USA v. Carter

• Decision Date: 05 May 2000
• Docket Number: No. 99-50388,99-50388
• Citation: 219 F.3d 863
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHASHONA R. CARTER, Defendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 863

219 F.3d 863 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHASHONA R. CARTER, Defendant-Appellant.

No. 99-50388

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted May 5, 2000--Pasadena, California

Filed August 9, 2000

[Copyrighted Material Omitted] Michael J. Treman, Santa Barbara, California, for the defendant-appellant.

Charlaine F. Olmedo, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding; D.C. No. CR-97-00497-SVW-4

Before: David R. Thompson, William A. Fletcher, and Raymond C. Fisher, Circuit Judges.

W. FLETCHER, Circuit Judge:

Shashona R. Carter ("Carter") pled guilty to one count of conspiracy to counterfeit fraudulent securities, in violation of 18 U.S.C. SS 371, 513(a), and 514(a)(2). At sentencing, the district court enhanced Carter's base offense level by three levels pursuant to U.S.S.G. S 3B1.1 for playing a managerial or supervisory role in the offense, and by an additional twelve levels pursuant to U.S.S.G. S 2F1.1 because the amount of loss was greater than $1,500,000. Carter appeals her sentence, contending that the district court erred in imposing these enhancements.

We hold that the district court failed to comply with Federal Rule of Criminal Procedure 32(c)(1). We VACATE Carter's sentence and REMAND for resentencing so that the district court may either resolve disputes concerning statements of fact in the pre-sentence report or make clear that the disputed facts were not taken into account in determining Carter's sentence.

I

Carter was originally indicted for two separate fraudulent schemes: one to manufacture, possess, and sell counterfeit travelers' checks, and the other to traffic in counterfeit credit cards. As part of the travelers' check scheme, the government alleged that Carter purchased genuine travelers' checks and assisted in obtaining a color copier on which the checks were duplicated. Participants in the scheme then used the counterfeit checks to buy merchandise in different states and receive change in cash. According to a disputed part of the presentence report ("PSR"), Carter recruited and directed the "passers" or "shoppers" who would pass checks that she distributed to them, and drove them over state lines for the "shopping trips" during which the counterfeit checks were passed.

Carter was eventually arrested while on a "shopping trip" in California and was incarcerated for four months. While she was in jail, the color copier used to manufacture the fraudulent travelers' checks broke, and the remaining participants in the scheme began manufacturing fraudulent checks using a computer and a color printer. There is no evidence that Carter continued to participate in the travelers' check scheme after her release from jail.

Carter pled guilty to Count 1 of the first superseding indictment. This count charged violation of 18 U.S.C.S 371, conspiracy to traffic in counterfeit American Express travelers' checks, in violation of 18 U.S.C. SS 513(a) and 514(a)(2). Carter claimed that the PSR incorrectly assessed a three-level increase in offense level for her role as a manager or supervisor. Carter also claimed that the PSR incorrectly stated an amount of loss in excess of $1,500,000, and that the loss properly attributable to her was not more than $201,000 (the loss from the scheme up to the time she was arrested). In all, Carter alleged eight factual errors in the PSR bearing on her role in the offense and on the amount of loss.

The district judge conducted a two-day sentencing hearing. At the end of the hearing, the judge concluded that U.S.S.G. S 3B1.1 applied because Carter was a manager or supervisor. He further concluded that, in light of this supervisory role, the entire loss caused by all participants in the conspiracy, instead of merely that portion of the loss that occurred prior to Carter's arrest and incarceration, was properly considered under U.S.S.G. S 2F1.1. In so concluding, the district judge did not explicitly resolve the disputed factual issues in the PSR.

The two enhancements yielded a total adjusted offense level of 20, for a sentencing range of 63 to 78 months. Carter was sentenced to the statutory maximum of 60 months, restitution in the amount of $1,604,000, and three years of supervised release.

