United States of America v. Booker, 125 S. Ct. 738 2005 . Although the district court committed no clear errors…

* The Honorable Lesley Wells, United States District Judge for the Northern District of Ohio,
sitting by designation.
File Name: 05a0221n.06
Filed: March 29, 2005NOT RECOMMENDED FO
R FULL-TEXT PUBLICATION
No. 03-2548
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
-vs-
CARL ROBERT KOPIETZ III,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
Before: NELSON and SUTTON, Circuit Judges; WELLS, District Judge*
WELLS, District Judge. Appellant Carl Robert Kopietz III contends that the
district court misapplied the federal sentencing guidelines in imposing his sentence. Mr.
Kopietz was sentenced prior to the United States Supreme Court’s decision in United
States v. Booker, 125 S. Ct. 738 (2005). Although the district court committed no clear
errors in calculating Mr. Kopietz’s guideline range, under the impact of Booker and
United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), it plainly erred by treating the
guidelines as mandatory. Accordingly, we vacate Mr. Kopietz’s sentence and remand
his case for resentencing.

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1 The 2003 version of the guidelines was used in calculating Mr. Kopietz’s offense level, as so all
references to the guidelines refer to that version.
2
I.
On June 26, 2003, Mr. Kopietz and a co-defendant were indicted on a single
count of conspiring to defraud the Internal Revenue Service (“IRS”) by obtaining and
aiding to obtain the payment of false and fictitious claims against the United States, in
violation of 18 U.S.C. §§ 286 and 287. On September 3, 2003, defendant entered a
plea of guilty to the indictment. Mr. Kopietz admitted that he had conspired with John
Edward Barnes to file false income tax returns. Because his co-conspirator was
incarcerated, Mr. Kopietz did all the ground work including ordering the tax forms from
the government, obtaining W-2 employer identification numbers, and collecting
addresses where the tax returns could be sent. He sent all that information to Mr.
Barnes who provided the names for the fraudulent taxpayers and prepared the
fraudulent tax returns. Although no funds were received from the IRS, Mr. Kopietz
admitted that had they been, he would have been in charge of collecting the tax refund
checks and cashing them.
The district court’s offense level calculations were adopted from the pre-sentence
report (PSR):1
Base Offense Level: [Section 2B1.1(a)] 6
Specific Offense Characteristic: [Section 2B1.1(b)(1)(D)--
Amount of Loss] +6
Specific Offense Characteristic: [Section 2B1.1(b)(8)(C)--
Sophisticated Means] +2
Adjusted Offense Level (Subtotal): 14

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3
Adjustment for Acceptance of Responsibility: [Section 3E1.1(a)] -2
Total Offense Level: 12
At sentencing, Mr. Kopietz objected to these calculations, arguing that: 1) the offense
conduct did not involve sophisticated means and thus the two-level enhancement was
improper; and, 2) he played a minor role in the offense and therefore should have
received a two-level reduction, pursuant to Section 3B1.2(b). Accordingly, Mr. Kopietz
asserted his total offense level should be 8.
The district court disagreed on both points, overruling Mr. Kopietz’s objections
and concluding that the appropriate guideline range was 27-33 months, based on a total
offense level of 12 and a criminal history of V. Mr. Kopietz was sentenced to a 27
month term of imprisonment, imposed consecutive to two state sentences.
II.
On appeal, Mr. Kopietz contends the district court erred in resolving his
objections to the guideline calculations. He argues the district court clearly erred in
finding that the crime involved “sophisticated means” and that he was more than a
minor participant in the offense.
A sentencing court’s determination that a downward adjustment for a defendant’s
role in the offense is not warranted is reviewed for clear error. United States v. Latouf,
132 F.3d 320, 332 (6th Cir. 1997). U.S.S.G. § 3B1.2 provides a downward adjustment
of two levels if the defendant was a minor participant in the offense. Such an
adjustment is “not appropriate in the absence of a finding that the defendant was
'substantially less culpable than the average participant' in the criminal enterprise." Id.

