Appendix — Dorcely v. United States (No. 06-547)

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Supreme Court, U.S.

FILED

06-547 0CT 19 2006

OFFICE OF THE CLERK

No.

In the

Supreme Court of the Gnited States

OCTOBER TERM 2006

DANIEL DORCELY,

Petitioner, .

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of

Certiorari To The United States Court of Appeals

For The District of Columbia Circuit

PETITIONER’S APPENDIX

PETER M. BRODY

(Counsel of Record)

MELISSA WALKER

ROPES & GRAY LLP

One Metro Center

700 12th Street, N.W., Suite 900

Washington, D.C. 20005

Telephone: 202/508-4600

Attorneys for Petitioner

———__—_ 2

APPENDIX A

454 F.3d 366

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 05-3130

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. Ol cr00454-04)

Argued April 25, 2006

Decided July 21, 2006

Before: SENTELLE, HENDERSON and GARLAND,

Circuit Judges.

COUNSEL

Melissa J. Stofko argued the cause for the appellant. Peter

M. Brody, appointed by the court, was on brief.

Florence Pan, Assistant United States Attorney, argued

the cause for the appellee. Kenneth L. Wainstein, United States

Attorney, and Roy W. McLeese, Ill and Daniel P. Butler,

Assistant United States Attorneys, were on brief. Suzanne C.

Nyland and Thomas J. Tourish, Jr., Assistant United States

Attorneys, entered appearances.

OPINION

KAREN LECRAFT HENDERSON, Circuit Judge:

Daniel Dorcely was convicted of making a false statement to

the Federal Bureau of Investigation (FBI) and acquitted of

conspiracy to commit money laundering and conspiracy to

defraud the government. Applying the sentencing regime

prescribed in United States v. Booker, 543 U.S. 220 (2005), the

district court sentenced Dorcely to 24 months’ incarceration and

ordered him to pay restitution in the amount of $63,315.51. In

sentencing Dorcely, the district court took into account

Dorcely’s role in the conspiracies, finding by a preponderance

of the evidence that he was involved in them notwithstanding

his acquittal on those offenses. Dorcely appeals his sentence. He

argues that the district court’s consideration of acquitted

conduct violated the Fifth and Sixth Amendments and in the

alternative was unreasonable. He also claims that the restitution

order impermissibly considered losses other than those caused

by the conduct of which he was convicted. We affirm in part

and vacate in part, concluding that his sentence of 24 months’

incarceration was neither unconstitutional nor unreasonable but

that the restitution order must be remanded for the district

court’s reconsideration.

The appellant, Daniel Dorcely, owned and operated Dany

Enterprises, a struggling cellular telephone sales business. On

December 20, 1999, he opened a bank account at the Adelphi,

Maryland branch of Bank of America and deposited $110 into

the account. Dorcely thereafter enlisted in the U.S. Army and,

before leaving for basic training at Fort Benning, Georgia, made

“Tyrone Wallace,” the alias of his cousin, Stateson Fran¢ois, a

signatory on the Dany Enterprises bank account. On March 15,

Dorcely and Francois met with Albert Mundy, the Bank of

America Adelphi branch manager. According to Mundy,

Dorcely introduced Francois as “Tyrone Waliace” and advised

Mundy that a substantial sum of money from a school contract

would be deposited into the Dany Enterprises account over the

next months.

On March 30, 2000, the Department of Education (DOE)

direct-deposited $906,705 into the Dany Enterprises account

with the annotation, “Bennett County School, Impact Aid.”

That same day, “Wallace” made a withdrawal of $60,600 from

the account. Of that amount, he obtained a cashier’s check for

$46,900 made out to Capitol Cadillac. Frangois and John

Holmes, a co-conspirator, used the cashier’s check to purchase a

Cadillac Escalade in the name of “Timothy Robbins,” Holmes’s

alias.

On April 4, DOE direct-deposited another $18,368.43 into

the Dany Enterprises account. Fran¢gois and Dorcely’s brother-

in-law, Dominique Germain, obtained two cashier’s checks

from the Dany Enterprises account on that day: one for $50,000

made out to Wilson Powell Lincoln Mercury and another for

$48,000 made out to Lustine Chevrolet. Francois and Holmes

purchased a Lincoln Navigator with the former. They attempted

to buy a Chevrolet Corvette with the latter. The manager of the

Chevrolet dealership, suspicious of the duo, delayed the sale by

refusing the cashier’s check ostensibly because the dealership’s

name was misspelled. After Fran¢ois and Holmes left to obtain

a new cashier’s check, the manager contacted the FBI.

The FBI determined that the funds in the Dany

Enterprises account had been fraudulently obtained and froze

the account on April 5, 2000, at which time the account had a

balance of $766,473.43. The FBI discovered that the funds had

been obtained from DOE, which had earmarked them for

underfunded elementary and secondary schools in South Dakota

under a program called “Impact Aid.” Apparently an unknown

DOE employee conspired with the two and altered the school

districts’ bank account information in the DOE computer

system, diverting Impact Aid funds to the Dany Enterprises

account,

During its investigation, the FBI contacted Dorcely at

Fort Benning, Georgia. Special Agent Thomas Chadwick

telephoned Dorcely on April 18, 2000. During _ their

conversation, Dorcely informed Chadwick that “Tyrone

Wallace” was a “buddy,” denying that “Wallace” was related to

him. 1/27/2004 Tr. at 85. Dorcely further stated that he had met

“Wallace” only seven or eight months before and _ that

“Wallace,” who had expressed an interest in cellular telephone

sales, was running Dany Enterprises in his absence. /d.

Chadwick later met with Dorcely face-to-face. Dorcely at that

time falsely stated that “Tyrone Wallace” and Francois were

two different people. /d. at 86-87.

The government charged Dorcely with one count of

conspiracy to defraud the United States in violation of 18

U.S.C. § 371, one count of conspiracy to commit money

laundering 1n violation of 18 U.S.C. § 1956(h) and one count of

making a false statement to the FBI in violation of 18 U.S.C. §

1001. Following trial, the jury convicted Dorcely of making a

false statement to the FBI and acquitted him of both conspirac

charges. |

The district court conducted Dorcely’s first sentencing

hearing on June 4, 2004, applying the then-mandatory U.S.

Sentencing Guidelines (Guidelines). The Guidelines specified a

sentencing range of zero to six months for the false statement

conviction. The government argued for a sentencing range of 24

to 30 months because, it maintained, it had proved by a

preponderance of the evidence that Dorcely had participated in

the conspiracy, which constituted “relevant conduct” under the

Guidelines. Over Dorcely’s objection, the district ceurt agreed

with the government and sentenced Dorcely to 24 months’

incarceration. The government also sought restitution, which the

district court ordered in the amount of $63,315.51.

Following Dorcely’s sentencing, the United States

Supreme Court decided Blakely v. Washington, 524 U.S. 296

(2004). In light of Blakely, Dorcely moved for reconsideration

of his sentence. After the High Court granted certiorari in

Booker, supra, the district court stayed the execution of the

sentence to “await a decision by the Supreme Court as to

whether its decision in Blakely v. Washington applies to the

United States Sentencing Guidelines.” United States v. Dorcelv,

No. 01-454, shp op. at | n.2 (D.D.C. filed Aug. 6, 2004)

(citation omitted). Dorcely also appealed his sentence to this

court and asked us to hold the appeal in abeyance pending

Booker. We granted his motion. Following the Supreme Court’s

decision in Booker, Dorcely moved this court to vacate his

sentence and remand for resentencing, which motion we

granted. See United States v. Dorcely, 2005 WL 583132, *1

(D.C. Cir. March 11, 2005).

The district court held Dorcely’s resentencing hearing on

July 19, 2005. Over Dorcely’s objection, it concluded that

Booker did not affect its authority to consider Dorcely’s

participation in the conspiracies under the preponderance of the

evidence standard and again sentenced Dorcely to 24 months’

incarceration. [t also reimposed the order of restitution in the

amount of $63,315.51.

Il.

Dorcely first contends that his sentence, based in part on

acquitted conduct, violated his Sixth Amendment night to trial

by jury and his Fifth Amendment right to due process of law.

