United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1887

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United States of America, *

*

Plaintiff - Appellee, *

* 

v. * 

*

David Earl Harvey, also known as *

Dave L. Clark, also known as Brandon *

Wells, also known as Sherman E. *

Mucker, also known as Ronnie *

Lamarr Nelson, *

 *

Defendant - Appellant. *

___________

Appeal from the United States

No. 03-1885 District Court for the Western

___________ District of Arkansas

United States of America, *

*

Plaintiff - Appellee, *

* 

v. * 

*

Gerald Keith Miller, also known as *

John C. Dowdell, also known as *

Darnell Singleton, also known as *

Dale Odean Bell, *

 *

Defendant - Appellant. *
1

The Honorable Robert T. Dawson, United States District Judge for the

Western District of Arkansas.

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Submitted: March 9, 2005

 Filed: July 13, 2005 

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Before BYE, BOWMAN, and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

Defendants David Earl Harvey and Gerald Keith Miller appeal their sentences,

alleging that the district court1

 improperly: (1) applied a sophisticated means

enhancement, (2) held each defendant responsible for the criminal acts of the other,

and (3) violated their rights under Blakely v. Washington, 125 S.Ct. 2531 (2004). We

affirm.

I.

In February 2002 the Fort Smith, Arkansas Police Department began an

investigation into passed counterfeit checks. The investigation, conducted by

Detective David Young and another detective, traced the activity to Harvey and

Miller. Young issued a “fraud alert” that included photographs of Harvey and Miller.

On August 12, 2002, in response to the fraud alert, an Arkansas revenue officer

contacted Young. She informed Young that Harvey and Miller were in her office

attempting to obtain new Arkansas identification cards from previously issued cards.

When police arrived at the office, Harvey fled on foot and was apprehended a few

blocks away. Miller quickly left in a van he and Harvey had brought to the revenue
2

The location of the relevant Sentencing Guideline provisions has moved from

year to year, however, the wording and meaning that is germane to this opinion has

not changed. All citations in this opinion refer to the location of the sophisticated

means enhancement as it appeared in the 2004 edition of the United States Sentencing

Guidelines.

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office, but was arrested nearby. Two other males were also found in the van at the

time of Miller’s arrest: Michael Chappel and Robert Brown. Chappel and Brown

were interviewed by police and later released. 

On September 25, 2002, Harvey and Miller were named in a four-count

indictment by a grand jury in the United States District Court for the Western District

of Arkansas. Counts One and Two charged them with uttering and possessing a

counterfeit check in violation of 18 U.S.C. § 513(a). Counts Three and Four charged

Harvey and Miller with producing a false identification document in violation of 18

U.S.C. § 1028(a)(1). On September 27, 2002, the two men were arraigned and

entered pleas of not guilty. On October 24, 2002, Miller pled guilty to all counts.

Harvey pled guilty to Counts One and Three on November 15, 2002.

Harvey and Miller were sentenced on March 20, 2003. At the sentencing

hearing, the district court adopted the probation officer’s determination that an eightlevel increase was warranted pursuant to U.S.S.G. § 2B1.1(b)(1)(E) (2004)2

 because

the total loss caused by the criminal enterprise was $73,576.39. The district court

also adopted the probation officer’s finding that the defendants’ offense level should

be increased two levels pursuant to U.S.S.G. § 2B1.1(b)(9)(C) (2004) for using a

sophisticated scheme to commit their crimes. As to each defendant this resulted in

a Guideline sentencing range of 57 to 71 months per count. The district court

sentenced Harvey to 71 months imprisonment on each of the two counts, each count

to run concurrently, three years supervised release, $10,289.52 restitution, and a $200

special assessment. The district court sentenced Miller to 71 months imprisonment
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on each of the four counts, each count to run concurrently, three years supervised

release, $10,339.45 restitution, and a $400 special assessment. 

Harvey and Miller now bring these timely appeals. They both appeal the

district court’s calculation of loss attributable to them individually. Harvey admits

he passed bad checks in the amount of approximately $30,000. Miller admits he

passed bad checks in the amount of $35,384.22. In each case, the admitted amount

would result in a six-level rather than an eight-level Guideline increase. Both Harvey

and Miller dispute the loss figure in excess of $70,000 because they contend that the

losses caused by Harvey should not be attributable to Miller and those caused by

Miller should not be attributable to Harvey. In addition, Harvey and Miller argue that

their offenses did not require complex conduct and that the district court erred in

finding they used sophisticated means to commit their crimes. We now address these

issues.

II.

We review the district court’s factual findings at sentencing for clear error,

while the application and construction of the Sentencing Guidelines are reviewed de

novo. United States v. Smotherman, 285 F.3d 1115, 1116 (8th Cir. 2002). 

