                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0400n.06
                              Filed: June 9, 2006

                                           No. 04-6259

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


ISRAEL STALEY,                         )
                                       )
      Defendant-Appellant,             )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE WESTERN
                                       )                  DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee.              )                          OPINION
_______________________________________)


Before: Moore, Griffin, and Cudahy,* Circuit Judges.

       RICHARD D. CUDAHY, Circuit Judge. Israel Staley appeals the sentence imposed

by the district court after he pleaded guilty to violating 18 U.S.C. § 1028 (a)(7), commission of

fraud by illegal use of identification documents, in conjunction with a scheme to purchase motor

vehicles using the identities of unsuspecting individuals. Staley argues that the district court

erred when it imposed a sentence under the pre-Booker mandatory guideline sentencing scheme

and when it imposed a three-level enhancement for acting as a manager or supervisor under

Section 3B1.1(b) of the United States Sentencing Guidelines.1


       *
         The Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
       1
        In his brief, Staley challenged the district court’s denial of a two-level reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. However, at oral argument, Staley’s

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I.

       On August 7, 2003 a federal grand jury returned an indictment charging Staley with two

counts of commission of a fraud by illegal use of identification documents, in violation of 18

U.S.C. § 1028(a)(7). The indictment charged Staley with two specific instances of involvement

in a scheme to fraudulently purchase numerous motor vehicles by using the identities of other

unsuspecting individuals. Count I pertained to Staley’s attempt to fraudulently obtain a Yukon

Denali in September 2001; Count II pertained to his attempt by illegal means to procure a Mazda

Millenia in March 2002. On May 3, 2004, pursuant to a plea agreement, Staley pleaded guilty to

Count I of the indictment.

       Before sentencing, a presentence report (PSR) was prepared detailing Staley’s criminal

history and conduct. According to the PSR, Staley used the name and social security number of

Lawrence O’Reilly to obtain a Yukon Denali vehicle from a car dealership in Kellogg, Idaho in

2001. The car dealership called the FBI after learning that O’Reilly did not order the vehicle,

and it was determined that O’Reilly’s identity had been compromised. Staley (posing as

O’Reilly) provided his cell phone number and asked that the Yukon be delivered to his new

business in Memphis, Tennessee. The FBI participated in delivering the vehicle to Staley. On

September 28, 2001, the FBI arrested Staley after he accepted the vehicle at his business.

       On September 28, 2001, the day he was arrested, Staley made a full confession to law

enforcement officials detailing his criminal role in the fraudulent car scheme. He told police

officers that he posed as O’Reilly when he spoke with the car dealership salesperson on the

telephone. He further stated that his role was to meet the delivery people, accept the vehicle, and



lawyer conceded this issue, and thus there is no need for us to discuss it.

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deliver it to Eddie Gatewood and Charles Monger. Staley said that Gatewood and Monger

directed him in the scheme, and that they promised to pay him $1,200 for picking up the vehicle

and delivering it to them. He also admitted his role in the illicit purchase of two laptop

computers from Gateway Computers while using O’Reilly’s identity. Finally, he admitted to

fraudulently obtaining a Cadillac DeVille, valued at approximately $25,000. Staley agreed to

cooperate with the FBI in Memphis, but he later failed to provide accurate information and he

continued to engage in criminal conduct, thus causing the cooperation agreement to be

terminated.

       In March 2002 Staley once again tried to purchase a car, a Mazda Millenia, from a

dealership using a stolen identity. He claimed that he had a co-signer, Stanley Stegall, but that

Stegall was out of town and unable to come to the dealership. Staley showed the dealership

Stegall’s personal financial information as well as copies of Stegall’s driver’s license. After the

dealership told Staley that they had to meet Stegall, Staley phoned an individual who pretended

to be Stegall. However, the dealership eventually contacted the real Stanley Stegall, who did not

know anything about the car purchase and thus, Staley never received the car.

       After Staley was indicted for these two schemes, he continued to engage in criminal

conduct. According to the PSR, he was involved in further theft of vehicles by identity theft, and

he was also responsible for possession of stolen vehicles. Staley and five other individuals were

provided with keys to cars parked in dealership lots. Staley and the others would then drive the

vehicles off the lots, and then Staley would get identification in another person’s name and apply

for titles and registrations for the cars. He was found to be involved in this type of conduct for

seven vehicles. The estimated total loss due to Staley’s conduct was calculated in the PSR to be


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$400,394.28.



       Ten months after his indictment, on May 3, 2004, Staley entered a guilty plea on Count I

of the indictment (pertaining to the theft of the 2001 red Yukon Denali) pursuant to a plea

agreement. The PSR calculated Staley’s sentence using the 2000 edition of the United States

Sentencing Guidelines (U.S.S.G.) manual. The base level offense was set at 6, pursuant to §

2F1.1(b) of the guidelines. Nine levels were added because the loss due to Staley’s actions was

more than $350,000 but less than $500,000. Two levels were added under § 2F1.1(b0(2)

because Staley had done “more than minimal planning.” Two levels were also added because

“the offense involved the unauthorized transfer or use of any means of identification.” Finally,

three levels were added under § 3B1.1(b) because Staley was a manager or supervisor and the

criminal activity involved five or more participants or was otherwise extensive. Thus, the total

offense level set in the PSR was 22. The resulting guidelines range was 84-105 months, based

on Staley’s total offense level of 22 and his criminal history category of VI.

       Staley filed objections disputing the value of the stolen cars on August 24, 2004. He also

objected to several of the enhancements in the PSR, citing Blakely v. Washington, 542 U.S. 296

(2004). He objected to the enhancements involving his role as a manager/supervisor in criminal

conduct on the ground that the underlying conduct was not proven beyond a reasonable doubt to

a jury, and to the PSR recommendation that there be no downward adjustment for his purported

acceptance of responsibility. He also made specific objections to portions of the PSR as they

pertained to the total loss associated with the offense.