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4
Moreover, a defendant whose participation “is indispensable to the carrying out of the
plan is not entitled to a role reduction.” Id. Under the Sentencing Guidelines, Mr.
Kopietz must prove the mitigating factors that justify a reduction by a preponderance of
the evidence. Id. This he has failed to do.
Although Mr. Kopietz did not prepare the fraudulent tax returns, he did everything
else. Because his co-conspirator was incarcerated, Mr. Kopietz obtained the necessary
information for the fraudulent returns and he would have been critical to the completion
of the crime in picking up the tax refunds and cashing them. Such roles in the offense
are not minor. Mr. Kopietz’s conduct was indispensable to carry out the criminal
enterprise. Under these circumstances, the district court did not clearly err in finding a
reduction for Mr. Kopietz’s role in the offense unjustified.
In Mr. Kopietz’s other argument on appeal, he asserts that the district court
clearly erred in finding that he and his co-defendant utilized “sophisticated means” in
carrying out the criminal conspiracy. Section 2B1.1(B)(8)(C) provides for a 2-level
enhancement if the “offense otherwise involved sophisticated means.” In this context,
sophisticated means refers to “especially complex or intricate offense conduct
pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1,
application note 7. The district court’s finding the Section 2B1.1(B)(8)(C) enhancement
applied is a factual finding subject to clear error review. United States v. Ables, 167
F.3d 1021, 1035 (6th Cir. 1999); United States v. Johnson, 344 F.3d 562, 565 (6th Cir.
2003). A factual finding is clearly erroneous where “the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
Ables, 167 F.3d at 1035.

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5
Mr. Kopietz and his co-defendant discussed filing false income tax returns while
they were incarcerated together. Once Mr. Kopietz was released from prison he
ordered tax forms, obtained employer identification numbers from his wife and uncle’s
W-2s, and identified addresses where the false tax refunds could be sent and where Mr.
Kopietz could pick up the checks and cash them. Then he mailed this information to Mr.
Barnes in prison who then filed at least 15 fictitious and fraudulent tax returns. While
the information used was not itself unduly complex or difficult to obtain, the repetitive
nature of the necessary conduct along with defendants’ creation of numerous fictitious
identities precludes our finding “with definite and firm conviction” that the trial court erred
in applying the enhancement.
After Mr. Kopietz was sentenced and while his case was on appeal, the Supreme
Court decided United States v. Booker, 125 S. Ct. 738 (2005), which significantly
altered the landscape of federal sentencing. The Court concluded that the Sixth
Amendment, as construed in Blakely v. Washington, 124 S. Ct. 2531 (2004), applied
with equal force to the federal sentencing guidelines such that “[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 must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at
755-56. To avoid Sixth Amendment concerns by what had been considered the
mandatory nature of the sentencing guidelines, the Supreme Court severed two
provisions of the Sentencing Reform Act of 1984, thereby rendering the guidelines
advisory. Id. at 756-57 and 764-65; see also United States v. Oliver, 397 F.3d 369,
379-80 (6th Cir. 2005). Post-Booker, a sentencing court must consider guideline

