U.S. v. Forbes, 88-8591
| Decision Date | 29 September 1989 |
| Docket Number | No. 88-8591,88-8591 |
| Citation | 888 F.2d 752 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marion Timothy FORBES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Davis Cohen, Savannah, Ga., for defendant-appellant.
Kathryn M. Aldridge, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before RONEY, Chief Judge, FAY, Circuit Judge, and ALLEN *, Senior District Judge.
Defendant Marion Timothy Forbes pled guilty to aiding and abetting in the possession of counterfeiting plates, 18 U.S.C.A. Secs. 2 & 474, and was sentenced under the federal sentencing guidelines to 12 months confinement and three years supervised release. He appeals his sentence, contending that the district court, first, misapplied the guidelines by denying him a two-level reduction as a minor participant and, second, failed to comply with Fed.R.Crim.P. 32(c)(3)(D)'s requirements concerning disputed facts in the presentence report. We affirm.
In December 1987, Forbes and codefendant David William Holt made counterfeit $100 bills on a printing press in Forbes's garage in Savannah, Georgia. In March 1988, they printed counterfeit $20 bills. FBI agents became aware of the counterfeit currency when it was discovered in financial transactions in Jacksonville, Florida and Charleston, South Carolina. This led to an investigation, which resulted in the arrests of Russell Stewart and Michael Caine in Jacksonville for passing counterfeit money.
Stewart cooperated with the FBI, told them Holt was the source of the counterfeit currency, and pointed out the garage where the printing press was located. Stewart did not know Forbes's name, but identified him as Holt's partner in the counterfeiting scheme. On April 1, 1988, agents obtained a search warrant for the garage, searched it, and found more than $25,000 in newly-printed, as yet uncut counterfeit United States currency. Holt and Forbes were arrested on the premises at that time.
Forbes stated that his role in the printing operation was to provide the paper, the press, and the location for the counterfeiting, but he denied any role in distributing the counterfeit money. He further denied knowing that Holt had printed more than $25,000 in currency on the morning of their arrests. Due to Forbes's nearness to the press at the time of his arrest and his recurring trips to the garage that morning, the arresting agent did not believe this claimed lack of knowledge.
The Grand Jury returned a five-count indictment charging Forbes and Holt with aiding and abetting each other in counterfeiting $27,500 in federal reserve notes on April 1, 1988 (Count I), possessing plates and other materials for counterfeiting (Count II), and counterfeiting $8,500 in counterfeit federal reserve notes in December 1987 (Count V). Counts III and IV pertained only to Holt, charging him with distributing counterfeit currency on two occasions.
Forbes and the Government reached a plea bargain. Under the agreement, Counts I and V would be dismissed, and Forbes would plead guilty to Count II. The Government and Forbes agreed that he should receive reductions in his guideline level for acceptance of responsibility and for having a minor role in the counterfeiting scheme. Forbes pled guilty, and a presentence report was prepared. The report concluded that he had not played a minor role. Both Forbes and the Government objected to this. The report further concluded that Forbes was aware of the large amount of currency printed on the morning of his arrest. Forbes objected to this reference in the presentence report.
At sentencing, the court allowed a reduction for acceptance of responsibility, found that Forbes had not played a minor role and did not consider for sentencing purposes the amount of currency counterfeited. The court offered to allow Forbes to withdraw his guilty plea, but he declined.
Forbes argues that the district court misapplied the guidelines in refusing to give him a two-level reduction for his allegedly "minor" role in his offense.
A court of appeals has authority to review a sentence imposed under the guidelines to determine whether it is "imposed in violation of law," is an "incorrect application" of the guidelines, is "outside the range of the applicable sentencing guideline, and is unreasonable," or "was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable." 18 U.S.C.A. Sec. 3742(d). The sentencing court's findings of fact must be accepted unless they are "clearly erroneous." Id. The court's determination of a defendant's role in a crime is a finding of fact to which the clearly erroneous test applies. See United States v. Erves, 880 F.2d 376, 380 (11th Cir.1989).
As a threshold matter, we question whether Forbes can show any prejudice resulting from the court's decision about the minor role claim. The guideline level under which he was sentenced and the one under which he claims he should have been sentenced had significant overlap in their sentencing ranges. The twelve-month sentence he received could have been imposed at either level. Indeed, the court stated that on the facts presented it probably would have given the same sentence no matter which level applied.
In any event, the court properly determined the guideline level. The court was not bound by the parties' stipulation. Cf. United States v. Nunley, 873 F.2d 182, 187 (8th Cir.1989) (). Under the sentencing guidelines, the district court is not bound by stipulations of fact, "but may with the aid of the presentence report, determine the facts relevant to sentencing." Guidelines Sec. 6B1.4(d). Otherwise, the Government and defendants, in the plea bargaining process, could by stipulation resolve crucial, disputed factual issues and thereby undercut the court's fact-finding function in guidelines application.
The Sentencing Commission considered the question thoroughly and concluded that "it is not appropriate for the parties to stipulate to misleading or non-existent facts, even when both parties are willing to assume the existence of such 'facts' for purposes of the litigation." Guidelines Sec. 6B1.4, Commentary. Stipulations are encouraged to aid, but not to supplant, the sentencing court's fact-finding:
Even though stipulations are expected to be accurate and complete, the court cannot rely...
To continue reading
Request your trial
-
U.S. v. Freyre-Lazaro, FREYRE-LAZAR
...3B1.2(a). Once again, we review the district court's factual finding on this sentencing issue for clear error. United States v. Forbes, 888 F.2d 752, 754 (11th Cir.1989). The district court's decision to apply an adjustment "involves a determination that is heavily dependent upon the facts ......
-
U.S. v. Clase-Espinal
...not control sentencing determination); United States v. Nunley, 873 F.2d 182, 187 & n. 6 (8th Cir.1989) (same); United States v. Forbes, 888 F.2d 752, 754 (11th Cir.1989) (sentencing court not bound by government stipulation that defendant was minor participant). Consequently, there is no i......
-
U.S. v. Chaikin
...States v. Busche, 915 F.2d 1150, 1152 (7th Cir.1990); United States v. Moran, 845 F.2d 135, 138 (7th Cir.1988); United States v. Forbes, 888 F.2d 752, 755 (11th Cir.1989). Even here, given the record before the District Court, the seriousness of the offenses, and the other matters considere......
-
U.S. v. Howard
...of the presentence investigation, and any other relevant information." U.S.S.G. Sec. 6B1.4, Comments. See also United States v. Forbes, 888 F.2d 752 (11th Cir.1989) (a court should not rely exclusively on a stipulation of facts when ascertaining relevant sentencing factors.) Furthermore, th......