A. Sophisticated Means Enhancement

The district court’s finding under U.S.S.G. § 2B1.1(b)(9)(C) that Harvey and

Miller employed sophisticated means did not constitute clear error. The sophisticated

means enhancement applies when a defendant uses “especially complex or especially

intricate offense conduct” to conceal his crimes. U.S.S.G. § 2B1.1, cmt. n.9(B). In

this case, Harvey and Miller jointly planned, coordinated and carried out activities to

hide their fraud. For example, Harvey and Miller moved from state to state to obtain

false identification cards using various individuals’ identities. Vehicle repair receipts
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show that their travels included Georgia, Kentucky, Tennessee, Kansas, Oklahoma,

and Arkansas. Further, they purchased numerous plane tickets to travel between

cities. They went to substantial efforts to hide their activities within the city of Fort

Smith. The two men went to different branches of the state revenue office in Fort

Smith to obtain fraudulent identification cards in order to prevent clerks at the same

state revenue office from recognizing them as someone to whom they had recently

issued identification cards.

They also went to great lengths to make their transactions look legitimate. For

their scheme to succeed and avoid detection, the two men obtained identification

information from real people, used that information to obtain false identification cards

or drivers licenses, and then used those identities to open checking accounts under

the assumed identities. Harvey and Miller then put legitimate bank information on

counterfeit checks. They would then use a computer to generate checks which looked

authentic and then try to pass them. Thus, the scheme required them to: 1) constantly

obtain new identification documents; 2) travel to new offices to obtain identification

cards; and 3) know how to generate false checks with valid routing numbers but

fictitious account numbers so as to avoid detection by the electronic check scanners

used at many retail businesses to detect counterfeit checks.

These actions, even when taken individually, provide strong evidence of a

scheme that was “extensively planned” and which was “executed with careful

attention to detail.” United States v. Jagim, 978 F.2d 1032, 1042 (8th Cir. 1992).

Regardless, the actions when taken as a whole, demonstrate a highly complex plan.

See, e.g., United States v. Wu, 81 F.3d 72, 73-75 (7th Cir. 1996) (examining the

defendant’s scheme as a whole to determine whether the sophisticated means

enhancement was applicable). Accordingly, the district court did not clearly err when

it applied the sophisticated means enhancement. 
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B. Loss Amount

The district court also did not commit clear error when it determined that

Harvey and Miller acted in concert and therefore each could be held responsible for

the losses caused by the other. Harvey and Miller argue that their relevant conduct

should be limited to the loss attributable to the counterfeit checks that each one

individually passed. To determine the amount of loss, the Sentencing Guidelines

state that a defendant is responsible for “(A) all acts and omissions committed, aided,

abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant; and (B) all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a). “‘A

jointly undertaken criminal activity’ is a criminal plan, scheme, endeavor, or

enterprise undertaken by the defendant in concert with others, whether or not charged

as a conspiracy.” U.S.S.G. 1B1.3, cmt. 2. The defendants’ actions meet the

definition of jointly undertaken criminal activity. 

The evidence in this case shows that Harvey and Miller planned and carried out

a scheme to achieve the unlawful end of possessing and passing counterfeit checks

and possessing false identification. The defendants traveled together to the Fort

Smith revenue office with the intent of obtaining identifications as part of a larger

scheme of using those identifications to pass counterfeit checks. The men entered the

revenue office during the same period of time to obtain the identifications. The two

men were photographed passing counterfeit checks at approximately the same time

at different cash register locations within the same Fort Smith Wal-Mart in February

2002. There is evidence that Harvey and Miller had been traveling together and

possibly other people for at least two months prior to their arrest for the purpose of

obtaining false identification. Further, the two men also shared resources to carry out

their scheme when they both used the same apartment and van to carry out their

criminal enterprise. Accordingly, there is substantial evidence that the two men were

engaged in jointly undertaken criminal activity when they attempted to pass
3

It should be noted that U.S.S.G. § 1B1.3(a)(1)(B) does not merely refer to

cases involving conspiracy convictions. Rather, it refers to the broader instance in

which a defendant assists others in achieving an unlawful end. Therefore, the

absence of a conspiracy charge or conspiracy conviction in this case does not affect

our attribution analysis. See U.S.S.G. § 1B1.3(a)(1)(B) (stating that conduct is

attributable to a defendant “whether or not charged as a conspiracy.”); United States

v. Hull, 160 F.3d 265, 269-70 (5th Cir. 1998) (concluding that the concepts of

conspiracy and jointly undertaken criminal activity “may not be identical” and that

“the scope of relevant conduct should not depend on whether a particular defendant

has been convicted of conspiracy if so charged.”).

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counterfeit checks. As a result, each is responsible for all reasonably foreseeable acts

and omissions in furtherance of that activity.