We review issues of law relating to sentencing de novo. See,

e.g., United States v. Alexander, 331 F.3d 116, 130 (D.C. Cir.

2003); United States v. Gaviria, 116 F.3d 1498, 1518 (D.C. Cir.

1997) (per curiam). Applying this standard of review, we find

no constitutional error in Dorcely’s sentence.

We were recently presented with the same question this

case presents: whether a sentence based on acquitted conduct

violates the Sixth Amendment. See United States v. Edwards,

424 F.3d 1106, 1108 (D.C. Cir. 2005). There we observed that

the Supreme Court “has not, however, determined whether the

practice violates the Sixth Amendment,”' but we did not

address the issue because we remanded the case in accordance

with United States v. Coles, 403 F.3d 764, 771 (D.C. Cir. 2005)

(per curiam). We now reach the question and decide that a

sentencing court may base a sentence on acquitted conduct

without offending the defendant’s Sixth Amendment right to

trial by jury. In so holding, we agree with every circuit that has

considered the question post-Booker. See United States v.

‘In United States v. Watts, 519 U.S. 148 (1997), the

Supreme Court had earlier rejected a challenge to the sentencing

court’s consideration of acquitted conduct based on the double

jeopardy clause.

Ashworth,\39 F. App’x 525, 527 (4th Cir.), cert. denied, 126 S.

Ct. 765 (2005); United States v. Duncan, 400 F.3d 1297, 1304—

05 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005); United States

v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.), cert. denied,

126 S. Ct. 468 (2005); United States v. Price, 418 F.3d 771,

787-88 (7th Cir. 2005); United States v. Vaughn, 430 F.3d 518,

525-27 (2d Cir. 2005).

Before Booker, we had held that a sentencing court may

consider conduct of which the defendant was acquitted provided

the conduct was proved by a preponderance of the evidence.

See, e.g., United States v. Yelverton, 197 F.3d 531, 535 n.3

(D.C. Cir. 1999) (citing United States v. Thomas, 114 F.3d 228,

261 (D.C. Cir. 1997): United States v. Dozier, 162-F.3d 120,

125 (D.C. Cir. 1998)). Nothing in Booker undermines our

‘precedent. Under Booker, consideration of acquitted conduct |

violates the Sixth Amendment only if the judge imposes a

sentence that exceeds what the jury verdict authorizes. Booker,

543 U.S. at 244 (“Any fact (other than a prior conviction) which

is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”). Here, Dorcely’s conviction on the

false statement count authorized a sentence of “imprison[{[ment]

not more than 5 years.” 18 U.S.C. § 1001(a). His sentence of

24 months’ incarceration plainly falls within the authorized

sentence.

We find two aspects of the Booker holding instructive

here. First, the Court noted that “when a trial judge exercises

his discretion to select a specific sentence within a defined

range, the defendant has no right to a jury determination of the

facts that the judge deems relevant,” further noting that a

sentencing court has “broad discretion in imposing a sentence

within a statutory range.” Booker, 543 U.S. at 233. While the

Court did not expressly address the sentencing court’s

consideration of acquitted conduct, we believe its language is

broad enough to allow consideration of acquitted conduct so

long as the court “deems [it] relevant.” Second, the Booker

remedial opinion expressly endorsed 18 U.S.C. § 3661,

concluding that it poses no Sixth Amendment problem. See id.

at 251. Section 3661 provides, “No limitation shall be placed on

the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the

United States may receive and consider for the purpose of

imposing an appropriate sentence” and permits a sentencing

court to consider acquitted conduct. See United States v. Watts,

519 U.S. 148, 151 (1997).

Dorcely next contends that the district court’s

consideration of acquitted conduct violated his due process right

under the Fifth Amendment. We disagree. The Supreme Court

has instructed that “[h]ighly relevant—if not essential—to [the

judge’s] selection of an appropriate sentence is the possession of

the fullest information possible concerning the defendant’s life

and characteristics.” Williams v. New York, 337 U.S. 241, 247

(1949). It has therefore found that a sentencing court may

“consider{ ] a defendant’s past criminal behavior, even if no

conviction resulted from that behavior,” without violating due

process. Nichols v. United States, 511 U.S. 738, 747 (1994)

(citing McMillan v. Pennsylvania, 477 U.S. 79 (1986)); cf BMW

of North America, Inc. v. Gore, 517 U.S. 559, 573 n.19 (1996)

(“A sentencing judge may even consider past criminal behavior

which did not result in a conviction.”’).

Furthermore, we reject Dorcely’s claim that-a sentencing

court’s use of acquitted conduct must be based not on a

preponderance of the evidence but instead evidence beyond a

reasonable doubt. In Watts, the Supreme Court held that “a

jury’s verdict of acquittal does not prevent the sentencing court

from considering conduct underlying the acquitted charge, so

long as that conduct has been proved by a preponderance of the

evidence.” Watts, 519 U.S. at 157. Dorcely characterizes the

Watts language as relating solely to the double jeopardy clause.

The Court’s discussion of the preponderance of the evidence

standard, however, also plainly encompasses the due process

clause. The Court upheld the Guidelines’ application of the

preponderance of the evidence standard to a sentencing court’s

consideration of relevant conduct, including acquitted conduct,

explaining that the application of “the preponderance standard

at sentencing generally satisfies due process.” Jd. at 156.’

Moreover, before Booker, we rejected the argument that facts at

sentencing must be proved by a more stringent standard than

preponderance of the evidence, see, e.g., United States v. Long,

328 F.3d 655, 670-71 (D.C. Cir. 2003), including findings that

the defendant engaged in conduct of which he was acquitted,

see, e.g., Yelverton, 197 F.3d at 535 n.3. Nothing in Booker

suggests a contrary result.

*The Court left open the question whether a higher standard

of proof might be necessary if relevant conduct dramatically

increased the sentence. See Watts, 519 U.S. at 156-57. Dorcely

docs not press this argument.

10a

Dorcely argues in the alternative that his 24-month

imprisonment sentence was unreasonable. The Booker Court

directed the circuit courts of appeal to review sentences for

reasonableness, see Booker, 543 U.S. at 260-61, but it did not

expressly describe the jurisdictional basis therefore. Section

3742(a)(1) of Title 18 provides us with jurisdiction to review a

sentence that “was imposed in violation of law” and we believe

our jurisdiction to review for reasonableness must come from

this provision.» The government contends that section

3742(a)(1) does not give us jurisdiction to review a sentence

within a properly calculated Guidelines range, relying on our

pre-Booker precedent. See United States v. Hazel, 928 F.2d 420,

423-24 (D.C. Cir. 1991) (review of within Guidelines sentence

is limited to “determin{ing}] whether the guidelines were

correctly applied”). We disagree, concluding that the Booker

decision has overruled our precedent on this point.’

‘18 U.S.C. § 3742(a)(3), providing jurisdiction to-review a

sentence that “is greater than the sentence specified in the

applicable guideline range to the extent that the sentence includes

a greater . . . term of imprisonment .. . than the maximum

established in the guideline range,” is inapplicable because

Dorcely challenges ncither the application of the Guidelines nor

the calculation of his Guidelines range.

*Because our conclusion —that section 3742(a)(1) provides

us with jurisdiction to review any sentence for reasonableness—

conflicts with Circuit precedent, it has been considered separately

and approved by the full court. See /rons v. Diamond, 670 F.2d

265, 268 n.I11 (D.C. Cir. 1981). An Jrons footnote is appropriate

because we are “overruling a more recent precedent which,

lla

The government cites no post-Booker case law supporting

its position—nor could it. Every circuit that has considered the

issue has decided that section 3742(a)(1) provides appellate

jurisdiction to review any sentence for reasonableness. See

United States v. Chavez-Diaz, 444 F.3d 1223, 1228-29 (10th

Cir. 2006); United States v. Cooper, 437 F.3d 324, 327-28 (3d

Cir. 2006); United States v. Fernandez, 443 F.3d 19, 25-26 (2d

Cir. 2006); United States v. Jiménez-Beltre, 440 F.3d 514, 517

(lst Cir. 2006) (en banc); United States v. Martinez, 434 F.3d

1318, 1321-22 (11th Cir. 2006); United States v. McBride, 434

F.3d 470, 475-76 (6th Cir. 2006); United States v. Mickelson,

433 F.3d 1050, 1052-55 (8th Cuir.2006); United States v.

Montes-Pineda, 445 F.3d 375, 377 (4th Cir. 2006); United

States v. Plouffe, 445 F.3d 1126, 1127-29 (9th Cir. 2006);

United States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir. 2006).

