, was on brief.

Florence Pan, Assistant United States Attorney, argued the cause for the appellee. Kenneth L. Wainstein, United States Attorney, and Roy W. McLeese, III and Daniel P. Butler, Assistant United States Attorneys, were on brief. Suzanne C. Nyland and Thomas J. Tourish, Jr., Assistant United States Attorneys, entered appearances.

Before: SENTELLE, HENDERSON and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge.

Daniel Dorcely was convicted of making a false statement to the Federal Bureau of Investigation (FBI) and acquitted of conspiracy to commit money laundering and conspiracy to defraud the government. Applying the sentencing regime prescribed in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court sentenced Dorcely to 24 months' incarceration and ordered him to pay restitution in the amount of $63,315.51. In sentencing Dorcely, the district court took into account Dorcely's role in the conspiracies, finding by a preponderance of the evidence that he was involved in them notwithstanding his acquittal on those offenses. Dorcely appeals his sentence. He argues that the district court's consideration of acquitted conduct violated the Fifth and Sixth Amendments and in the alternative was unreasonable. He also claims that the restitution order impermissibly considered losses other than those caused by the conduct of which he was convicted. We affirm in part and vacate in part, concluding that his sentence of 24 months' incarceration was neither unconstitutional nor unreasonable but that the restitution order must be remanded for the district court's reconsideration.

I.

The appellant, Daniel Dorcely, owned and operated Dany Enterprises, a struggling cellular telephone sales business. On December 20, 1999, he opened a bank account at the Adelphi, Maryland branch of Bank of America and deposited $110 into the account. Dorcely thereafter enlisted in the U.S. Army and, before leaving for basic training at Fort Benning, Georgia, made "Tyrone Wallace," the alias of his cousin, Stateson François, a signatory on the Dany Enterprises bank account. On March 15, Dorcely and François met with Albert Mundy, the Bank of America Adelphi branch manager. According to Mundy, Dorcely introduced François as "Tyrone Wallace" and advised Mundy that a substantial sum of money from a school contract would be deposited into the Dany Enterprises account over the next months.

On March 30, 2000, the Department of Education (DOE) direct-deposited $906,705 into the Dany Enterprises account with the annotation, "Bennett County School, Impact Aid." That same day, "Wallace" made a withdrawal of $60,600 from the account. Of that amount, he obtained a cashier's check for $46,900 made out to Capitol Cadillac. François and John Holmes, a co-conspirator, used the cashier's check to purchase a Cadillac Escalade in the name of "Timothy Robbins," Holmes's alias.

On April 4, DOE direct-deposited another $18,368.43 into the Dany Enterprises account. François and Dorcely's brother-in-law, Dominique Germain, obtained two cashier's checks from the Dany Enterprises account on that day: one for $50,000 made out to Wilson Powell Lincoln Mercury and another for $48,000 made out to Lustine Chevrolet. François and Holmes purchased a Lincoln Navigator with the former. They attempted to buy a Chevrolet Corvette with the latter. The manager of the Chevrolet dealership, suspicious of the duo, delayed the sale by refusing the cashier's check ostensibly because the dealership's name was misspelled. After François and Holmes left to obtain a new cashier's check, the manager contacted the FBI.

The FBI determined that the funds in the Dany Enterprises account had been fraudulently obtained and froze the account on April 5, 2000, at which time the account had a balance of $766,473.43. The FBI discovered that the funds had been obtained from DOE, which had earmarked them for under-funded elementary and secondary schools in South Dakota under a program called "Impact Aid." Apparently an unknown DOE employee conspired with the two and altered the school districts' bank account information in the DOE computer system, diverting Impact Aid funds to the Dany Enterprises account.

During its investigation, the FBI contacted Dorcely at Fort Benning, Georgia. Special Agent Thomas Chadwick telephoned Dorcely on April 18, 2000. During their conversation, Dorcely informed Chadwick that "Tyrone Wallace" was a "buddy," denying that "Wallace" was related to him. 1/27/2004 Tr. at 85. Dorcely further stated that he had met "Wallace" only seven or eight months before and that "Wallace," who had expressed an interest in cellular telephone sales, was running Dany Enterprises in his absence. Id. Chadwick later met with Dorcely face-to-face. Dorcely at that time falsely stated that "Tyrone Wallace" and François were two different people. Id. at 86-87.

