                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4670



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ANDY EARL BRATHWAITE, a/k/a Trini,

                                             Defendant - Appellant.


                             No. 06-4825



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TESHARA L. SYKES,

                                             Defendant - Appellant.


                             No. 06-4827



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus
TONITA SHARMAINE SYKES,

                                              Defendant - Appellant.


Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cr-00022-RBS)


Submitted:   April 11, 2007               Decided:     June 18, 2007


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


I. Lionel Hancock, III, BOHANNON, BOHANNON & HANCOCK, Norfolk,
Virginia; Christopher I. Jacobs, ZOBY & BROCCOLETTI, Norfolk,
Virginia; George A. Neskis, DECKER, CARDON, THOMAS, WEINTRAUB &
NESKIS, Norfolk, Virginia, for Appellants. Chuck Rosenberg, United
States Attorney, Michael C. Moore, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

              In these consolidated appeals, Andy Earl Brathwaite,

Tonita    Sharmaine     Sykes,     and    Teshara       L.   Sykes    appeal   their

convictions and sentences stemming from a conspiracy to produce and

distribute fraudulent driver’s licenses.                 Brathwaite pled guilty

without a plea agreement to one count of conspiracy to produce and

transfer identification documents and three counts of production of

identification documents without lawful authority in violation of

18 U.S.C. § 1028(a)(1)-(2), (b)(1)(A)(ii) and (c)(3)(A) (2000).

The Sykes sisters each pled guilty without plea agreements to one

count    of   conspiracy      to   produce       and    transfer     identification

documents, and two counts each of production of identification

documents without lawful authority, also in violation of 18 U.S.C.

§ 1028(a)(1)-(2), (b)(1)(A)(ii) and (c)(3)(A).                       Brathwaite was

sentenced to twenty-four months in prison on each count, all terms

to run concurrently. The Sykeses were sentenced to sixty months in

prison on each count, all terms to run concurrently.

              Counsel   for    Brathwaite         and    the   Sykeses    filed   a

consolidated appeal in which appellants assert their sentences are,

for various reasons, unreasonable.               Brathwaite also filed a motion

to file a pro se supplemental brief and a pro se supplemental brief

in which he claims: (i) the indictment charging him was legally

insufficient; (ii) the district court erred when it increased his

offense level for his managerial role in the conspiracy; and (iii)


                                         - 3 -
the district court erroneously refused to reduce his offense level

for acceptance of responsibility.      We grant Brathwaite’s motion to

file a pro se supplemental brief and affirm Brathwaite’s and the

Sykeses’ convictions and sentences.

I.   Andy Earl Brathwaite, No. 06-4670

     A.     Sufficiency of Indictment

            In his pro se supplemental brief, Brathwaite claims his

indictment was legally insufficient because it did not allege the

intended unlawful uses of the fraudulent driver’s licenses produced

by the conspiracy of which Brathwaite was a part.                  Brathwaite’s

argument is meritless. There is no requirement under § 1028(a)(1),

(a)(2), or (c)(3)(A) that an indictment specifically allege the

unlawful purpose for which the fraudulent documents were going to

be used.    Rather, all that is required is that a criminal defendant

“knowingly and without lawful authority produce[] an identification

document,    authentication     feature,   or    a   false     identification

document”, and that “the production, transfer, possession, or use

prohibited . . . is in or affects interstate or foreign commerce,

including the transfer of a document by electronic means.”                     18

U.S.C. § 1028(a)(1) & (c)(3)(A); see also 18 U.S.C. § 1028(a)(2)

(criminal    defendant   must   “knowingly      transfer   .   .    .   a   false

identification document knowing that such document . . . was stolen

or produced without lawful authority”).




                                   - 4 -
           While Brathwaite relies upon United States v. Rohn, 964

F.2d 310 (4th Cir. 1992), for the proposition his indictment was

insufficient for failing to allege the intended unlawful use of the

fraudulent driver’s licenses, Rohn is inapplicable.               In Rohn, this

court held that under 18 U.S.C. § 1028(a)(3), the Government must

establish that an individual in possession of false identification

intends to use the identification in a fraudulent and unlawful

manner.   Rohn, 964 F.2d at 312-13 (holding that mere possession is

not enough to satisfy § 1028(a)(3)).            Brathwaite was not indicted

or convicted for a violation of this subdivision of § 1028.