We, too, conclude that an unreasonable sentence is a sentence

“imposed in violation of law.” Cf /n re Sealed Case, 449 F.3d

118, 123 (D.C. Cir. 2006) (“Booker . . . appears to assume there

is jurisdiction to hear an appeal to consider the reasonableness

of a sentence without regard to the merits of the claim.”). The

Booker remedial opinion is unequivocal on this point, declaring

that “the [Sentencing Reform] Act continues to provide for

appeals from sentencing decisions (irrespective of whether the

trial judge sentences within or outside the Guidelines range in

the exercise of his discretionary power under § 3553(a)).” 543

U.S. at 260 (emphasis added) (citing 18 U.S.C. § 3742(a)+b)).

Justice Scalia’s dissent accurately characterizes the remedial

opinion’s effect on appellate review: the reasonableness

standard now “appl[{ies] across the board to all sentencing

*(Continued...)

duc to an intervening Supreme Court decision... a panel is

convinced is clearly an incorrect statement of current law.” Policy

Statement on En Banc Endorsement of Panel Decisions 2-3 (Jan.

17, 1996).

12a

appeals, even to sentences within ‘‘the applicable guideline range,’

where there is no legal error or misapplication of the Guidelines.”

Id. at 311 (Scalia, J., dissenting in part). Accordingly, we now

review any sentence, whether-within the Guidelines range or not,

“to ensure that it is reasonable in light of the sentencing factors

that Congress specified in 18 U.S.C. § 3553(a).” United States v

Price, 409 F.3d 436, 442 (D.C. Cir. (2005).

°18 U.S.C. § 3553(a) provides:

Factors to be considered in imposing a sentence.--The court

shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in paragraph

(2) of this subsection. The court, in determining the particular

sentence to be imposed, shall consider—

(1) the nature and circumstances of the

offense and the history and characteristics of

the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the

offense, to promote respect for the law,

and to provide just punishment for the

offense;

(B) to afford adequate deterrence to

criminal conduct;

crimes of the defendant; and

(D) to provide the defendant with

needed educational or vocational

*(Continued...)

training, medical care, or other

correctional treatment in the most

effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for--

(A) the applicable category of offense

committed by the applicable category

of defendant as set forth in the

guidelines--

(i) issued by the Sentencing

Commission pursuant to section

994(a)(1) of tithe 28, United

States Code, subject to any

amendments made to _ such

guidelines by act of Congress

(regardless of whether such

amendments have yet to be

incorporated by the Sentencing

Commission into amendments

issued under section 994(p) of

title 28); and |

(ii) that, except as provided in

section 3742(g), are in effect on

the date the defendant 1s

sentenced; or

14a

> (Continued...)

(B) in the case of a violation of

probation or supervised release, the

applicable guidelines’ or policy

statements issued by the Sentencing

Commission pursuant to — section

994(a)(3) of title 28, United States

Code, taking into account § any

amendments made to such guidelines

or policy statements by act of Congress

(regardless of whether — such

amendments have yet to be

incorporated by the Sentencing

Commission into amendments issued

under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission

pursuant to section 994(a)(2) of title 28,

United States Code, subject to any

amendments made to such policy statement

by act of Congress (regardless of whether

such amendments have yet to be

incorporated by the Sentencing

Commission into amendments issued under

section 994(p) of title 28); and

(B) that, except as provided in section

3742(g), is in effect on the date the

defendant is sentenced.

(6) the need to avoid unwarranted

sentence disparities among defendants

lSa

, The government argues that the Booker language on which

we rely is only dictum. We disagree. The Booker Court remanded

for resentencing, adding that “if the sentence comes before the

Court of Appeals for review, the Court of Appeals should apply the

review standards set forth in this opinion,” that is, review for

reasonableness. 543 U.S. at 267. Furthermore, even if the language

were dictum, “carefully considered language of the Supreme

Court, even if technically dictum, generally must be treated as

authoritative.” Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir.

2003) (quoting United States v. Oakar, 111 F.3d 146, 153 (D.C.

Cir. 1997) (internal quotation marks and citation omitted); citing

Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir.

1996) (“It may be dicta, but Supreme Court dicta tends to have

somewhat greater force-particularly when expressed so

unequivocally.”)).

Exercising our jurisdiction, we consider the merits of

Dorcely’s claim that his sentence was unreasonable. He makes two

arguments: first, he argues that “any substantial increase in a

sentence based on acquitted conduct should be deemed

unreasonable per se, regardless whether such an increase is

determined to violate the accused’s constitutional rights,”

Appellant’s Br. at 24 (emphasis added); and, second, Dorcely

contends that even if we reject a per se rule, we should nonetheless

find that “the sentence imposed in this case plainly 1s”

unreasonable because it results in a fourfold increase in his term of

incarceration. /d. at 24-25. We reject both arguments.

*(Continued...)

with similar records who have been found

guilty of similar conduct; and

(7) the need to provide restitution to any victims of

the offense.

|6a

We easily dispose of Dorcely’s categorical challenge to the

reasonableness of a sentencing court’s consideration of acquitted

conduct. Section 3661 of Title 18, which allows a sentencing

court to consider any information regarding a defendant’s

background, character and conduct, “codifies the longstanding

principle that sentencing courts have broad discretion to consider

various kinds of information.” Watts, 519 U.S. at 151. The

Supreme Court has interpreted the language of section 3661 to

authorize the court’s consideration of acquitted conduct in

sentencing. See id. at 151-52.

The Guidelines also permit the sentencing court to consider

acquitted conduct. In the post-Booker world, the court must

calculate and consider the applicable Guidelines range but is not

bound by it.° Under the Guidelines, “the sentencing range for a

particular offense is determined on the basis of all ‘‘relevant

conduct’ in which the defendant was engaged and not just with

regard to the conduct underlying the offense of conviction.”

Witte v. United States, 515 U.S. 389, 393 (1995) (citing U.S.S.G.

§ 1B1.3). Section 1B1.3 details the conduct the sentencing court

may consider in determining the applicable Guidelines range and

the commentary to that section states, “Conduct that is not

formally charged or is not an element of the offense of

conviction may enter into the determination of the applicable

guideline sentencing range.” U.S.S.G. § 1B1.3, comment.,

backg’d. We have held that section 1B1.3 “is certainly broad

enough to include acts underlying offenses of which the

defendant has been acquitted.” United States v. Boney, 977 F.2d

624, 635 (D.C. Cir. 1992). Not only may the sentencing court

"Booker has not changed how the Guidelines range is to be

calculated. See United States v. Mares, 402 F.3d 511, 519 (Sth

Cir.), cert. denied, 126 S. Ct. 43 (2005).

17a

consider acquitted conduct in calculating the appropriate

Guidelines range but it may also consider that conduct in

determining the sentence within the range. Section 1B1.4 of the

Guidelines provides: “In determining the sentence to impose

within the guideline range, or whether a departure from the

guidelines is warranted, the court may consider, without

limitation, any information concerning the background,

character and conduct of the defendant, unless otherwise

prohibited by law. See 18 U.S.C. § 3661.” U.S.S.G. § IB1.4.

We turn to Dorcely’s more circumscribed challenge to the

reasonableness of the fourfold increase in his sentence based on

acquitted conduct. The sentencing transcript reveals that the

district court considered both the Guidelines and the section

-3553(a) factors, as Booker requires. See 7/19/05 Tr. at 31-37.

As noted earlier, Dorcely does not argue that his sentence was

improperly calculated under the Guidelines. We agree with our

sister circuits that a sentence within a properly calculated

Guidelines range is entitled to a rebuttable presumption of

reasonableness. See Alonzo, 435 F.3d at 554; United States v.

Green, 436 F.3d 449, 457 (4th Cir. 2006); United States v.

Krist], 437 F.3d 1050, 1054 (10th Cir. 2006); United States v.

