United States of America v. Mark Booker, a/k/a POMP BOOKER a/k/a JOSEPH BOOKER a/k/a JOSEPH ROYCE JOSEPH BOOKER

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-2060
___________
UNITED STATES OF AMERICA
v.
MARK BOOKER,
a/k/a POMP BOOKER
a/k/a JOSEPH BOOKER
a/k/a JOSEPH ROYCE
JOSEPH BOOKER,
Appellant
___________
On Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 00-00069)
District Judge: The Honorable John C. Lifland
___________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 14, 2003
Before: ROTH, FUENTES and ALDISERT, Circuit Judges.
(Opinion Filed: February 7, 2003)
________________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge.
Appellant Joseph Booker appeals from the 97 month sentence imposed on him by the
District Court after he pled guilty to two counts of the five count indictment then pending
against him. Booker asserts that the District Court erred by (1) imposing a four-level
enhancement for his alleged leadership role in the offense pursuant to U.S.S.G. 3B1.1(a);
(2) adopting the loss calculation contained in the Presentence Report rather than the amount
the government was seeking as restitution, resulting in a ten-level sentencing enhancement
under U.S.S.G. 2F1.1(b)(1)(K); (3) finding a criminal history category of VI; and (4)
imposing a two-level enhancement for obstruction of justice. Discerning no error in any of
the District Court’s determinations, we will affirm.
I. Facts and Procedural Background
The facts and circumstances underlying this case are well known to the parties, and
therefore, they are not detailed here, except to the extent that they directly bear upon the
analysis. As relevant to this appeal, Booker was charged by a grand jury with a five count
indictment in which he was accused of engaging in fraudulent acts in order to obtain
mortgage loans from various lenders in the names of his nephews, Dwight Drakeford and
Darnell Locke a/k/a Darnell Booker. Counts One through Four of the Indictment charged
Booker with using interstate wire communications on various dates in order to obtain money
and property by means of false and fraudulent pretenses, in violation of 18 U.S.C. 1342

-- 1 of 6 --

and 1343. Count Five charged Booker with conspiracy to devise a scheme and artifice to
defraud using interstate wire communications, contrary to 18 U.S.C. 1343 and in violation
of 18 U.S.C. 371.
On October 12, 2000, Booker appeared before the District Court and entered a plea
of guilty to Counts Three and Five of the Indictment. At issue during sentencing were
defendant’s acceptance of responsibility, the amount of monetary loss, defendant’s role in
the offense, calculation of criminal history, and whether it overstated the defendant’s actual
criminal history. The parties agreed to a two point reduction for acceptance of
responsibility. The Court ruled in favor of the government on the remaining issues. The
Court sentenced Booker to a term of 60 months on Count Three and 37 months on Count
Five, to be served consecutively. Additionally, the Court placed Booker on supervised
release for a term of 3 years on each Count, terms to run concurrently, imposed restitution
of $316,880, a fine of $15,000 and a special assessment of $100. Booker filed a timely
Notice of Appeal.
II. Jurisdiction
The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. 3231.
We have appellate jurisdiction pursuant to 28 U.S.C. 1291.
III. Discussion
A. The four-level enhancement for Booker’s leadership role in the offense under
U.S.S.G. 3B1.1(a)
In reviewing adjustments under the sentencing guidelines, "[w]e exercise plenary
review over legal questions about the meaning of the sentencing guidelines, but apply the
deferential clearly erroneous standard to factual determinations underlying their application.
United States v. Inigo, 925 F.2d 641, 658 (3d Cir. 1991) (citing United States v. Ortiz, 878
F.2d 125, 126-27 (3d Cir. 1989)). Whether a defendant receives an increased offense level
based on his role in the offense is a factual determination which is reviewable under the
clearly erroneous standard. See United States v. Badaracco, 954 F.2d 928, 933 (3d Cir.
1992), reh’g and reh’g en banc denied Feb. 19, 1992 (citing United States v. Salmon, 944
F.2d 1106, 1126 (3d Cir.1991)).
U.S.S.G. 3B1.1(a) provides for a four-level enhancement "[i]f the defendant was
an organizer or leader of a criminal activity that involved five or more participants or was
otherwise extensive[.]" U.S.S.G. 3B1.1(a) (2000). The burden of proving that an upward
adjustment is warranted by a preponderance of the evidence rests with the government. See
Badaracco, 954 F.2d at 935. In order to be considered a participant under the sentencing
guidelines, "an individual must be criminally responsible, i.e., s/he must have committed all
of the elements of a statutory crime with the requisite mens rea." Id. at 934-35.
Booker argues that the District Court erred by considering as participants in his
criminal activities Michael Bassillo and John Bigley, two appraisers who overstated the fair
market value of properties involved in his mortgage fraud. Booker asserts that, although the
appraisals received from Bassillo and Bigley were a necessary part of his criminal activities,
these individuals did not act in a manner that makes them criminally responsible because
they did not understand the scheme with which they were involved. Accordingly, Booker
asserts that the District Court should have assessed a two-level enhancement under U.S.S.G.
3B1.1(c), rather than the four-level enhancement of U.S.S.G. 3B1.1(a).
The government counters that, irrespective of whether or not Bassillo and Bigley are
considered to be participants, the four-level enhancement imposed by the District Court was
warranted because it was based on alternative findings made by the Court. Indeed, the Court
observed as follows:
However you define the group, whether you define it as the
Defendant[,] Drakeford, Darnell Booker, Robert Saypole and
Maureen Del Sole, or whether you define it to include the
[D]efendant, Drakeford, Darnell Booker, and the two
appraisers, Basillo [sic] and Bigley, you have a basis for the
finding of five participants. There is no question that Mr.
Booker was the organizer and leader of a criminal enterprise
that involved them.
****
In addition to counting the number of participants it is
abundantly clear to me that the criminal conduct that brings us