Some of the “[f]actors relevant to foreseeability include whether the defendant

benefited from his co-conspirator’s activities and whether he demonstrated a

substantial level of commitment to the conspiracy.” United States v. Bad Wound, 203

F.3d 1072, 1076 (8th Cir. 2000) (internal quotations and citations omitted).3

 In this

case, Harvey and Miller both benefitted from the other’s activities. Each defendant

benefitted from the other by sharing resources. As stated earlier, the defendants

shared a vehicle and an apartment address to further their criminal endeavor. Harvey

and Miller also shared computer printed checks and a computer check-writing

program. By working together, the defendants benefitted by being able to cover more

territory, and thereby were able to pass more checks, obtain more identities, and better

avoid detection. Thus, there is substantial evidence that both Harvey and Miller

benefitted from the actions of the other.

Harvey and Miller both demonstrated a substantial level of commitment to the

conspiracy. The extent of their travel to carry out their scheme demonstrates their

commitment. The two men traveled together continuously with Chappel, and

possibly others, working to obtain false identifications to pass counterfeit checks for
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at least two or three months prior to their August 12, 2002 arrest. Airline itineraries

show that the two men took flights together around the country to pass counterfeit

checks in different locations to avoid detection of their scheme. 

The search of the van Harvey and Miller were traveling in at the time of their

arrest also provides evidence of the depth of their commitment. The van contained

birth certificates; identification cards; specialty paper for printing checks; and scraps

of paper with names, birth dates, social security numbers, and credit card numbers

with expiration dates. Some of the birth certificates were for individuals whose

names were later found to be aliases of either Harvey or Miller. 

The two men that were traveling with the defendants also offered evidence of

the defendants’ commitment to the scheme. When Detective Young interviewed

Chappel he stated that he had traveled to Arkansas with both defendants to obtain

Arkansas identification cards to pass bad checks from a non-existent bank account.

Robert Brown testified that Miller and Harvey paid homeless people for their

identification information.

Finally, the duration of Harvey and Miller’s cooperation attests to their level

of commitment. Detective Young testified that the pair passed counterfeit checks for

at least six months, from February 2002 until their arrest. Thus, the breadth, duration,

and scope of their joint operations demonstrate their substantial commitment. Given

this level of commitment, the district court did not err in its loss attribution.
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III.

Harvey and Miller assert that the district court’s application of sentencing

enhancements violated their rights under Blakely because the findings necessary for

the enhancements were neither admitted by the defendants nor made by a jury based

upon proof beyond a reasonable doubt. 

In Blakely, the Supreme Court held that the imposition of a sentence

enhancement above the State of Washington’s Sentencing Reform Act range, based

solely on the factual findings of the sentencing judge, violated the defendant’s Sixth

Amendment rights. Blakely, 124 S. Ct. at 2537. It constituted a Sixth Amendment

violation because the findings were neither admitted by the defendant nor found by

a jury beyond a reasonable doubt. Id. Following Blakely, and while this appeal was

pending, the Court held in United States v. Booker, 125 S.Ct. 738 (2005), that “the

Sixth Amendment as construed in Blakely does apply to the [Federal] Sentencing

Guidelines.” Booker, 125 S.Ct. at 746. Under Booker, “[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 jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Id. at 756. 

Although Harvey and Miller did object to the district court’s finding that the

sophisticated means enhancement applied to them and that each defendant could be

held responsible for the acts of the other, they did not raise a Sixth Amendment

objection. Accordingly, our review is limited to determining whether Harvey and

Miller’s sentences constitute plain error. See United States v. Pirani, 406 F.3d 543,

549 (8th Cir. 2005). To establish plain error, they must show that (1) there was an

error; (2) the error was plain; and (3) the error affected substantial rights. Johnson

v. United States, 520 U.S. 461, 466-67 (1997). “If all three conditions are met, an
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appellate court may then exercise its discretion to notice a forfeited error, but only if

. . . the error seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotations omitted). Further, the defendant has the

burden of proving plain error. United States v. Olano, 507 U.S. 725, 734-35 (1993).

In Pirani, we held that a Booker/Blakely error “affects substantial rights” if

there is a reasonable probability that but for the error the defendant would have

received a more favorable sentence. Pirani, 406 F.3d at 552. In this case, Harvey and

Miller, like the defendant in Pirani, have not met their burden to show that there is a

“reasonable probability” the district court would have imposed more favorable

sentences if the Guidelines had been applied in an advisory manner. Neither

defendant offers any evidence that there is a reasonable likelihood that the district

court would have imposed a different sentence under an advisory Guideline regime.

Indeed, the district court sentenced the defendants to 71 months, the top of the

Guideline range. Because the record, when taken as a whole, does not indicate that

the district court would have imposed a more favorable sentence under the new

sentencing regime, Harvey and Miller cannot establish the prejudice prong of the

analysis. Accordingly, they fail to meet their burden to prove that the district court

committed plain error in imposing the sentence enhancements. 

For the foregoing reasons, we affirm the defendants’ sentences. 

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