Lincoln, 413 F.3d 716, 717 (8th Cir. 2005); United States v.

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v.

Williams, 436 F.3d 706, 708 (6th Cir. 2006). Dorcely does not

come close to rebutting this presumption. The district court’s

explanation for Dorcely’s 24-month incarceration sentence

that “a part of any sentence . . . is a component of retribution,”

7/19/05 Tr. at 31, that “the Guidelines . . . set a bench mark for

what is reasonable,” id. at 36, to prevent “vast disparit{ies]

between what somebody would get going before one judge as

compared to what somebody would get when [he] would go

before another judge,” id. at 35, and that Dorcely “was, in fact,

responsible or a played a role, at least, in causing those monies

to then be diverted from that account and used for illegal

purposes,” id. at 36—was reasonable.

18a

Finally, Dorcely contests the restitution order, arguing

that it was impermissibly based on conduct other than that of

which he was convicted. The district court ordered Dorcely to

pay restitution in the amount of $63,315.51 “‘as indicated in the

presentence report [PSR].” /d. at 37. The PSR provided that

“({ujnder 18 U.S.C. § 3663A(a)(1) and (3), the Court shall enter

an order for restitution.” PSR 4 77. Section 3663A(a)(1)

requires the district court to order restitution 1f the defendant is

convicted of an “offense described in subsection ( a Because

Dorcely was not convicted of such an offense, restitution under

section 3663A was unwarranted.

"18 U.S.C. § 3663A(c)(1) reads:

[The district court shall award restitution] in all sentencing

proceedings for convictions of, or plea agreements relating

to charges for, any offense

(A) that is—

(i) acrime of violence, as defined in section 16;

(11) an offense against property under this title, or under

section 416(a) of the Controlled Substances Act (21

U.S.C. 856(a)), including any offense committed by

fraud or deccit; or

(111) an offense described in section 1365 (relating to

tampering with consumer products); and

(B) in which an identifiable victim or victims has

suffered a physical injury or pecuniary loss.

19a

Although the district court incorrectly ordered restitution

under section 3663A, we note that the order would a/so be

improper under the permissive restitution provisions of 18

U.S.C. § 3663." This provision permits (but does not require)

the district court to order “the defendant [to] make restitution to

any victim of such offense” “when sentencing a defendant

convicted of an offense under this title [title 18].” 18 U.S.C. §

3663(a)(1)(A). As Dorcely’s false statement conviction falls

under Title 18, he can be ordered to pay restitution but only for

the loss caused by “such offense.” In interpreting section 3663,

we are guided by the Supreme Court’s decision in Hughey v.

(Continued...)

18 U.S.C. § 3663A(c)(1) (emphasis added). Notwithstanding

the word “and,” the government invites us to read subsections

(A) and (B) in the disjunctive; under the government's theory,

see Appellee’s Br. 42 n.21, restitution applies if the defendant

committed an offense enumerated under (A) or if “an

identifiable victim or victims has suffered a physical injury or

pecuniary loss” under (B). The government’s interpretation

does violence to the statutory text. Under the plain terms of

section 3663A, restitution is available only if the defendant

meets both (A) and (B).

*18 U.S.C. § 3663 permits restitution if a defendant is

convicted of “an offense under this title [title 18]. . . other than

an offense described in section 3663A(c).” 18 U.S.C. §

3663(a)(1)(A). As noted supra p. 16-17, Dorcely’s false

statement conviction is not an offense described in section

3663A(c). Moreover, his conviction under 18 U.S.C. § 1001 is

plainly an “offense under this title [title 18].”

20a

United States, 495 U.S. 411 (1990), which interpreted section

3663's predecessor, 18 U.S.C. § 3579(a) 1).’ The Court held

that under section 3579(a)(1) restitution may be ordered only

“for the loss caused by the specific conduct that is the basis of

the offense of conviction.” Hughey, 495 U.S. at 413. It made

clear that a defendant charged with multiple offenses but

convicted of only one offense cannot be ordered to pay

restitution for losses resulting from the other charged offenses.

Id. We believe the reasoning of Hughey applies with equal force

to section 3663 and conclude that restitution under 18 U.S.C. §

3663(a)(1) may be ordered only “for the loss caused by the

specific conduct that is the basis of the offense of conviction.”

Indeed, the government correctly concedes that “[a]lthough it 1s

unclear what the restitution amount of $63,315.51 represents, it

seems highly unlikely.that.it properly reflects the loss caused

solely by the false statement.” Appellee’s Br. 44.

For the foregoing reasons, we affirm Dorcely’s sentence

of 24 months’ incarceration. We vacate the order of restitution,

however, and remand for further proceedings consistent with

this opinion. .

So ordered.

"Section 3579(a)(1) authorized the sentencing court to order

“a defendant convicted of an offense” to “make restitution to any

victim of such offense.” 18 U.S.C. § 3579(a)(1) (1982 ed., Supp.

IV).

2la

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

FILED

July 21, 2006

No. 05-3130

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

ORDER

It is ORDERED, on the court’s own motion, that the

Clerk withhold issuance of the mandate herein until seven days

after disposition of any timely petition for rehearing or petition

for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir.

Rule 41. This instruction to the Clerk is without prejudice to the

right of any party to move for expedited issuance of the

mandate for good cause shown.

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michael C. McGrail

Deputy Clerk

22a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

FILED

July 21, 2006

No. 05-3130

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00454-04)

Before: SENTELLE, HENDERSON and GARLAND,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal from

the United States District Court for the District of Columbia and

was argued by counsel. On consideration thereof, it is

23a

ORDERED and ADJUDGED that the judgment of the District

Court appealed from in this cause is hereby affirmed in part,

vacated in part, and remanded for further proceedings, in

accordance with the opinion of the court filed herein this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michael C. McGrail

Deputy Clerk

24a

APPENDIX C

UNITED STATES DISTRICT COURT FOR

DISTRICT OF COLUMBIA CIRCUIT

FILED

June 14, 2004

No. 05-3130

UNITED STATES OF AMERICA |

APPELLEE

DANIEL DORCELY

~ APPELLANT

JUDGMENT IN A CRIMINAL CASE

For Offenses Committed On or After November |, 1987

The defendant. DANIEL DORCELY, was represented by

Bravitt C. Manley, Jr., Esquire.

The defendant was found guilty on count 5s by a jury

verdict on 1/30/04 after a plea of not guilty. Accordingly, the

defendant is adjudged guilty of such count, involving the

following offense(s):

Title & Section Nature of Offense

18 USC 1001(a)(2) False Statement

Date of Offense Count Numbers(s)

On about January 1999 to April 2000 Ss

25a

As pronounced on June 4, 2004, the defendant is

sentenced as provided in pages 2 through-6 of this Judgment.

The sentence is imposed pursuant to the Sentencing Reform Act

of 1984.

The mandatory special assessment is included in the

portion of this Judgment that imposes the Criminal Monetary

Penalties. ,

It is further ordered that the defendant shall notify the

United States Attorney and the Clerk’s Office for this district

within 30 days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special assessments

imposed by this Judgment are fully paid. If ordered to pay

restitution, the defendant shall notify the court and United

States attorney of any material change in the defendant’s

— economic circumstances that might affect the ability to pay.

Signed this the 10th day of June 2004.

Reggie B. Walton

United States Judge

26a

Judgment—Page 2 of 6

Defendant: DANIEL DORCELY

Case Number: CR 01-0454-03

IMPRISONMENT

The defendant is hereby committed to the custody of the

Unifed States Bureau of Prisons to be imprisoned for a term of

24 months.

The defendant shall surrender for service of sentence at the

institution designated by the Bureau of Prisons when notified to

report by the United States Marshal, Probation Office or Pretrial

Service Office.

Judgment—Page 3 of 6

Defendant: DANIEL DORCELY

Case Number: CR 01-0454-03

SUPERVISED RELEASE

Upon release from imprisoument, the defendant shall be on

supervised release for a term of 3 years.

The defendant shall report to the probation office in the district

to which the defendant is released within 72 hours of release

from the custody of the Burcau of Prisons.

The defendant shall not commit another federal, state, or local

crime.

