     Case: 10-11299     Document: 00511762374         Page: 1     Date Filed: 02/17/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         February 17, 2012

                                       No. 10-11299                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.


CASEY SHAWN SELF,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-64-1


Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
        Casey Shawn Self appeals his sentence of 180 months for pleading guilty
to possessing stolen mail and making, possessing, and uttering a counterfeit
security. Self argues that the district court erred in applying two enhancements
to his sentence and that the court denied him his right to allocution prior to
sentencing. Finding that any sentencing error made by the district court was
harmless and that no allocution error occurred, we AFFIRM.


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                BACKGROUND
      For several years Self participated in a counterfeit check scheme with four
accomplices. Self’s girlfriend, LaDonna Garcia, introduced him to Susana Askar
Barakat in 2006 and the three started a counterfeiting scheme. Self would break
into mail collection boxes and personal mailboxes, with Garcia as a lookout, and
obtain personal information about his victims. Self, Garcia, and Barakat would
then use that information to make counterfeit checks, obtain counterfeit
identification cards, and obtain credit cards in others’ names.           Garcia’s
involvement in the scheme ceased in December 2008 when she was arrested on
drug charges. After Garcia’s arrest, Self became involved in a relationship with
Balaina Collins, who replaced Garcia as the lookout and negotiated fraudulent
checks. Barakat’s boyfriend, Mark Coker, was the fifth member of the scheme
and purchased stolen bank account and routing numbers from Self. Coker also
obtained fraudulent memberships at Sam’s Club in at least two different people’s
names.
      After complaints from postal customers in November 2008, postal
inspectors began investigating a string of thefts from postal boxes. During the
investigation, inspectors identified Self, Barakat, Collins, and Garcia in
surveillance videos negotiating fraudulent checks made from information stolen
from postal boxes. Self was arrested while attempting to negotiate a counterfeit
check in Dallas on August 9, 2009. Upon his arrest, Self used an alias, Brett
Bowerman, and he was released on bond the same day based on this false
identity. On August 30, 2009, authorities established surveillance on several
postal boxes in an area where several thefts had occurred. As part of this
operation, officers observed Self trying to gain access to a postal collection box.


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                                  No. 10-11299

Officers approached Self with weapons drawn in an attempt to apprehend him,
but Self ran from the officers and jumped on his motorcycle. As he sped away,
he drove right at an officer who had to dodge the motorcycle to avoid being hit.
After his escape, Self continued his crime spree by stealing more mail and
continuing to negotiate fraudulent checks. This spree was finally halted when
Self was arrested on unrelated charges on February 20, 2010. Self again gave
a false name and identification to police, but as he was in the process of
establishing bond he was identified as Casey Self and held for the postal
inspector.
      Self and his accomplices stole $138,831.37 from identified victims and are
responsible for a potential overall loss exceeding $200,000. They defrauded 71
merchants and financial institutions and 77 known individual victims. The
postal inspector identified another 148 potential victims. After pleading guilty,
Self was sentenced to 180 months incarceration and three years of supervised
release.
                                 DISCUSSION
      Self now appeals his sentence arguing that the district court erred by
increasing his sentence for obstruction of justice and for his role in the offense.
Self also claims that the judge denied him his right to allocution.
A. Sentencing
      This court reviews a district court’s sentencing decision for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The “district court’s
interpretation or application of the Sentencing Guidelines is reviewed de novo,
and its factual findings . . . are reviewed for clear error. There is no clear error


