United States District Court, E.D. Washington
MEMORANDUM OPINION AND ORDER RE: EVIDENTIARY HEARING,
SENTENCING, AND SENTENCING ENHANCEMENT
L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE
September 22, 25, and 28, 2017, the court held evidentiary
hearings in this matter. Defendant Gilpatrick was also
present, in custody, and represented by CJA counsel Jeffrey
Niesen. Defendant Rogers was present, in custody, and
represented by Daniel Rubin of the Federal Defenders of
Eastern Washington and Idaho. Assistant United States
Attorney Patrick Cashman appeared for the Government. At the
evidentiary hearings the court heard testimony from Secret
Service Agent Gregory Ligouri and Defendant Gilpatrick. The
court also heard argument from defense counsel. On September
28, 2017, the court held a sentencing hearing for Defendant
Gilpatrick. On October 6, 2017, the court held a sentencing
hearing for Defendant Rogers. This Order memorializes and
supplements the court's oral rulings at the above
February 22, 2017, an Indictment was returned, with Count 1
charging both Gilpatrick and Rogers with Manufacturing
Counterfeit Obligations or Securities of the United States in
violation of 18 U.S.C. § 471. Count 2 of the Indictment
charged Gilpatrick with Uttering Counterfeit Obligations or
Securities in violation of 18 U.S.C. § 472. Count 3 of
the Indictment charged Rogers with Uttering Counterfeit
Obligations or Securities in violation of 18 U.S.C. §
472. (ECF No. 1).
2, 2017, Rogers entered a plea of guilty to Count 3 of the
Indictment. (ECF No. 46); (ECF No. 44). The Plea Agreement
specifically recognized the court was not required to accept
the parties' recommendations for sentencing and that the
court “will determine Defendant's applicable
sentencing guideline range at sentencing.” (ECF No. 44
at ¶¶2, 7). The court is not bound by the
parties' stipulation regarding applicable offense level
enhancements. U.S.S.G. § 6B1.4(d); see U.S. v.
Easterling, 921 F.3d 1073, 1078-79 (10th Cir.
1990) (holding a district court may consider information not
stipulated in the plea agreement and is not bound by the
parties' stipulation); U.S. v. Rutter, 897 F.2d
1558, 1563-65 (10th Cir. 1990) (affirming the
district court's application of an offense level
enhancement not contained within the plea agreement because
the parties' agreement was not binding on the court and
the court could consider information beyond that stipulated
to by the parties).
level increase to the offense level applies “[i]f the
defendant (A) manufactured or produced any counterfeit
obligation or security of the United States, or possessed or
had custody of or control over a counterfeiting device or
materials used for counterfeiting.” U.S.S.G. §
2B5.1(b)(2)(A). This enhancement requires “some linkage
to the actual production of counterfeit obligations.”
U.S. v. Allen, 434 F.3d 1166, 1172
(9thCir. 2006); see also, U.S. v.
Malone, 49 F.3d 393, 399 (8th Cir. 1995)
(finding evidence of the devices, testimony from the
co-defendant, possession of the master bill, and portions of
counterfeit bills “constitutes reliable evidence that
[the defendant] manufactured counterfeit bills.”).
Evidence of counterfeit bills is “[o]rdinarily ...
proof that counterfeit devices or materials were
‘used' to produce counterfeit obligations.”
Allen, 434 F.3d at 1172. Expert testimony may also
establish the link between the counterfeit bills and the
devices used to manufacture those bills.”
(Id.). However, this enhancement “does not
apply to persons who produce items that are so obviously
counterfeit that they are unlikely to be accepted even if
subjected to only minimal scrutiny.” U.S.S.G. §
2B5.1, App. Note 3.
level increase to the offense level applies “[i]f a
dangerous weapon (including a firearm) was possessed in
connection with the offense.” U.S.S.G. §
2B5.1(b)(4). Where the United States Sentencing Guidelines
uses the term “in connection with, ” the Ninth
Circuit holds that phrase “mean[s] that the firearm
must have been possessed in a manner that permits an
inference that it facilitated or potentially facilitated-i.e.
had some potential emboldening role in-a defendant's
felonious conduct.” U.S. v. Ellis, 241 F.3d
1096, 1099 (9th Cir. 2001) (quotation marks and
citation omitted). Here, the firearm was found in Defendant
Rogers' hotel room along with counterfeit bills and
drugs. However, no evidence was presented whereby the court
could infer Rogers possessed the firearm in connection with
his offense of uttering counterfeit obligations. The
possession of the firearm in the hotel room was too
attenuated to those actions. Accordingly, the court did not
apply this enhancement.
