                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0767n.06

                                            No. 06-6280

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                    Dec 04, 2009
UNITED STATES OF AMERICA,                                  )                  LEONARD GREEN, Clerk
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )    ON APPEAL FROM THE UNITED
                                                           )    STATES DISTRICT COURT FOR
DELOIS HARRIS,                                             )    THE WESTERN DISTRICT OF
                                                           )    TENNESSEE
       Defendant-Appellant.                                )
                                                           )
                                                           )



       Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.*

       KETHLEDGE, Circuit Judge. Delois Harris appeals her convictions and sentence for various

felonies arising from two schemes to steal credit cards. She argues that her guilty plea was

involuntary and that the district court improperly found that she had a leadership role in the schemes.

We reject her arguments, and affirm.

                                                  I.

       Harris admitted in the district court to participating in two separate credit-card schemes.

Both schemes preyed upon elderly cardholders. In the first, which took place from December 2002

to February 2004, Harris stole credit cards by placing phone calls to elderly cardholders, in which

she would pretend to be a card-company representative and ask for personal and account

       *
         The Honorable James G. Carr, Chief United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 06-6280
United States v. Harris

information. After obtaining the information, Harris would call the card company, change the

account address, and have a new card sent to the new address. Harris and others would then use the

cards for cash withdrawals and purchases. In total, this scheme involved 29 victims and caused

losses exceeding $63,000.

       The second scheme took place from February 2004 to November 2004, and was on a larger

scale. Again, Harris called elderly persons, obtained information from them, and then requested new

cards from the issuing company. In this scheme, however, Harris also made fraudulent wire transfers

from the victims’ accounts. Harris recruited numerous other persons to assist in this scheme, and

gave each of them a portion of its proceeds. This scheme caused losses exceeding $682,000.

       Harris was indicted for the first scheme in September 2004, and charged with 21 counts of

wire fraud, mail fraud, unlawful use of another person’s identity to commit a felony, and fraud in

connection with access devices. In a separate case, Harris was indicted on the second scheme in July

2005, and charged with 17 wire-fraud counts.

       Harris thereafter agreed to plead guilty to all counts in both indictments. In return, the

government agreed not to oppose a reduction of her Guidelines range for acceptance of

responsibility. The parties also agreed that, for purposes of calculating Harris’s Guidelines range,

“the total amount of relevant conduct and any other sentencing enhancements will be determined by

the sentencing court utilizing a preponderance of the evidence standard.”

       The guilty-plea hearings for each case were held separately. During the hearing for the 2005

indictment, Harris’s counsel objected to the government’s characterization of Harris as the ringleader

in the scheme. The district court initially suggested a trial on that issue, because it thought

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United States v. Harris

(incorrectly) that the issue might be reserved for a jury under United States v. Booker, 543 U.S. 220

(2005). In the court’s mind, the plea agreement thus represented a waiver of Harris’s right to have

a jury decide her sentencing enhancements. The court briefly recessed the hearing so that Harris and

her counsel could discuss whether she wished to make that waiver and to proceed with the plea

agreement generally. Her counsel stated after the recess that she did. The court then accepted

Harris’s guilty plea for the charges in the 2005 indictment.

       A different district court judge later accepted Harris’s guilty plea for the charges in the 2004

indictment. The two cases were then consolidated for sentencing. At the sentencing hearing, the

court asked Harris whether she had any objections to the Presentence Report (PSR). Her counsel

objected to the PSR’s descriptions of the second scheme, stating that “the information . . . comes

from individuals who are supplying the information and they are benefiting from the information.”

Harris’s counsel specifically conceded, however, that he did not contest the accuracy of that

information or any other information in the PSR.

       The court adopted the PSR’s findings of fact. The court specifically found that Harris “was

an organizer and I think she carefully carried out this scheme and the solicitation of the people to

make this scheme work.” Accordingly, the court increased Harris’s offense level by four levels

pursuant to U.S.S.G. § 3B1.1(a). Her final Guidelines range was 97 to 121 months’ imprisonment;

the court sentenced her to 104 months.

       This appeal followed.




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United States v. Harris

                                                   II.

                                                   A.

        Harris argues that her guilty plea was involuntary. Specifically, she contends that the district

court threatened her with a trial if she did not withdraw her objection to the leadership enhancement.

Harris never objected to her plea’s voluntariness in the district court, so we review her claim for

plain error. See United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005).

        The record belies Harris’s claim. The district court did not threaten Harris with a trial if she

refused to withdraw her objection to the leadership enhancement. Instead, the court merely sought

to ensure that Harris was aware of her putative right to a jury trial on that issue, and to confirm that

she wished to waive it. (The district court’s only error in that exchange was in thinking that Harris

had a right to a jury trial on this issue in the first place. See United States v. Ferguson, 456 F.3d 660,

665 (6th Cir. 2006).) The record therefore makes clear that Harris’s guilty pleas were voluntary.

        Harris makes other arguments that are derivative of her involuntariness one. Namely, she

says her sentence was procedurally unreasonable because it was “based on bad law and a coerced,

involuntary admission,” and that her sentence was substantively unreasonable because “the District

Court based the sentence on” an invalid plea. Harris’s Br. at 12, 13. Since Harris’s pleas were in

fact voluntary, we reject these arguments as well.

                                                   B.

        Harris also challenges the district court’s finding that she was a leader of the second scheme.

Under the Guidelines’ leadership-enhancement provision, a defendant’s offense level is increased

by four levels “[i]f the defendant was an organizer or leader of a criminal activity that involved five

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United States v. Harris

or more participants or was otherwise extensive[.]” U.S.S.G. § 3B1.1(a). We review the district

court’s finding that Harris played such a leadership role for clear error. See United States v. Henley,

360 F.3d 509, 516 (6th Cir. 2004).

        Harris argues there was insufficient evidence to support the finding because “the government

put on absolutely no proof that Ms. Harris was a leader.” Harris’s Br. at 15. But Harris did not

dispute any of the facts recited in her PSR; and those facts overwhelmingly supported the district

court’s finding. As set forth in the PSR, Harris’s second scheme involved 15 participants. Harris

recruited many of those participants, obtained the information necessary to steal the credit cards,

organized the wire transfers, and kept for herself most of the money obtained through them. These

facts standing alone are enough for the enhancement here. See, e.g., United States v. Walls, 546 F.3d

728, 735 (6th Cir. 2008) (affirming four-level enhancement when defendant organized the scheme,

recruited at least four people, and gave them orders); United States v. Moncivais, 492 F.3d 652, 661

(6th Cir. 2007) (upholding four-level enhancement for a drug supplier who gave orders and took a

large share of the profits).

        Harris also asserts that her sentence was procedurally unreasonable because the district court

“failed to make an adequate record concerning the reasons for applying the leadership

enhancement[.]” Harris’s Br. at 12-13. Although Harris is correct that courts “may not merely

summarily adopt the factual findings in the presentence report[,]” United States v. Tarwater, 308

F.3d 494, 518 (6th Cir. 2002), that only applies to disputed matters at sentencing. And here, Harris’s

counsel specifically conceded that there was no dispute as to the facts recited in the PSR. Those



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United States v. Harris

facts, in turn, provided an ample basis for the court’s finding. Harris’s argument is therefore without

merit.

         The district court’s judgments in 04-CR-20392 and 05-CR-20250 are affirmed.




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