                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 5, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-6229
                                                 (D.C. No. 5:08-CR-00054-L-1)
    TERRY DEAN RICHARDSON,                               (W.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judges.



         Terry Dean Richardson was convicted after a jury trial of eight counts of

possessing or uttering counterfeit securities with the intent to deceive in violation

of 18 U.S.C. §§ 513(a) and 2. He was sentenced to forty-one months’

imprisonment and three years’ of supervised release, and ordered to pay a special

assessment and restitution in the amounts of $800.00 and $3,102.50, respectively.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
On appeal, he contends that (1) there was insufficient evidence to support his

convictions and (2) the trial court erred procedurally in calculating his sentence

and substantively in determining the length of his sentence. We affirm.

                                          I.

      On June 13, 2007, Mr. Richardson opened a savings account at Yukon

National Bank, depositing a cashier’s check drawn on Wells Fargo Bank in the

amount of $87,650.00. He told Melanie Riemann, who opened the account, that

he had sold some land in Texas. The check was deposited, and $5,000.00 was

made available immediately, with the balance on hold until the check cleared. On

June 18, Mr. Richardson deposited $2,550.00 in money orders. On June 19, he

withdrew $2,500.00 from the account. Also that day, the check was returned

because it was counterfeit. Ms. Riemann talked to Mr. Richardson about the

check, and he indicated that he had sold some land in Oklahoma and he would

have to talk to the buyer about why the check was being returned. Additionally,

the money orders were determined to be counterfeit. After Mr. Richardson was

alerted about all of the counterfeit securities, he deposited $1000.00 in valid

money orders in the bank’s night deposit. He attempted to pay the remaining

$1,500.00 with counterfeit traveler’s checks. In all, Mr. Richardson presented

eleven counterfeit securities to Yukon National Bank, resulting in a loss to the

bank of $1,500.00.




                                         -2-
      Mr. Richardson had a cash-only account with Allegiance Credit Union. On

July 26, 2007, the credit union received a check for $6,135.72 drawn on Bank of

America and made out to Mr. Richardson. Employee Moses Njenga notified

Mr. Richardson that Allegiance Credit Union had received the check, but could

not deposit it. Mr. Richardson explained that the check should have been

electronically deposited and if the credit union would not accept it, he would pick

it up and take it to another bank. The credit union made an exception to the

cash-only rule, deposited the check in Mr. Richardson’s account, and placed a

hold on it until it cleared. In early August, the check was returned as counterfeit.

Upon being told of this by Mr. Njenga, Mr. Richardson apologized and stated that

the check might be a scam because he was told to deposit the check and send back

some of the proceeds after cashing it. Subsequently, Mr. Richardson presented

two more checks to Allegiance Credit Union and asked that they be verified for

authenticity. The credit union declined to do so, but held the checks. One check,

for $56,382.45, was drawn on the Bank of Montreal, and the other, for

$65,500.00, was drawn on the Canadian Imperial Bank of Commerce. About two

weeks later, Mr. Richardson presented another check for verification, but

Allegiance Credit Union declined to verify the check.

      In July 2007, Mr. Richardson opened checking and savings accounts at

Bank of the West. He funded the accounts with two cashier’s checks and some

cash. He claimed that the checks were proceeds from the sale of items on the

                                         -3-
internet. Both checks, one for $5,650.00 and drawn on Citizens Bank of

Massachusetts and another for $7,200.00 and drawn on Union Bank and Trust

Co., were returned as counterfeit. Mr. Richardson presented two other checks for

deposit that also were returned as counterfeit: (1) a $4,800.00 cashier’s check

drawn on PNC Bank; and (2) a $10,150.00 commercial check drawn on Union

Bank of California. Additionally, Mr. Richardson deposited counterfeit money

orders. In total, Bank of the West lost $552.50 due to withdrawals by

Mr. Richardson and fees.

      Also, in July 2007, Mr. Richardson presented fraudulent travelers checks at

Arvest Bank. When the bank contacted him to repay the money, he deposited

counterfeit money orders. In total, Arvest Bank lost $1050.00 in its dealings with

Mr. Richardson.

