PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-3505

_____________

UNITED STATES OF AMERICA

v.

TODD ROBINSON,

 Appellant

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 09-cr-00285-001)

District Judge: Honorable Jose L. Linares 

 

Argued March 24, 2010

Before: RENDELL, AMBRO, and FUENTES, 

Circuit Judges.

(Filed: April 22, 2010)

 
2

Joshua P. Cohn, Esq. [ARGUED]

Cohn, Lifland, Pearlman, Herrmann & Knopf

Park 80 Plaza West One

Saddle Brook, NJ 07663

 Counsel for Appellant

Samuel A. Stern, Esq. [ARGUED]

George S. Leone, Esq.

Office of the United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

 Counsel for Appellee

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Todd Robinson pled guilty to conspiring to steal and

convert United States Treasury checks in violation of 18 U.S.C.

§§ 641 and 371. On appeal he challenges the District Court’s

calculation of his sentencing guideline range of 27 to 33 months

imprisonment because in arriving at the range the Court

included the number and dollar amount of checks converted by

another person, Travis Lynn, with whom Robinson contends he

did not conspire. Robinson participated in a scheme led by an

individual named Jerrod Jeffress. Jeffress provided “checkcashers”– Robinson and three other individuals, including Lynn

– with stolen Treasury checks, as well as fake identification that

matched the names on the checks, and drove them to check-
 Robinson also did not specifically object to a paragraph in 1

his Presentence Investigation Report that stated that he

conspired with Jeffress, Lynn, Glenda Blackmon, and Richard

Davis. Presentence Investigation Report 7, ¶28.

3

cashing stores. 

Robinson pled guilty to an information charging him with

conspiring with “others,” but there was no specific mention in

his plea colloquy of any individual other than Jeffress. At

Robinson’s sentencing, he acknowledged that he personally

attempted to cash five checks, with a total intended loss of

$5,869.00. Robinson maintained that he had no involvement

with any of the other individuals who worked for Jeffress and

that therefore none of their conduct should be attributed to him

for sentencing purposes. Robinson did not dispute, however,

that he knew who Lynn was, that he knew Lynn was working

for Jeffress, or that he and Lynn were in the same check-cashing

facility at the same time on two separate occasions. The 1

government argued at sentencing that Robinson worked with the

other check-cashers, particularly Lynn, and should be held

responsible for their conduct for sentencing purposes. The

District Court accepted the government’s position as to Lynn,

stating, “I think here by virtue of their presence together at the

check-cashing stores on a number of occasions, certainly

[Robinson’s] conduct with co-defendant Lynn, when all taken

into consideration together, makes it certainly appropriate to

apply the enhancement.” A.31. The District Court therefore

considered the total dollar amount of checks Robinson and Lynn

attempted to cash and applied a four-level enhancement to
 The District Court had jurisdiction pursuant to 18 U.S.C. 2

§ 3231. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

 Robinson also urges that the conspiracy in this case was a 3

“hub-and-spoke” conspiracy in which several “miniconspiracies” revolved around one “point person” and the only

common ground between the “spokes” was their relationship to

4

Robinson’s sentence under United States Sentencing Guidelines

Manual (“USSG”) § 2B1.1(b)(1)(C) (2009) for a loss of more

than $10,000 but less than $30,000, and a two-level

enhancement based on 10 or more victims pursuant to USSG

 § 2B1.1(b)(2)(A)(i). 

DISCUSSION2

Robinson urges that the District Court should have

applied a two-level enhancement under USSG § 2B1.1(b)(1)(B)

for a loss of more than $5,000 but less than $10,000 – based on

the $5,869 loss intended by Robinson alone – and should not

have applied the enhancement for the number of victims.

Robinson contends that the District Court erred in finding that

Lynn’s conduct was reasonably foreseeable to Robinson under

USSG § 1B1.3(a)(1)(B), relying for the first time on appeal on

an Application Note in the Guidelines Manual, specifically

§ 1B1.3, cmt. n. 2(c)(6). 

Robinson states that he was operating parallel to, but

independent of, the other check-cashers. He contends that 3
the person at the “hub” of the conspiracy. Appellant’s Br. 12

(citing United States v. Kemp, 500 F.3d 257, 287-93 (3d Cir.

2007)). In Kemp, we emphasized that in a hub-and-spoke

conspiracy there is a lack of interdependence between the

spokes in that their role in the scheme is not dependent upon

others, nor are they aided by or at all interested in the success of

the others. 500 F.3d at 290. Robinson contends that there was

no showing of any “material interdependent conspiratorial

activity” between himself and any other check-cashers.