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if the district court’s finding is plausible in light of the record as a whole.”
Cisneros-Gutierrez, 517 F.3d at 764 (quoting United States v. Juarez-Duarte,
513 F.3d 204, 208 (5th Cir. 2008)). This court will not deem factual findings
clearly erroneous unless a review of the evidence leaves it “with the definite and
firm conviction that a mistake has been committed.” United States v. Rose,
449 F.3d 627, 633 (5th Cir. 2006) (quoting United States v. Cabrera, 288 F.3d
163, 168 (5th Cir. 2002)).
      1. Obstruction of Justice Sentence Enhancement
      Self argues that the comments to the sentencing guidelines counsel
against applying the obstruction of justice sentence enhancement in this case.
Under U.S.S.G. § 3C1.1 a two-level enhancement is appropriate “[i]f (1) the
defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction, and (2) the obstructive conduct
related to . . . the defendant’s offense of conviction and any relevant conduct.”
(emphasis added). The comments do not precisely define what conduct qualifies
for the obstruction enhancement, but there is a list of types of conduct that do
not warrant the enhancement. § 3C1.1 cmt. 5. One such example is “providing
a false name or identification document at arrest, except where such conduct
actually resulted in a significant hindrance to the investigation or prosecution
of the instant offense.” § 3C1.1 cmt. 5(A). Self claims that the only potentially
obstructive conduct he committed falls within this comment and should thus not
be used to support an obstruction of justice enhancement.
      We do not resolve whether Self is correct that the court erred by adding a
two-level enhancement to his sentence for obstruction of justice, because any


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error is harmless. In United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th
Cir. 2009), this court recognized that an error can be harmless even if the
district court did not consider the correct guidelines range in its analysis. Such
an error is only harmless, however, if the court would have imposed the same
sentence absent the error.
      In the instant case, the Pre-Sentence Report (“PSR”) calculated the
sentencing range as 210 to 262 months. The statutory maximum, however, was
180 months and the judge imposed that sentence only after indicating that he
did not think the punishment was sufficiently harsh. If the obstruction of justice
enhancement had not been applied, the sentencing guideline would have been
169 to 210 months with the same 180 statutory maximum. U.S.S.G. Ch. 5, Pt. A.
That the sentence imposed on Self was within the lower range is relevant, but
not dispositive that no harmful error occurred. Delgado-Martinez, 564 F.3d at
753. The issue is whether the district court would have still sentenced Self to
the statutory maximum 180 months given this lower range.
      Though the burden to prove harmless error is heavy when the sentence
range is miscalculated, it has been met in this case. First, the judge’s reasoning
would not change if there had been no obstruction of justice enhancement. The
record suggests that the judge was committed to applying the statutory
maximum because of the devastating effect Self’s crimes had on the victims and
because of Self’s criminal history. The judge said the following to Self at
sentencing:
   I don’t think anybody on your side of this crime can understand the pain
   that you cause to people who have their identity stolen, their bank
   accounts drawn from. It’s very upsetting, and not only upsetting, it’s a lot
   of trouble to have to go to stop all that and to repair the damage that’s
   done, sometimes never repaired. So those people who have done nothing

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   to you or to anyone else are suddenly in a much worse financial situation.
   They may be very hard-working, worked very hard all their lives to
   acquire a good credit rating, which in our society is very important, and
   because of your actions, there are many people who have had that
   threatened. So it’s a serious crime and one that our guidelines struggles
   [sic], without success usually, to take account of because there is no way to
   quantify the damage that that crime does to a person’s well being, sense
   of well being, their psyche, and their financial credit rating in our society.
   So I appreciate your expression of remorse, but the crime demands the
   punishment that I intend to impose.
There is no indication that the judge’s commitment to apply the maximum
sentence allowed by law would be influenced by the elimination of the
obstruction of justice enhancement, especially since the sentence he imposed was
within the lower range endorsed by the defense. In fact, his statement suggests
that he did not think that the penalties allowed by law were severe enough.
      Moreover, the court did not mention obstruction of justice in its
justification for the sentence in its statement of reasons. The court highlighted
that Self had committed similar crimes in the past, had been “afforded
probation, terms of parole, and has served brief or intermediate sentences of
incarceration.” Despite these punishments, Self continued to break the law and
the judge imposed the statutory maximum sentence of incarceration as a result.
      In sum, any error committed by the court in applying the obstruction of
justice enhancement was harmless.
      2. Role in the Offense Sentence Enhancement
      Self argues that the judge erroneously applied a three level increase for a
managerial role in the offense. Under U.S.S.G. § 3B1.1(b), a three level increase
in the offense level is appropriate if the defendant plays a managerial role (but
is not an organizer or leader) and the criminal activity involved five or more


