                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       April 10, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-6125
          v.                                    W estern District of Oklahoma
 EARNEST RICHARDSON, a/k/a                         (D.C. No. CR-05-74-T)
 “M oon”,

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.




      Earnest Richardson argues that the district court erred in applying a two-

level enhancement for his role as the organizer or leader of a crime, and that his

two consecutive 51-month sentences constitute an unreasonable variance from the

41- to 51-month Sentencing Guidelines range. W e find that the district court did


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
not plainly err in applying a two-level enhancement and that the consecutive

prison terms constitute a reasonable sentence based on the factors enumerated in

18 U.S.C. § 3553(a). Accordingly, we affirm the district court’s judgment.

                                I. BACKGROUND

      In 2001, M r. R ichardson was involved in an identity theft scheme. He

purchased large quantities of merchandise at local retail stores on credit using

personal information from the death certificates of recently deceased individuals.

On April 12, 2005, a grand jury indicted M r. Richardson on three counts of fraud

and one count of using a false social security number. M r. Richardson pled guilty

to all four counts contained in the indictment.

      The presentence report (“PSR”) calculated a total offense level of fifteen

based, in part, on a two-level increase for being an organizer or leader of criminal

activity. The report also attributed eighteen criminal history points to M r.

Richardson, which qualified him for a Criminal History Category of VI. This

calculation resulted in a sentencing range of 41 to 51 months imprisonment.

      The report based the two-level organizer or leader enhancement on an

episode in which M r. Richardson enlisted a neighbor, M ichael Browne, to help

him fraudulently obtain retail merchandise. On June 25, 2001, M r. Richardson

asked M r. Brow n to rent a U-Haul truck and drive it to a local Target. M r.

Richardson instructed M r. Browne to fill out a credit card application based on a

handwritten sheet of information that M r. Richardson provided. This sheet

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contained the identity of a deceased individual. M r. Richardson and M r. Browne

filled a shopping cart full of goods and proceeded to check-out, where the cashier

requested identification matching the name on the credit application. Unable to

produce the requested identification, the duo left the store without the

merchandise. The credit application was denied by the Target employee at the

check-out line and the two men left the store.

      M r. Richardson initially objected to the PSR in its entirety, but at his

sentencing hearing he withdrew all objections to the report. After acknowledging

the Sentencing Guidelines range of 41 to 51 months, the district court concluded

that it was inadequate given the Defendant’s “excessively long” criminal history,

the seriousness of the offense in causing “nightmarish” effects on the victims’

families, the need for effective deterrence of this type of conduct, and the need to

protect the public from further crimes of this nature. Based on these

considerations, the court decided to vary from the Guidelines and impose two of

M r. Richardson’s 51-month sentences consecutively instead of concurrently,

resulting in a total sentence of 102 months imprisonment, three years of

supervised release and a fine of $14,404.41. This appeal followed.

      In addition to the appellate brief filed by counsel, M r. Richardson has filed

a pro se supplemental brief raising a wide variety of additional arguments and

claims. W e invoke this Court’s longstanding policy of exclusively addressing

issues raised by counsel when a party has access to representation on appeal.

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United States v. Pearl, 324 F.3d 1210, 1216 (10th Cir. 2003) (denying a motion to

file a pro se supplemental brief because the defendant was represented by

counsel); United States v. Coleman, 9 F.3d 1480, 1487 (10th Cir. 1993) (“It is our

policy on direct appeals such as this only to address issues raised by counsel, who

have been trained and in many cases appointed for that very purpose, and we

invoke that policy here.”).

                                  II. D ISC USSIO N

A. Tw o-Level Enhancement

      M r. Richardson argues that the district court erred in applying a two-level

enhancement based on his role as an organizer and leader of a crime.

Specifically, he contends that M r. Browne did not have the requisite m ens rea to

qualify as a criminal participant. He supports this contention by pointing to a

statement in the PSR, obtained through an FBI investigation, recounting that M r.