The defendant shall not illegally possess a controlled substance.

The defendant shall refrain from any unlawful use of a

controlled substance.

27a

The mandatory drug testing condition is suspended based on the

court’s determination that the defendant poses a low risk of

future substance abuse.

The defendant shall not possess a firearm, destructive device, or

any other dangerous weapon.

If this judgment imposes a fine or a restitution obligation, it

shall be a condition of supervised release that the defendant pay

any such fine or restitution that remains unpaid at the

commencement of the term of supervised release in accordance

with the Schedule of Payments set forth in the Criminal

Monctary Penalties sheet of this judgment.

The defendant shall comply with the standard conditions that

have been adopted by the probation office of this court set forth

on the next page. The defendant shall also comply with the

following special conditions:

The Probation Oifice shall release the presentence investigation

report to all appropriate agencies in order to execute the

sentence of the Court as disclosures to the treatment agencies.

These agencies shall return the presentence investigation report

upon completion and termination of the treatment involved.

Judgment—Page 4 of 6

Defendant: DANIEL DORCELY

Case Number: CR 01-0454-03

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on supervised release pursuant to

this Judgment:

!) The defendant shal! not leave the judicial district without

the permission of the court or probation officer.

10)

28a

The defendant shall report to the probation officer as

directed by the court or probation officer and shall submit

a truthful and complete written report within the first five

days of each month.

The defendant shall answer truthfully all inquiries by the

probation officer and follow the instructions of the

probation officer.

The defendant shall support his or her dependents and

meet other family responsibilities.

The defendant shall work regularly at a lawful occupation

unless excused by the probation officer for schooling,

training, or other acceptable reasons.

The defendant shall notify the probation officer at least ten

days prior to any change in residence or employment.

The defendant shall refrain from excessive use of alcohol

and shall not purchase, possess, use, distribute, or

administer any controlled substance or any paraphernalia

related to any such controlled substances, except- as

prescribed by a physician.

The defendant shall not frequent places where controlled

substances are illegally sold, used, distributed, or

administered.

The defendant shall not associate with any persons

engaged in criminal activity, and shall not associate with

any person convicted of a felony unless granted

permission to do so by the probation officer.

The defendant shall permit a probation officer to visit him

or her at any time at home or elsewhere and shall permit

29a

confiscation of any contraband observed in plain view by

the probation officer.

11) The defendant shall notify the probation officer within

seventy-two hours of being arrested or questioned by a

law enforcement officer.

12) The defendant shall not enter into any agreement to act as

an informer or a special agent of a law enforcement

agency without the permission of the court.

13) As directed by the probation officer, the defendant shall

notify third parties of risks that may be occasioned by the

defendant’s criminal record or personal history or

characteristics, and shall permit the probation officer to

make such notifications and to confirm the defendant’s

compliance with such notification requirement.

Judgment—Page 5 of 6

Defendant: DANIEL DORCELY

Case Number: CR 01-0454-03

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary

penalties in accordance with the schedule of payments set forth

below under SCHEDULE OF PAYMENTS heading.

Count Assessment Fine Restitution

5s $100.00 $0.00 | $63,315.51 |

Name of

Payee:

Department

of Education

TOTALS: _, $100.00 | $0.00 $63,315.51

30a

The court determined that the defendant does not have the

ability to pay interest on the fine and/or restitution, and it is

ordered that the interest requirement is waived:

The Court finds the defendant does not have the ability to

pay a fine, or costs, of incarceration or supervision.

RESTITUTION

The defendant shall make restitution to the following

payees in the amount listed below

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution interest. (4)

fine principal, (5) community restitution. (6) fine interest, (7)

penalties, and (8) costs, including cost of prosecution and court

costs.

Payment of the total special assessment shall be due in

full immediately or taken from prison wages until paid in full.

Payment of the restitution shall be paid at the rate of

($100.00) dollars per month, unless adjusted by the Probation

Office.

Unless the court has expressly ordered otherwise in the

special instruction above, if this judgment imposes a period of

imprisonment, payment of criminal monetary penalties shall be

due during the period of imprisonment. All criminal monetary

penalties, except those payments made through the Bureau of

Prisons’ Inmate Financial Responsibility Program, are made to

the clerk of the court, unless otherwise directed by the court, the

probation officer, or the United States Attorney.

3la

The defendant shall receive credit for all payments

previously made toward any criminal monr‘<ary penalties

imposed.

Judgment—Page 5 of 6

Detendant: DANIEL DORCELY

Case Number: CR 01-0454-03

STATEMENT OF REASONS

X The court adopts the factual findings and guideline

application in the presentence report.

The court adopts the factual findings and guideline

application in the presentence report except (see attachment,

if necessary):

Guideline Range Determined by the Court:

Total Offense Level: 17

Criminal History Category: I

Imprisonment Range: 24 to 30 months

Supervised Release Range: 2 to 3 years

Fine Range: $ 5,000 to $50,000

X Fine is waived or 1s below the guideline range, because of

the defendant's inability to pay.

Total Amount of Restitution: $

Discretionary restitution is not ordered because the

complication and prolongation of the sentencing process

resulting from the fashioning of a restitution order

outweighs the need to provide restitution to any victims,

pursuant to 18 U.S.C. § 3663(a)(B)(i1). (or in offenses

committed before April 23, 1996, pursuant to 18 U.S.C. §

3663(d)).

32a

Restitution pursuant to the mandatory victim restitution

provisions is not ordered in this title 18 property offense

because the number of identifiable victims 1s so large as to

make restitution impracticable, pursuant to 18 U.S.C. §

3663A(c\3){A).

Restitution pursuant to the mandatory victim restitution

provisions is not ordered in this title 18 property offense

because determining complex issues of fact and related to

~ the cause of amount of victim’s losses would complicate or

prolong the sentencing process to a degree that the need to

provide restitution to any victim is outweighed by the

burden on the sentencing process, pursuant to 18 U.S.C. §

3663 A(c)(3)(B).

For offenses committed on or after September 13, 1994 but

before April 23, 1996 that require the total amount of loss to

be stated, pursuant to Chapters 109A, 110, I10A and 113A

of Title 18, restitution is not ordered because the economic

circumstances of the defendant do not allow for the payment

of any amount of a restitution order, and do not allow for the

payment of any or some portion of a restitution order in the

foreseeable future under any reasonable schedule of

payment.

Partial restitution is ordered, pursuant to 18 U.S.C. §

3553(c), for the following reasons(s):

X The sentence is within the guideline range, that range

does not exceed 24 months, and the court finds no reason to

depart from the sentence called for by application of the

guidelines.

The sentence is within the guideline range, that range exceeds

z* months,.and the sentence is imposed for the following

reason(s):

33a

The sentence departs from the guideline range:

-upon motion of the government, as a result of defendant’s

substantial assistance.

for the following specific reason(s):

34a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

FILED

MARCH 11, 2005

No. 04-3072

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

ORDER

Upon consideration of appellant’s unopposed motion to

govern future proceedings and to vacate judgment and remand

the case (No. 04-3072) for resentencing, and appellant’s

unopposed motion for leave to file supplemental appendix to the

unopposed motion to govern, and the lodged supplemental

appendix, it is

ORDERED that the unopposed motion for leave to file

supplemental appendix be granted. The Clerk is directed to file

the lodged supplemental appendix. It 1s

FURTHER ORDERED that the motion to vacate

judgment and remand the case (No. 04-3072) for resentencing

be granted.

35a

The Clerk is directed to issue forthwith to the district

court a certified copy of this order in lieu of formal mandate as

to case No. 04-3072 only.

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Nancy G. Dunn

Deputy Clerk

36a

APPENDIX E

UNITED STATES LISTRICT COURT FOR

DISTRICT OF COLUMBIA CIRCUIT

FILED

June 4, 2004

No. 01-454-03

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

PRESENTENCE INVESTIGATION REPORT

PREPARED FOR: THE HONORABLE REGGIE B.

