UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN G.G. KREGAS,

Defendant - Appellant.

No. 03-1435

(D. Colorado)

(D.Ct. No. 03-CR-92-M)

ORDER AND JUDGMENT*

Before SEYMOUR, LUCERO, and O'BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

John G.G. Kregas was convicted of making a false statement and aiding and abetting the same in violation of 18 U.S.C. §§ 2 and 1014. He was sentenced to twenty-one months imprisonment. Kregas appeals arguing his sentence is unconstitutional under Blakely v. Washington, 124 S.Ct. 2531 (2004)1. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I. Factual Background

In 1995, Kregas, Roger Howard and Pierre Coleman formed Online Marketing Solutions (Online) in Colorado.2 In late 1996, Online began selling custom-made golf clubs under the name Executive Golf Unlimited.3 The golf clubs were sold by telemarketers hired by Online. If a customer wished to buy the golf clubs, the telemarketer would record the customer's credit card information and transfer this information to Online for processing. Initially, Online used other companies to process its credit card sales. However, because these companies charged Online for this service, Kregas and Howard decided they wanted to obtain their own merchant account.4 Therefore, in early 1997, Howard contacted Brian Bourjaily, an independent sales representative of credit card processing services, who referred Howard to Luke Anastasakis, the owner of Merchant Services International (Merchant Services), a company that assists merchants in obtaining credit card processing capabilities.

Anastasakis and Bourjaily determined they would obtain Online's merchant account through Northeast Merchant Services (NEMS), an Independent Sales Organization5 associated with Chittenden Bank (Chittenden) in Vermont. They provided Howard with a merchant account application. NEMS rejected Online's initial application because Kregas, the sole signer/guarantor, had insufficient credit. Therefore, NEMS provided Online with a new application, instructing it that someone with sufficient credit involved with the company would have to sign it.

In February 1997, Online submitted a second application to NEMS. The second application was signed by Kregas and identified him as Online's President and a twenty percent shareholder. The application also contained the forged signature of Jessica Onesty, Howard's mother-in-law, and falsely indicated Onesty was Online's "CEO" and a thirty-one percent shareholder. The application's personal guarantee form bore Kregas' signature and Onesty's forged signature.6 Based on Onesty's credit-worthiness, NEMS approved the application and forwarded it to Chittenden.7 Chittenden in turn approved the application, conditioned on Online opening a reserve account with a minimum deposit of $10,000 and an operating account. On March 10, 1997, Chittenden sent a letter addressed to Kregas informing him of its conditional approval and enclosing a reserve account agreement and a signature card for the operating account. Kregas signed the reserve account agreement and he and Howard signed the operating account's signature card. The agreement and card were returned to Chittenden along with a $10,000 check signed by Kregas to be deposited into the reserve account.

Thereafter, Chittenden opened a merchant account for Online, and Online began processing its credit card sales through this account. Each credit card sale resulted in a credit to the account. Once it entered the merchant account, the amount of the sale was immediately transferred to Online's operating account, which was a checking account. Once the money was deposited into its operating account, Online would wire the money to its bank in Colorado for its use.8 Between March 26, 1997, and April 10, 1997, Online authorized a series of wire transfers from its operating account to its Colorado bank. All of the wire transfer authorizations contained Kregas' signature but only a few of them were actually signed by him, the remainder having been signed by other Online employees.

Beginning in June 1997 and continuing through September 1997, Online began receiving a number of chargebacks9 due to non-delivery or unacceptability of its golf clubs and its failure to issue refunds.10 In response to these chargebacks, Chittenden debited Online's operating account, eventually resulting in an overdraft to the account. One of NEMS's owners, Aaron Dewar, contacted Howard and Kregas concerning the situation. Dewar informed them NEMS would be attempting to recover the money from the guarantors on the merchant account application. In response, Kregas "vehemently" stated he did not want NEMS contacting Onesty.11 (R. Vol. V at 283.)

Chittenden eventually closed Online's merchant account. As a result of the chargebacks and Online's inability to cover them, Chittenden lost approximately $320,785.64.