Brow ne “‘didn’t believe anything untow ard was happening.’” A ppellant’s

Opening Br. 10–11 (quoting R. Vol. IV, at 7).

      B ecause M r. R ichardson failed to challenge the adjustment below, we

review the district court’s two-level enhancement for plain error. United States v.

Brown, 316 F.3d 1151, 1155 (10th Cir. 2003); Fed. R. Crim. P. 52(b). Under

plain error review, M r. Richardson must show (1) the district court erred, (2) the

error was plain, (3) the error affects substantial rights, and (4) the error

“‘seriously affects the fairness, integrity, or public reputation of judicial

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proceedings.’” Brown, 316 F.3d at 1155 (quoting United States v. Olano, 507 U.S.

725, 732 (1993)).

      The commentary to Guidelines § 3B1.1 indicates that in order for a

defendant to qualify for a leadership adjustment “the defendant must have been

the organizer, leader, manager, or supervisor of one or more other participants” in

a crime. U.S. Sentencing Guidelines M anual, §3B1.1 cmt. n.2 (2005).

“Participant” is defined as “a person who is criminally responsible for the

comm ission of the offense.” Id. at n.1. Because mens rea is an essential element

of criminal culpability, an individual must have the requisite mens rea for the

comm ission of a crime in order to qualify as a participant under the Sentencing

Guidelines. United States v. Glinsey, 209 F.3d 386, 396 (5th Cir. 2000) (stating

that in order for an individual to qualify as a “participant” under §3B 1.1, he must

have participated “knowingly in some part of the criminal enterprise”).

      W e thus face a factual dispute regarding whether M r. Browne had the

criminal intent necessary to qualify as a participant in criminal activity. Because

M r. Richardson failed to raise the issue below, the government did not have an

opportunity to present evidence on the question and we have no way, on this

record, of shedding further light upon it.

      W e can, however, dispose of M r. Richardson’s claim. This Court has

clearly stated that “‘factual disputes not brought to the attention of the court do

not rise to the level of plain error.’” United States v. Castorena-Jaime, 285 F.3d

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916, 926–27 (10th Cir. 2002) (quoting United States v. Svacina, 137 F.3d 1179,

1187 (10th Cir. 1998)). In C astorena-Jaime, the defendant argued that the trial

court had erred by not suppressing statements she had made to police officers

after her arrest. Id. at 926. Even though she had failed to raise the issue at trial,

on appeal the defendant argued that because she did not understand her M iranda

rights, the trial court should have suppressed statements made to police officers

sua sponte. Id. The court concluded “[w]e cannot say the district court plainly

erred by not sua sponte suppressing [the] statements where the factual dispute . . .

was never brought to the district court’s attention for resolution.” Id. at 927. As

in C astorena-Jaim e, we cannot say that the district court committed plain error by

failing to reject, sua sponte, a recommended two-level organizer or leader

enhancement when the factual dispute over M r. Browne’s criminal intent was

never brought to the attention of the district court for resolution.

B. Booker Reasonableness

      M r. Richardson next argues that the two consecutive 51-month sentences

imposed by the district court constitute an unreasonable variance from the

Sentencing Guidelines range of 41 to 51 months. This Court review s the length

of criminal sentences “for reasonableness, using the factors enumerated in 18

U.S.C. § 3553(a) as our guide.” United States v. Bishop, 469 F.3d 896, 906 (10th

Cir. 2006). For sentences falling outside of the Guidelines range, we take into

account the percentage and absolute length of the deviation from the

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recommended Guidelines sentence. United States v. Valtierra-Rojas, 468 F.3d

1235, 1240 (10th Cir. 2006).

       The Sentencing Guidelines permit the district court to impose consecutive

sentences under certain circumstances, none of which exist in this case. See

U.S.S.G § 5G1.2 (allowing for consecutive sentences if prescribed by statute, if

the statutory maximum for a crime falls below the Guidelines “total punishment,”

or where the defendant is classified as a “Career Offender”). In effect, therefore,

the sentence imposed by the district court in this case constituted a 100 percent,

51-month deviation from the maximum recommended Guidelines sentence.