-- 2 of 6 --

here today was "otherwise extensive." And I so find.
Accordingly, the guidelines issue of role in the offense is
resolved as probation resolved it.
Appellee’s App. at 49-50 (quotation marks added).
Booker does not dispute that Drakeford, Darnell Booker, Saypol, and Del Sole were
all participants in the criminal activities for which he was convicted. Our review of the
record indicates that appellant’s nephews, Darnell Booker and Drakeford, each pled guilty
to a one-count information charging them with conspiracy to commit wire fraud.
Presentence Report at 5-6. Saypol, formerly an attorney admitted to practice law in New
Jersey and an indicted co-conspirator, pled guilty to a one-count information charging him
with misprision of a felony for his role in the fraudulent loan transactions, which included
misleading lenders by falsely certifying his receipt of down payment checks. Id. at 6 &
38. Del Sole was not charged, but testified before a grand jury that she knowingly
participated in Booker’s mortgage fraud scheme and acted under his direction while serving
as a vice president for his company by signing false documents which were submitted to
lenders. Id. at 39. Booker himself counts as a fifth participant. See United States v.
Colletti, 984 F.2d 1339, 1346 (3d Cir. 1992) (defendant was properly counted as a
participant because "there is no requirement that there be five persons in addition to their
leader, merely a criminal activity ’that involved five or more participants[.]’").
We conclude that the District Court’s finding that the criminal activity which Booker
organized involved five or more participants was not clearly erroneous. It is therefore
unnecessary for us to reach the issue of whether the District Court’s imposition of the four-
level enhancement was not clearly erroneous in light of its alternate finding that the conduct
before it was "otherwise extensive" within the meaning of U.S.S.G. 3B1.1(a).
B. The ten-level enhancement for fraud loss involving more than $500,000 under
U.S.S.G. 2F1.1(b)(1)(K)
"[O]ur review of the district court’s interpretation of ’loss’ under [U.S.S.G.] 2F
is plenary, and our review of the district court’s application of the guidelines is governed b
the clearly erroneous standard." United States v. Evans, 155 F.3d 245, 252 (3d Cir. 1998)
(citing United States v. Collado, 975 F.2d 985, 990 (3d Cir.1992)). "[L]oss need only be a
reasonable estimate, based on available information." United States v. Hayes, 242 F.3d
114, 117 (3d Cir. 2001) (citing U.S.S.G. 2F1.1(b)(1), Application Note 9). Pursuant to
U.S.S.G. 2F1.1(b)(1)(K) (2000), a defendant’s base offense level is increased by ten levels
when the amount of loss resulting from fraudulent conduct is more than $500,000 but less
than $800,000. See U.S.S.G. 2F1.1(b)(1)(K) (2000).
Booker argues that the District Court should have found a loss of $316,880, the
amount of restitution he was ordered to pay by the Court. He reiterates the argument he
made at sentencing that the fact that some of the banks which had made mortgage loans to
his nephews were not seeking restitution indicated that they had not been harmed and,
moreover, had incurred a tax advantage by writing off the unpaid loans. The government
counters by explaining how the probation office calculated that Booker was responsible for
an actual loss of $554,415. The Presentence Report indicates: "The actual loss was
calculated by determining how much of the principal loan amount was not recovered,
following a foreclosure by the lender or third-party investor. Foregone interest, unpaid real
estate taxes, and expenses incurred in the foreclosure sales have not been included in the
actual loss figure for each property." Presentence Report at 29 n.2.
We agree with the government that the Presentence Report’s calculation of loss was
conservative. The loss calculation was conservative because it did not include foregone
interest. See United States v. Sharma, 190 F.3d 220, 228 (3d Cir. 1999) ("[I]n determining
the amount of the actual loss sustained by the victim in a criminally fraudulent loan the
sentencing court may include the contractually bargained-for interest."). Also, the probation
office used a zero loss value for 6 of the 23 loans for which it lacked some supporting
documentation rather than approximating the amount of those losses.
We therefore conclude that the District Court’s finding of a loss in the amount of
$554,415 was not clearly erroneous.
C. The finding of Criminal History Category VI
A defendant’s criminal history category is calculated by adding criminal history
points for prior criminal convictions. See U.S.S.G. 4A1.1 (2000). U.S.S.G.