      Yukon National Bank and Allegiance Credit Union notified the United

States Secret Service about the counterfeit checks. Special Agent Gavin Hartsell

interviewed Mr. Richardson. Mr. Richardson told Agent Hartsell that he had

responded to several email solicitations from people outside the United States

asking for his help in cashing various securities. These people offered him ten

percent of the money from the securities that would be sent to him if he would

deposit them and wire ninety percent back to the sender. Mr. Richardson was not

sure if the first check, presented to Yukon National Bank, was counterfeit, so he

represented that it was from the sale of land in Texas. He admitted that after the

                                         -4-
first check was returned as counterfeit, he knew the rest were counterfeit but he

took them to the banks anyway. Despite knowing the checks were counterfeit,

Mr. Richardson hoped that one would be accepted, whether it was real or

counterfeit, and that he would make a little money. Additionally, he admitted

knowing that the money orders and everything else he was being sent were

counterfeit. Mr. Richardson signed a statement to this effect.

      Based on this evidence, Mr. Richardson was convicted of eight counts of

uttering or possessing counterfeit securities with the intent to deceive an

organization in violation of 18 U.S.C. §§ 513(a) and 2. 1 At sentencing, the

district court determined that the proper Guidelines range was 41-51 months’

imprisonment. The court declined to grant a departure or variance, determining

there were no factors under 18 U.S.C. § 3553(a) or the Guidelines warranting

either. The court, however, did sentence Mr. Richardson to the low end of the

Guidelines range for a term of 41 months’ imprisonment.

                                         II.

                                         A.

      Mr. Richardson first argues that the evidence presented at trial was

insufficient to support his convictions. He contends the government failed to


1
      Mr. Richardson was found not guilty of seven counts of possessing
counterfeit securities with the intent to deceive. These counts were based on the
counterfeit securities he had in his possession on the day he was interviewed by
Agent Hartsell.

                                         -5-
prove beyond a reasonable doubt either that he knew the securities were

counterfeit at the time he possessed or uttered them or that he intended to deceive

the banks when he possessed or uttered them. According to Mr. Richardson, the

evidence raised only a mere suspicion of guilt.

      “We review sufficiency of the evidence claims de novo, but examine the

evidence in the light most favorable to the government and ask only whether any

rational juror could have found [Mr. Richardson] guilty beyond a reasonable

doubt.” United States v. Oldbear, 568 F.3d 814, 822-23 (10th Cir. 2009). “While

the evidence supporting the conviction must be substantial and do more than raise

a mere suspicion of guilt, it need not conclusively exclude every other reasonable

hypothesis and it need not negate all possibilities except guilt.” United States v.

Erickson, 561 F.3d 1150, 1158-59 (10th Cir. 2009) (quotation marks omitted),

pet. for cert. filed, (U.S. June 12, 2009) (No. 08-10987). In reviewing for

sufficiency of the evidence, we will not weigh conflicting evidence or consider

the credibility of witnesses. Oldbear, 568 F.3d at 823.

      For a conviction under 18 U.S.C. § 513(a), the government was required to

prove beyond a reasonable doubt that Mr. Richardson uttered or possessed a

security he knew to be counterfeit and he did so with the intent to deceive another

person, organization, or government. See also R., Vol. 1, Doc. 32 (jury

instruction 15). For a conviction under 18 U.S.C. § 2, the government was

required to prove beyond a reasonable doubt that Mr. Richardson aided or abetted

                                         -6-
the commission of uttering or possessing counterfeit securities by another person.

See also R., Vol. 1, Doc. 32 (jury instruction 15).

      Viewing the evidence in the light most favorable to the government, we

conclude that there was ample evidence to support Mr. Richardson’s convictions.

With respect to the first check deposited with Yukon National Bank,

Mr. Richardson was uncertain whether it was authentic. Instead of honestly

telling the bank this, he made up a story that the check was from the sale of land

in Texas, and, later, changed the story to a sale of land in Oklahoma. He admitted

knowing the checks, after the first one, were counterfeit, and he signed a written

statement admitting this. In addition, Mr. Richardson failed to truthfully tell bank

employees at Bank of the West the sources of the counterfeit checks he tried to

deposit at that bank. He attempted to pay back the amounts he owed to Yukon

National Bank and Arvest Bank with counterfeit money orders. And he opened

new accounts at Bank of the West after having no success with getting the

counterfeit checks accepted at Yukon National Bank or Allegiance Credit Union.