       W e have held that the difference between a 78-month sentence and an

advisory Guidelines range of 57 months, a 37% increase, constitutes a “significant

increase” and requires “sufficient explanation and justification.” Bishop, 469

F.3d at 908. Similarly, we have found that a 60-month sentence imposed for an

offense with a maximum advisory Guidelines range of 27 months, a 122%

increase, was a “substantial” increase requiring “compelling reasons.” Valtierra-

Rojas, 468 F.3d at 1237, 1239–40. As in Valtierra-Rojas, we conclude that the

sentence imposed by the district court here constitutes a substantial variance that

must be justified by compelling facts.

       In determining the sufficiency of the G uidelines sentence, the district court

must consider, among other factors, “the history and characteristics of the

defendant” as w ell as “the need . . . to reflect the seriousness of the offense . . . to

                                            -7-
afford adequate deterrence to criminal conduct . . .[and] to protect the public from

further crimes of the defendant.” 18 U.S.C. § 3553(a). W e determine whether the

district court’s justification is sufficient by analyzing “whether the particular

characteristics of the defendant . . . are sufficiently uncommon to justify a

divergence from the presumptively reasonable Guidelines sentence.” United

States v. M ateo, 471 F.3d 1162, 1169 (10th Cir. 2006).

      M r. Richardson argues that the factors invoked by the district court did not

warrant a divergence from the Guidelines range. Specifically, he contends that

the Guidelines adequately accounted for his criminal background; that there was

nothing peculiar to his crime that escaped reckoning in the punishment affixed by

the Guidelines; that the need for deterrence in this area of crime is a general

consideration applicable to all defendants; and that the goal of protecting the

public is not specific to his conduct.

      The district court reviewed M r. Richardson’s criminal history and found an

“extraordinary succession of criminal activities.” R. Vol. II, at 16. These

included theft, grand theft, giving false information to a peace officer, making

false financial statements, claiming false identifications, driving on a suspended

license, false impersonation, obtaining money by false pretense, resisting officers,

possession of a narcotic, forgery, burglary, taking a vehicle w ithout the owner’s

consent, and vandalism. R. Vol. IV, at 11–15. The eighteen criminal history

points attributed to M r. Richardson were five points greater than necessary to

                                          -8-
qualify him for a Criminal History Category of V I. In addition, M r. Richardson’s

most recent criminal activities were aimed not only at stealing from innocent

victims, but at stealing from innocent individuals already dealing with the

personal loss of a friend or family member. The district court concluded that

“[t]he public needs to be protected from further crimes of this defendant,” and

imposed the sentence “to reflect the seriousness of the offense” and “to deter

others from this kind of activity.” R. Vol. II, at 17–18. In light of these

considerations, it w as not unreasonable for the district court to conclude that two

consecutive 51-month terms were warranted.

      M r. Richardson also argues that the district court’s upward variance was

unreasonable because he had not been convicted of any crimes during the three

years prior to his indictment in this case and none of his prior convictions were

for violent offenses. M r. Richardson’s criminal record indicates that he has been

engaged in a wide variety of criminal activities from 1986 to the end of 2001.

Just because M r. Richardson was not convicted of a crime in the three years

leading up to his arrest in this case does not mean that the district court was

unreasonable in determining that he needed additional deterrence from

committing crimes or that the public needed additional protection from M r.

Richardson’s future conduct. Similarly, just because M r. Richardson’s criminal

history does not include violent crimes does not mean that the public does not

need protection from his established pattern of non-violent conduct.

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                               III. C ON CLU SIO N

      The district court did not plainly err in assigning a two-level organizer or

leader enhancement in computing M r. Richardson’s offense level, and the

sentence of two consecutive 51-month terms of imprisonment was not

unreasonable. The judgment of the U nited States D istrict Court for the W estern

District of O klahoma is AFFIRM ED.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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