Moreover, Brathwaite does not deny he took part in a conspiracy to

produce    and    transfer        the     fraudulent     driver’s    licenses.

Accordingly,     we    conclude   Brathwaite’s      argument     regarding   the

insufficiency of his indictment is meritless.

     B.    Challenges to Sentence

           Brathwaite      also   raises    several     issues   regarding   the

validity of his sentence.          Brathwaite claims the district court

erred when it:        (i) increased his offense level by two for a loss

of more than $5000 but less than $10,000 pursuant to U. S.

Sentencing   Guidelines      Manual      (“USSG”)   §   2B1.1(b)(1)(B)   (2005)

because actual loss could not be determined; and (ii) imposed a

“reasonable” sentence because “reasonableness” is the standard of

review on appeal and the district court was required to impose a

sentence “sufficient, but not greater than necessary, to comply


                                        - 5 -
with the purposes” of 18 U.S.C. § 3553(a) (2000).                In his pro se

supplemental brief, Brathwaite also claims the district court erred

when it:    (i) increased his offense level by three pursuant to USSG

§   3B1.1(b)    (2005)   for       Brathwaite’s   managerial     role   in    the

conspiracy for which he was convicted; and (ii) refused to reduce

his offense level for acceptance of responsibility pursuant to USSG

§ 3E1.1 (2005).

            This court reviews a sentence for reasonableness.                  See

United States v. Booker, 543 U.S. 220, 261 (2005).               In determining

whether a sentence is reasonable, this court reviews the district

court's legal conclusions de novo and its factual findings for

clear error.     See United States v. Hampton, 441 F.3d 284, 287 (4th

Cir. 2006).

            Post-Booker,       a    sentencing    court   must   engage      in   a

multi-step process that begins with correctly determining the

defendant's guidelines range.          See United States v. Moreland, 437

F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).

“Next, the court must determine whether a sentence within that

range . . . serves the factors set forth in § 3553(a) and, if not,

select a sentence [within statutory limits] that does serve those

factors.”    Id. (alterations in original) (internal quotation marks

omitted).      “In doing so, the district court should first look to

whether a departure is appropriate based on the Guidelines Manual

or relevant case law.”         Id.    If it is appropriate, the court may


                                       - 6 -
depart; if the “departure range still does not serve the factors

set forth in § 3553(a), the court may then elect to impose a

non-guideline sentence (a ‘variance sentence’).”    Id.    As part of

this process, “[t]he district court must articulate the reasons for

the sentence imposed, particularly explaining any departure or

variance from the guideline range.”    Id.

          A district court's mandate “is to impose a sentence

sufficient, but not greater than necessary, to comply with the

purposes of § 3553(a)(2).”    United States v. Davenport, 445 F.3d

366, 370 (4th Cir. 2006) (internal quotation marks omitted).

“Reasonableness is the appellate standard of review in judging

whether a district court has accomplished its task.” Id. (emphasis

in original).   Ultimately,

     [T]he overarching standard of review for unreasonableness
     will not depend on whether we agree with the particular
     sentence selected, but whether the sentence was selected
     pursuant to a reasoned process in accordance with law, in
     which the court did not give excessive weight to any
     relevant factor, and which effected a fair and just
     result in light of the relevant facts and law.

United States v. Green, 436 F.3d 449, 457 (4th Cir.) (internal

citation omitted), cert. denied, 126 S. Ct. 2309 (2006).        Thus,

“reasonableness review involves both procedural and substantive

components.”    Moreland, 437 F.3d at 434.     A sentence will be

procedurally unreasonable if, for example, the district court

provides an inadequate statement of reasons.       Id.    We conclude

Brathwaite’s sentence is reasonable.


                               - 7 -
     i.    Increase of offense level for loss of more than $5000 but
           less than $10,000 pursuant to USSG § 2B1.1(b)(1)(B)

           We   conclude   the   district   court     correctly    increased

Brathwaite’s     offense    level    by      two      pursuant     to   USSG

§ 2B1.1(b)(1)(B).    For offenses involving fraud and deceit, the

district court is directed to increase a defendant’s offense level

if loss precipitated by the fraud is greater than $5000.                USSG

§ 2B1.1(b)(1).    If there is a loss “but it reasonably cannot be

determined,” the district court must then “use the gain that

resulted from the offense as an alternative measure of loss.” USSG

§ 2B1.1, comment. (n.3(B)).