-- 3 of 6 --

4A1.2(a)(2) provides that "[p]rior sentences imposed in related cases are to be treated as one
sentence" for purposes of determining the appropriate criminal history category. U.S.S.G.
4A1.2(a)(2) (2000). "[P]rior sentences are considered related if they resulted from
offenses that (1) occurred on the same occasion, (2) were part of a single common scheme
or plan, or (3) were consolidated for trial or sentencing." U.S.S.G. 4A1.2(a)(2) (2000),
Application Note 3.
In this case, the offenses at issue did not occur on the same occasion and they were
not consolidated for trial or sentencing. The parties’ dispute is over whether they were part
of a common scheme or plan. The burden is on the defendant to establish that his prior
convictions were part of a common scheme or plan. See United States v. Beckett, 208 F.3d
140, 147 (3d Cir. 2000). The focus is on the defendant’s intent, which is a question of fact,
the resolution of which we review for clear error. See id.
Booker asserts that a Criminal History Category VI finding was not warranted. He
argues that his conviction in Alabama in March of 1979 for making a false statement on a
bank loan application was related to his conviction in New Jersey in September of 1979.
Booker argues that the Alabama and New Jersey offenses were part of a common scheme
or plan because he fraudulently purchased real property in New Jersey then used the property
as security to enable him to fraudulently obtain a loan in Alabama, which he used to
purchase a club there. He notes that the same investigation uncovered both crimes. In
response, the government asserts that the two frauds were not part of a common scheme or
plan because they occurred four months apart, had separate victims in separate states, and
had completely different modus operandi.
The District Court recognized that whether the offenses were part of a common
scheme or plan was addressed by this Court in United States v. Beckett, 208 F.3d 140 (3d
Cir. 2000). In Beckett, we adopted the Seventh Circuit’s holding that " ’scheme’ and ’plan’
are words of intention, implying that [the two offenses] have been jointly planned, or at leas
that it would have been evident that the commission of one would entail the commission of
the other as well." Beckett, 208 F.3d at 147 (citing United States v. Ali, 951 F.2d 827, 828
(7th Cir.1992)).
After setting forth the controlling legal standard, the District Court found:
There has been no showing that the conviction of one would
lead to conviction for the other. There has been no showing
that at the time of the commission of the first offense there was
a plan to commit the second offense. Indeed, there is nothing
indicating that at the time of the commission of the first offense
the defendant even intended to open a restaurant in Alabama,
and it is the financing of that restaurant that is the subject matter
of the second offense.
****
Exhibit D to the government’s sentencing memorandum is
referred to by the government, and does support the
government’s position in that Mr. Booker stated that he had
never planned to defraud the bank. . . It is difficult to see how
if he didn’t plan to defraud the victim in that offense, there
could be a common plan to defraud arising from that April,
1978, offense, and the August, 1978 Alabama offense.
So my analysis of the criminal history is that probation is
correct, and paragraphs 81 and 94 [of the Presentence Report,
describing, respectively, the Alabama and New Jersey
convictions] were each correctly assigned criminal history
points, the number of points is not challenged.
Appellee’s App. at 42-44. On appeal, Booker has not come forward with record evidence
supporting a conclusion that the District Court’s finding was clearly erroneous. We
conclude that the District Court did not err in finding that the Alabama and New Jersey
convictions were not related for sentencing purposes.
Next, Booker argues that the District Court should have granted his motion for
downward departure on the basis that the inclusion of his conviction in April of 1980 for
escape from a federal institution in the calculation of his criminal history category resulted

