12-3548-cr
United States v. Burris

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 15th day of October, two thousand thirteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         DENNIS JACOBS,
         ROSEMARY S. POOLER,
                     Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                          Appellee,

                          -v-                            No. 12-3548-cr

COURTNEY BECKFORD, aka Mark, aka Gabriel, aka Cort, GABE
BEIZEM, SAMUEL BURRIS, aka Jackie, RAWL DAVIS, aka Roy,
KEVIN EASTON, LENNOX LAMBERT, aka Dred, MARSHA
MOTAYNE, aka Marsha Montayne, SAUL SERRANO, RON SHEALEY,
ROHAN STEWART, aka Mark, aka Pete, CARLOS DIAZ, CLEVELAND
OAKES, WILLIAM PERKINS, WAYNE WHITE,

                          Defendants,

MALACHI BURRIS, aka Mark,

                     Defendant-Appellee.
____________________________________________________________
For Appellee:                      DOUGLAS M. PRAVDA (Susan Corkery and Karin Orenstein, on
                                   the brief), Assistant United States Attorney, for Loretta E.
                                   Lynch, United States Attorney for the Eastern District of New
                                   York, Brooklyn, NY

For Defendant-Appellant:           LAWRENCE MARK STERN, New York, NY


        Appeal from the United States District Court for the Eastern District of New York
(Irizzary, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Malachi Burris appeals from a January 17, 2013, amended

judgment of conviction imposed by the United States District Court for the Eastern District of

New York (Irizzary, J.) following a plea of guilty to a charge of conspiracy to commit mail and

wire fraud. The district court sentenced Burris principally to twenty-four months of

incarceration, restitution in the amount of $782,718.28 plus interest, and forfeiture in the amount

of $88,590. We assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal.

I.     Loss Amount

       Burris first contests the district court’s attribution to him of $569,681 in real loss, an

amount which reflects all of the loss caused by Burris and by his co-conspirators (the other

participants in a group led by Burris’s brother Samuel Burris). “[I]n order to hold a defendant

accountable for the acts of others, a district court must make two findings: 1) that the acts were

within the scope of the defendant’s agreement and 2) that they were foreseeable to the

defendant.” United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995). With respect to the first

finding, Studley holds “that the Guidelines . . . require the district court to make a particularized

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finding of the scope of the criminal activity agreed upon by the defendant.” Id. Burris contends

that (1) the district court failed to make that particularized finding and (2) there was insufficient

evidence for the district court to have found that the scope of his agreement covered all of the

criminal activity undertaken by the group. He argues that he should be responsible for only the

discrete acts that he himself took to further the conspiracy. We disagree.

       In rejecting Burris’s argument that he should not be held accountable for losses caused by

his co-conspirators, the district court stated that it “agree[d] with the analysis that ha[d] been set

forth by Probation as well as the rationale discussed by the Government in its sentencing

memorandum.” App’x at 132. The “analysis that ha[d] been set forth by probation” includes

statements (1) that Burris “became involved in the offense from the start, in approximately

October 2005,” Presentencing Report (“PSR”) at 11; (2) that “[a]fter January 2008, Malachi

Burris reduced his criminal involvement, but he did not withdraw from the offense,” id.; and

(3) that “[t]he loss attributable to the defendant included not only the packages he personally

picked up, but also the loss that was reasonably foreseeable . . . since he was part of a jointly

undertaken criminal activity with his brother,” Addendum to the PSR at 2. The “rationale

discussed by the Government” includes the statement that “the defendant is responsible for the

total loss attributable to the Burris working group as these losses were the reasonably foreseeable

result of jointly undertaken activity.” July 12, 2012, Letter from the Gov’t at 6. The district

court incorporated those statements into its findings, and through those statements—and the

district court’s subsequent statement that “there was enough independent evidence from some of

the records that were maintained by apparently the record keeper . . . to indicate that Mr. Burris

was involved throughout that period of time,” App’x at 139—the district court made a


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particularized finding that the entirety of the conspiracy’s activity, from October 2005 until its

termination, was jointly undertaken by Malachi Burris. Ultimately, while it would have been

advisable for the district court to state its findings more clearly and with more particularity, the

record as a whole indicates that the district court found that all of the activity was within the

scope of Burris’s conspiratorial agreement.

       Further, the district court had sufficient evidence on which to base its finding that Burris

agreed to the entire scope of the conspiracy to obtain wireless devices fraudulently. The

evidence showed that: (1) Burris picked up fraudulently obtained wireless devices from

Rudolph, a co-conspirator who was a FedEx courier, for approximately two months in 2005; (2)

Burris would call Rudolph telling her the addresses that would appear on the packages with

fraudulently obtained devices so that she would know which ones to set aside; (3) in early 2007,

Burris again picked up wireless devices from Rudolph; (4) in 2007, Rudolph introduced Burris

to FedEx courier McLean, and Burris told McLean that he would put McLean in contact with

Samuel Burris; (5) thereafter, Burris occasionally accompanied co-conspirator Courtney

Beckford to pick up packages from McLean; (6) in September, 2008, when Burris asked

Beckford whether he “got the rest of the things,” Beckford responded that he “got three,”

including a “Pearl,” and AT&T records showed that three phones, including a Blackberry Pearl,

