                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-2006

USA v. Stanford
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5332




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Recommended Citation
"USA v. Stanford" (2006). 2006 Decisions. Paper 251.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/251


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NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   Case No: 05-5332

                           UNITED STATES OF AMERICA

                                           v.

                                MARK L. STANFORD,

                                           Appellant


                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             District Court No.: 04-cr-00184
                    District Judge: The Honorable David S. Cercone


                                Argued October 25, 2006

                Before: SMITH, FISHER, and COWEN, Circuit Judges

                               (Filed November 1, 2006)

Paul D. Boas (Argued)
5th Floor
429 Fourth Avenue
Law & Finance Building
Pittsburgh, PA 15219
       Counsel for Appellant

Robert L. Eberhardt
Michael L. Ivory (Argued)
Office of the United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219
       Counsel for Appellee
                                         OPINION


SMITH, Circuit Judge.

       In the spring and early summer of 2001, Mark L. Stanford wanted to purchase a

boat from Fox Chapel Sea Ray priced at $437,693. All that was standing in the way of

that purchase was his lack of the necessary funds and his inability to obtain the requisite

credit. Undeterred, Stanford devised a scheme to obtain both the funds and the credit.

The scheme eventually unraveled. On July 27, 2004, Mark L. Stanford waived his right

to be indicted and pleaded guilty to an Information charging him with violating 18 U.S.C.

§ 1344(1) by using a scheme and artifice to defraud First Union Bank “[f]rom in or

around June of 2001, and continuing thereafter until May of 2002 . . . .”

       Thereafter, Stanford vigorously challenged several aspects of the presentence

report (PSR) prepared in advance of his sentencing. The only relevant challenge for

purposes of this appeal is his assertion that the PSR erroneously used the 2001 edition of

the United States Sentencing Guidelines (U.S.S.G. or Guidelines) instead of the 2000

edition, thereby committing an ex post facto violation. According to Stanford, all of the

fraudulent activity occurred in June 2001. Because this activity occurred when the 2000

edition of the Guidelines was in effect, Stanford contends that the District Court erred by

using the 2001 version which did not become effective until November 1, 2001.

       Application of the 2001 edition of the Guidelines yielded an advisory guideline

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range of 18 to 24 months. Using the 2000 edition of the Guidelines, however, would

have resulted in a guideline range of 10 to 16 months. Although the District Court used

the 2001 edition of the Guidelines, the Court departed downward and imposed a sentence

of eight months of imprisonment.

       Stanford appealed, contending that the District Court erred by failing to use the

more favorable 2000 edition of the Guidelines. The District Court had jurisdiction under

18 U.S.C. § 3231. Appellate jurisdiction exists pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006). “We

exercise plenary review over whether the District Court applied the correct version of the

Sentencing Guidelines.” United States v. Brennan, 326 F.3d 176, 197 (3d Cir. 2003)

(citing United States v. Bertoli, 40 F.3d 1384, 1403 (3d Cir.1994)).

       The District Court recognized that U.S.S.G. § 1B1.11(b)(1) instructs that it must

“use the Guidelines Manual in effect on the date that the offense of conviction was

committed.” To determine when the offense of conviction was committed, the District

Court relied upon Application Note 2 of U.S.S.G. § 1B1.11, which provides that “[u]nder

subsection (b)(1), the last date of the offense of conviction is the controlling date for ex

post facto purposes.” We find no error in the District Court’s application of the 2001

edition of the Guidelines. As the Supreme Court instructed in United States v. Broce, 488

U.S. 563 (1989), a guilty plea “‘is more than a confession which admits that the accused

did various acts.’ Boykin v. Alabama, 395 U.S. 238, 242 (1969). It is an ‘admission that

he committed the crime charged against him.’ North Carolina v. Alford, 400 U.S. 25, 32

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(1970).” Broce, 488 U.S. at 570. Here, the Information charged that the scheme and

artifice to defraud “continu[ed] thereafter until May of 2002.” Thus, Stanford’s

admission that he engaged in fraudulent activity after November 1, 2001 provided a

sufficient basis for the District Court to apply the 2001 edition of the Guidelines. See

United States v. Moscony, 927 F.2d 742, 754 (3d Cir. 1991) (rejecting the contention that

there was an ex post facto violation by applying the new version of the Guidelines

inasmuch as the RICO offense of conviction was a “straddle crime” that continued after

the effective date of the new guidelines).

       We will affirm the judgment of the District Court.




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