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              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               January 3, 2008
                              No. 07-10814                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 04-00398-CR-VEH-PWG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JOHN G. GRANT, JR.,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                              (January 3, 2008)

Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     John Grant, Jr. appeals his 24-month sentence, imposed upon re-sentencing
after a jury found him guilty of aiding and abetting false statements, in violation of

18 U.S.C. §§ 1014 and 2. On appeal, Grant argues that the district court failed to

make an independent finding of the amount of loss, which was necessary to

calculate his guidelines sentencing range correctly, and erred in failing to conduct

an evidentiary hearing. Grant also argues that the district judge abused her

discretion in presiding over the re-sentencing proceedings because she had not

presided at trial or conducted an evidentiary hearing. Finally, Grant argues that he

was denied his Sixth Amendment right to effective assistance of counsel during re-

sentencing in that his counsel specifically requested that the district court not

conduct an evidentiary hearing. We AFFIRM Grant’s sentence.

                                    I. BACKGROUND

Grant was indicted on charges of aiding and abetting false statements under 18

U.S.C. §§ 1014 and 2 (“Counts 1-6”), aiding and abetting bank fraud under 18

U.S.C. §§ 1344 and 2 (“Count 7”), and conspiracy to defraud the United States

under 18 U.S.C. § 371 (“Count 8”). A jury found him guilty of Counts 1-6 and not

guilty of Count 8.1 The jury also found, beyond a reasonable doubt, that Grant’s

offenses caused Covenant Bank to lose $350,000.




      1
          Count 7 was dismissed upon the government’s motion.

                                               2
      Grant was the President of Southern Pride Contractors, Inc. (“SPC”), which

had a $500,000 line of credit with Covenant Bank in Leeds, Alabama. SPC could

draw on the line of credit up to 80% of the value of its accounts receivable. From

the fall of 2002 through May 2003, SPC was bidding on a large U.S. military

contract. During this time, at Grant’s direction, an SPC employee, Michael Crisp,

provided Covenant Bank with false accounts receivable reports, apparently in an

attempt to increase SPC’s credit line in anticipation of the military contract. Based

on the false statements, Covenant Bank kept the $500,000 line of credit open,

although SPC’s accounts receivable were insufficient to support it. If Covenant

Bank had known the actual amount of accounts receivable, it could have called the

loan and taken funds from SPC’s checking account to reduce the bank’s loss.

      Relying on Covenant Bank’s “Declaration of Victim Losses,” an exhibit in

the related case against Crisp, the probation office calculated Covenant Bank’s loss

as $481,945.38 plus legal fees of $2,192.00, interest, and late fees, for a total of

$497,158.87.2 This would have yielded a total amount of restitution of

$484,137.38 (if restitution of interest and late fees was not authorized by statute).

       Grant was assigned a base offense level of six pursuant to U.S.S.G. §

2B1.1(a)(2003). The Guidelines then called for the addition of 14 levels for a loss



      2
          This declaration was not an exhibit in Grant’s trial and is not part of the record.

                                                   3
amount between $400,000 and $1,000,000 and the further addition of two levels

for obstruction of justice. § 2B1.1(b)(1)(H); U.S.S.G. § 3C1.1. This resulted in a

total offense level of 22, which, with a criminal history category of I, gave Grant a

guideline imprisonment range of 41-51 months. The probation officer noted that,

pursuant to 18 U.S.C. § 1014, the maximum statutory term of imprisonment was

30 years per count.

      Before sentencing, Grant objected to, among other things, the amount of loss

alleged in the presentence investigation report (“PSI”). The government responded

that, although the jury had found a loss of $350,000 beyond a reasonable doubt, the

government intended to establish a greater amount at sentencing by a

preponderance of the evidence.

      The original sentencing judge, who had also presided at trial, found, without

explanation, that Covenant Bank’s loss was $50,000 and sentenced Grant to five

months in prison on each count, to be served concurrently. R9 at 18, 38-39. Grant

appealed his conviction and sentence, and the government cross-appealed. We

affirmed Grant’s convictions, but vacated his sentence and remanded to the district

court for re-sentencing. In so doing, we held that the district court had “failed to

provide any factual basis whatsoever for its ultimate loss calculation of $50,000,”

and thus erred in calculating the amount of loss. R1-62 at 19-20. We also



                                           4
observed that the district court had erred in calculating the guidelines range

because the amount of loss was an “essential component” in the calculation under

U.S.S.G. § 2B1.1. Id. at 20.