WALTON UNITED STATES DISTRICT JUDGE

59a

APPENDIX F

UNITED STATES DISTRICT COURT FOR

DISTRICT OF COLUMBIA CIRCUIT

FILED

January 30, 2004

No. 01-454 (RBW)

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

VERDICT FORM

Impact Aid One (Indictment counts |, 2 and 4)

(1.) As to the charge of conspiracy to receive, conceal or

retain stolen United States government money, we the jury

find the defendant:

Not guilty oo a

Guilty

(2.) As to the charge of conspiracy to commit money

laundering, we the, jury find the defendant:

Not guilty X

Guilty ;

60a

(3.) As to the charge of making a false statement to an

FBI agent on April 18, 2000, we the jury find the

defendant: :

Not guilty ae

Guilty X

/ Ss

FOREPERSON

1/30/04

DATE

6la

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-3072

UNITED STATES OF AMERICA

APPELLEE

Vv.

DANIEL DORCELY |

APPELLANT

January 14, 2004

Transcript of Trial Recorded Before the Honorable Reggie B.

Walton United States District Judge, and a jury

62a

178

No. No.

Did you have any trouble hearing Mr. Dorcely?

No, not at all.

What, if anything, did Mr. Dorcely ask that you do?

He wanted me to, put Tyrone Wallace on the account.

What he asked was how can Tyrone transact business on this

account, and I told him we had to make him a signatory on the

account.

Q. How did you reply?

A. I told him we could do that, could make him a signer on

the account.

Q. How?

A. By getting him to complete another signature card.

Q. So what did you complete?

A. Signature card.

Q. Let’s take a look at Government’s Exhibit Number 104,

which is also in front of you, and if | could get that highlighted

up here. What’s that?

A. That’s the business signature card.

QO. When was it made?

A. = 12/20/99

Q. In the beginning, right, that’s when it was first made? I

can’t hear you?

A. Yes. Oh, I’m sorry. March 15, 2000 is when this was

made it was another date on there.

Q. Let me ask you this. Okay?

POPrO>

63a

181

was valid and | had no reason not to think it wasn’t him.

Pictures.

Q. When you say it was valid, how do you know it was

valid?

A. It was a New Jersey driver’s license. I had seen them

before.

Q. Did you conduct any independent investigation of its

validity? 3

A. No.

Q. So when you testified that it was valid, what you're

saying is in your mind in your mind you thought it was valid; is

that right?

A. Right.

Q. Can you compare the picture that was in the photo in the

ID with the person who presented it?

A. 1 did. It was the same. It was a likeness of the person in

front of me.

Q. Okay. Now, at the time that Mr. Dorcely is asking to have

you add Mr. Wallace to the account, what, if anything, does Mr.

Dorcely say about what he expects to have in this account?

A. What does he expect to have in the account?

Q. Yes.

A. He made mention -- it was light conversation about

working on a contract for a school or something that they were

expecting to hit.

Q. On the first time you talked to Mr. Dorcely, you said that

182

is when the account was opened, did he ever mention something

about an education contract?

A. No. We didn’t speak about anything like that then.

Q. And the sums of money were intended, were in Mr.

Dorcely’s mind what?

A. Very small.

Q. Now, Mr. Dorcely on March 15th makes this statement, -

when, if at all, did Mr. Dorcely -- strike that.

64a

When Mr. Dorcely made this statement, what, if

anything, did Mr. Dorcely tell you about when this money

would hit?

A. Inthe next few months.

Q. What was Wallace doing?

A. Mr. Wallace was right. We were all in conversation about

this.

Q. What did he say?

A. He said, “Yeah, we’ve been working hard,” was what I

remember.

Q. And what did he call this? What did Dorcely call the

basis for the money coming in?

A. What -- he said he had been working on a contract with a

school, school or college.

Q. How did you describe that contract? Was it a small or

large one?

A. It was large.

65a

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-3072

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

January 27, 2004

- Transcript of Proceedings

Before the Honorable Reggie B. Walton

66a

A. Yes. There was a special agent with, I believe, the Army

C.1.D., a Ms. Hawkins. An Agent Hawkins.

Q. Their criminal investigative division?

A. Yes.

Q. And where were you at that time when you had that

phone conversation?

A. I was in Washington, D.C. At the office of Special Agent

Gary Mitchell, who is with the Department of Education, Office

of Inspector General.

Q. And at the time of that interview, did you talk to Mr.

Dorcely about this matter?

A. Yo.

Q. About the impact aid money?

A. YO.

Q. Did you tell him in advance what you were talking to him

about? How did you lead into talking with Mr. Dorcely?

A. 1 think I just briefly gave the nature of the interview. That

we were investigating the diversion of monies into his bank

account.

Q. And what date was this?

A. This was, | believe, Apri) 18th of 2000.

Q. In terms of time, it was shortly after the money had been.

frozen, is that correct?

Ai Fae.

Q. And at that time was part of your conversation to talk

to Mr. Dorcely about the information you had learned from

Mr. Mundy about this Tyrone Wallace?

A. Y¥@.

Q. And did you talk to Mr. Dorcely about Tyrone Wallace?

A. Yes, 1 did.

Q. And what did Mr. Dorcely tell you about his relationship,

if any, with Mr. Wallace?

A. He said Mr. Wallace was a buddy of his. That he had

turned the business over to him and another individual while he

was away at basic training. He said he had met Mr. Wallace

67a

seven or eight months prior and that Mr. Wallace was interested

in telephone sales and eager to learn. So Mr. Wallace started

seliing phones for him.

Q. And did Mr. Dorcely say whether he, Mr. Dorcely, added

Mr. Wallace to Mr. Dorcely’s bank account?

A. He indicated he had.

Q. And did he say whether Mr. Wallace was a relative of

Mr. Dorcely -- whether they were related?

A. No, he indicated he was a buddy.

Q. Did he say affirmatively or negatively whether he was

related?

A. He said he wasn’t a relative.

Q. | would like to jump forward to August 20th of 2000.

A. Yes. |

Did you have another chance to talk with Mr. Dorcely at

68a

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-3072

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

June 4, 2004

Transcript of Proceedings

Before the Honorable Reggie B. Walton

69a

And get back to the motive of that, and what the

jury believed, and why they did not convict Mr. Dorcely of

those counts. And again we get into -- when we look at this

loss amount -- of attributing that entire loss amount to Mr.

Dorcely, it is simply wrong. It’s not measured. It’s an unfair

implication.

We admit the two facts as they relate to relevant

conduct, but we certainly deny all the rest of it, and we believe

that the loss amount is grotesque and way out of character for

Mr. Dorcely’s alleged participation here.

The Court: Okay. Any other arguments?

Mr. Manley: None that are not already stated in my brief,

Your Honor.

The Court: I will hear from the government.

Mr. Rosen: Good morning, Your Honor. Absent any

questions by the court, the government is prepared to submit on

its filing.

The Court: What about what counsel says, that this would

be grossly unfair to use as relevant conduct this evidence in

light of the fact that he was acquitted?

Mr. Rosen: We think the Boney Case covers the concept

of acquittal. Clearly this court can consider, for relevant

conduct purposes, conduct that did not eventuate in a

conviction.

So what we think is fair is that similarly

situated defendants are applied the laws equally. This

defendant is situated just like every other defendant in this

courthouse and across America who has been convicted of a

charge, but for whom a sufficient quantum of evidence was

produced at trial to meet the requisite threshold that the Court

has indicated of preponderance of the evidence. And we think

what's fair is that this defendant be subject to that same

standard.

| am not quite sure | understand counsel's argument

with respect to loss respectfully, Your Honor, because counsel

70a

in his papers manufactures a figure of $21,000.00, which

implicitly concedes that there is some relevant conduct here. |

think that alone bespeaks the fragility of his argument. The fact

is that the lie was intended to facilitate the common purpose,

which was the laundering and the receipt of stolen government

funds. We wholeheartedly agree with --

The Court: The amount of loss we are talking about here

is the entire transfer into the Dany Enterprises Account.

Mr. Rosen: Yes, sir. This conspiracy does not end until

late May. This lie is mid-April.

The Court: ls when?

Mr. Rosen: Mid-April, sir. This is still a viable

conspiracy, whose offenders have not yet been fully

identified and apprehended. That’s why we fully endorsed the

finding by this probation officer. I think that my papers speak

to that. .

Unless the court has any additional questions, | am

prepared to sit down.