           Brathwaite claims the district court erred in using gain

as a measure of loss because “[t]he record is devoid of any

evidence that a victim incurred a loss.”           Brathwaite also argues

the Government should have produced a Department of Motor Vehicles

(“DMV”)   representative    to   testify    as   to   the   loss   incurred.

Brathwaite’s arguments are unavailing.

           Brathwaite’s presentence investigation report (“PSR”)

stated that “the loss amount cannot be reasonably determined.” The

PSR used the gain attributed to Brathwaite to determine the amount

of loss to the DMV and, according to USSG § 2B1.1, attributed a

loss of $9000 to Brathwaite.         At the sentencing hearing, the

Government introduced testimony establishing the DMV would have to

take action to retrieve the fraudulent driver’s licenses and cancel



                                  - 8 -
them.    As of the time of Brathwaite’s sentencing, however, that

process had only begun.

           Although    Brathwaite     generally   objected    to   the   PSR’s

finding regarding the inability to determine the amount of loss,

Brathwaite introduced no evidence at sentencing to contradict the

Government’s testimony that a loss occurred and that the DMV was

going to have to take action to cancel the fraudulent licenses.

Based on the PSR and the testimony presented by the Government, the

district court concluded there was a loss but the amount could not

be reasonably determined.

           We conclude the district court correctly determined that

the amount of loss could not be determined as of the time of

sentencing and that the appropriate measure of loss was the gain to

Brathwaite.      See USSG § 2B1.1, comment. (n.3(B)) (2005); see also

USSG § 2B1.1, comment. (n.3(C)) (2005) (“The court need only make

a reasonable estimate of the loss.           The sentencing judge is in a

unique position to assess the evidence and estimate the loss based

upon    that   evidence.      For     this   reason,   the    court’s    loss

determination is entitled to appropriate deference.”) (internal

citation omitted).      Because the evidence established Brathwaite

gained between $8000 and $9000 as a result of the conspiracy, we

conclude   the    district   court    correctly   increased    Brathwaite’s

offense level by two levels.         See USSG § 2B1.1(b)(1)(B).




                                     - 9 -
     ii.     District court’s alleged application of “reasonableness”
             as standard at sentencing

             Brathwaite claims the district court erroneously applied

the appellate standard of review in sentencing him to what the

district court believed to be a “reasonable” sentence. We conclude

Brathwaite’s argument, which, in his case, merely puts form over

substance, is meritless.

            At   the     sentencing      hearing,      the     district     court

appropriately heard argument regarding Brathwaite’s objections to

the calculation of his guidelines range and adopted the guidelines

range calculated by the PSR as its own.             The district court, after

hearing testimony from an acquaintance of Brathwaite regarding

Brathwaite’s past employment and the fact that he is an “excellent

father”, thoroughly discussed the § 3553(a) factors and sentenced

Brathwaite above the guidelines range.

            Although the district court did use the term “reasonable”

in describing the sentence it imposed upon Brathwaite, the district

court used this term only to explain it felt the sentence it

imposed was the appropriate one under the circumstances.                  Nothing

in the transcript of the sentencing hearing reveals the district

court applied an incorrect standard in determining an appropriate

sentence for Brathwaite.          In fact, other than challenging the

rationale     behind    the    calculation     of    his     guidelines   range,

Brathwaite    does     not   challenge   the   duration      of   his   sentence.

Because the district court properly calculated the guidelines range

                                    - 10 -
and thoroughly considered the relevant § 3553(a) factors, we

conclude the district court’s use of the term “reasonable” to

describe that sentence is irrelevant.                    See Moreland, 437 F.3d at

432.

       iii. Increase of offense level pursuant to USSG § 3B1.1(b) for
            managerial role in conspiracy

            In his pro se supplemental brief, Brathwaite claims the

district court erred by increasing his offense level by three

pursuant   to   USSG      §    3B1.1(b)     for    his    managerial   role   in   the

conspiracy.        In   his      supplemental       brief,    however,    Brathwaite

concedes    that    his       role   in   the     conspiracy    consisted     of   his

procurement of purchasers for the fraudulent driver’s licenses, a

duty to refer the purchasers to the Sykeses and another co-

defendant and to collect the payment from the purchasers, and his

responsibility to thereafter divide the payment among his co-

conspirators.      Moreover, the Government produced uncontradicted

testimony at the sentencing hearing that Brathwaite instructed

purchasers of the fraudulent driver’s licenses through the process

of applying for the licenses at the DMV.