      After the original sentencing judge recused himself, Grant filed a motion

requesting that his conviction be set aside, or that he be granted a new trial, on the

bases (1) that the amount of loss, an essential factor in determining a sentence, had

not been and could not be proved, and that allowing the government to prove the

amount at re-sentencing would be effectively retrying the case; and, 2) that a judge

other than the trial judge could not fairly determine a sentence. At re-sentencing,

the successor judge stated that she had read the trial transcripts and exhibits, the

PSI, the sentencing transcript, and the objections to the PSI. The court then heard

arguments on Grant’s motion.

      Grant argued that it was prejudicial to him to be sentenced by a judge who

had not been present to observe the witnesses’ demeanor at trial and to assess their

credibility. Grant also objected to “the government being allowed to have another

bite at the apple in trying to prove that there was a loss to the bank.” R10 at 5.

Grant argued that it was “in the nature of double jeopardy” to allow the

government to present additional evidence of the amount of loss because the

government did not carry its burden to prove the amount at the original sentencing



                                           5
hearing and should not be allowed another opportunity. Id. at 6. The government

argued for an evidentiary hearing, particularly pointing out that it had been

surprised by the original sentencing judge’s loss determination because (1) the PSI

had indicated a loss amount of “well over $400,000,” and (2) Grant's objection to

that amount had suggested the loss amount ought to have been between $200,000

and $400,000. Id. at 15. Grant argued, however, that we had asked the district

court “to form a rational basis about what the loss was” based on the evidence

contained in the transcripts from the trial and the original sentencing hearing. Id. at

17.

       After discussing several reported cases addressing the propriety of a

non-trial judge presiding at re-sentencing, the court found that no issue in Grant’s

case was particularly dependent upon the demeanor of the witnesses. The court

noted that although one witness had pled guilty to making false statements, “the

evidence was consistent and accepted by the jury from several witnesses.” Id. at

21. The court then denied Grant’s motion to set aside his conviction or for a new

trial, and stated:

       And I find that in this specific case, with this specific record, and
       these specific allegations, and based on my review of every document
       that exists about the case, other than pretrial motions, I can adequately
       and fairly sentence this defendant because I am familiar enough with
       the case to be able to assign an appropriate sentence from that review.



                                           6
Id. at 22. The court granted Grant’s request not to hear additional evidence as to

the amount of loss, stating that it would “proceed on the basis of the trial transcript,

the exhibits, the previous sentencing hearing, the presentence report, and the

objections to the presentence report, and anything that I hear in allocution today.”

Id. at 23.

       The district court found that there was “sufficient evidence to support the

jury’s determination of a $350,000 loss.” Id. at 24. The court discussed in detail

the trial testimony regarding the loss amount, observing that there was

“overwhelming evidence” that SPC had true accounts receivable of between

$300,000 and $400,000 at the time that the loan balance was $496,000 and at the

time that the false statements were made to the bank. Id. at 26. The court found

the loss amount to be $350,000 on the bases of the jury’s verdict, the sentencing

transcript, and the trial transcript. This yielded a new guidelines offense level of

20, resulting in a sentencing range of 33-41 months.

       The court then heard arguments from the parties on whether the court should

vary from the Guidelines. Grant requested a variance based on the bank’s own

participation in the scheme, his poor health, his Marine Corps service, his years of

contracting with the federal government without any trouble, and his inability to

pay restitution if he were to receive a long sentence. The court also heard from



                                           7
Grant personally. The government responded that the testimony at trial had shown

that Grant had prepared the false statements for his own benefit.