App’x at 228, had been sent to Beckford’s address; (7) later that month, Burris traveled to

Jamaica with Beckford and Samuel Burris, and fraudulently obtained wireless devices were

discovered in the luggage of both Burris brothers, while Beckford had in his luggage a list of

email addresses, many of which had been provided to AT&T or T-Mobile customer services

representatives so that co-conspirators could receive emails with tracking information for the


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fraudulently ordered phones; (8) in October, 2008, Burris and Beckford discussed the number of

phones being ordered by Samuel Burris and Samuel Burris’s difficulty reaching one of the

FedEx couriers; (9) records discovered at Beckford’s home referred to 150 wireless devices and

referred to eight of those devices as attributable to Burris; and (10) during Burris’s plea

allocution, he admitted that he was involved in the conspiracy “during 2007 through 2009.”

       Burris argues that many of these events could be construed as innocent. But we do not

think that the district court clearly erred in inferring that Burris had agreed to the full scope of

the conspiracy. See United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (“Where there are

two permissible views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.”) (brackets and internal quotation marks omitted). Moreover, while Burris examines

each of the incidents separately and attempts to explain away each one, the district court was

correct to “view all the evidence as pieces of a unified whole.” United States v. Nusraty, 867

F.2d 759, 764 (2d Cir. 1989). We affirm the district court’s finding that Burris agreed to the

entire scope of the conspiracy.

II.    Minor Role Adjustment

       Burris next contends that the district court improperly denied him a minor role

adjustment. This adjustment “applies to a defendant . . . who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S. Sentencing Guidelines §

3B1.2(b) cmt. n.5. While “this circuit has not always been consistent in describing the standard

of review for role adjustments,” United States v. Labbe, 588 F.3d 139, 145 n.2 (2d Cir. 2009)

(brackets omitted), we need not decide that issue here because our conclusion would be the same




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under any level of deference. See United States v. Conde-Falon, 420 F. App’x 56, 58 n.1 (2d

Cir. 2011). The district court did not err in denying Burris the minor role adjustment.

       “The culpability of a defendant courier must depend necessarily on such factors as the

nature of the defendant’s relationship to other participants, the importance of the defendant’s

actions to the success of the venture, and the defendant’s awareness of the nature and scope of

the criminal enterprise.” United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990) (per curiam).

Here, there is evidence demonstrating that Burris was close to and trusted by the head of the

Burris group (his brother, Samuel) as well as Beckford (the other runner). The runners were

important because they served as a connection between Samuel and the FedEx drivers. And

Burris’s conversations with Beckford and delivery of at least three fraudulent cellphones to

Jamaica indicate that he was aware of the nature and full scope of the criminal enterprise.

       Burris argues that it was unfair that he was denied a minor role adjustment when the

district court found that each of the FedEx drivers played a minor role. But Burris overlooks the

fact that he played a specialized role because he could be trusted as an intermediary between

Samuel Burris and the drivers. Burris also minimizes his own knowledge about and

participation in the conspiracy. See United States v. Shonubi,, 998 F.2d 84, 90 (2d Cir. 1993)

(“A sentencing court is not bound to accept defendant’s self-serving characterizations of his role

in an offense.”).

III.   Interest on Restitution

       Next, Burris contends that the district court abused its discretion when it ordered Burris

to pay interest on the restitution award. Burris argues “that [the district court’s] discretion was

abused in this case where the appellant clearly does not have the capacity to pay the interest, let

alone the principle.” Brief for Defendant-Appellant Burris at 33-34.

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        To the extent that Burris contends that the district court is required to waive interest on a

restitution payment where the defendant cannot pay, he is incorrect. Under the Mandatory

Victims Restitution Act, if a district court “determines that the defendant does not have the

ability to pay interest under this subsection, the court may waive the requirement for interest.”

18 U.S.C. § 3612(f)(3)(A) (emphasis added); see also United States v. Echols, 508 F. App’x 266,

267 (4th Cir. 2013); United States v. Spencer Tnd Dang, 492 F. App’x 730, 731 (9th Cir. 2012);

United States v. Bagdy, 535 F. App’x 695, 697-98 (3d Cir. 2009). And to the extent that Burris

argues that the district court abused its discretion because of the particular circumstances

presented by this case, we disagree. Burris’s liability is joint and several with the liability of

numerous other defendants. Those co-conspirators will also be making payments to decrease the

joint restitution and interest, and the district court is not obligated to waive interest solely

because Burris is unable to pay the total amount.

IV.     Excessive Fines Clause

        Finally, Burris contends that the district court’s restitution and forfeiture orders violate

the Excessive Fines Clause of the Eighth Amendment. To the extent that Burris contends that

restitution and forfeiture orders were improperly based on losses caused by his co-conspirators,

we disagree for the reasons described above. To the extent that Burris contends that these

assessments violate the Eighth Amendment for some other reason, his argument is insufficiently

briefed to warrant our review. See Cuoco v. Moritsugu, 222 F.3d 99, 112 n.4 (2d Cir. 2000)

(“This single, conclusory, one-sentence argument is insufficient to preserve any issue for

appellate review.”); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not

sufficiently argued in briefs are considered waived and normally will not be addressed on

appeal.”).

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V.     Conclusion

       We have considered Burris’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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