The government charged Dorcely with one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and one count of making a false statement to the FBI in violation of 18 U.S.C. § 1001. Following trial, the jury convicted Dorcely of making a false statement to the FBI and acquitted him of both conspiracy charges.

The district court conducted Dorcely's first sentencing hearing on June 4, 2004, applying the then-mandatory U.S. Sentencing Guidelines (Guidelines). The Guidelines specified a sentencing range of zero to six months for the false statement conviction. The government argued for a sentencing range of 24 to 30 months because, it maintained, it had proved by a preponderance of the evidence that Dorcely had participated in the conspiracy, which constituted "relevant conduct" under the Guidelines. Over Dorcely's objection, the district court agreed with the government and sentenced Dorcely to 24 months' incarceration. The government also sought restitution, which the district court ordered in the amount of $63,315.51.

Following Dorcely's sentencing, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In light of Blakely, Dorcely moved for reconsideration of his sentence. After the High Court granted certiorari in Booker, supra, the district court stayed the execution of the sentence to "await a decision by the Supreme Court as to whether its decision in Blakely v. Washington applies to the United States Sentencing Guidelines." United States v. Dorcely, No. 01-454, slip op. at 1 n.2 (D.D.C. filed Aug. 6, 2004) (citation omitted). Dorcely also appealed his sentence to this court and asked us to hold the appeal in abeyance pending Booker. We granted his motion. Following the Supreme Court's decision in Booker, Dorcely moved this court to vacate his sentence and remand for resentencing, which motion we granted. See United States v. Dorcely, 2005 WL 583132, *1 (D.C.Cir. March 11, 2005).

The district court held Dorcely's resentencing hearing on July 19, 2005. Over Dorcely's objection, it concluded that Booker did not affect its authority to consider Dorcely's participation in the conspiracies under the preponderance of the evidence standard and again sentenced Dorcely to 24 months' incarceration. It also reimposed the order of restitution in the amount of $63,315.51.

II.

A.

Dorcely first contends that his sentence, based in part on acquitted conduct, violated his Sixth Amendment right to trial by jury and his Fifth Amendment right to due process of law. We review issues of law relating to sentencing de novo. See, e.g., United States v. Alexander, 331 F.3d 116, 130 (D.C.Cir.2003); United States v. Gaviria, 116 F.3d 1498, 1518 (D.C.Cir.1997) (per curiam). Applying this standard of review, we find no constitutional error in Dorcely's sentence.

We were recently presented with the same question this case presents: whether a sentence based on acquitted conduct violates the Sixth Amendment. See United States v. Edwards, 424 F.3d 1106, 1108 (D.C.Cir.2005). There we observed that the Supreme Court "has not, however, determined whether the practice violates the Sixth Amendment,"¹ but we did not address the issue because we remanded the case in accordance with United States v. Coles, 403 F.3d 764, 771 (D.C.Cir.2005) (per curiam). We now reach the question and decide that a sentencing court may base a sentence on acquitted conduct without offending the defendant's Sixth Amendment right to trial by jury. In so holding, we agree with every circuit that has considered the question post-Booker. See United States v. Ashworth, 139 Fed.Appx. 525, 527 (4th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 765, 163 L.Ed.2d 594 (2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005); United States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 468, 163 L.Ed.2d 356 (2005); United States v. Price, 418 F.3d 771, 787-88 (7th Cir. 2005); United States v. Vaughn, 430 F.3d 518, 525-27 (2d Cir.2005).

Before Booker, we had held that a sentencing court may consider conduct of which the defendant was acquitted provided the conduct was proved by a preponderance of the evidence. See, e.g., United States v. Yelverton, 197 F.3d 531, 535 n. 3 (D.C.Cir.1999) (citing United States v. Thomas, 114 F.3d 228, 261 (D.C.Cir.1997); ...