U.S. v. Patterson

• Decision Date: 08 February 2010
• Docket Number: No. 09-13354 Non-Argument Calendar.,09-13354 Non-Argument Calendar.
• Citation: 595 F.3d 1324
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leon Spencer PATTERSON, a.k.a. "Lee," a.k.a. "Major," Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

595 F.3d 1324 UNITED STATES of America, Plaintiff-Appellee,
v.
Leon Spencer PATTERSON, a.k.a. "Lee," a.k.a. "Major," Defendant-Appellant. No. 09-13354 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. February 8, 2010.

[595 F.3d 1325]

Richard M. Darden, The Darden Law Firm, Savannah, GA, for Patterson.

James C. Stuchell, Savannah, GA, for U.S.

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

Before EDMONDSON, BIRCH and WILSON, Circuit Judges.

[595 F.3d 1326]

WILSON, Circuit Judge:

This appeal presents the question of whether it is error for a court to sentence a defendant under a Guidelines calculation of intended loss that is more than double the amount of restitution ordered in the same case. We conclude that the facts of this appeal do not present the plain error that appellant asserts. We also reject appellant's claim of ineffective assistance of counsel because the record is not sufficiently developed and collateral attack is the preferable avenue for such challenges. Therefore, we affirm the judgment of the district court.

Leon Spencer Patterson was sentenced to 80 months after pleading guilty to possessing a counterfeit state security in violation of 18 U.S.C. § 513(a). According to the presentence investigation report (PSI), Patterson participated in a sophisticated conspiracy to provide counterfeit vehicle titles and false Vehicle Identification Numbers (VINs), also known as cloned VINs, for stolen vehicles that were subsequently sold, or restolen in staged thefts to collect insurance proceeds. The PSI determined that the intended loss, based on the fair market value of the stolen vehicles, was $1,199,106.92. The report calculated a restitution amount of $425,770.99, the sum of the loss each identified victim had suffered. At sentencing, Patterson's attorney did not object to the PSI, which the district court adopted, or to the sentence, which included a final restitution order of $410,105.45. "It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes." United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.2006).

I.

Patterson first contends that the district court committed plain error in sentencing him, and moreover, that the district court committed procedural error in calculating his sentence. Where the defendant has failed to raise the issue below, we review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002). For an error to affect substantial rights, it generally "must have been prejudicial: It must have affected the outcome of the district court proceedings." United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). Patterson also cites Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), as proscribing the allegedly improper calculation of his sentence by the district court.

While the plain error standard limits our review, this case presents a useful opportunity to review our circuit's law regarding intended loss, actual loss, and restitution. Discussion of the Sentencing Guidelines is the natural starting point. The amount of financial loss can increase the offense level the Guidelines imposes for a wide variety of fraudulent conduct. If the amount of loss in a case involving counterfeit instruments exceeded $1,000,000, but was less than or equal to $2,500,000, the offense level increases by 16. U.S.S.G. § 2B1.1(b)(1)(I). But if the loss amount was greater than $400,000, and less than or equal to $1,000,000, the offense level increases by only 14. Id. § 2B1.1(b)(1)(H). Patterson finds himself caught on this divide. In measuring loss, we generally apply the fair market value of the property taken. United States v. Machado, 333 F.3d 1225, 1227 (11th Cir.2003); U.S.S.G. § 2B1.1 cmt. n.3(C)(i).

595 F.3d 1327

The Guidelines commentary goes on to distinguish intended loss from actual loss. Intended loss is the "pecuniary harm that was intended to result from the offense," and actual loss is the "reasonably foreseeable pecuniary harm that resulted from the offense." U.S.S.G. § 2B1.1 cmt. n.3(A)(i)(ii). The "General Rule" is that "loss is the greater of actual loss or intended loss." Id. § 2B1.1 cmt. n.3(A) (emphasis added); United States v. Willis, 560 F.3d 1246, 1250 (11th Cir.2009) (per curiam) (basing fraud loss on the maximum disbursement limits of FEMA hurricane-relief grants, rather than on funds actually stolen). See also United States v. Nosrati-Shamloo, 255 F.3d 1290, 1291-92 (11th Cir.2001) (per curiam) (basing loss on credit limits of fraudulently obtained credit cards, rather than on smaller figure of...