The Court: No, I don’t. That was $925,073.43?

Mr. Rosen: Judge, | have a different figure in my papers.

If 1 could take a moment just to confirm it is accurate.

The Court: That’s what the probation officer has.

Mr. Rosen: That’s the figure then that we would rely on.

May | have just one moment?

The Court: Yes.

Mr. Rosen: Thank you.

Your honor, we would like to supplement the record

by indicating that the lie which the defendant made was

material to the investigation, and we think that that 1s something

that also supports the finding by the probation officer.

The loss amount that | have is identified in

Paragraph 32 of the P.S.R., $953,328 --

The Court: Nine hundred and what?

Mr. Rosen: $953,328.47, Paragraph 32.

The Court: 32?

Mr. Rosen: Yes, sir. Page 9.

Tla

defendants. It is clear from the facts of the case that

Mr. Dorcely is not similarly situated.

The Court: One of the underlying purposes of the

sentencing guidelines is to avoid disparate sentences of people

who engage in similar conduct and have similar criminal

backgrounds. And I adhere to that perspective because, having

operated in a system where there were no guidelines and

basically unfettered discretion, what happened to a person who

was sentenced was, to a large degree, dependent upon the

judicial philosophy of the judge when it came to sentencing.

And, as a result of that, you had a person going into

one courtroom and getting a significant prison sentence, and

another person, with the same situation, going before another

judge and walking home.

And, obviously, that’s problematic. And | think in

reference to relevant conduct, that same principle has to be a

guiding post for the court in assessing whether the

circumstances in the case justify, or warrant, or mandate

actually the court using the relevant conduct in assessing what

the point scale should be for the offense.

And here, while the jury did find Mr. Dorcely not

guilty of the other offenses, other than the false statement

offense, | think when you look at the overall situation, it seems

clear to me that under the standard that I have to

apply, that being preponderance, that the evidence is sufficient

or was sufficient to establish that Mr. Dorcely was involved in

the scheme.

And | reach that conclusion because, as I said

before, the timing of Mr. Dorcely going to the bank and putting

Mr. Francois, his cousin, on that account, and falsely

representing who that person was, | think, obviously is highly

suspicious and suggests that something was going on of an

inappropriate nature at the time that statement was madc.

And | think when you couple that, even though you

want to say that this young bank manager -- his testimony

72a

should be rejected -- | saw nothing about that young man that

would suggest that he was anything other than a hard-working

young man, trying to make it in this world.

And he came in, and he took an oath. And I don’t

find that he lied. I find that he candidly indicated that

Mr. Dorcely not only misrepresented who Mr. Francois was, but

he also made statements indicating that he expected that, he was

going to gain some good fortune that would result in a

significant amount of money coming into the account.

And | think all that was in anticipation of what

ultimately occurred. And that, in my view, based upon the

preponderance standard, indicates that he knew that this scheme

was In process and that on the heels of the

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You do the crime, you have got to do the time. And I hate to

have to lock up young people, especially a young man who has

got a family, because one of the biggest problems we have with

our kids today is not that they are bad kids. They don’t have

parents. They don’t have parents because their parents aren’t

there for them.

The reason | sit here mght now is because I had

parents who were very poor, but, nonetheless, they were there

for me every day. They didn’t do anything to put them in a

position where they weren't going to be available for me.

It wasn’t money that made me into what I am or

what my sister and brother became. It was good parents, and

it’s good parents who were there. And you are not going to be

there for a couple years. And that’s unfortunate. But you made

your bed. So you have got to lie in it.

Accordingly, | will sentence the defendant to a

period of 24 months in prison. | also will place him on a period

of supervised release for a period of three years upon his release

from prison.

Upon his release, within 72 hours he must notify the

Probation Department in the district that he is released that he

has been released, and then if he returns back to this area, he

will have to notify this probation office here of his return so that

he can be placed under supervision.

The conditions of his supervised release is that he

will have to pay restitution, and | will impose an Order of

Restitution against the defendant in the amount of $63,315.51.

| will require that he pay a minimum of $100.00 per

month towards that restitution until the entire amount has been

paid.

Also, in reference to his supervised release, | will

require that he provide full financial disclosure to the Probation

Department, through tax returns and any other financial

information.

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Also, I will order that he not amass any debt

without first getting authorization to do so from the Probation

Department.

There is no indication of drug use, so | will dispense

with the requirement of drug-testing.

Also, | will conclude, based upon his need to take

care of his children once he gets out, and also based upon the

amount of restitution he has to pay, that he does not have the

capacity to pay a fine and, therefore, | will waive the fine

requirement.

Also, I must assess, pursuant to law, a special

assessment of $100.00. I will require that that be paid

immediately. If he cannot pay it immediately, | wrll require that

that be taken out of his prison wages until

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APPENDIX J

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-3072

UNITED STATES OF AMERICA

APPELLEE

DANIEL DORCELY

APPELLANT

July 19, 2005

Transcript of Proceedings

Before the Honorable Reggie B. Walton

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that relevant conduct, under no circumstances, can never be

considered.

Mr. Manley: But the whole point of what we are talking

about here is since all of these facts were presented to the jury,

and the jury found by a clear and convincing margin

Mr. Dorcely not guilty of those acts -- they found him not guilty

of the conspiracy, not guilty of conspiracy to steal money and

not guilty of conspiracy against the government. So the jury’s

decision here clearly absolves him of responsibility for the

conspiracy. So how does the Court come back --

The Court: That has always been the law. Maybe you

want to rewrite history as to what the law should be, but I don’t

think you have the capacity to do that. The law has always been

that even if someone is found not guilty, that if, nonetheless,

there was a quantum of evidence sufficient to show by a

preponderance that they did the act, that the court could,

nonetheless, consider that in deciding what the sentence within

the range of appropriate sentence could be.

Mr. Manley: Well, don’t we get back to the issue -- isn’t

that the same as a jury nullification situation after Booker?

The Court: Maybe, Counsel, in your ideal world, the law

should be as you are articulating it, but that’s not

T7a

The Court: There was activity that took place? | am just

trying to jog my memory.

Mr. Rosen: Yes, sir.

The Court: There was activity that took place regarding

those funds after the lie?

Mr. Rosen: Well, not the funds. The funds had been

frozen, but the fruits of the funds -- in other words, the cars.

One car was still in the possession of Defendant Holmes, and

that car was not recovered until May 2 Ist.

The Court: And if he had not lied, how would that have

facilitated the co-defendant not being able to continue to bear

the fruits of the crime?

Mr. Rosen: Well, had the defendant told the truth, when

asked about the identity of Francois, law enforcement,

obviously, would have been able to identify Francois more

quickly, and that, in turn, would have resulted in the seizure of

the Navigator, as weil as the likely identification of Mr.

Holmes. ;

You know, Judge, there is in this case about

$10,000.00 of American Express traveler’s checks that were

unexplained that we never recovered. It’s a fair inference that

the continued delay that was perpetrated by this defendant

facilitated the payment -- the use of those traveler’s checks and

the failure of the government to recover.

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And the day when the F.B.I. called me on

April 18th, | talked to the F.B.1. I did tell them, “Yes, I put

somebody’s named Tyrone Wallace.” Yes, I told him Tyrone

Wallace is not my cousin. And I told him about Stateson. Yes,

I told him there were two different people, but when I came

back, | went back to F.B.1.

I went to F.B.I. to their office and said, “Yes, | did

lie. I did put Tyrone Wallace on my account -- Stateson

Francois. I did talk to them, and | confessed to them. You

know, from there on, I was helping them -- whatever they asked

me to do -- wear wires to get information. | did all they asked

me to do.

The Court: You obviously don’t have to respond to this,

but what has troubled me, Mr. Dorcely, is if there were not

some bad intentions involved, I just don’t understand why, if

wanted to put your cousin’s name on the account, you just

didn’t put his name on the account in his correct name. I mean |

don’t understand that. You don’t have to respond if you don’t

want, but it is up to you. I just don’t understand that.

The Defendant: | will respond, Your Honor. My cousin was

illegal in the country” He didn’t have no social or nothing. And

he had been using that name for awhile. And he was working

under that name. He works-at-seveéral-places under that name.