the court's duty to determine the offense level and any
applicable enhancements under the United States Sentencing
Guidelines. Molina-Martinez v. U.S., 136 S.Ct. 1338,
1342 (2016); U.S.S.G. § 1B1.1(a)(2); see also,
U.S.S.G. § 6B1.4(d) (“The court is not bound by
the stipulation [of the parties contained in the plea
agreement], but may with the aid of the presentence report,
determine the facts relevant to sentencing.”). The
court may sua sponte raise the issue of whether an
enhancement applies. See U.S. v. Hong Van Nguyen,
303 Fed.Appx. 441, 443 (9th Cir. 2008)
(unpublished) (rejecting a defendant's appeal of a
district court imposing an enhancement the Government agreed
not to pursue and stating “[a] stipulation and
recommendation in a plea agreement does not bind the district
court”) (citing U.S.S.G. § 6B1.4(d)).
resolving any dispute concerning a factor important to the
sentencing determination, the court may consider relevant
information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support
its probable accuracy.” U.S.S.G. § 6A1.3(a);
see also, U.S. v. Petty, 982 F.2d 1365,
1367-68 (9th Cir. 1993). The court may rely on the
testimony of a co-defendant “where... the testimony is
given under oath and is subject to cross-examination.”
U.S. v. Flores, 725 F.3d 1028, 1038 (9th
Cir. 2013); see also, U.S. v.
Pimentel-Lopez, 859 F.3d 1134, 1144 (9th Cir.
2016) (finding a co-defendant's testimony that is not
under oath or subject to cross-examination did not establish
a “minimal indicia of reliability”).
burden of proof does not fall on the Defendant.
Allen, 434 F.3d at 1173.
courts generally use the preponderance of the evidence
standard of proof when finding facts at sentencing.”
U.S. v. Hymas, 780 F.3d 1285, 1289 (9th
Cir. 2015) (quotation marks and citation omitted). “The
higher clear and convincing standard may apply, however, when
a sentencing factor has an extremely disproportionate effect
on the sentence relative to the offense of conviction.
[citation omitted] Particularly where a severe sentencing
enhancement is imposed on the basis of uncharged or acquitted
conduct, due process may require clear and convincing
evidence of that conduct.” (Id.) (quotation
marks and citation omitted). The Ninth Circuit requires
evaluation of six factors to determine whether a sentencing
factor has a “disproportionate impact” on the
(1) whether the enhanced sentence falls within the maximum
sentence for the crime alleged in the indictment; (2) whether
the enhanced sentence negates the presumption of innocence or
the prosecution's burden of proof for the crime alleged
in the indictment; (3) whether the facts offered in support
of the enhancement create new offenses requiring separate
punishment; (4) whether the increase in sentence is based on
the extent of a conspiracy; (5) whether an increase in the
number of offense levels is less than or equal to four; and
(6) whether the length of the enhanced sentence more than
doubles the length of the sentence authorized by the initial
sentencing guideline range in a case where the defendant
would otherwise have received a relatively short sentence.
(Id. at 1290) (quoting U.S. v. Treadwell,
593 F.3d 990, 1000 (9th Cir. 2010).
manufacturing enhancement under U.S.S.G. § 2B5.1(b)(2)
does not take the guideline range beyond the 20 year
statutory maximum for the offense of Uttering Counterfeit
Obligations or Securities in violation of 18 U.S.C. §
472. The enhancement for manufacturing counterfeit bills
stems from the conduct for which Defendant pled guilty.
See Hymas, 780 F.3d at 1290. The enhancement has no
impact on the burden of proof or Defendant's presumption
of innocence for the charges in the Indictment because he has
already pled guilty to Uttering Counterfeit Obligations.
Additionally, the enhancement does not create a new offense,
because the manufacturing stems from the Uttering Counterfeit
Obligations offense conduct and does not involve a pending
criminal charge of manufacturing counterfeit obligations.
Guideline enhancements do not require proof beyond a
reasonable doubt. The Indictment did not charge Defendant
with a conspiracy nor was he convicted of a conspiracy.
See (ECF No. 1); Hymas, 780 F.3d at 1290.
enhancement under U.S.S.G. § 2B5.1(b)(2) only increases
the offense level by two. The court declined to apply
U.S.S.G. § 2B5.1(b)(3) which would increase the offense
level to level 15 based on a finding that the two level
enhancement under U.S.S.G. § 2B5.1(b)(2) applies.
Without that additional enhancement, Defendants' Offense