PSR at PP 20, 28. The PSR further states that the Defendant received checks from his brother, John Rhodes (who purchased them from a man named Kenny), and from his nephew, Charles Cooper. PSR at PP 33, 34. The Defendant himself also testified that he obtained a series of checks from a woman named "Monica," and that he knowingly obtained stolen checks from a Simon Steele. Tr. (July 5, 1995) at 20, 23-25. See also PSR at PP 31, 36. The Defendant explained, "there have been occasions where I have done something illegal" in connection with Mr. Steele. Id. at 26. In addition, Special Agent Kirwan testified that the name of one Lisa Peedin appeared on the typewriter ribbon obtained from the Defendant's residence, and the Government submitted an exhibit with copies of checks negotiated in favor of Lisa Peedin. Id. at 41. See Govt's Exh. 12. Special Agent Kirwan further testified that the name "Carolyn Bass" was used to defraud banks with the checks at issue, and that the Defendant told them that he obtained some of the checks from a man named "Tank," whom they were able tentatively to identify. Tr. (July 5, 1995), at 58, 60.
Finally, the Court observes that there were likely many unwitting participants in this scheme which further support the applicability of section 3B1.1. Indeed, the Defendant testified that "on occasion I would buy someone else's driver's license, or something. If someone would lose a driver's license or something, someone might bring it to me and I would buy it." Id. at 18. See also id. at 16 ("People would come to me and ask me to buy checks, or identification, or something like that, and on occasion I would."). In light of this evidence and the entire record herein, the Court finds that a four-level upward departure is wholly justified for the Defendant's role as an organizer or leader in "extensive" criminal activity. U.S.S.G. § 3B1.1(a).
The Court also notes that the Commentary to section 3B1.1 provides that "an upward departure may be warranted . . . in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization." U.S.S.G. § 3B1.1(a), Application Note 2 (emphasis added). As the detailed review of the evidence above suggests, the record herein clearly demonstrates that the Defendant exercised management responsibility over the activities of the bank fraud scheme. Accordingly, a four-level upward departure is warranted on that basis as well.
IV. THE COURT FINDS NO MERIT TO THE DEFENDANT'S CLAIM THAT HE SHOULD RECEIVE A TWO-LEVEL ADJUSTMENT FOR ACCEPTANCE OF RESPONSIBILITY
The Defendant next objects to not receiving a two-level adjustment for acceptance of responsibility. See PSR at P 53. The Court, however, agrees with the Probation Office that a reduction is unwarranted because, following a Court appearance in this case, the Defendant was arrested on February 10, 1995 for the same conduct for which he was convicted. It is appropriate for the Court to consider the "voluntary termination or withdrawal from criminal conduct or associations" in ascertaining whether the decrease is warranted. U.S.S.G. § 3E1.1, Application Note 1(b); see also id., Application Note 3 ("Evidence [of acceptance of responsibility] may be outweighed by conduct of the defendant that is inconsistent with acceptance of such responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right."). Here, the Defendant's commission of bank fraud pending sentencing on his conviction in this case renders him ineligible for the two-level reduction.
The Court also notes that the Commentary to section 3E1.1 provides that "a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility." Id., Application Note 1(a). Here, as set forth above, the Defendant falsely and frivolously contests numerous convictions and pending charges which the Probation Office has verified with appropriate documentation. Accordingly, the Defendant does not qualify for a two-level decrease.
V. THE COURT FINDS THAT A THREE-LEVEL UPWARD ADJUSTMENT IS PROPER BECAUSE THE DEFENDANT ENGAGED IN FURTHER CRIMINAL ACTIVITY FOLLOWING A COURT APPEARANCE IN THIS CASE
The Government has filed a "Memorandum in Support of an Upward Departure," arguing that a three-level increase is warranted in light of the Defendant's arrest on February 10, 1995 following a Court appearance in the instant case. The Court agrees. The Government relies upon United States v. Fadayini, 307 U.S. App. D.C. 369, 28 F.3d 1236 (D.C. Cir. 1994), in which the trial court added three levels to each defendant's offense level because they had engaged in fraudulent conduct while on release. The Court of Appeals held:
We agree with the trial court that appellants' post-arrest criminal conduct was of a nature not adequately taken into account by the Sentencing Commission. It is therefore an appropriate basis for departure under § 5K2.0. Finally, a three-level departure is reasonable, given that it is the same level of departure recommended by § 2J1.7.