II. Procedural Background

On February 25, 2003, Kregas and Howard were charged by indictment with knowingly making a false statement and report for the purpose of influencing Chittenden to approve Online's merchant account application and aiding and abetting the same in violation of 18 U.S.C. §§ 2 and 1014.12 Specifically, the indictment alleged Kregas and Howard falsely indicated on the merchant account application that Onesty was Online's CEO and that she personally guaranteed the performance of the merchant account. On May 21, 2003, the government re-charged Howard with conspiracy to make a false statement and report for the purpose of influencing Chittenden to approve Online's merchant account application. Howard pled guilty and was sentenced to fifteen months imprisonment. Kregas proceeded to trial on July 7-10, 2003.

At trial, Onesty testified she never signed the merchant account application, never agreed to serve as a guarantor of the merchant account, was not Online's CEO, did not own Online stock and never provided her driver's license to anyone at Online.13 Beverly Mazur, a Questioned Documents Examiner for the City of Aurora Police Department, testified she compared Onesty's signature on the application with her known signature and concluded the signature on the application was a simulation of her actual signature. However, Mazur could not determine who forged Onesty's signature, including whether Kregas was the forger. Several individuals familiar with Kregas' handwriting testified the merchant account application contained Kregas' handwriting and Kregas himself admitted he completed most of the application, albeit at Howard's direction. Stacey Baldwin, the Online Marketing employee who witnessed the signatures on the application, testified Onesty's signature was not on the application at the time she signed as a witness and in fact, the space where Onesty's signature appeared was blank. In explaining the blank signature line, Baldwin stated Kregas told her he had forgotten a signature and would have Coleman (Online's Secretary) sign it. Tye Walton, another Online Marketing employee, testified Kregas had admitted to him that he had signed Onesty's name to the application. Eileen Smith, the Chittenden underwriter who approved Online's second application, testified she would not have approved the application if Onesty had not been listed as a personal guarantor because Kregas' credit history did not meet the bank's standards.14

Kregas testified in his own defense and attempted to shift the blame to Howard. During his testimony, he denied signing Onesty's name on the application. He testified Howard had asked Onesty to co-sign on the merchant account and that Onesty had agreed. He further stated that at the time the application was being completed, Howard was in the process of making Onesty "CEO" of Online and a thirty-one percent owner. Although he admitted to filling out the application, he stated he provided the completed application to Howard and told Howard to get Onesty to sign it. He also denied ever preparing or submitting the false financial statements and 1996 tax return to NEMS.

The jury found Kregas guilty. A presentence investigation report (PSR) was prepared.15 Applying USSG §2F1.1(a), the guideline applicable for a violation of 18 U.S.C. § 1014, the probation officer determined Kregas' base offense level was 6. However, because the amount of loss to Chittenden was between $200,000 and $350,000, the officer increased the base offense level by eight levels pursuant to USSG §2F1.1(b)(1)(I). The officer also added two levels pursuant to USSG §2F1.1(b)(2) because the offense involved more than minimal planning. Based on a total offense level of 16 and a criminal history category of I, the probation officer calculated the guideline range as twenty-one to twenty-seven months imprisonment. He also recommended Kregas be ordered to make restitution in the amount of $171,015.52 to Chittenden, $1,355.97 to NEMS and $148,414.15 to Merchant Services.16

Kregas raised several objections to the PSR. First, he argued that the evidence at trial demonstrated that most of the wire transfer authorizations Online submitted to Chittenden were not actually signed by Kregas. Because the authorizations actually signed by Kregas only totaled $110,000, Kregas alleged the net loss to Chittenden as a result of his "relevant conduct" was $100,000 (after crediting the $10,000 deposit made to the reserve account). Thus, Kregas argued his base offense level should only be increased six levels pursuant to USSG §2F1.1(b)(1)(G) (authorizing a six level increase if the amount of loss falls between $70,000 and $120,000). Kregas also objected to the PSR based on its failure to provide him with a three level reduction under USSG §3B1.2 based on his role in the offense, which he claimed to be between a minimal and minor role.17 He argued that the evidence at trial established Howard was the individual responsible for setting up Online's merchant account and submitting the merchant account application to Chittenden. He further emphasized that the majority of the loss to Chittenden resulted from wire transfer authorizations submitted to Chittenden without Kregas' knowledge or consent. Lastly, Kregas sought a downward departure for aberrant behavior pursuant to USSG §5K2.20 based on his lack of a criminal history and his post-offense conduct (which included six years of continual self-employment and no criminal activity).