-- 4 of 6 --

in his Criminal History Category of VI, which overstates the seriousness of his actual
criminal history. We review a district court’s decisions concerning departures from the
Sentencing Guidelines for an abuse of discretion. See, e.g., United States v. Abuhouran,
161 F.3d 206, 209 (3d Cir. 1998) (citing United States v. Sally, 116 F.3d 76, 78 (3d Cir.
1997)). However, "[w]e lack jurisdiction to review a refusal to depart downward when the
district court, knowing it may do so, nonetheless determines that departure is not warranted."
United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1989) (citing United States v.
Denardi, 892 F.2d 269, 272 (3d Cir. 1989)).
The District Court recognized that it had the authority to grant a downward departure
on the basis that Criminal History Category VI overstated Booker’s actual criminal history.
The Court noted that:
taken together [the Alabama and New Jersey convictions and
the escape from a federal institution conviction] do not form a
basis for a downward departure as a significant over-
representation of criminal history . . .
[T]hey are all separately dealt with, and appropriately so. And
insofar as a likelihood of recidivism is concerned, this offense
that we are dealing with here today makes it abundantly clear to
me that there has been no over-representation of the likelihood
of recidivism inherent in [the offenses for which Booker was
previously convicted].
Appellee’s App. at 44-45. Because the District Court recognized that it had the authority
to grant a downward departure and concluded that a departure was not warranted, we lack
jurisdiction to review this ruling.
For the foregoing reasons, we conclude that the District Court properly determined
that a Criminal History Category of VI was appropriate.
D. The two-level enhancement for obstruction of justice
We apply a clearly erroneous standard in reviewing the District Court’s factual
determination that a defendant willfully obstructed justice. See United States v. Belletiere,
971 F.2d 961, 964 (3d Cir. 1992). U.S.S.G. 3C1.1 provides:
If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s offense of
conviction and any relevant conduct; or (ii) a closely related
offense, increase the offense level by 2 levels.
U.S.S.G. 3C1.1 (2000). The Application Notes provide that one way to trigger this
enhancement is by "providing materially false information to a judge or magistrate."
U.S.S.G. 3C1.1 (2000), Application Note 4(f).
On March 6, 1996, after learning that his nephews had confessed to the FBI, Booker
made a series of inculpatory statements to special agents of the FBI. He subsequently moved
to suppress those statements. In support of his motion to suppress, Booker averred that,
when he was being questioned by the FBI, he did not understand that he was free to leave,
could remain silent, or could terminate the questioning. He also averred that he believed tha
he was going to be questioned about matters in which there were no allegations of
wrongdoing against him. Additionally, in paragraph 3 of his affidavit, Booker averred that,
although his attorney told him that he signed an "Interrogation and Advice of Rights Form,"
he did not understand that the statements he made to the FBI could be used against him.
After briefing on the suppression motion, the Court denied the motion to suppress.
During the sentencing hearing, the District Court heard testimony from Postal
Inspector Robert Krut, who was present when Booker made inculpatory statements on
March 6, 1996. Krut testified that Booker was advised that he was the target of an
investigation and was advised of his rights in detail before he signed the waiver. Krut also
testified that, when Booker told the authorities that he wished to leave later in the afternoo
in order to make another appointment he had scheduled, they told him he could do that and
thereby gave him control over the duration of the interview. Krut described Booker as being

-- 5 of 6 --

relaxed, cordial, and cooperative. See Appellee’s App. at 86-91. After hearing Krut’s
testimony and that of FBI Agent Scott Marino, the District Court ruled:
Now, I denied the suppression motion to which this affidavit,
paragraph 3, that we are all referring to was an adjunct, it was
submitted in support of that suppression motion, found I did not
believe the defendant.
I now go further. Not only do I not believe paragraph 3. I find
that it was a deliberate lie. I do not implicate counsel in that. .
. .
So the fact that the affidavit was prepared by counsel does not
implicate counsel in this. But it certainly implicates the
defendant whose position it is, whose statement it is, and who
swore to it, and he swore to it in an effort to have evidence that
he willingly gave in the March 6 meeting suppressed. So I find
an obstruction of justice based upon Inspector Krut’s testimony.
Appellee’s App. at 141-42. Booker asserts that, because the statements he made in his
affidavit in support of his motion to suppress related to his state of mind and level of
understanding of his constitutional rights, they are not sufficiently factual to meet the
materiality requirement of U.S.S.G. 3C1.1. We disagree. Material information is defined
by the Application Notes as meaning "evidence, fact, statement, or information that, if
believed, would tend to influence or affect the issue under determination." U.S.S.G.
3C1.1 (2000), Application Note 6. Here, Booker’s sworn statement was material because,
if believed, it would "tend to influence" whether or not the Court suppressed the inculpatory
statements he made to the authorities.
We discern no error in the District Court’s imposition of a two-level enhancement for
obstruction of justice.
IV. Conclusion
After carefully considering the arguments discussed above and all other arguments
advanced by the appellant in support of his assertion that the District Court erred with
respect to his sentencing, we affirm the District Court’s judgment.
_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
By the Court,
/s/ Judge Juli
Circuit Judg

-- 6 of 6 --