           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         September 9, 2009

                                       No. 08-10655                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JUSTIN LIVINGSTON

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 08-10655


Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant Justin Livingston pleaded guilty to possessing counterfeit U.S.
obligations and conspiring to manufacture U.S. counterfeit obligations in
violation of 18 U.S.C. §§ 472, 371, and 471 (1994). The district court sentenced
him to 60 months of imprisonment and two years of supervised release. The
district court also ordered him to pay $95,680.43 in restitution. Livingston’s sole
claim on appeal is that the district court clearly erred when it determined the



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-10655

amount of counterfeit currency attributable to him. Concluding that the district
court erred, we VACATE and REMAND for resentencing.
      I.    FACTUAL AND PROCEDURAL HISTORY
      In May 2007, Glendon Reid and Omar Morrison came from Washington,
D.C., to Dallas to meet with Terri Grant. Reid and Morrison brought with them
a compact disc that contained images to be used to make counterfeit currency.
The trio bought a printer to manufacture the counterfeit currency.
Subsequently, Grant solicited Appellant Livingston to buy another printer.
Grant and Livingston copied the images of the currency onto compact discs and
Livingston’s computer. Grant taught Livingston, who is a graphic artist, how to
manufacture $100 bills. Grant provided Livingston with authentic $5 bills and
showed him how to bleach and reprint the bills using the counterfeit $100 bill
images. Livingston later recruited codefendant Bryan Longoria to participate
in the counterfeiting scheme.       Livingston also provided computers to
manufacture the currency. Livingston showed codefendants Longoria, April
Friel, and Robert Walker how to manufacture the currency.
      Reid and Anthony Landry made counterfeit currency in addition to that
manufactured by Livingston and his co-conspirators. Grant’s cousin, Temeka
Jefferson, also manufactured counterfeit currency. Grant admitted that she sold
compact discs containing the counterfeit images to Dydra Mohammed and
Tracey Willis. Jefferson admitted to manufacturing approximately $7,000 in
counterfeit $100 bills with Grant. Jefferson told the agents that Grant had
stated that Morrison and Reid had manufactured as much as $100,000 when
they were at Grant’s home.
      On October 2, 2007, the police searched a hotel room occupied by
Livingston and his co-conspirators and discovered Livingston in possession of
counterfeit currency. Subsequently, on February 5, 2008, a federal grand jury
issued a superseding indictment charging Livingston, Longoria, Walker, Friel,

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and Grant with one count of possessing counterfeit obligations in violation of 18
U.S.C. § 472 and one count of conspiracy to manufacture counterfeit obligations
of the United States in violation of 18 U.S.C. §§ 371 and 471. Livingston pleaded
guilty to the charges without a plea agreement.
       At Livingston’s sentencing hearing, the district court adopted the PSR and
the Addendum to the PSR, as supplemented at sentencing, and determined
Livingston’s guidelines calculation as follows.1 Pursuant to U.S.S.G. § 2B5.1,
Livingston’s base offense level was 9. This offense level was increased by 12
levels under § 2B5.1 and § 2B1.1 because the value of the counterfeit currency
attributable to Livingston was $232,300, which falls between $200,000 and
$400,000. The district court also applied other adjustments to his offense level
pursuant to the guidelines that are not at issue on appeal. With a criminal
history category of II and a total offense level of 24, Livingston’s revised advisory
sentencing guidelines range was 57 to 71 months of imprisonment. The district
court sentenced Livingston to 60 months of imprisonment and two years of
supervised release.        He was also ordered to pay $95,680.43 in restitution.
Livingston now appeals his sentence.
       II.    AMOUNT OF LOSS
       Livingston contends that the court clearly erred in attributing the entire
amount of counterfeit obligations recovered in the Dallas-Fort Worth area that
was linked to the same images Livingston used to make the counterfeit
obligations. Livingston asserts that neither his conduct nor his relevant conduct
should result in the entire $232,300 amount of counterfeit funds passed in the
Dallas-Fort Worth area from June 2007 to June 2008 being attributable to him.
Livingston contends that the evidence demonstrates that some portion of the


       1
            The PSR initially held Livingston accountable for the loss incurred from the
manufacture of fraudulent credit cards. Ultimately, the district court did not include that loss,
and it is not before us on this appeal.

