* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 12 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RONALD CHARLES REED,

Defendant-Appellant. No. 00-6253 (D.C. No. 00-CR-1-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Defendant Ronald Charles Reed pleaded guilty to two counts of using a counterfeit access device, that is, counterfeit c redit cards, in violation of 18 U.S.C. § 1029(a)(1). He was sentenced to fifty- one months in prison followed by three years’ supervised release on each count, t o run concurrently, and was ordered to pay a fine, a special assessment and res titution. He appeals the district court’s determination of his sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm

. The presentence report indicated that Reed manufact ured, distributed and used counterfeit credit cards. Under the United St ates Sentencing Guidelines (1998 edition), the base offense level for violatio n of 18 U.S.C. § 1029(a) was six. USSG § 2F1.1(a). Special offense characteris tics for an intended loss exceeding $40,000 and more than minimal planning an d/or one victim raised the offense level to thirteen. § 2F1.1(b)(1), (2). Th e district court determined that Reed was a leader or organizer of criminal activityand added two levels, § 3B1.1(c), but declined to give him an adjustment for acceptance of responsibility. § 3E1.1. Because Reed’s initial c riminal history score failed to reflect numerous prior convictions, numerous arrest s without convictions, and pending charges, the court determined that an upwar d departure in Reed’s criminal history category was warranted, increasing it from Category IV to-3-

Category VI. §§ 5K2.0, 4A1.3. The resulting sente ncing range was forty-one to fifty-one months, and the court sentenced Reed to f ifty-one months. On appeal, Reed challenges the district court’s dec ision to increase his offense level for his role as a leader/organizer, i ts refusal to grant an adjustment for acceptance of responsibility, and its upward de parture in his criminal history. He also contends that the sentence imposed violates Apprendi v. New Jersey , 120 S. Ct. 2348 (2000). We address each of these arguments in turn. We review the court’s finding that Reed was a leade r or organizer of criminal activity for clear error. United States v. Tagore , 158 F.3d 1124, 1130 (10th Cir. 1998). In determining whether a defendant’s actions warrant this enhancement, the court should consider the exercise of decision making authority, the nature of participation in the commission of th e offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense and the degree of control an d authority exercised over others. We have held that section 3 B1.1(c) is satisfied upon a mere showing that the defendant ex ercised any degree of direction or control over someone subordi nate to him in the distribution scheme. United States v. Baez-Acuna , 54 F.3d 634, 638-39 (10th Cir. 1995) (quotations, citations and alterations omitted). The evidence s howed that Reed manufactured and distributed to several individuals, including h is son, counterfeit credit cards and counterfeit identification, that these individu als recruited at least one other1 The five-level increase actually was for the amountof intended loss, most

of which stemmed from the relevant conduct of other s for whom Reed was found (continued...) -4- person to use the credit cards to buy merchandise o r get cash advances, and that these individuals returned some of the proceeds fro m the use of the credit cards to Reed. The fraudulent cards had a limited period of usefulness because they could be used only until the true owner of the cards rece ived a statement showing fraudulent charges. This and other evidence create d a reasonable inference that Reed supplied new fraudulent cards to these individ uals on an on-going basis and that he was at the head of this criminal activity b ecause he manufactured the counterfeit cards and got each operation started. Based on this evidence, we cannot say that the court’s finding that Reed was aleader or organizer of the criminal activity was clearly erroneous. Reed contends that because he timely agreed to plea d guilty and save the government the expense of preparing for trial and b ecause he should not be held responsible for the conduct of others, the districtcourt clearly erred in denying him an adjustment for acceptance of responsibility. We review the district court’s denial of a reduction for acceptance of responsibility for clear error. United States v. Nichols , 229 F.3d 975, 978 (10th Cir. 2000). Alternativel y, he contends the district court should not have imposed a five-l evel increase for relevant conduct. 11 (...continued)

to be leader or organizer.

2 North Carolina v. Alford , 400 U.S. 25 (1970). -5- The district court refused to adjust Reed’s offense level for acceptance of responsibility because the court concluded he fr ivolously had denied his involvement in a variety of relevant conduct--virtu ally the same activity on which the court relied in finding him a leader/orga nizer--until just prior to the sentencing hearing. In fact, even at the sentencin g hearing, Reed continued to deny his involvement in the relevant conduct (as he does on appeal). But he withdrew his objections to the presentence report’s recommendations regarding relevant conduct under the idea, apparently with th e backing of the government, that he would then be able to get a reduction for a cceptance of responsibility, likening his action to an Alford 2plea. With respect to his contention regarding the five-l evel increase for relevant conduct, Reed’s withdrawal of his objection to the presentence report regarding relevant conduct acts as an admission of those fact s, and we will not consider this contention on appeal. See United States v. Green , 175 F.3d 822, 837-38 (10th Cir. 1999). Admission of these facts, howeve r, does not necessarily mean that Reed has accepted responsibility for the relevant conduct. See United States v. Cruz Camacho , 137 F.3d 1220, 1226 (10th Cir. 1998) (“A defendant who falsely denies or frivolously contests, relevant co nduct that the court determines-6-

to be true has acted in a manner inconsistent with acceptance of responsibility.”) (quotations omitted); see also United States v. Harlan , 35 F.3d 176, 181 (5th Cir. 1994) (holding that “whether a defendant has entered an Alford plea in which he maintains his innocence and refuses to acknowledge his conduct in the offense is a relevant factor in the acceptance of responsibili ty determination”). Moreover, the timeliness of a defendant’s admission of relevant conduct may also be considered in the acceptance-of-responsibility dete rmination, USSG § 3E1.1, cmt. (n.6), and the court noted that Reed’s belated withdrawal of his objections created unnecessary work for the court and governme nt. Given Reed’s continuing denial of the relevant conduct and the last-minute withdrawal of his objections, the court clearly did not err in denying Reed an ad justment for acceptance of responsibility. Reed next contends that the court erred in departin g upwardly in his criminal history level because it relied on prior c onvictions that were too old to be counted under the Sentencing Guidelines. The di strict court noted that Reed had twenty-two prior offenses, but only three were counted in determining his initial criminal history score because of their age . If all prior convictions had been counted, Reed would have had thirty-nine crimi nal history points, well more than the thirteen required for criminal history Cat egory VI. The court determined that Reed’s initial criminal history category did n ot adequately represent his prior-7-

criminal conduct or the likelihood he would commit other crimes, and therefore departed upwardly. Contrary to Reed’s argument, the Sentencing Guideli nes do not prohibit the consideration of offenses outside the applicable ti me period in USSG § 4A1.2(e) when determining whether to depart upwardly. United States v. Lowe , 106 F.3d 1498, 1502 (10th Cir. 1997). Moreover, the distric t court also relied on Reed’s numerous other arrests and pending charges in decid ing to depart. Applying an abuse-of-discretion standard, Koon v. United States , 518 U.S. 81, 91 (1996), we see no error in the court’s determination that an upward departure was warranted. Finally, Reed contends that use of his relevant con duct to increase his sentencing range violated Apprendi because this conduct was neither charged in the indictment nor found by a jury. See Apprendi , 120 S. Ct. at 2362-63 (holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximummust be submitted to a jury, and proved beyond a reasonable doubt.”). The distr ict court did use Reed’s relevant conduct to increase his sentence, but the sentence it imposed did not exceed the statutory maximum of ten years for v iolation of 18 U.S.C. § 1029(a)(1). Enhancing a sentence in this manner does not violate Apprendi

. United States v. Heckard , 238 F.3d 1222, 1235-36 (10th Cir. 2001).-8-

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge