U.S.A v. Hicklin

Decision Date22 December 2010
Docket NumberNo. 10-11280,D.C. Docket No. 5:09-cr-00030-HL-CWH-2,10-11280
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD HICKLIN, JR., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)


Appeal from the United States District Court

for the Middle District of Georgia

Before BLACK, HULL and WILSON, Circuit Judges.


Donald Hicklin, Jr. appeals his 60-month sentence imposed after he pled guilty to conspiracy to possess stolen mail and to commit bank fraud. After review, we affirm.

A. Arrest and Conspiracy

On January 27, 2009, defendant Hicklin and co-defendants Airrik Sanders and Rashad Mackey were arrested after a traffic stop near Jackson, Georgia. In searching their car, police officers found nineteen stolen commercial checks and four counterfeit North Carolina driver's licenses. Two checks had altered payees and a total face amount of $15,005.70. Three checks had altered payees and altered face amounts, totaling $11,219.40. Fourteen checks were unaltered, with a total face amount of $45,436.14. The total value of the nineteen checks was thus $71,661.24.

During the ensuing investigation, defendant Hicklin admitted that he, Sanders, and Mackey participated in a conspiracy led by co-defendant Jonathon Counts to steal checks from businesses in Georgia and North Carolina and to employ homeless persons to negotiate the checks using counterfeit driver's licenses. Defendant Hicklin told investigators that he, Sanders, and Mackey had stolen checks from businesses in the Savannah, Georgia, and Charlotte, North Carolina areas, while co-defendant Counts stole checks from businesses near Atlanta, Georgia. They did so by removing mail from postal boxes and extracting the checks. Defendant Hicklin's role was to alter the payee on the checks, and in some cases the amount payable also, by using a sharp knife. Sanders and Mackey's role was to drive homeless persons, for whom the defendants had obtained counterfeit driver's licenses, to various banks to cash the checks.

On January 26, 2009, the day before defendant Hicklin's arrest, Counts picked up a man named Dustin Eddie and provided Eddie with an altered stolen check in the amount of $4,949.63. Sanders and Mackey took Eddie to a bank in Athens, Georgia, but left Eddie after they saw police officers there. Eddie cashed the stolen, altered check but was arrested at the bank.

On January 27, 2009, defendant Hicklin, with Sanders and Mackey, were arrested while en route to Ocala, Florida to negotiate the stolen checks. Counts and a homeless man (who was to use the counterfeit driver's licenses in Hicklin's car to cash the checks) were following in another car, but were not stopped by police.

Prior to the instant offense, both Hicklin and Counts were convicted in 2005 in federal court in Tampa, Florida for a similar scheme, in which they stole checks, altered them, and recruited homeless persons to cash them. Hicklin's 30-monthimprisonment ended in October 2008. Hicklin was on supervised release at the time of his January 27, 2009 arrest for the instant offense.

B. Plea Agreement

On April 23, 2009, a federal grand jury indicted defendant Hicklin, along with Counts, Sanders, and Mackey. The indictment charged Hicklin with conspiracy to possess stolen mail matter and to commit bank fraud, in violation of 18 U.S.C. §§ 371, 1344, and 1708 (Count 1), and 19 counts of unlawful possession of stolen mail matter, in violation of 18 U.S.C. § 1708 (Counts 3-21). Count 2 of the indictment charged Sanders, Mackey, and Counts with bank fraud, in violation of 18 U.S.C. § 1344, for taking Eddie to the bank in Athens, Georgia to try to cash the $4,949.63 stolen check.

On September 3, 2009, defendant Hicklin pled guilty to the conspiracy charge pursuant to a plea agreement. The plea agreement contained a sentence appeal waiver, but permitted Hicklin to appeal his sentence if the district court imposed a sentence that exceeded the advisory guidelines range. In the plea agreement, Hicklin and the government stipulated "that the loss amount for advisory guideline calculations is approximately $16,168.63, and in any event less than $30,000.00." The parties reached the $16,168.63 figure by taking the total altered face values of three checks (i.e., $11,219.40), and adding the $4,949.63face value of the check that the defendants tried to have Eddie cash at the bank in Athens, Georgia.1