            Because we conclude this activity meets the requirements

of a manager or supervisor of a conspiracy under USSG § 3B1.1(b),

see United States v. Bartley, 230 F.3d 667, 673-74 (4th Cir. 2000)

(holding    increase          appropriate       where     defendant    arranged    the

logistics of marijuana deliveries or payments and coordinated the

activities of others), we conclude the district court did not err

                                          - 11 -
in    increasing       Brathwaite’s            guidelines          range    based   upon   his

managerial role in the conspiracy.

       iv.    District court’s refusal to reduce offense level for
              acceptance of responsibility pursuant to USSG § 3E1.1

              Brathwaite also claims in his pro se supplemental brief

that the district court erred in refusing to reduce his offense

level for acceptance of responsibility pursuant to USSG § 3E1.1.

Brathwaite claims the Government did not meet its burden of proving

Brathwaite minimized his role in the conspiracy.                                Brathwaite’s

argument is meritless.

              Under        USSG    §    3E1.1,       “[i]f     the     defendant       clearly

demonstrates acceptance of responsibility for his offense,” he

qualifies      for     a    two-level          reduction       in     his    offense    level.

“[M]erely pleading guilty is not sufficient to satisfy the criteria

for    a    downward       adjustment         for   acceptance        of    responsibility.”

United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).

Although a defendant is not required to volunteer information, “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.”                             USSG § 3E1.1.

              In this case, the district court correctly determined

that       Brathwaite        did       “not     fully        and     completely     accept[]

responsibility for his role in this offense.                          He has denied being

responsible for being a supervisor and a manager of this operation.

He    has    tried    to    put    everything          off    on     [his   co-defendant].”

                                              - 12 -
Moreover,     it    was   Brathwaite’s     burden    to     establish,     by     a

preponderance of the evidence, that he “clearly recognized and

affirmatively accepted personal responsibility for his criminal

conduct.”   Nale, 101 F.3d at 1005.         Brathwaite failed to introduce

evidence, other than pointing to his guilty plea, to establish he

fully accepted responsibility for his managerial role in the

conspiracy.         Because   we    find   the   district       court’s   factual

determination is supported by the record, we conclude the district

court did not err in refusing to reduce Brathwaite’s offense level

for acceptance of responsibility.

II.   The Sykes Sisters, Nos. 06-4825 and 06-4827

            The Sykeses claim the district court imposed unreasonable

sentences upon them because it:               (i) applied the wrong legal

standard in determining appropriate sentences; (ii) improperly

included the cost to the DMV in investigating their crimes when

calculating a loss under the guidelines; and (iii) failed to show

it adequately considered all relevant § 3553(a) factors.                        The

Sykeses’ arguments are meritless.

      A.    District Court’s Alleged Application of “Reasonableness”
            as Sentencing Standard

            We     conclude   the   district     court    did    not   apply    the

incorrect legal standard in determining appropriate sentences for

the Sykes sisters.        The district court, after hearing argument on

the appropriate guidelines ranges, adjusted the guidelines ranges

as it felt appropriate and thoroughly considered the § 3553(a)

                                     - 13 -
factors. The mere fact the district court sentenced the Sykeses to

what it believed to be “reasonable” sentences instead of stating on

the record it was imposing sentences that were “sufficient, but not

greater    than   necessary,       to    comply    with    the   purposes    of

§ 3553(a)(2)” in accordance with Davenport, 445 F.3d at 370, does

not make the sentences unreasonable.            The Sykeses’ argument to the

contrary   merely   puts    form      over   substance.      Accordingly,    we

conclude the district court did not apply the incorrect legal

standard in sentencing the Sykeses. See Moreland, 437 F.3d at 432-

34.

      B.   Calculation of Loss Under USSG § 2B1.1(b)

           We also conclude the district court did not improperly

include the cost to the DMV in investigating the Sykeses’ crimes

when calculating loss under the guidelines.               As with Brathwaite,

the district court determined a loss amount could not reasonably be

calculated under USSG § 2B1.1(b).            The district court, finding the

Government’s witnesses’ testimony regarding the actions taken by

the DMV to obtain and cancel the fraudulent licenses generated by

the Sykes sisters to be “extremely credible and straightforward,”

appropriately determined gain to the Sykeses to be the correct

measure of loss pursuant to USSG § 2B1.1, comment. (n.3(B)).