Id. at 1242.
The Court finds that Fadayini applies here because the Defendant continued to commit check fraud while on release. Indeed, the Defendant's conduct was particularly egregious in that he was arrested within hours of leaving the courtroom where his conditions of release had been discussed and modified by the Court. During the hearing on February 10, 1995, the Court restricted the Defendant's release conditions because he was claiming to work for a company which was run by his family members and located at the same address where fraudulent checks were prepared during the fraud for which the Defendant was convicted. The Defendant was thus alerted to the Court's concern about his conduct while on release pending sentencing and should have been particularly careful to follow the conditions of release set by this Court. Instead, the Defendant, visibly angry at the Court for its ruling, went to a bank and attempted to pass another bad check. Under Fadayini, such conduct warrants a three-level increase in the offense level applicable in this case.
VI. THE COURT SHALL ORDER THE DEFENDANT TO PAY RESTITUTION IN THE AMOUNT OF $ 10,000
In accordance with 18 U.S.C. §§ 3663 and 3664, the Court may order restitution. The total loss attributed to the Defendant is $ 88,394.05. PSR at P 127. The Government requests an order of restitution in the full amount, arguing that the Defendant will earn some money while incarcerated and that such an order can be of considerable assistance to the victims as it may be enforced in later years "in the same manner as a judgment in a civil action." 18 U.S.C. § 3663(h).
However, the Court finds that, due to the Defendant's physical condition (sight loss) and his need for employment assistance after he is released from incarceration, a restitution order in the full amount is impracticable. Rather, the Court shall order restitution in the amount of $ 10,000.
The Court thus finds that, with a base offense level of 6, an increase of 5 levels for a loss not more than $ 70,000, an increase of 2 levels for more than minimal planning, an increase of 4 levels for being an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, and an increase of 3 levels for engaging in further criminal activity while on release, the proper adjusted offense level is 20. See Tr. (April 25, 1995) at 16. The Court further finds that the Defendant is in criminal history category VI. Accordingly, the sentencing range is 70 to 87 months. Given the long history of the Defendant's criminal conduct, the Court determines that the Defendant shall be sentenced to 87 months in prison.
Accordingly, pursuant to the Sentencing Reform Act of 1984 and the application of the United States Sentencing Commission Guidelines, it is the judgment of the Court that the Defendant, Jacob Wesley Rhodes shall be, and hereby is, committed to the custody of the U.S. Bureau of Prisons for a term of 87 months on Count One, followed by a five-year period of supervised release, together with a special assessment of $ 50 to be paid within 6 months of this date. Within 72 hours of release from confinement, the Defendant shall report in person to the Probation Office in the district to which he is released.
While on supervised release, the Defendant shall not commit another federal, state, or local crime, and shall abide by the standard conditions of supervised release as recommended by the United States Sentencing Commission and such further orders as the Probation Officer to whom this case is assigned or the Court may from time to time issue. The Defendant shall comply with the following special conditions:
(1) The Defendant shall not possess a firearm or any other dangerous weapon or device for any reason.
(2) The Defendant shall not use, possess, transport, sell, or distribute any illegal drugs or associate with any individual who engages in that conduct; nor shall he frequent any place where illegal drugs are possessed, used, sold, or distributed.
(3) The Defendant shall not engage in any illegal conduct involving checks, money orders, or the like.
(4) The Defendant shall work full-time, if not enrolled in an educational program, or part-time. If he is participating in an educational program, he shall at least work on a part-time basis.
(5) The Defendant shall make restitution in the amount of $ 10,000, commencing within 6 months of this date, payable on a pro rata basis in proportion to the loss sustained, as determined and directed by the Probation Office in consultation with the Office of the United States Attorney, to the following payees:
a) Riggs National Bank, 1120 Vermont Avenue, N.W., Washington, D.C. 20005
b) Nations Bank, 2601 University Boulevard, Wheaton, MD 20902