US v. Daniel Agyepong, No. 08-4053 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4053 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL K. AGYEPONG, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00178-JAB-2) Submitted: December 29, 2008 Decided: February 20, 2009 Before TRAXLER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC, Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Robert M. Hamilton, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a plea agreement, Daniel K. Agyepong pled guilty to conspiracy to use counterfeit and unauthorized access devices (credit violation of cards 18 and U.S.C. credit card § 1019(a)(1), account (a)(2), numbers), (b)(2) in (2006) (Count One), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (2006) (Count Eleven). The district court sentenced Agyepong to fifteen months imprisonment on Count One and a consecutive Eleven. Agyepong twenty-four appeals his months imprisonment sentence, contending on Count that the district court erred in its loss calculation and in calculating his criminal history. We affirm the loss calculation, but remand for resentencing for the reasons stated below. In the presentence report ( PSR ), the probation officer determined that the base offense level for Count One was six, pursuant to USSG § 2B1.1(a)(2). of loss exceeded $10,000, the Finding that the amount probation officer increased Agyepong s base offense level by four levels, pursuant to USSG § 2B1.1(b)(1)(C). Because the offense involved the possession The probation officer did not group Counts One and Eleven, although they were closely related, because Count Eleven, aggravated identity theft, 18 U.S.C. § 1028A(a)(1), (a)(2), carried a mandatory consecutive prison term. U.S. Sentencing Guidelines Manual § 5G1.2(a) (2007); 18 U.S.C. § 1028A(a)(1), (b)(2). 2 or use of device-making equipment, the probation officer increased Agyepong s offense level by two levels, pursuant to USSG § 2B1.1(b)(1)(A)(i). two-level decrease The probation officer recommended a in offense level for responsibility, pursuant to USSG § 3E1.1(a). criminal convictions, the probation acceptance of Based on his prior officer found Agyepong s subtotal criminal history score was three. that However, the probation officer added two points under USSG § 4A1.1(d), because he found that Agyepong committed the instant offense while on probation; the total criminal history score of five points placed Agyepong in Criminal History Category III. The guidelines range for offense level ten and criminal history III was ten to sixteen months in prison. Thus, the probation officer determined that Agyepong s guidelines range for Count One was ten to sixteen months in prison, with a mandatory twoyear consecutive sentence for Count Eleven, pursuant to 18 increase in U.S.C. § 1028A(a)(1), (b)(2). Agyepong offense level for objected a loss to the greater four-level than $10,000 based on the $26,914.90 loss calculation in the PSR, claiming that he was unaware of the full scope of the scheme and did not realize the credit hearing, card the purchases Government were fraudulent. called United At States the sentencing Secret Service Special Agent James Albert Shively, Jr., who testified about 3 specific transactions. he illegally Agyepong also testified, admitting that obtained credit card account numbers for co-conspirator, Ahdi Ghazi Alshare, but denying that he ever personally made purchases with a fraudulent credit card. The district court overruled Agyepong s objections to the loss denied determinations Agyepong the in the PSR. acceptance Furthermore, of responsibility the court reduction. Without the acceptance of responsibility adjustment, Agyepong s offense level was twelve, resulting in a guidelines range of fifteen to fifteen months guidelines twenty in range, months. The prison and on a court Count sentenced One, consecutive the Agyepong bottom twenty-four of to the months imprisonment on Count Eleven. Agyepong argues first on appeal that the district court improperly calculated the amount of loss attributable to him. of In a fraud case, the Government must establish the amount loss for evidence. 2005). sentencing purposes by a preponderance of the United States v. Pierce, 409 F.3d 228, 234 (4th Cir. This court reviews the amount of loss, to the extent that it is a factual matter, for clear error. West, 2 F.3d 66, 71 (4th Cir. 1993). United States v. This deferential standard of review requires reversal only if this court is left with the definite and firm conviction that a mistake has been committed. United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005). 4 We find that the district court did not clearly err in its loss calculations. Agyepong calculation of also his challenges criminal the history district category. court s Under USSG § 4A1.1(d), a defendant who committed the instant offense while under any criminal justice sentence, including probation, will be assessed two criminal history points. In addition to the three received criminal history points Agyepong for past criminal convictions, he received two points under § 4A1.1(d) for committing his subject offenses while on probation. He now contends that the district court erred by assessing these two criminal history points. Because Agyepong did not object to his criminal history calculation in the district court, we review his claim for plain error. 725, 732 (1993) defendant s fairness, (error occurred, substantial integrity, United States v. Olano, 507 U.S. rights, or which and public was plain, seriously reputation affected affects of the judicial proceedings ). The subject offenses occurred from April 1, 2004, to September 9, 2004. As the Government concedes, a review of the PSR reflects that Agyepong was not on probation at the time of the instant offenses and therefore points were incorrectly applied. the criminal history Thus, the district court erred in calculating Agyepong s guidelines range. 5 two Without these criminal history criminal history category would be II. (sentencing table), with offense points, Agyepong s Under USSG ch. 5, pt. A level twelve and criminal history category II, Agyepong s guidelines range on Count One should have been twelve to eighteen months. The fifteen-month sentence Agyepong received on this Count is within that range. Nevertheless, the Government concedes that Agyepong is entitled to be resentenced based on this error. We agree. In United States v. McCrary, 887 F.2d 485 (4th Cir. 1989), we determined resentenced when imprisonment that the the defendant district under an court erroneously was entitled imposed be sentence of a to calculated sentencing guidelines range--even when, as here, the sentence imposed fell within the overlap between the correct and erroneous ranges. In such circumstances, we held that the appellate court cannot confidently assume that the factors influencing the district court s selection of a specific term of imprisonment within the erroneous range would necessarily lead the court to select the same term within the correct range. remanded in presentence guidelines sentence order report range, imposed, that, and the apprised the on basis of further proceedings. of the applicability district either Id. at 489. court the Id. 6 error of [could] [existing] The case was a in different reconsider record the or on the the The Supreme Court has endorsed the principle underlying McCrary even after United States v. Booker, 543 U.S. 220 (2005). Post-Booker, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. Gall v. United States, 128 S. Ct. 586, 596 (2007) (internal citations omitted). confirms the holding in that McCrary the Gall thus district court may weigh the specific factors relevant to the defendant to arrive at the reasonably determining the appropriate starting sentence point--i.e., only the after correct correctly guidelines range. Accordingly, district court s the error imposition of in a this case is fifteen-month not the term of imprisonment on Count One, but its acceptance of the Probation Office s report placing Agyepong in criminal history category III upon an incorrect factual basis for that determination. That error, based upon a finding that Agyepong was on probation when he was not, affected his right to a determination of the correct guidelines range, the district court s starting point for evaluating his sentence. As in McCrary, we cannot know whether the district court would have imposed the same term of imprisonment had it 7 appreciated the possibility that an alternative, overlapping guideline[s] range might apply. 887 F.2d at 489. But because the district court sentenced Agyepong to the minimum term of imprisonment under the guidelines range it mistakenly applied, it is reasonable to presume the court would have imposed a lower sentence had it been aware of the correct guidelines range. See United States v. Price, 516 F.3d 285, 289 n.28 (5th Cir. 2008) (The district court s imposition of the minimum term under the incorrect range demonstrate[d] at least a reasonable probability that the district court would have imposed a lesser sentence if it had properly applied the Guidelines. ) Accordingly, we find that Agyepong has satisfied the plain error standard of review. Accordingly, although we affirm the district court s loss calculation, we vacate Agyepong s sentence and remand for resentencing Agyepong s denied. legal before under motions the to correctly file a calculated pro se guidelines supplemental range. brief are We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 8

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