II

We review de novo a district court's compliance with Federal Rule of Criminal Procedure 32. See United States v. Standard, 207 F.3d 1136, 1140 (9th Cir. 2000); United States v. Karterman, 60 F.3d 576, 583 (9th Cir. 1995). We also review de novo the legality of a Guideline sentence. United States v. Jackson, 176 F.3d 1175, 1176 (9th Cir. 1999) (per curiam). Whether a defendant is "an organizer, leader, manager, or supervisor" is a question of fact reviewed for clear error. United States v. Mares-Molina, 913 F.2d 770, 773 (9th Cir. 1990). The same standard applies to a finding of the amount of loss for sentencing purposes. See United States v. Barnes, 125 F.3d 1287, 1290 (9th Cir. 1997).

III

Carter challenges the sentencing enhancements on the ground that the district court did not explicitly resolve the objections she raised to factual statements in the PSR. A finding that a defendant is eligible for a sentence enhancement ordinarily does not require specific fact-finding. See U.S. v. Govan, 152 F.3d 1088, 1096 (9th Cir. 1998). However, the district court must do more when a defendant has contested specific factual statements made in the PSR. The district court's obligations are set out in Rule 32(c)(1):

At the sentencing hearing, the court must afford counsel for the defendant and for the Government an opportunity to comment on the probation officer's determinations and on other matters relating to the appropriate sentence, and must rule on any unresolved objections to the presentence report. The court may, in its discretion, permit the parties to introduce testimony or other evidence on the objections. For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing. A written record of these findings and determinations must be appended to any copy of the presentence report made available to the Bureau of Prisons.

Fed. R. Crim. P. 32(c)(1) (emphasis added).

It is well settled in this circuit that "when the district court fail[s] to make the required Rule 32 findings or determinations at the time of sentencing, we must vacate the sentence and remand for resentencing." United States v. Fernandez Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc). We have adopted this approach because of the unfairness that would result to a defendant if prison or parole officials were to rely on false allegations or uncorrected reports. See United States v. Fernandez-Angulo, 863 F.2d 1449, 1456 (9th Cir. 1988) (modified on rehearing by United States v. Fernandez Angulo, 897 F.2d 1514 (9th Cir. 1990) (en banc)). In addition, resolving a defendant's factual objections to the PSR on the record ensures meaningful appellate review of the sentence. See id.; United States v. Ibarra, 737 F.2d 825, 827-28 (9th Cir. 1984).

For each disputed fact upon which the district court intends to rely in imposing the sentence, the district court must make an explicit factual finding that resolves the dispute. If the district court chooses not to rely upon a disputed factual statement in the PSR, it need not resolve the dispute, but it must clearly state that the disputed fact was not taken into account in finding the enhancement appropriate. See United States v. Houston, 217 F.3d 1204, 1207 (9th Cir. July 5, 2000).

A

We hold that the district court did not comply with the requirements of Rule 32(c)(1) in concluding that Carter was a manager or supervisor and therefore eligible for an enhancement based on her role in the offense. Carter challenged a number of specific factual statements in the PSR relevant to the role enhancement. While some of Carter's statements are little more than conclusory denials of the district court's ultimate finding that she was a manager or supervisor, others state specific facts that conflict with statements in the PSR. For example, Carter objected to paragraph 29 of the PSR, which stated that she "directed others" and "drove many of these individuals (`passers') to different areas of the United States to cash the counterfeit checks." Carter stated that the only time she worked with others was during the trip that resulted in her arrest. Carter also objected to paragraph 31 of the PSR, which stated that she had assisted a co-participant in purchasing the copier by giving her a counterfeit driver's license. Carter stated that a co-defendant provided the driver's license. She also pointed to evidence in the record indicating that the driver's license was provided by a co-defendant.

Carter disputed the PSR's portrayal of her role as a "distributor" of the checks in paragraph 33, claiming that she was given only three checks to "distribute." She denied that she was a recruiter for the runners, as alleged in paragraph 34 of the PSR. She also denied that she "maintained " the residence with a co-defendant in which incriminating evidence was found when law enforcement officials executed a search warrant, and denied knowledge of the scope and size of the scheme alleged in paragraph 79 of the PSR. Finally, Carter denied "directing" the activities of a specific individual named in paragraph 91 of the PSR; indeed, she denied even knowing that individual.

At the sentencing hearing, the district court stated...