Published on:

Sentence reversed for inaccurate loss amount and denying a minor role

Presendieu and Jean were indicted on bank fraud conspiracy and aggravated identity theft for participating in a check cashing scheme where they cashed fraudulent checks at Kwik Stop Food Store owned by Habib. Presendieu pled guilty to conspiracy to commit bank fraud in violation of 18 U.S.C. 1349 and aggravated identity theft in violation of 18 U.S.C. 1028A. As part of his guilty plea Presendieu signed a seven page detailed Factual Proffer in Support of Guilty Plea admitting his participation in Habib’s illicit check cashing services by cashing stolen checks with forged endorsements and using false identification documents to cash them. He then entered his guilty plea colloquy pursuant to Rule 11.

In his appeal Presendieu complains that his guilty plea was procedurally defective and unconstitutional because the district court failed to inform him of the nature of the charges, never outlined separately each element of his two offenses, and never asked him whether he understood those elements. He did not raise these objections before the district court and raised them for the first time in his appeal to the Eleventh Circuit Court of Appeals.

The appellate court concluded that the district court did not commit plain error under Rule 11 or under the constitution in accepting Presendieu’s guilty plea. It found that Presendieu was aware of the charges to which he plead guilty, he was sufficiently intelligent to understand the nature of those charges, he understood that the facts set forth in the factual proffer established that he was guilty of those two particular offenses, he had discussed the two charges and the facts in the proffer with his attorney, and he intelligently pled guilty to both charges in the plea agreement.

Jean also pled guilty to conspiracy to commit bank fraud and to aggravated identity theft. In her appeal she challenged the district court’s loss calculation of $193,132 for fraudulent stolen checks, claiming that the district court’s amount should not have included $84,000 from the check cashing activities of a person named Pharr. She argued that Pharr’s conduct was neither within the scope of Jean’s jointly undertaken criminal activity nor was it reasonably foreseeable.

The court of appeals agreed, finding the lower court erred in holding Jean responsible for the $84,000 of loss incurred as a result of Pharr’s independent check cashing activity. At her sentencing Jean asserted that she never met or dealt with Pharr and was unaware of Pharr’s existence during her own crimes. There was no evidence of any contact at all between Pharr and Jean or that Jean knew about Pharr or about any of Pharr’s activity. Jean’s mere awareness that she was part of a larger check cashing scheme is alone insufficient to show that Pharr’s criminal activity was within the scope of Jean’s jointly undertaken criminal activity.

The court of appeals also reversed the trial court’s decision denying her request for a minor role reduction under 3B1.2(b) of the sentencing guidelines. The court remanded the case to the Miami federal court to examine her role in the overall federal criminal fraud in light of the  totality of the circumstances. The  trial court incorrectly focused on her being held accountable for her own actions as opposed to the broader conspiracy.