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                                   No. 10-11299

participants. Self’s main contention is that both Garcia and Barakat played a
larger role in the offense than he did. He claims that Garcia recruited him into
the scheme and that he did not manage any of his accomplices.
      The determination that a defendant is a manager or supervisor under
§ 3B1.1 is a factual finding reviewed for clear error. Rose, 449 F.3d at 633. “To
qualify for an adjustment under this section, the defendant must have been the
organizer, leader, manager, or supervisor of one or more other participants.”
§ 3B1.1 cmt. 2.     In making this determination, a sentencing court should
consider: (1) the exercise of decisionmaking authority; (2) the nature of
participation in the commission of the offense; (3) the recruitment of accomplices;
(4) the claimed right to a larger share of the fruits of the crime; (5) the degree of
participation in planning or organizing the offense; (6) the nature and scope of
the illegal activity; and (7) the degree of control and authority exercised over
others. § 3B1.1 cmt. 4.
      Despite Self’s denial that he played a large part in the scheme, several of
the factors are satisfied. Self was the one who broke into the postal collection
boxes and stole the information, which he and Barakat later used to make
fraudulent checks and identification. Although Garcia recruited Self and taught
him how to make the fraudulent checks and identification, as Postal Inspector
Hernandez testified at sentencing, Self took what he learned and ran with it.
Self’s idea was to target postal collection boxes. Self also recruited Collins into
the scheme as his lookout when he broke into the postal collection boxes. Collins
took directions from Self in the criminal activity, including how to cash
counterfeit checks and to use a fake driver’s license as identification. Under the
guidelines and Fifth Circuit case law, supervising even one other co-conspirator


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is sufficient to justify the greater enchantment for a leader or organizer. United
States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001). Thus, the district court was
justified in applying the managerial role enhancement to Self’s sentence.
B. Allocution
      Self asserts that the district court plainly erred by denying him an
opportunity to allocute before imposing the sentence. Plain error review applies
because Self did not object on this ground in the district court. See United States
v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). Thus, Self must show that
the court made a clear or obvious error that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009). If Self
makes such showing, the court has the discretion to correct the error but only if
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal Procedure requires the
district court to “address the defendant personally in order to permit the
defendant to speak or present any information to mitigate the sentence” before
imposing sentence. The district court must apply Rule 32 “quite literally” and
“make ‘a personal inquiry directed to the defendant.’”          United States v.
Magwood, 445 F.3d 826, 829 (5th Cir. 2006) (quoting United States v. Dickson,
712 F.2d 952, 956 (5th Cir. 1983)). The record must indicate “that the defendant
knew he had a right to speak on any subject of his choosing prior to the
imposition of sentence.” United States v. Echegollen-Barrueta, 195 F.3d 786, 789
(5th Cir. 1999); see also United States v. Hernandez, 291 F.3d 313, 315-16 & n.1
(5th Cir. 2002) (determining that an invitation by the district court to the
defendant to speak on any statement amounted to compliance with Rule 32).


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      After the district court ruled on Self’s objections to the PSR, the court
announced the applicable guidelines “range.” The following exchange then
occurred:
   [The Court]: Mr. Curtis, I intend to sentence your client as required by the
   guidelines. Do you, nevertheless, wish to make any remarks on behalf of
   Mr. Self?
   Mr. Curtis: Your, Honor, I believe I’ve made the remarks that I need to
   make at this time, but I think Mr. Self would probably like to speak.
   [The Court]:Mr. Self, would you like to speak on your own behalf or
   present any information in mitigation of your sentence?
Self then spoke, apologizing for his actions and stating that he has never been
given any kind of rehabilitation for his drug addition.       The district court
responded that it would recommend rehabilitation for Self and then commented
on how Self’s actions affected the victims. After asking if the Government had
anything to say, the district court imposed a sentence of 180 months of
imprisonment. The district court did not actually impose Self’s 180-month
sentence until after Self was given the opportunity to speak.          The court
considered Self’s remarks as evidenced by the recommendation for
rehabilitation. His right to allocution was not violated.
                                CONCLUSION
      For the foregoing reasons, the conviction and sentence are AFFIRMED.




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