The district court rejected Kregas' arguments. As to the amount of loss, it noted Kregas was not objecting to the amount of restitution and concluded Kregas was responsible for the total amount of loss resulting from the merchant account's existence ($320,785.64), regardless of whether he signed the wire transfer authorizations. As to Kregas' role in the offense, the court did not agree it was minimal or minor and found Howard and Kregas had an "equal[]" role in completing and submitting the false merchant account application. (R. Vol. IX at 8.) The court also denied Kregas' request for a downward departure based on aberrant behavior. Adopting the recommendations in the PSR, the court sentenced Kregas to twenty-
one months imprisonment. It also ordered Kregas to pay restitution in the amount of $320,785.64, to be paid jointly and severally with Howard. This appeal followed.

III. Discussion

Kregas asserts his sentence, imposed pursuant to the mandatory federal sentencing guidelines and enhanced pursuant to judge-found facts, violates the Sixth Amendment under Blakely and Booker.18 Although Kregas raised sentencing objections in the district court, those objections did not include a Sixth Amendment violation. Thus, we review for plain error. United States v. Dazey, 403 F.3d 1147, 1173-74 (10th Cir. 2005) (holding that although the defendant contested at sentencing the evidentiary basis of the judge-found facts, because he did not raise a Sixth Amendment violation below, plain error review applied); see also United States v. Gonzalez-Huerta, 403 F.3d 727, 730 (10th Cir. 2005) (en banc) (applying plain error review due to defendant's failure to raise Booker in the district court). To establish plain error, Kregas must demonstrate there is (1) error, (2) that is plain and (3) the error affects his substantial rights. Dazey, 403 F.3d at 1174; Gonzalez-
Huerta, 403 F.3d at 732. If these three prongs are met, we may exercise our discretion to correct the error if Kregas establishes "the error seriously affects the fairness, integrity, or public reputation of judicial proceedings," i.e. the fourth prong of plain error review. Dazey, 403 F.3d at 1174; see also Gonzalez-Huerta, 403 F.3d at 736-37.

A. Defining the Error

In Booker, the Supreme Court extended its holding in Blakely to the federal sentencing guidelines, holding that the Sixth Amendment requires "[a]ny 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 [to] be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 125 S.Ct. at 756. To remedy the constitutional infirmity of the guidelines, Booker invalidated their mandatory nature, requiring the district court to consult them in an advisory fashion. Id. at 756-57 (severing and excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). In Gonzalez-Huerta, we determined there were two types of error a district court could commit prior to Booker. 403 F.3d at 731. The first, referred to as "constitutional Booker error," occurs when the district court relies upon judge-found facts (other than a prior conviction) to enhance a defendant's sentence mandatorily, a practice proscribed by the Sixth Amendment. Id. The second type of error, referred to as "non-constitutional Booker error," results when the district court applies the guidelines in a mandatory rather than advisory fashion, even though the resulting sentence was calculated based solely upon facts admitted by the defendant or found by a jury. Id. at 731-32. Because the parties dispute what type of error was committed below, we must first define the error.

Kregas asserts the error in this case was "constitutional Booker error" because his sentence was enhanced based on the district court's fact-finding, specifically that the amount of loss was between $200,000 and $350,000 and the offense involved more than minimal planning. The government contends no Sixth Amendment violation occurred. It alleges the amount of loss was a legal determination, specifically, whether Kregas could be held responsible under the guidelines' relevant conduct provision (USSG §1B1.3) for those losses caused by the wire transfer authorizations signed by his co-workers. As to the enhancement for more than minimal planning, the government contends Kregas waived any Blakely argument by failing to make any objection to the enhancement at sentencing and not challenging it on appeal. In his reply brief, Kregas disagrees with the government's assertion that the amount of loss issue was a legal determination. He contends that in ascertaining the amount of loss under USSG §2F1.1, the district court was required to decide whether the actions of his co-workers in forging his signature to the wire transfer authorizations were "reasonably foreseeable" to him under the relevant conduct provision of USSG §1B1.3. Because "reasonable foreseeab[ility]" is a fact question, not a legal one, Kregas maintains the amount of loss enhancement was the result of judicial fact-finding and therefore, in violation of the Sixth Amendment.