Accordingly, Mr. Richardson’s challenge to the sufficiency of the evidence fails.

                                          B.

      Mr. Richardson next argues that the district court committed procedural

error in the methodology used to calculate his sentence and substantive error in

determining the length of his sentence. He contends that the district court failed

to impose a sentence in conformity with 18 U.S.C. § 3553(a), because the court

                                         -7-
did not consider each of the seven separate factors set forth in the statute when

determining the appropriate sentence, and, instead, focused only on the

Guidelines. If the court had considered all of the § 3553(a) factors, he maintains

that he should have received a reasonable sentence of less than forty-one months’

imprisonment. Thus, he contends this case should be remanded for resentencing.

      We review Mr. Richardson’s sentence for reasonableness, “guided by the

factors set forth in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006) (per curiam). “Our appellate review for reasonableness includes

both a procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008).

Failing to consider the § 3553(a) factors is procedural error. Id. “A challenge to

the sufficiency of the § 3553(a) justifications relied on by the district court

implicates the substantive reasonableness of the resulting sentence.” Id. at 804.

      Considering procedural error first, we conclude that the district court

committed no error. While, it is true that the court did not address each of the

§ 3553(a) factors individually, the court was aware of its responsibility to

consider the factors and did state that no factors under § 3553(a) or under the

Guidelines warranted a variance or departure from the Guidelines. Before

reaching this conclusion, the district court considered Mr. Richardson’s

objections to the presentence report. The court agreed with Mr. Richardson that

                                          -8-
the appropriate Guidelines range was 41-51 months’ imprisonment and that the

loss for which he was accountable would not include the amounts of the checks

found in his home for which the jury found him not guilty of violating §§ 513(a)

and 2. But the court rejected Mr. Richardson’s assertion that he merely made

errors in judgment:

      You became a willing participant in a scam and I just can’t believe
      that you were so innocent that you didn’t fully know and fully
      participate in this scam and know what the ultimate object was, and
      particularly your actions reflect in that when you went in and lied to
      the banks about what the checks were about. Scams like that, of
      course, take millions and millions of dollars in continuum, but they
      don’t work unless people like yourself participate and get involved in
      it and become a willing participant and otherwise the originator of
      the scam wouldn’t ever work, but I think you were an obvious
      willing participant, you were looking for something for nothing, and
      you were looking to defraud the bank out of hundreds of thousands
      of dollars. While the jury found you not guilty, it’s also obvious that
      probably if any of these ever worked you would have kept doing it
      until you were caught. So I don’t feel that there are any factors in all
      of the Title 18 Section 3553 or under the guidelines that would
      warrant a variance or a departure from the guidelines.

R., Vol. 3 at 13.

      The district court’s explanation is sufficient to satisfy us that the court

“ha[d] considered the parties’ arguments and ha[d] a reasoned basis for exercising

[the court’s] own legal decisionmaking authority.” Rita v. United States,

551 U.S. 338, 127 S. Ct. 2456, 2468 (2007); see also United States v.

Martinez-Barragan, 545 F.3d 894, 903 & n.3 (10th Cir. 2008) (declining to

require district court to provide more than general statement of reasons and


                                          -9-
rejecting notion that court must explicitly refer to each § 3553(a) factor).

Accordingly, we conclude that the district court did not commit procedural error.

      In considering the substantive reasonableness and length of

Mr. Richardson’s sentence, we review for an abuse of discretion. See Gall v.

United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). Because the sentence was

within the correctly calculated Guideline range, we may apply a presumption of

reasonableness. See id. Mr. Richardson can rebut that presumption by showing

the unreasonableness of the sentence based on the § 3553(a) factors. See

Martinez-Barragan, 545 F.3d at 905. He, however, has failed to meet his burden.

Given the circumstances of this case and the statutory factors, see United States v.

Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.), cert. denied, 129 S. Ct. 161 (2008),

we conclude that the length of his sentence, at the very bottom of the Guidelines

range, was reasonable.

                                         III.

      We AFFIRM the district court’s judgment.


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




                                         -10-