      With reference to the 18 U.S.C. § 3553(a) factors, the court stated that it

considered the nature and circumstances of the offense, Grant’s history and

characteristics, the need to deter Grant and others from committing similar

offenses, the need to avoid unwarranted sentence disparities, and the need for the

sentence to reflect the seriousness of the offense, promote respect for the law, and

provide just punishment for the offense. The court then sentenced Grant to 24

months on each count, to be served concurrently. Neither party stated further

objections to the findings, the calculations, the sentence, or the manner in which

the sentence was pronounced. However, this appeal followed.

                                 II. DISCUSSION

A. Independent Finding of the Loss Amount

      We review a final sentence imposed by the district court for reasonableness.

United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765-66 (2005). After

Booker, district courts must first correctly calculate the advisory sentencing range

under the Guidelines, and then must determine a reasonable sentence in light of the

factors listed in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786

(11th Cir. 2005) (per curiam). The standards of review for application of the



                                          8
Guidelines remain the same as before Booker: we review the district court’s

factual findings for clear error and review the application of the Guidelines to those

findings de novo. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006).

“When the appealing party does not clearly state the grounds for an objection in the

district court, we are limited to reviewing for plain error.” Id. For plain error, we

must find: (1) error, (2) that is plain, and (3) that affects substantial rights. Id.

Then, we may correct such an error “only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.

       Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure provides that, at

sentencing, the court “must – for any disputed portion of the presentence report or

other controverted matter – rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). In

economic offense cases, the district court must properly calculate the amount of

loss in order correctly to calculate the guidelines range. U.S.S.G. § 2B1.1(b); see

United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006). “[T]he

sentencing Guidelines require a district court, at the sentencing stage, to make

independent findings establishing the factual basis for its Guidelines calculations.”

Hamaker, 455 F.3d at 1338 (citing Fed. R. Crim. P. 32(i)(3)(B) while reviewing a



                                             9
district court’s reliance on the jury’s forfeiture verdict in calculating the loss

amount for purposes of the Guidelines). “The district court’s factual findings for

purposes of sentencing may be based on, among other things, evidence heard

during trial, undisputed statements in the [presentence investigation report], or

evidence presented during the sentencing hearing.” Id. (quotation omitted).

      “Usually, the government must prove disputed facts at sentencing by a

preponderance of the evidence.” United States v. Malol, 476 F.3d 1283, 1292

(11th Cir. 2007). However, if the evidence in the record amply supports the

amount of loss as determined by a jury beyond a reasonable doubt, a sentencing

court may use such amount in calculating the guidelines range. Id. at 1293.

      Here, the record shows that the district court determined the loss amount

based on the jury verdict and a thorough review of both trial and sentencing

transcripts. Upon this review, the district court specifically found that there was

“sufficient evidence to support the jury’s determination” of the loss amount. R10

at 24. Thus, the district court stated a factual basis for its independent

determination of the loss amount for purposes of calculating the guidelines range,

in accordance with our direction following Grant’s previous appeal. See United

States v. Grant, 211 Fed.Appx. 889, 898 (11th Cir. 2006) (per curiam); see also

Hamaker, 455 F.3d at 1338; Malol, 476 F.3d at 1293. Therefore, the district court



                                            10
did not commit error, much less plain error, in determining the amount of loss. See

Massey, 443 F.3d at 818.3

B. Decision to Preside Over Re-sentencing

       We review a district court judge’s decision to preside over re-sentencing for

abuse of discretion. See, e.g., Government of the Canal Zone v. O’Calagan, 580

F.2d 161, 166 (5th Cir. 1978); see also United States v. Dowd, 451 F.3d 1244,

1256 (11th Cir.), cert. denied, 127 S. Ct. 335 (2006). Rule 25(b) of the Federal

Rules of Criminal Procedure provides:

       (1) In General. After a verdict or finding of guilty, any judge
       regularly sitting in or assigned to a court may complete the court’s
       duties if the judge who presided at trial cannot perform those duties
       because of absence, death, sickness, or other disability.

       (2) Granting a New Trial. The successor judge may grant a new trial
       if satisfied that:
               (A) a judge other than the one who presided at the trial
               cannot perform the post-trial duties; or
               (B) a new trial is necessary for some other reason.