As to the amount of loss enhancement, we agree with the government that no Sixth Amendment violation occurred. Kregas' objection at sentencing to the amount of loss was based on his argument that he could only be held responsible for the amount of loss resulting from the wire transfer authorizations he signed. His argument was rejected based on the district court's legal interpretation of USSG §2F1.1 and §1B1.3. Specifically, the court determined it was "the existence of the account that resulted in the losses, whether he sent the wire transfer authorizations or not." (R. Vol. IX at 8.) Although Kregas attempts to rely on the "reasonable foreseeab[ility]" language in the guidelines' relevant conduct provision, this language pertains to cases involving jointly undertaken criminal activity. See USSG §1B1.3(a)(1)(B) ("[I]n the case of a jointly undertaken criminal activity . . . [relevant conduct includes] all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity."). However, as the Commentary to §1B1.3 states: "The requirement of reasonable foreseeability applies only in respect to the conduct . . . of others under subsection (a)(1)(B). It does not apply to conduct that the defendant personally undertakes, aids, abets, counsels, commands, induces, procures, or willfully causes; such conduct is addressed under subsection (a)(1)(A)." USSG §1B1.3, comment. (n. 2). Here, Kregas was convicted of personally aiding and abetting the submission of the false application to Chittenden. Therefore, as the district court legally concluded, §1B1.3(a)(1)(A), rather than §1B1.3(a)(1)(B), was the pertinent "relevant conduct" provision and Kregas was responsible for the total amount of loss to Chittenden resulting from the merchant account, which was obtained solely due to the submission of the false application. Kregas admitted this loss was $320,785.64. (See R. Vol. I, Doc. 68 at 3; Vol. IX at 7.) Consequently, no Sixth Amendment violation resulted concerning the amount of loss because an eight-level enhancement under USSG §2F1.1(b)(1)(I) was authorized by the guilty verdict and Kregas' admissions.

Additionally, no Sixth Amendment violation occurred as to the more than minimal planning enhancement.19 In this case, if the two-level enhancement for more than minimal planning had been omitted from the court's guideline calculations, the applicable offense level would have been 14, resulting in a guideline range of fifteen to twenty-one months imprisonment. Kregas received a twenty-one month sentence—a sentence the district court could have imposed without the more than minimal planning enhancement. Therefore, no constitutional error occurred as a result of this enhancement. See United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir. 2005) (en banc) ("Booker made clear that it is the actual sentence, not the sentencing range, that must not be increased based upon judge-
found facts in order to violate the Sixth Amendment . . . .").

Although there was no Sixth Amendment violation in this case with respect to the amount of loss and more than minimal planning enhancements, the district court did apply the guidelines in a mandatory fashion. Therefore, the district court committed "non-constitutional Booker error" at sentencing. Having defined the error, we now proceed with the plain error analysis.

B. Plain Error Analysis

Obviously, the first and second prongs of the plain error standard are met. As stated above, the district court committed "non-constitutional Booker error" based on its mandatory application of the guidelines. Second, the error is "plain" because Booker renders the error both clear and obvious on appeal. Gonzalez-Huerta, 403 F.3d at 732. The question then is whether Kregas can satisfy the third and fourth prongs of plain error review.

Under the third prong, Kregas must show that the error affects his substantial rights, that is, "the error must have been prejudicial: It must have affected the outcome of the district court proceedings." Dazey, 403 F.3d at 1175 (quotations omitted). However, we need not decide whether Kregas has satisfied the third prong of the plain error standard because, even if he has, we conclude he has not met the fourth prong. See Gonzalez-Huerta, 403 F.3d at 736 (concluding it was not necessary to determine whether the third prong of the plain error test was met because the fourth prong must also be satisfied to obtain relief and the fourth prong was not met).

"Under the fourth prong of plain-error review, a court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. If "non-constitutional [Booker] error" is involved, as in this case, the standard for satisfying the fourth prong is "demanding"—the defendant must show that the error is "particularly egregious" and that our failure to notice it would result in a "miscarriage of justice." Dazey, 403 F.3d at 1178 (citation & quotations omitted); Gonzalez-Huerta, 403 F.3d at 736-37. We have recognized that in most cases involving "non-constitutional Booker error" the defendant will be unable to satisfy the fourth prong. See United States v. Trujillo-Terrazaz, 405 F.3d 814, 820-21 (10th Cir. 2005) (recognizing difficulty in establishing fourth prong in cases involving "non-constitutional Booker error" but finding that defendant had met fourth prong). This case is no exception.