He showed me the I.D. when he went

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think is problematic. And the guidelines, it seems to me, as |

say, set a bench mark for what is reasonable, and here,

assuming that | can conclude that there was sufficient evidence

_ to show that the defendant was, in fact, responsible for the loss,

sets the sentencing guidelines at 24 to 30 months.

And since I do conclude that the evidence does, in

fact, support the government’s theory that Mr. Dorcely was, in

fact, responsible for the loss having been occasioned because of

his having gone into the bank -- which, as I say, is not refuted --

and -provided false information about his cousin and _ his

cousin’s identity, having also made these representations about

this large amount of money coming into the account, which says

to me that he knew that this large amount of money was coming

in, but yet can’t explain what the basis for that would have been

from a legitimate perspective, that he, in fact, did, in fact, cause

that money to come into the account, or played a role in having

that money come into the account, and by putting his cousin’s

name on the account, and considering what his cousin

subsequently did, was, in fact, responsible or played a role, at

least, in causing those monies to then be diverted from that

account and used for illegal purposes.

And | can’ t overlook that. And I think, clearly, the

evidence by a preponderance shows that he, in fact, was

accountable for the loss that occurred here. And with that, the

guidelines, as the bench mark, say that 24 to 30 months is a

reasonable sentence.

And I haven’t seen anything that’s been presented

to me, despite the fact that the defendant is a first offender, that

would justify me using my discretion to give a sentence other

than what the guidelines say are reasonable.

And I, therefore, would conclude that the

appropriate sentence to be imposed in this case is a sentence of

24 months in prison, followed by a period of supervised release

in the amount of three years.

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1 also will order that the defendant pay restitution in

the amount of $63,315.51, as indicated in the presentence

report, and that he pay no less than $100.00 per month, once he

is released, as a condition of his supervised release -- that

amouiit -- and that that be paid to the United States Department

of Education at the address indicated im the report.

He also has to pay $100.00 as a special assessment

to the clerk of this court, and until] that is paid, he has to keep

the clerk apprised of his address.

Also, within 72 hours of his release from prison, he

will have to let the Probation Department know that he has been

released so that he can be under that department’s

Sla

APPENDIX K

18 U.S.C § 2 — Principals

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or

procures its commission, 1s punishable as a principal.

(b) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense

against the United States, is punishable as a principal.

18 U.S:C § 371 — Conspiracy to commit offense or to

defraud United States

if two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to effect

the object of the conspiracy, each shall be fined under this

title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not exceed the

maximum punishment provided for such misdemeanor.

18 U.S.C § 1001 - Statements or entries generally

(a) Except as otherwise provided in this section,

whoever, in any matter within the jurisdiction of the

executive, legislative, or judicial branch of the Government

of the United States, knowingly and willfully —

(1) falsifies, conceals, or covers up by any trick,

scheme, or device a material fact;

(2) makes any materially false. fictitious, or fraudulent

statement or representation; or

(3) makes or uses any false writing or document

knowing the same to contain any materially false, fictitious,

or fraudulent statement or entry:

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shall be fined under this title or imprisoned not more than 5

years, or both.

(b) Subsection (a) does not apply to a party to a judicial

proceeding, or that party’s counsel, for statements,

representations, writings or documents submitted by such

party or counsel to a judge or magistrate in that proceeding.

the legislative branch, subsection (a) shall apply only to -

(1) administrative matters, including a claim for payment,

a matter related to the procurement of property or services,

personnel or employment practices, or support services, or a

document required by law, rule, or regulation to be submitted

to the Congress or any office or officer within the legislative

branch; or

(2) any investigation or review, conducted pursuant to the

authority of any committee, subcommittee, commission or

office of the Congress, consistent with applicable rules of the

House or Senate. 7

18 U.S.C § 1956 — Laundering of monetary instruments

(a)(1) Whoever, knowing that the property involved in a

financial transaction represents the proceeds of some form of

unlawful activity, conducts or attempts to conduct such a

financial transaction which in fact involves the proceeds of

specified unlawful activity -

(A)(i) with the intent to promote the carrying on of

specified unlawful activity; or

(ii) with intent to engage in conduct constituting a

violation of section 7201 or 7206 of the Internal Revenue

Code of 1986; or

(B) knowing that the transaction is designed in whole or

in part -

(i) to conceal or disguise the nature, the location, the

source, the ownership, or the control of the proceeds of

specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under

State or Federal law, shall be sentenced to a fine of not more

than $500,000 or twice the value of the property involved in

the transaction, whichever is greater, or imprisonment for not

more than twenty years, or both.

(2) Whoever transports, tramsmits, or transfers, or

attempts to transport, transmit, ot transfer a monetary

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instrument or funds from a place in the United States to or

through a place outside the United States or to a place in the

United States from or through a place outside the United

States -

(A) with the intent to promote the carrying on of

specified unlawful activity; or |

(B) knowing that the monetary instrument or funds

involved in the transportation, transmission, or transfer

represent the proceeds of some form of unlawful activity and

knowing that such transportation, transmission, or transfer is

designed in whole or in part -

(i) to conceal or disguise-the nature, the location, the

source, the ownership, or the control of the proceeds of

specified unlawful activity; or

(11) to avoid a transaction reporting requirement under

State or Federal law, shall be sentenced to a fine of not more

than $500,000 or twice the value of the monetary instrument

or funds involved in the transportation, transmission, or

transfer, whichever is greater, or imprisonment for not more

than twenty years, or both. For the purpose of the offense

described in subparagraph (B), the defendant’s knowledge

may be established by proof that a law enforcement officer

represented the matter specified in subparagraph (B) as true,

and the defendant’s subsequent statements or actions indicate

that the defendant believed such representations to be true.

(3) Whoever, with the intent -

(A) to promote the carrying on of specified unlawful

activity;

(B) to conceal or disguise the nature, location, source,

ownership, or control of property believed to be the proceeds

of specified unlawful activity; or

State or Federal law, conducts or attempts to conduct a

financial transaction involving property represented to be the

proceeds of specified unlawful activity, or property used to

conduct or facilitate specified unlawful activity, shall be

fined under this title or imprisoned for not more than 20

years, or both. For purposes of this paragraph and paragraph

(2), the term “represented” means any representation made

by a law enforcement officer or by another person at the

direction of, or with the approval of, a Federal official

authorized to investigate or prosecute violations of this

section.

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(h) Any person who conspires to commit any offense

defined in this section or section 1957 shall be subject to the

same penaltics as those prescribed for the offense the

commission of which was the object of the conspiracy.

18 U.S.C § 3661 — Use of information for sentencing

No limitation shall be placed on the information

concerning the background, character, and conduct of a

person convicted of an offense which a court of the United

States may receive and consider for the purpose of imposing

an appropriate sentence.

28 U.S.C § 125441) — Courts of appeals; certiorari;

certified questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition of

judgment or decree;

(2) By certification at any time by a court of appeals of

any question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the

Supreme Court may give binding instructions or require the

entire record to be sent up for decision of the entire matter in

controversy.

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APPENDIX L

USSG §2F1.1. Fraud and _ Deceit; Forgery; Offenses

- Involving Altered or Counterfeit Instruments Other than

Counterfeit Bearer Obligations of the United States

(a) Base Offense Level: 6

(b) Specific Offense Characteristics

(1) If the loss exceeded $2,000, increase the offense level as

follows:

Loss (Apply the Greatest) Increase in Level

(A) $2,000 or less no increase

(B) More than $2,000 add !

(D) More than $10,000 add 3

(E) More than $20,000 add 4

(F) More than $40,000 add 5

(G) More than $70,000 add 6

(H) More than $120,000 add 7

(1) More than $200,000 add 8

(J)- More than $350,000 add 9

(K) More than $500,000 add 10

(L) More than $800,000 add i}

(M) More than $1,500,000 add 12

(N) More than $2,500,000 add 13

(O) More than $5,000,000 add 14

(P)

(Q)

(R)

(S)

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More than $10,000,000

More than $20,000,000

More than $40,000,000

More than $80,000,000

add 15

add 16

add 17

add 18

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APPENDIX M

U.S. CONST. amend VI — Rights of Accused in Criminal

Prosecutions

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.