C. Presentence Investigation Report

The presentence investigation report ("PSI") assigned a base offense level of 6, pursuant to U.S.S.G. § 2B1.1(a)(2). The PSI calculated a loss amount of $71,661.24, because that was the total face amount (post-alteration) of the nineteen stolen checks found in defendant Hicklin's car. The PSI calculated a total offense level of 15, based on: (1) an eight-level increase, pursuant to U.S.S.G. § 2B1.1(b)(1)(E), because the loss was more than $70,000 but not more than $120,000; (2) a two-level increase, pursuant to U.S.S.G. § 2B1.1(b)(2)(A), because the offense involved ten or more victims; (3) a two-level increase, pursuant to U.S.S.G. § 2B1.1(b)(10), because the offense involved the possession of false driver's licenses; and (4) a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Defendant Hicklin's criminal history category of IV and offense level of 15 yielded an advisory guidelines range of 30 to 37 months' imprisonment.2

The PSI stated an above-guidelines sentence may be warranted because Hicklin persisted in a long-term scheme of stealing checks and recruiting homeless persons to cash them. The PSI noted that Hicklin's scheme resulted in his 2005 conviction, that his scheme involved some of the same conspirators, and that Hicklin resumed his scheme promptly after completing his imprisonment. The statutory maximum for Hicklin's instant offense is 60 months' imprisonment. 18 U.S.C. § 371.

Both Hicklin and the government objected that the loss amount should be the $16,168.63 amount stipulated in Hicklin's plea agreement. Hicklin argued that the loss amount was (1) $4,949.63, the amount of the stolen, altered check that Eddie cashed, plus (2) the loss amount intended by the defendants, which was represented by the $11,219 total of the three stolen checks with altered face amounts and payees. Hicklin argued there was "no evidence that Hicklin or any of the other co-defendants altered or intended to pass any of the remaining checks."

Hicklin also objected to the PSI's statement that an upward variance may be warranted. Hicklin's sentencing memorandum requested a "time served" sentence on the grounds that (1) he suffered a difficult childhood, (2) he attempted to start a hauling business after his release from federal custody but the business failed, (3)he missed the first year of his newborn child's life, (4) additional imprisonment would not provide him with educational or vocational training, and (5) he faces a significant revocation-of-supervised-release sentence after he serves the term of imprisonment imposed in this case.

D. Sentencing

At sentencing, the government objected to the two-level increase for possessing false driver's licenses because Hicklin possessed only four false licenses, not the five required for the increase under U.S.S.G. § 2B1.1(b)(10)(C)(ii). The district court sustained the objection.

The parties renewed their objections to the PSI's loss amount. Hicklin argued for inclusion of only the three checks (totaling $11,219.40) with altered face amounts because the defendants thought that the sixteen other checks with unaltered face amounts "could not be altered and passed" without the defendants being detected. The sixteen checks (totaling $60,441.84) for which the face amount was not altered "were never intended to be passed, never intended to be altered and therefore should not be applied in the amount of loss figure." The district court overruled the objection and found that the loss amount was $71,661.24, the total post-alteration face amount of the nineteen stolen checks found in Hicklin's car.

Hicklin asked for a within-guideline sentence, reiterating it adequately addressed the objectives of sentencing.

The district court reviewed Hicklin's criminal history and performed its advisory guideline calculations, applying a base offense level of 6, with an eight-level increase based on the loss amount, a two-level increase based on the number of victims, and a three-level reduction for acceptance of responsibility. The district court found Hicklin's resulting total offense level was 13 and his criminal history category was IV, which yielded an advisory guidelines range of 24 to 30 months' imprisonment. The district court expressly stated that it considered the arguments in Hicklin's sentencing memorandum and the 18 U.S.C. § 3553(a) factors. The district court sentenced Hicklin to the statutory maximum of 60 months' imprisonment, stating that under the circumstances an upward variance was warranted:

I find that an upward variance in this case is warranted based on the factors at 18 United States Code, Section 3553(a)(1). The Court has carefully reviewed the prior record of this defendant and finds that there is a need for the sentence imposed to reflect the seriousness of this offense, promote the respect for the law, and provide just punishment for the offense. There also exists a need to afford adequate deterrents to further criminal conduct and protect the public from further crimes by this defendant.
The Court notes that you have several prior convictions which were not assessed criminal history points, including a simple assault conviction at age 16. You have prior charges similar to this offense, ofthe offense of this case that were consolidated for sentencing purpose and therefore did not receive criminal history points.
You were also previously sentenced on similar federal charges which involved conduct that began in 2002. This prior scheme, which also

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