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United States of America v. Defendant.

November 3, 2011


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Although the decision of the United States Supreme Court in United States v. Booker, 543 U.S. 220 (2005), held that the Sentencing Guidelines are no longer mandatory, the "remedial majority" opinion in the case instructs that the Sentencing Guidelines must still be taken into account pursuant to 18 U.S.C. § 3553(a) when fashioning an appropriate sentence. See Booker, 543 U.S. at 247;*fn1 see also Gall v. United States, 552 U.S. 38 (2007). It remains appropriate, therefore, in this case to consider and resolve any Sentencing Guidelines disputes in order to determine a sentencing range for Defendant, which will then be one of the § 3553(a) factors to be considered in imposing an appropriate sentence.

On June 29, 2010, Defendant was indicted on a one count criminal indictment in the mater sub judice. Doc. No. 1. Count one alleges that on or around March 2009 to in or around May 2009 in the Western District of Pennsylvania, Defendant did knowingly conspire with intent to commit offenses against the United States, specifically to make and pass counterfeit currency, in violation of Title 18, United States Code, section 371. Defendant pled guilty to the criminal indictment on June 28, 2011. On that date, sentencing was scheduled to occur on October 28, 2011, and a Presentence Investigation Report ("PSIR") was ordered. Objections to the PSIR were filed by both the government and by Defendant. See Doc. Nos. 240 and 242. On October 19, 2011, the sentencing hearing was rescheduled to November 8, 2011, in order to conduct an evidentiary hearing on said objections on the date and time originally scheduled for the sentencing hearing. On October 27, 2011, Defendant filed a sentencing memorandum in advance of the evidentiary hearing. Doc. No. 245. On October 28, 2011, an evidentiary hearing was conducted, during which Tiphany Ohler and United States Secret Service Special Agent Mark Kernan testified on behalf of the government, and Defendant testified on her own behalf. The parties were each afforded an adequate opportunity to present relevant information regarding the factors in dispute. On November 1, 2011, the government's sentencing memorandum was filed. Doc. No. 248.

In accordance with §6A1.3 of the United States Sentencing Guidelines ("USSG") and Local Criminal Rule of Court 32.1(H), the Court issue the following Findings and Rulings with respect to the disputed USSG sentencing factors

Findings and Rulings Regarding Offense Level Computation

Federal Rule of Criminal Procedure 32(i)(3)(B) requires the Court to rule upon any disputed portion of the PSIR that will affect sentencing, or determine that such a ruling would be unnecessary because either the disputed portion will not affect sentencing or will not be considered in sentencing. In determining a defendant's sentence, a district court must give meaningful consideration to the factors contained in 18 U.S.C. § 3553(a); United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). The relevant factors are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed --(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . .

Id. (citing 18 U.S.C. § 3553(a)). Since the Guidelines provide a natural starting point for the determination of the appropriate level of punishment for criminal conduct, the Court will begin by noting the appropriate guideline range. See Cooper, 437 F.3d at 331.

A. Base Offense Level

On September 26, 2011, a PSIR was prepared by the United States Probation Office for the Western District of Pennsylvania. See PSIR filed at Doc. No. 235. The applicable offense guideline for Count I - Conspiracy, in violation of 18 U.S.C. § 371, is found at USSG § 2X1.1. Pursuant to USSG § 2X1.1(a), the base offense level for violation of 18 U.S.C. § 371 is determined by the substantive offense of the conspiracy. PSIR at ¶ 17. Making Counterfeit Obligations or Securities, in violation of 18 U.S.C. § 471; and Passing and Uttering Counterfeit Obligations or Securities, in violation of 18 U.S.C. § 472, are the substantive offenses of the conspiracy and the applicable offense level for both is found at USSG § 2B5.1. Pursuant to USSG § 2B5.1(a), and without the objection of Defendant, the calculation of the advisory sentencing guideline range begins with a base offense level of nine (9). PSIR at ¶ 18. The Court turns to the specific offense characteristics included in the PSIR that were the subjects of objection by the parties.

B. Specific Offense Characteristic:

Face Value of Counterfeit Currency Pursuant to USSG § 2B5.1(b)(1)(A), if the face value of the counterfeit items exceeded $2,000 but did not exceed $5,000, the offense level must be increased by one (1) level. PSIR ar ¶ 19. With its response to the PSIR, the government objects to application of USSG § 2B5.1(b)(1)(A), instead arguing that USSG § 2B5.1(b)(1)(B) should apply. See Doc. No. 242 at ¶ B. Pursuant to USSG § 2B5.1(b)(1)(B), if the face value of the counterfeit items exceeded $5,000, the offense level must be increased by the corresponding number of levels from the table in USSG § 2B1.1 (Theft, Property Destruction, and Fraud) for the amount of the face value.

The government contends that Defendant was responsible for conspiring to produce counterfeit currency with a face value of $25,000.00, and therefore, should receive an increase of four (4) levels, as opposed to one (1). Doc. No. 242 at ΒΆ B. During the hearing, Special Agent Kernan testified that when he interviewed Defendant on June 16, 2009, Defendant informed him that she had produced approximately $25,000.00 in counterfeit currency since January, 2009. On cross examination, however, Kernan acknowledged that law enforcement recovered counterfeit currency with a face value of approximately $4,000. ...

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