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$232,300 amount was passed by sources not related to Livingston and his
co-conspirators.
      A district court’s calculation of amount of loss is a factual finding that we
review for clear error. United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008).
“[I]n order to satisfy this clear error test all that is necessary is that the finding
be plausible in light of the record as a whole.” Id. (internal quotations marks
and citations omitted). “‘The presentence report is considered reliable evidence
for sentencing purposes.’” Id. (quoting United States v. Clark, 139 F.3d 485, 490
(5th Cir. 1998)). If a defendant fails to submit evidence rebutting the PSR, the
sentencing court is free to adopt its findings without additional inquiry or
explanation. Id.
      U.S.S.G. Section 1B1.3 provides that a defendant is accountable for losses
that are due to the defendant’s “relevant conduct.” United States v. Hammond,
201 F.3d 346, 351 (5th Cir. 1999). “A defendant’s relevant conduct includes ‘all
reasonably foreseeable acts and omissions of others in furtherance of jointly
undertaken criminal activity.’” Id. (quoting § 1B1.3(a)(1)(B)). The commentary
to the relevant conduct guideline provides that “‘a defendant is accountable for
the conduct . . . of others that was both:       (1) in furtherance of the jointly
undertaken criminal activity; and (2) reasonably foreseeable in connection with
that criminal activity.’” Id. (quoting § 1B1.3, comment. (n.2)). Additionally, the
commentary explains that an individual defendant’s scope of criminal activity
“is not necessarily the same as the scope of the entire conspiracy, and hence
relevant conduct is not necessarily the same for every participant.” § 1B1.3,
comment. (n.2). Thus, a sentencing “court must first determine the scope of the
criminal activity the particular defendant agreed to jointly undertake.” Id.;
Hammond, 201 F.3d at 351. Although the above-listed “findings need not be
expressly made, . . . the meaning of the court’s findings must be clear.”
Hammond, 201 F.3d at 351.

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      In an analogous case, the district court found that the defendant,
Hammond, was accountable for the total loss caused by an embezzling scheme.
Id. at 352.   Hammond objected, contending that he should not be held
accountable for the losses caused by two other employees unless there was proof
that Hammond and the others agreed to defraud. Id. at 351. The district court
overruled the objection, finding that Hammond should have reasonably foreseen
the conduct of the other employees but the court did not make a finding that
Hammond agreed to engage in a scheme to defraud. Id. at 352. On appeal, this
Court vacated the sentence, holding that the court erred by failing to make a
finding that the appellant agreed with the other employees to participate in a
scheme to defraud.
      Likewise, in the instant case, the district court held Livingston
accountable for the entire $232,300 losses reported by the banks in the Dallas-
Fort Worth area. In his written objections to the PSR and also verbally at the
sentencing hearing, Livingston objected to the court’s use of the entire amount
of the loss because the evidence showed there were persons other than his co-
conspirators manufacturing these counterfeit bills.          The court overruled
Livingston’s objections and stated as follows:
             Okay. I will make the same findings that I made earlier and
      that is the – the presentence report and the addendum, as well as
      the evidence presented here today, provide sufficient indicia of
      reliability to support the conclusions reached by the probation
      officer with respect to the loss amount that is attributable to Mr.
      Livingston.

             Specifically, the probation – in addition to what I said earlier,
      the probation officer in the presentence report indicates that she
      will take a conservative view on calculating loss amount.

            The guidelines require the Court to come – to reasonably
      estimate the loss amount, and in part because of the difficulty in
      arriving at the loss amount, and I think that is evidenced by this


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      case, the facts in this case show that the defendants, including Mr.
      Livingston, were creating these hundred-dollar bills, and they
      created a substantial number of 100-dollar bills, such that it’s
      impossible to know, with certainty, how many they created.