Fed. R. Crim. P. 25(b). We have declined to hold that a judge who was not present

at trial must read the trial transcript before imposing a sentence, where the record

contained “ample evidence that [the sentencing judge] was familiar enough with



       3
         If a party invites error, we are “precluded from reviewing that error on appeal.” United
States v. Harris, 443 F.3d 822, 823-24 (11th Cir. 2006). Accordingly, we do not review Grant’s
claim that the district court should have conducted an evidentiary hearing because any error in
this regard was invited by Grant’s motion that no additional evidence be heard at re-sentencing.

                                                11
the trial to impose sentence.” United States v. Caraza, 843 F.2d 432, 437 (11th

Cir. 1988) (per curiam). We have also held that a sentencing judge was

“sufficiently familiar with [the defendant’s] trial to sentence him,” where the

sentencing judge had ruled on pretrial motions, read the trial transcripts, and read

the transcripts of all later proceedings. Dowd, 451 F.3d at 1256.

      In this case, the record shows that the re-sentencing judge determined that

she was able to sentence Grant fairly based on her review of the trial transcript,

exhibits, jury verdict, and sentencing transcript. The sentencing judge also found

that there was nothing in the case that depended particularly on the demeanor of

the witnesses. Thus, there was “ample evidence” that the sentencing judge was

familiar enough with the case to impose a sentence. See Caraza, 843 F.2d at 437.

Accordingly, it was not an abuse of discretion for the district court judge to preside

at re-sentencing when she had not presided over the trial or the original sentencing

hearing.

C. Ineffective Assistance of Counsel

      On appeal Grant argues that he is preserving his claim of ineffective

assistance of counsel, but that the record is not sufficiently developed for us to

review his claim on direct appeal. The government argues that the record is

sufficient to find that Grant received effective assistance of counsel with regard to



                                          12
counsel’s request that the district court not conduct an evidentiary hearing on the

amount of loss.

      “Whether a criminal defendant’s trial counsel was ineffective is a mixed

question of law and fact, subject to de novo review.” United States v. Bender, 290

F.3d 1279, 1284 (11th Cir. 2002) (quotation omitted). However, we generally do

not consider claims of ineffective assistance of counsel raised for the first time on

direct appeal, except in rare cases in which the record is sufficiently developed as

to that issue. Id.; see Massaro v. United States, 538 U.S. 500, 504-05, 508, 123 S.

Ct. 1690, 1694, 1696 (2003). In this case, we conclude that the record is adequate

to enable review of the limited issue Grant raises, i.e., whether counsel was

ineffective in that he argued against hearing additional evidence at re-sentencing

on the amount of loss.

      “To prevail on a claim of ineffective assistance of counsel, [a defendant]

must prove: (1) that his attorney’s performance fell below an objective standard of

reasonableness, and (2) that he was thereby prejudiced, that is, there is a reasonable

probability that but for counsel’s deficient performance, the result of his trial

would have been different.” United States v. Greer, 440 F.3d 1267, 1272 (11th

Cir. 2006); see also Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct.

2052, 2064 (1984).



                                           13
      Based on the jury’s determination of the loss amount, the applicable

Guidelines, the presentence investigation report, and the government’s lower

burden of proof at sentencing, a reasonable attorney could have concluded that

further evidence on the amount of loss would be more likely to result in a higher

guidelines imprisonment range. See Malol, 476 F.3d at 1292. Thus, counsel’s

request not to hear additional evidence was not “below an objective standard of

reasonableness.” See Greer, 440 F.3d at 1272. Accordingly, Grant’s claim of

ineffective assistance of counsel fails.

                                 III. CONCLUSION

      Grant appeals his 24-month sentence for aiding and abetting false

statements, in violation of 18 U.S.C. §§ 1014 and 2. Upon review of the record,

and upon consideration of the briefs of the parties, we discern no reversible error

with regard to the district court’s finding of the amount of loss or the district

judge’s decision to preside at the re-sentencing hearing. Finally, because a

reasonable attorney could have concluded that an additional evidentiary hearing at

sentencing might not have been in the best interests of his client, we find that

Grant’s counsel was not ineffective. Accordingly, we AFFIRM Grant’s sentence.




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