       A sentencing hearing was conducted on October 8, 2004. The government presented


                                                  4
evidence and testimony to refute Staley’s objections to the PSR, including testimony by FBI

agents regarding Staley’s involvement in the scheme to obtain vehicles using stolen identities,

which the court found credible.

       The court accepted Staley’s objections regarding the valuation of the stolen vehicles, and

the estimated loss was reduced to $273,427.83. The court then overrruled Staley’s Blakely

objection following the mandate of the then-viable United States v. Koch, 383 F.3d 436 (6th Cir.

2004) (en banc). The court also overruled defendant’s objection concerning the three-point

enhancement for his role as a manger/supervisor of a criminal enterprise and denied any

downward adjustment for acceptance of responsibility.

       The court accepted as its own the findings of the PSR, with the exception of granting the

government’s motion that the base level offense be increased by two levels under U.S.S.G. §

3C1.2 because of the “substantial risk of death or serious bodily injury to another person”

resulting from Staley’s flight from a police officer during a pursuit as Staley was driving a stolen

vehicle. With an adjusted offense level under the guidelines of 23, and a criminal history

category of VI, Staley’s guidelines range was raised to 92-115 months. The court then sentenced

Staley to 104 months in prison and a period of 3 years of supervised release.



II.

       In the wake of United States v. Booker, 543 U.S. 220 (2005), both parties agree that

Staley’s sentence should be vacated and remanded for resentencing.2 The district court applied



       2
       The government originally contested this issue in its brief, but at oral argument it
conceded that remand is appropriate.

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the guidelines as if they were mandatory. Thus, there is a presumption of plain error. United

States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005) (“Instead of speculating as to the district

court’s intentions in the pre-Booker world, and trying to apply those intentions to predict the

same court’s sentence under the post-Booker scheme, we are convinced that the most prudent

course of action in this case is to presume prejudice given the distinct possibility that the district

court would have imposed a lower sentence under the new post-Booker framework.”). This

presumption can be rebutted in cases where “the trial record contains clear and specific evidence

that the district court would not have, in any event, sentenced the defendant to a lower sentence

under the advisory Guidelines regime.” Id. at 529. We find no such evidence here.

       Not only were the Guidelines treated as mandatory, but the district court allowed

enhancements (that Staley objected to) based on factual findings that were not presented to a

jury. These enhancements increased Staley’s guidelines range. According to Booker, this

conduct violated the Sixth Amendment and thus, for this reason also, we remand this case to the

district court for resentencing. United States v. Davidson, 409 F.3d 304, 309 (6th Cir. 2005) (A

sentence “imposed on the basis of unconstitutional judicial fact-finding satis[fies] the plain-error

test”) (citing United States v. Oliver, 397 F.3d 369, 380-81).



III.

       Staley argues that the district court erred in enhancing his sentence by finding that he was

a manager or supervisor of a criminal activity that involved five or more participants or was

otherwise extensive, in accordance with § 3B1.1(b). To enhance a sentence under 3B1.1, a

district court must find that a defendant exercised control over at least one other participant in a


                                                  6
supervisory, managerial, leadership, or organizational capacity. United States v. Anderson, 353

F.3d 490, 506 (6th Cir. 2003). “The key issue is not direct control or ultimate decision-making

authority, but rather the defendant’s ‘relative responsibility.’” United States v. Henley, 360 F.3d

509, 517 (6th Cir. 2004) (citing United States v. Gaitan-Acevedo, 148 F.3d 577, 595-96 (6th Cir.

1998).

         Here, the district court did not specify the factual basis for its decision to invoke a §

3B1.1 enhancement. Instead, the court found only that there were five or more people involved

in the enterprise, and then stated that it was not able to determine from the record whether Staley

was a leader or organizer, as opposed to a manager or supervisor. In United States v. Vandeberg,

we said that although the failure to specify the factual basis for applying a § 3B1.1 enhancement

“is not grounds for vacating the sentence, . . . it is preferable that trial courts indicate the factual

basis for enhancing a defendant’s sentence pursuant to U.S.S.G § 3B1.1.” 201 F.3d 805, 810

(2000) (citing United States v. Alexander, 59 F.3d 36, 39 (6th Cir. 1995). We prefer that district

courts provide a factual basis for their findings “because it provides the defendant an

understanding of the enhancement and provides a meaningful basis for appellate review.”

Vandeberg, 201 F.3d at 810 (6th Cir. 2000).

         The district court did not specifically state how Staley controlled the individuals involved

in this enterprise. However, in some instances we may infer such control from the facts. See

United States v. Anderson, 353 F.3d 490, 506-7 (6th Cir. 2003). The district court found that

five or more people were involved in the car theft scheme, and Staley does not dispute this fact.

There is some evidence to allow us to infer, based on the testimony of FBI Agent Brian Burns,

that Staley controlled the four or five individuals who drove cars out of dealership lots as part of


                                                    7
the theft scheme because Staley ultimately sold these vehicles and obtained fraudulent titles and

registrations for these vehicles using the identities of unsuspecting individuals.

       This reasoning, however, requires us to draw attenuated inferences. The record is not

fully developed as to Staley’s role as a manager or supervisor. Upon remand, the district court

may investigate this matter more fully and make factual findings that provide for more

meaningful appellate review.



IV.

       For the foregoing reasons, we vacate Staley’s sentence and remand to the district court

for resentencing consistent with Booker and this opinion.




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