            But the agent in this case has testified and has used what I
      believe to be a reasonable method. He and the probation officer
      have used a reasonable method to arrive at the number that they
      have arrived at, and so for those reasons, I will overrule your
      objection.

      At the sentencing hearing, Special Agent Jeff McMickle testified that
banks in the Dallas-Fort Worth area discovered the counterfeit bills and
reported the currency to the government.          After receiving the counterfeit
currency from the banks, the agents would enter the information in a “database
that [they] keep based on actual money received.” McMickle further testified
that the $232,300 figure constituted the total amount of counterfeit currency
marked with the serial numbers linked to members of the conspiracy that were
passed in the Dallas-Fort Worth area. However, on cross examination, defense
counsel asked McMickle whether “it is true that there are other individuals,
beyond the five members of the conspiracy being sentenced today, who also have
copies of the images that were – that have these serial numbers on Exhibit 1?”
McMickle responded: “Right. We believe there are other people that were
provided the images through the people that came down from the DC area, and
then specifically in Dallas-Fort Worth through Ms. Grant and Mr. Livingston.”
McMickle further testified that:
      [W]e know that there are other people involved in Dallas-Fort
      Worth obviously because it’s still going on, however, we believe
      those were channeled through the two individuals that came down
      from DC [Reid and Morrison], where the notes originated, who were
      good friends with Ms. Grant, who then basically set up the operation
      here in Dallas and was involved in distributing those images.”




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                                       No. 08-10655

       In addition to Livingston and his co-conspirators, McMickle testified that
the following people possessed the images while in the Dallas-Fort Worth area:
Glendon Reid; Omar Morrison; Anthony Landry; and Temeka Jefferson.
McMickle further testified that there were other individuals who were involved
in manufacturing the counterfeit currency but they were not identified. Also,
subsequent to Livingston’s arrest, banks in the Dallas-Fort Worth area
continued to report instances of counterfeit currency with the same serial
numbers.
       As previously set forth, Livingston contends the district court erred in
holding him accountable for the entire amount of the counterfeit currency. The
government asserts that § 1B1.3(a)(1)(B) does not apply because Livingston was
a direct cause of the $232,300 introduced into the Dallas-Fort Worth area. The
PSR and the sentencing hearing belie this assertion. The government likens
Livingston’s role to a wholesale distributor in the commentary to § 1B1.3. To the
contrary, the evidence shows that Reid and Morrison, at the request of Grant,
introduced the counterfeit images to the Dallas-Fort Worth area. Indeed, Grant
taught Livingston how to manufacture the counterfeit bills. The undisputed
evidence further demonstrates that Grant sold the counterfeit images to
individuals apparently not associated with Livingston. Thus, we reject the
assertion that § 1B1.3(a)(1)(B) does not apply.
       Here, the district court did not find, and the PSR does not demonstrate,
that Livingston agreed to manufacture counterfeit currency with individuals
other than his charged co-conspirators.2             The district court also failed to



       2
          We note that there is some evidence that Livingston was aware that Grant was
involved with others who manufactured counterfeit currency. Nonetheless, “[w]hile an
atmosphere of complicity may be some evidence of jointly undertaken criminal activity, we ask
for a specific finding of jointly undertaken activity because the mere knowledge that criminal
activity is taking place is not enough for sentence enhancement under § 1B1.3.” Hammond,
201 F.3d at 352 (internal quotation marks and citation omitted).

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determine the scope of the criminal activity that Livingston agreed to jointly
undertake with individuals other than his co-conspirators. We have held that
such findings are “absolute prerequisites” to holding a defendant accountable for
a third person’s misconduct. Hammond, 201 F.3d at 352. “Although the district
court on remand is not bound by the guidelines, it must consider them, and in
doing so, it is required to calculate the proper guidelines range.” United States
v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008).         We therefore VACATE
Livingston’s sentence and REMAND the case for resentencing.
      VACATED and REMANDED.




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