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2 This lower guideline range is based on a total offense level of 10, which is calculated by
excluding the two-level “sophisticated means” enhancement.
3 Mr. Kopietz does not challenge the district court’s finding regarding the amount of loss,
presumably because it was set forth in the indictment to which he pled.
6
ranges, but may “tailor the sentence” in light of other sentencing factors set forth in 18
U.S.C. § 3553(a). Booker, 125 S. Ct. at 756-57. Booker’s holdings apply to all cases
now on direct review. Id. at 769.
Since Mr. Kopietz’s ultimate sentence of 27 months fell within the guideline range
of 21-27 months authorized by facts admitted by him in pleading guilty, the district
court’s factual findings and its increase of his guideline range by two levels did not
violate the Sixth Amendment. 2 Nonetheless, it is clear that the district court sentenced
Mr. Kopietz on the assumption that the guidelines were mandatory.3 In taking his plea,
the Judge made clear that the Court was bound by the guidelines and that its discretion
was limited:
[A] new statute passed April 30th . . . appears to say that judges have very
little, if any, discretion in departing downward or maybe even upward from
the guideline range. So if that is still the law when you’re sentenced, and
who knows whether it will be or not, it’s under attack . . . I wouldn’t have
any discretion at all. I could just send a machine out here and tell you
what your sentence is because I don’t have anything to do with it. In fact,
I’m thinking about making a recording and filling in the blank line so I don’t
waste your time or mine. . . .
* * *
Congress is sentencing you and the U.S. Attorney is sentencing you, I’m
not, I don’t have that power anymore. . . .
* * *
Okay. I do have the power to chose [within a guideline range], I didn’t
mean to say I didn’t have any power, I have some . . .
(JA at 26).

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7
Because Mr. Kopietz did not raise this issue below, the district court’s treatment
of the guidelines as mandatory is subject to review for plain error. Booker, 125 S. Ct. at
769 (explaining that reviewing courts should “apply ordinary prudential doctrines,
determining, for example, whether the issue was raised below and whether it fails the
‘plain-error’ test”). Under that standard of review, we may correct an error only if it is
plain under current law, if it affects the defendant’s substantial rights, and if it seriously
affects the fairness, integrity, or public reputation of the proceedings. United States v.
Schulte, 264 F.3d 656, 660 (6th Cir. 2001); Oliver, 397 F.3d at 378.
In light of Booker, application of the sentencing guidelines as mandatory was a
plain error. Barnett, 398 F.3d at 525-26; see also Johnson v. United States, 520 U.S.
461, 468 (holding that current law for the purpose of plain error review is the law as it
exists at the time of appellate consideration). The Sixth Circuit has taken the position in
Barnett that treating the guidelines as mandatory affects defendant’s substantial rights
because such an error is presumptively prejudicial. 398 F.3d at 526-29. Even though
27 months falls within the lower guideline range and one cannot know whether the
district court’s treatment of the guidelines as mandatory resulted in a more severe
sentence than if the guidelines had been treated as advisory, that is not determinative.
Instead of speculating as to the district court’s intentions in the pre-Booker
world, and trying to apply those intentions to predict the same court’s
sentence under the post-Booker scheme, we are convinced that the most
prudent course of action in this case is to presume prejudice given the
distinct possibility that the district court would have imposed a lower
sentence under the new post-Booker framework and the onerous burden
[the defendant] would face in attempting to establish that the sentencing
court would have imposed such a sentence.

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8
Barnett, 398 F.3d at 529; see also United States v. Hines, 398 F.3d 713, 722 (6th Cir.
2005) (quoting United States v. Hughes, 396 F.3d 374, 381 n.1 (4th Cir. 2005)) (noting
that “an appellate court’s presumption that re-sentencing would result in the same, or a
substantially similar sentence, ‘would be tantamount to performing the sentencing
function ourselves.’”) Although this presumption of prejudice may be rebutted under
certain circumstances, Barnett, 398 F.3d at 529, there is no basis in the record in this
case for rebutting such a presumption.
The district court’s erroneous assumption regarding the guidelines and the
possibility that Mr. Kopietz might have received a lower sentence absent that
assumption implicate questions about the fairness and integrity of Mr. Kopietz’s
sentencing. Barnett, 398 F.3d at 529-30. Accordingly, we conclude that the district
court plainly erred in treating the guidelines as mandatory when sentencing Mr. Kopietz.
III.
Although the district court did not clearly err in its calculation of Mr. Kopietz’s
guideline range, it plainly erred in treating the guidelines as mandatory. Accordingly, his
sentence is vacated and this case is remanded to the District Court for resentencing.

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