           Although the Sykeses argue the district court incorrectly

included   the    costs    to   the     Government   in    investigating    and

prosecuting their crimes in violation of USSG § 2B1.1, comment.


                                      - 14 -
(n.3(D)(ii)) (2005) (“Loss shall not include . . . [c]osts to the

government of, and costs incurred by victims primarily to aid the

government in, the prosecution and criminal investigation of an

offense.”), this argument is contradicted by the record.                 The

district court explicitly stated it was not including costs to the

Government in investigating the Sykeses’ crimes in its calculation

of loss.     The mere fact the district court stated it considered the

victims of the Sykeses’ crimes to be “twofold, not only the system,

but some of these individuals who are having their identities used

and trying to straighten out this situation” does not, as the

Sykeses would have the court believe, lead to the conclusion the

district court included these costs in its calculation.             Rather,

the district court made this statement to support its conclusion

the   loss   amount   was   incalculable   and   that,   pursuant   to   USSG

§ 2B1.1, comment. (n.3(B)), it was required to look to the Sykeses’

gain in calculating their guidelines ranges.              Accordingly, we

reject the Sykeses’ argument that the district court improperly

included the cost of the DMV’s investigation as part of the loss

attributed to their crimes.

      C.     Validity of Sentence Variances

             We reject the Sykeses’ argument that their sentences are

unreasonable because the district court did not adequately explain

its reasons for varying from their guidelines ranges. Although the

district court did vary from the guidelines ranges and imposed


                                  - 15 -
sentences double the maximum provided by the ranges,* the district

court did not do so without first explaining why it was varying.

Rather,       after   adjusting    the   Sykeses’   guidelines       ranges,    the

district court thoroughly discussed the § 3553(a) factors as they

pertained to the Sykes sisters and sentenced them accordingly.

               With regard to Teshara Sykes, the district court first

discussed the “nature and circumstances of the offense and the

history and characteristics of the defendant,” and determined that

the “nature and circumstances of the offense weigh heavily against

this       defendant,   given    the   position   that   she   was    in   at   the

Department of Motor Vehicles, which is a position of trust, and the

extensiveness of her activities, together with her sister and”

another co-defendant.           The district court continued that “at this

point . . . the authorities have barely scratched the surface in

trying to right these wrongs, and that the harm at this point in my

opinion is just immeasurable.”           Although the district court found

that Teshara Sykes’ lack of a criminal history weighed in her

favor, it also determined that her college education and background

weighed against her; although Teshara Sykes is a bright woman who

comes from a stable background, the district court found she used

her intelligence to commit her crimes.              Because the loss to the



       *
      The Sykeses’ guidelines ranges were both calculated at
twenty-four to thirty months for each charge. The district court
sentenced the Sykeses’ to sixty months on each charge, all terms to
run concurrently.

                                       - 16 -
system and the impact that fraudulent driver’s licenses can have on

the system is vast, the district court felt compelled to vary

Teshara Sykes’ sentence above the guidelines range.

            With regard to Tonita Sykes, the district court also

considered the “nature and circumstances of the offense and the

history    and   characteristics     of    the   defendant”    which,    in   the

district court’s opinion, “weigh[ed] quite heavily against” her.

The district court found that the “residual harm to the system is

immeasurable in a case such as this,” and based on Tonita Sykes’

abuse of her position of trust with the DMV and the “significant

level of disruption to a government function,” coupled with the

“residual damage to the citizens of this country . . . for every

one of those licenses that [was] issued falsely,” felt compelled to

sentence her to double the maximum under her guidelines range. The

district court also took into consideration Tonita Sykes’ lack of

a   criminal     history,    but   found   the   fact   that    she    used   her

intelligence and higher education to commit her crimes to be a

factor against her favor.

            Although the Sykes sisters generally argue the district

court did not appropriately consider “all of the relevant § 3553(a)

factors,” the Sykeses do not point to which factors the district

court failed to consider.            On the contrary, we conclude the

district    court   thoroughly     discussed     each   and    every    relevant

§ 3553(a) factor.           In any event, a district court “need not


                                    - 17 -
explicitly discuss every § 3553(a) factor on the record.”    United

States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006), petition for

cert. filed, __ U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659).

Accordingly, we conclude the Sykeses’ sentences are reasonable.

          Based on the foregoing, we grant Brathwaite’s motion to

file a pro se supplemental brief and affirm appellants’ convictions

and sentences.   We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.



                                                            AFFIRMED




                              - 18 -
