Académique Documents
Professionnel Documents
Culture Documents
No. 09-5094
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:09-cr-00196-CMH-2)
Submitted:
February 7, 2011
Decided:
March 4, 2011
PER CURIAM:
Robert
agreement
to
Everett
one
count
Young
of
pled
guilty
conspiracy
to
without
defraud
the
plea
United
of
18
U.S.C.
2,
641
(2006)
(count
two).
The
one
and
imprisonment
on
concurrent
count
term
two.
of
Young
ninety-seven
appeals
his
months
sentence,
it
(PSR);
ruled
(2)
on
the
his
court
objections
erred
in
to
the
presentence
calculating
his
report
Guidelines
Rule
32(i)(3)(B)
of
the
Federal
Rules
of
Criminal
The purpose
court
ruled
on
any
alleged
inaccuracy
in
the
PSR.
This
findings
as
Cir.
2003)
disputed
factual
allegations
with
minute specificity.
(4th
to
(internal
quotation
marks
and
alteration
omitted).
Moreover,
32(i)(3)(B)
by
the
simply
district
adopt[ing]
court
the
can
satisfy
findings
Rule
contained
in
[the] PSR, provided that [the court] makes clear which disputed
issues were resolved by its adoption.
marks omitted).
toto
if
intended
the
[by
the
of
the
adoption]
factual inaccuracies.
ruling
to
rule
makes
on
each
clear
of
that
the
[it]
alleged
filed
by
the
defendant,
3
taken
together
with
the
that
the
court
was
adopting
each
of
the
PSRs
district
court
stated
that
it
f[ound]
Reasons
accompanying
the
criminal
the
[G]uideline
In the Statement
judgment,
the
district
in
the
district
findings
in
the
PSR
objections to them.
was
courts
the
acceptance
courts
of
the
factual
of
Youngs
rejection
twenty-two
under
$20,000,000.
USSG
level
enhancement
2B1.1(b)(1)(L)
for
to
his
a
base
loss
offense
exceeding
under
USSG
2B1.1(b)
are
to
be
intended loss.
defined
as
resulted
the
from
reasonably
the
foreseeable
offense.
Id.,
Actual loss is
pecuniary
cmt.
harm
n.3(A)(i).
that
Further,
of
the
$39,651,936.
fuel
Young
and
his
co-conspirators
stole
was
In Youngs
responding
to
Youngs
objection,
the
Government
as
$39,651,936.
$39,651,936
Defense
figure
Energy
responsible
was
based
Support
for
The
Government
on
Center
procuring
the
fuel
(DESC)
ground
explained
and
prices
the
aviation
that
set
by
primary
fuel
the
the
entity
for
the
effect
during
participated
in
October
the
2007
through
conspiracy.
5
The
May
2008,
Government
when
Young
asserted,
The
that
the
loss
caused
by
Youngs
offenses
was
$39,651,936.
Based on the Governments concession, we conclude that
the
district
$39,651,936.
however,
court
erred
in
calculating
the
loss
amount
at
are
subject
to
review
for
harmlessness.
United
States v. Mehta, 594 F.3d 277, 283 (4th Cir.), cert. denied,
131 S. Ct. 279 (2010).
the resulting sentence was not longer than that to which the
defendant would otherwise be subject.
marks and alteration omitted).
range
of
over
$20,000,000
to
$50,000,000.
Because
the
the
same
district
court
not
sentence
erred
in
he
would
its
6
have
Young therefore
received
calculation.
had
the
Because
the
district
courts
error
is
harmless,
Young
is
entitled
to
no
the
three-level
aggravating
role
in
Guidelines
provides
enhancement
the
for
under
offenses.
a
USSG
Section
three-level
3B1.1
for
his
of
the
3B1.1(b)
enhancement
in
USSG 3B1.1(b). *
assets,
States
v.
or
activities
Llamas,
599
of
F.3d
criminal
381,
390
organization.
(4th Cir.
2010)
courts
determination
that
defendant
played
The
an
We disagree.
those
stealing
the
fuel
and
continued
in
this
role
through
the
activities
of
the
schemes
participants,
Young also was
Iraq the situs for the conspiracy Young took pains to ensure
continuity of operations in the scheme, meeting with the coconspirator who took over management of its operations for the
purpose of facilitating the management transition and tutoring
the co-conspirator.
These
findings
are
sufficient
to
justify
the
role.
3B1.1(b)
enhancement
where
the
defendant
exercised
operators,
activities);
3B1.1(b)
activities
sales
Bartley,
and
230
enhancement
of
set
F.3d
where
street-level
techniques,
coordinating
at
the
drug
prices
the
673-74
(affirming
defendant
dealers
and
and
payment
operators
USSG
directed
the
advised
them
on
terms,
arranged
applying
the
three-level
enhancement
for
Youngs
aggravating
role.
Young
also
asserts
that
he
should
have
received
Under
USSG
States
v.
Pratt,
239
F.3d
9
640,
646
(4th
Cir.
2001)
that
he
was
manager
in
the
fuel
theft
conspiracy.
defined
district
as
court
either
did
minor
not
or
clearly
minimal.
err
in
Accordingly,
refusing
to
the
apply
under
responsibility.
level
is
USSG
for
acceptance
of
warranted
if
he
responsibility
for
adjustment
acceptance
for
3E1.1(a)
his
clearly
demonstrates
offenses.
of
USSG
acceptance
3E1.1(a).
responsibility
does
not
of
An
result
(internal
an
quotation
adjustment
is
marks
omitted).
warranted,
10
the
In
district
determining
court
may
or
for
1B1.3.
not
which
falsely
the
den[ied]
defendant
is
any
additional
accountable
relevant
under
[USSG]
the
Probation
admitted
his
however,
Office
role
in
recommended
reduction
for
after
the
fuel
against
acceptance
pleading
theft
guilty
conspiracy.
application
of
in
of
responsibility
which
The
the
he
PSR,
two-level
because,
after
and
the
length
of
his
participation
in
it.
These
in
refusing
3E1.1(a).
to
grant
two-level
reduction
under
USSG
refusal
to
depart
from
11
the
However, a district
applicable
Guidelines
(2006),
unless
authority to do so.
(4th Cir. 2008).
the
court
failed
to
understand
its
Young
claims
unreasonable,
that
asserting
his
that
sentence
the
18
is
U.S.C.
than
whether
tak[es]
ninety-seven
sentence
into
is
account
months
imprisonment.
In
substantively
reasonable,
the
of
totality
the
determining
this
court
circumstances,
States
v.
Pauley,
511
F.3d
468,
473
(4th
Cir.
2007)
Even if
3553(a) factors.
review
of
the
record
and
Youngs
brief
on
therefore
the
district
courts
amended
contentions
the
affirm
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
13