Kregas received a sentence within the national norm as established by the guidelines and there is no evidence supporting a lower sentence. See Gonzalez-
Huerta, 403 F.3d at 738-39 (considering in fourth prong analysis whether the defendant received a sentence within the guidelines/national norm and whether the record supported a lower sentence). At sentencing, Kregas sought a three-level downward adjustment based on his role in the offense and a downward departure based on aberrant behavior. In support of his downward departure motion, Kregas emphasized his law-abiding life since the offense and the absence of any criminal history other than some non-moving traffic violations. Despite recognizing its authority to apply a downward adjustment and/or to downward depart, the court chose not to do so. Although a court's authority to depart downward pre-Booker was more constrained than it is post-Booker, we find the district court's explicit decision not to exercise its pre-Booker discretion compelling. See United States v. Lawrence, 405 F.3d 888, 908 (10th Cir. 2005) (finding that the district court's refusal to depart downward is further evidence the court felt the seventy-two month sentence was appropriate and that it would have imposed the same sentence under an advisory guidelines scheme).

Equally compelling are the district court's statements at sentencing. In relevant part, the court stated:

Mr. Kregas, before I do the formal sentencing, I'll tell you what I think. My obligation is to be candid also. I don't believe your testimony. The jury didn't believe your testimony, and I don't either.

. . . .

But, the bottom line, as you refer to it, in business is honesty. . . . [C]ommercial transactions require . . . that people . . . are honest. The whole country runs on credit, and the people who extend hard dollars have to be able to rely on what they're told as to what their risks are.

Now, I am going to punish you with a 21 month sentence because you're dishonest. It's not that you're a bad man. I believe what is in these letters, except[] for one thing, trustworthiness.

[W]e have these guidelines, and they represent the considered judgment of not only the Sentencing Commission, but [] Congress . . . .

The fundamental [policy] that was behind them . . . is . . . look, people who commit crimes have to be punished according to these categories that are established. . . .

. . . .

[W]hat really was one of the motivations for establishing the

Commission and the guidelines is that judges, in the view of Congress, were inconsistent with themselves and also among judges, and there was a great concern that people . . . who otherwise were fine people were getting off. They weren't being punished. Other people who didn't present such a good background were getting punished too much.

Now, its not a question of the individual so much anymore under the

law. It's a question of what you did. You get punished for what you did, no[] matter who you are. . . .

So, that's the spirit in which I'm imposing this sentence. I believe you to be a good man. I believe that you come from a fine family, and that this is inconsistent with your . . . life otherwise. But, . . . you're going to appeal this, I'm sure, so, . . . I'm just telling you what I think. . . . I have to punish the crime.

. . . .

People in your very same situation have to know if you make this kind of a move, you're going to do time, just like bank robbers and drug traffickers and everybody else.

(R. Vol. IX at 20-23.)

None of these statements express a dissatisfaction with Kregas' sentence; indeed, it appears the district court felt a twenty-one month sentence was appropriate. Therefore, there is no indication the district court would impose a significantly different sentence under an advisory sentencing system. See Lawrence, 405 F.3d at 907 ("Whether the district court would simply reimpose the same sentence on remand, or whether instead the sentence 'would likely change to a significant degree if [the case] were returned to the district court for discretionary resentencing,' is one factor to consider in determining whether the defendant can satisfy the fourth plain-error prong.") (quoting Gonzalez-Huerta, 403 F.3d at 743-
44 (Ebel, J., concurring)).

Moreover, these statements demonstrate a consideration and rejection of a majority of the factors listed in 18 U.S.C. § 3553(a), including "the history and characteristics of the defendant" and the need for the sentence imposed to "reflect the seriousness of the offense," "promote respect for the law," "provide just punishment" and "afford adequate deterrence." See Booker, 125 S.Ct. at 764 ("Without the 'mandatory' provision, the [Sentencing Reform Act of 1984] nonetheless requires judges to take account of the Guidelines together with other sentencing goals" contained in 18 U.S.C. § 3553(a).). Having rejected these factors once, there is no reason to believe the district court would now consider them sufficient enough to warrant a lower sentence. Therefore, declining to notice the Booker error in this case would not offend core notions of justice. Based on the above, Kregas fails to satisfy the fourth prong of plain error review; thus, we decline to exercise our discretion to correct the error below.

IV. Conclusion

Having failed to satisfy plain-error review, Kregas' sentence is AFFIRMED.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge