U.S. v. Reasor, 03-50478.

• Decision Date: 21 July 2005
• Docket Number: No. 03-50478.,03-50478.
• Citation: 418 F.3d 466
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jane REASOR, a/k/a San Juanita Rangel Reasor, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

418 F.3d 466

UNITED STATES of America, Plaintiff-Appellee, v. Jane REASOR, a/k/a San Juanita Rangel Reasor, Defendant-Appellant.

No. 03-50478.

United States Court of Appeals, Fifth Circuit.

July 21, 2005.

COPYRIGHT MATERIAL OMITTED

Joseph H. Gay, Jr., Asst. U.S. Atty., Thomas Joseph McHugh (argued), San Antonio, TX, for U.S.

Nancy Blair Barohn (argued), Kansas City, MO, for Reasor.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, JONES and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Jane Reasor, a/k/a San Juanita Rangel Reasor, pleaded guilty to one count of bank fraud, twenty-eight counts of making, uttering, and possessing forged or counterfeit securities, one count of making a false statement on a credit application, and three counts of mail fraud. See 18 U.S.C. §§ 1344, 513(a), 1014, 1341. (1) Ms. Reasor appeals her convictions and sentences based on the twenty-eight counts of forgery of securities under 18 U.S.C. § 513(a), contending that her forgery pleas were not supported by an adequate factual basis as required by Fed.R.Crim.P. 11.¹ (2) Ms. Reasor appeals the denial of her motion to withdraw her pleas of guilty to the entire indictment, and the calculation of her sentences under the Federal Sentencing Guidelines based on alleged improper loss calculations, an ex post facto application of a sentencing enhancement, and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm in part, vacate in part, and remand for further proceedings. Ms. Reasor's convictions of bank fraud, making a false statement on a credit application, and three counts of mail fraud are affirmed. Ms. Reasor's convictions and sentences based on her guilty pleas to forgery of securities under 18 U.S.C. § 513(a) are vacated, and the case is remanded for further proceedings on the forgery counts. Ms. Reasor's remaining sentences are vacated and the case is remanded to the district court for re-sentencing.

I. Forgery Convictions Under 18 U.S.C. § 513(a)

A. Crime Definition

It is a federal crime under 18 U.S.C. § 513(a) to (1) make, utter or possess (2) a counterfeit security (3) of an organization (4) with intent to deceive (5) another person, organization, or government. For this purpose, § 513(c) defines "organization" as "a legal entity, other than a government, established or organized for any purpose, and includes a corporation, company, association, firm, partnership, joint stock company, foundation, institution, society, union or other association of persons which operates in or the activities of which affect interstate or foreign commerce." This case presents the question of whether the factual basis of Ms. Reasor's guilty plea to twenty-eight counts of forgery under § 513(a) sufficiently established that at the relevant times the entity whose securities she allegedly forged was an "organization," i.e., an entity which "operat[ed] in or the activities of which affect[ed] interstate or foreign commerce." Id.

B. Subject Matter Jurisdiction

Initially, Ms. Reasor raised an argument that the district court did not have subject matter jurisdiction over these counts but she has conceded that it did in her reply brief.² We agree that the district court had subject matter jurisdiction. The prosecution of Ms. Reasor under 18 U.S.C. § 513 is a case arising under the laws of the United States.³ More specifically it is a case involving a federal crime, over which federal district courts have jurisdiction pursuant to 18 U.S.C. § 3231. Analogously, this Court has ruled, in a Hobbs Act case, that an element can be jurisdictional in nature without affecting the jurisdiction of the court to adjudicate the case. United States v. Robinson, 119 F.3d 1205, 1212 n. 4 (5th Cir.1997). Also, in the context of a federal arson prosecution, this Court has held that the interstate commerce requirement is an element of that crime and not a prerequisite to subject matter jurisdiction. United States v. Johnson, 194 F.3d 657, 659 (5th Cir.1999) vacated and remanded for consideration in light of Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) by United States v. Johnson, 530 U.S. 1201, 120 S.Ct. 2193, 147 L.Ed.2d 230 (2000), reinstated by United States v. Johnson, 246 F.3d 749 (5th Cir.2001); accord United States v. Rayborn, 312 F.3d 229, 231 (6th Cir.2002); United States v. Rea, 169 F.3d 1111,1113 (8th Cir.1999), vacated on other grounds, 223 F.3d 741 (8th Cir.2000); United States v. Martin, 147 F.3d 529, 531-32 (7th Cir.1998). We see no indication in § 513 that Congress intended for the statute's interstate commerce nexus requirement to serve any other purpose in the crime definition than as an essential element of the crime.⁴

And, as touched on above, the Commerce Clause, found in Article I of the United States Constitution, implies limits on the power of Congress to regulate, not on the Article III federal courts' power to adjudicate.⁵ Thus, it is logical to infer that in drafting § 513, Congress included the interstate commerce nexus to ensure that it was acting within its legislative power and not as a limit on the judicial power of the courts to hear cases under the statute.

C. Indictment, Guilty Pleas, and Factual Basis

A federal grand jury returned an indictment charging, in counts two through twenty-nine, that Ms. Reasor did knowingly make, utter and possess "forged securities, that is checks, of an organization, namely, St. Dominic's Catholic Church, San Antonio, Texas," wherein she altered completed, signed and endorsed checks, "said checks drawn on Church bank accounts with intent to deceive another person or organization.... all in violation of Title 18, United States Code, Section 513(a)." Each count listed a check of the Church, each with a different check number, for a specific amount made payable to a specifically named payee, "drawn on Norwest Bank, San Antonio, Texas, account # 0230110916."

Ms. Reasor entered guilty pleas to the twenty-eight counts of forgery. At the time of the guilty pleas, the government made an oral statement of a factual basis for the pleas. Prior to the district court's acceptance of the pleas, Ms. Reasor's counsel, without making a formal objection, informed the court that there might be legal defenses to these counts. Subsequently, Ms. Reasor filed a motion to withdraw her guilty pleas to the forgery charges stating as one of the grounds that the government "articulated no facts on the record which would have shown that either St. Dominic's Catholic Church, or the Archdiocese of San Antonio, was an organization in interstate commerce." The district court denied Ms. Reasor's motion to withdraw her pleas of guilty.

D. Church as Organization that Operates in or Conducts Activities that Affect Interstate Commerce

A district court cannot enter a judgment of conviction based on a guilty plea unless it is satisfied that there is a factual basis for the plea. Fed.R.Crim.P. 11(f). "The purpose underlying this rule is to protect a defendant who may plead with an understanding of the nature of the charge, but `without realizing that his conduct does not actually fall within the definition of the crime charged.'" Johnson, 194 F.3d at 659. Therefore, "[t]his factual basis must appear in the record. . . and must be sufficiently specific to allow the court to determine that the defendant's conduct was within the ambit of that defined as criminal." United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984); Accord Johnson, 194 F.3d at 659; United States v. Armstrong, 951 F.2d 626, 629 (5th Cir.1992); United States v. Spruill, 292 F.3d 207, 215 (5th Cir.2002).

A guilty plea does not waive the right of a defendant to appeal a district court's finding of a factual basis for the plea on the ground that the facts set forth in the record do not constitute a federal crime. Johnson, 194 F.3d at 659; Spruill, 292 F.3d at 215. In general, we regard a district court's acceptance of a guilty plea as a factual finding that we review under the clearly erroneous standard. Johnson, 194 F.3d at 659 (citing United States v. Rivas, 85 F.3d 193, 194 (5th Cir.1996)). Because Ms. Reasor objected to the sufficiency of the factual basis for her pleas of guilty to forgery in the district court, we review her argument that the district court erred in this regard under that standard. See Johnson, 194 F.3d at 660; United States v. Bredimus, 352 F.3d 200, 204 (5th Cir.2003).

Applying the standard to the record in this case, we conclude that the factual basis does not support Ms. Reasor's guilty pleas to the federal crime charged in the indictment, namely, forging or counterfeiting securities of an "organization," that is, an entity which operates in or the activities of which affect interstate or foreign commerce. 18 U.S.C. § 513(c).⁶ The factual basis provided by the government is not sufficiently specific to demonstrate that St. Dominic's Church operated in or affected interstate commerce. As a general rule, a church is not a commercial entity which operates in or conducts activities that affect interstate commerce. That is not to say that a church's activities may never affect interstate commerce, but only that the operations and activities of a church are not intrinsically in or affecting interstate commerce. See United States v. Terry, 257 F.3d 366, 369 (4th Cir.2001); Rayborn, 312 F.3d 229.

In the present case, the factual basis does not contain any statement of specific, concrete facts from which it could be inferred that the church's operations and activities either were in or affecting interstate commerce. On the contrary, the facts stated tend to confirm that St. Dominic's operations were typical of a church and not similar to those of a commercial enterprise affecting interstate commerce. The only references to specific activities of the church in the factual basis provided were that, "[t]he evidence would show that...