Appellant’s Br. 13. However, in Kemp we defined this type of

interdependence as a requirement for a conspiracy conviction,

not a sentencing enhancement. 

 In footnote 11 of his appellate brief, Robinson contends that 4

he is entitled to an evidentiary hearing to decide whether his

appearance with another individual in a check-cashing place is

sufficient to apply an enhancement under USSG § 1B1.3.

However, he does not contest that he was in a check-cashing

place at the same time as Lynn, so an evidentiary hearing would

not be probative. The sufficiency of this evidence for

sentencing purposes is disputed, but the facts are not.

5

“interdependence of the defendants (i.e., pooling of resources)

. . . is the appropriate measure by which to gauge joint activity.”

Appellant’s Br. 15. Because Robinson’s role in the scheme was

not dependent upon the success of the other check-cashers, nor

did they share any profits, he argues that he should be held

accountable for sentencing purposes for only the checks he

himself tried to cash. 

4
6

It is undisputed that Robinson and Lynn were at a checkcashing store together on two occasions, that Robinson knew

Lynn, and that Robinson knew Lynn was cashing stolen

Treasury checks supplied by Jeffress. Based on these facts, the

government urges that it was not clearly erroneous for the

District Court to conclude by a preponderance of the evidence

that Lynn’s conduct was foreseeable to Robinson and was in

furtherance of jointly undertaken criminal activity, and was thus

relevant for sentencing purposes. 

We review a district court’s application of sentencing

enhancements for abuse of discretion. United States v. Kennedy,

554 F.3d 415, 426 (3d Cir. 2009).

Under USSG § 1B1.3(a)(1)(B), Robinson’s guideline

offense level is determined, in relevant part, by considering:

in the case of a jointly undertaken criminal

activity (a criminal plan, scheme, endeavor, or

enterprise undertaken by the defendant in concert

with others, whether or not charged as a

conspiracy), all reasonably foreseeable acts and

omissions of others in furtherance of the jointly

undertaken criminal activity . . . .

The application notes to the guidelines clarify this by stating:

[i]n the case of a jointly undertaken criminal

activity, subsection (a)(1)(B) provides that a

defendant is accountable for the conduct (acts and

omissions) of others that was both:
7

(i) in furtherance of the jointly undertaken

criminal activity; and

(ii) reasonably foreseeable in connection with that

criminal activity.

 . . . .

In determining the scope of the criminal activity

that the particular defendant agreed to jointly

undertake (i.e., the scope of the specific conduct

and objectives embraced by the defendant's

agreement), the court may consider any explicit

agreement or implicit agreement fairly inferred

from the conduct of the defendant and others.

United States Sentencing Guidelines Manual § 1B1.3, cmt. n. 2

(emphasis added). 

We have summarized these guidelines by saying, “[i]n

order to be included in determining the defendant's offense

level, the loss resulting from the acts or omissions of others

must be: ‘(1) in furtherance of the jointly undertaken activity;

(2) within the scope of the defendant's agreement; and (3)

reasonably foreseeable in connection with the criminal activity

the defendant agreed to undertake.’” United States v. Gricco,

277 F.3d 339, 356 (3d Cir. 2002) (quoting United States v.

Duliga, 204 F.3d 97, 100 (3d Cir. 2000)).
 In United States v. Perez, we upheld the district court’s 5

finding of an implicit agreement based largely on the fact that

defendant Edmundo Batoon was often in drug-dealer Lirio Del

Rosario’s apartment where drugs were stored and sold. 280

F.3d 318, 353-54 (3d Cir. 2002). In Perez, the district court

found Batoon responsible for the full amount of drugs in the

apartment for sentencing purposes because it determined that

Batoon provided security to Del Rosario. Id. at 353. On appeal,

Batoon argued that he never agreed to provide security. We

dismissed this argument stating:

8

The issue before the District Court at sentencing was

whether the checks Lynn cashed were in furtherance of criminal

activity jointly undertaken by, and reasonably foreseeable to,

Robinson. In determining the scope of the joint criminal

undertaking, the District Court could consider an “implicit

agreement fairly inferred from” Robinson and Lynn’s conduct.

United States Sentencing Guidelines Manual § 1B1.3, cmt. n.2.

The guidelines specifically state that the joint criminal activity

does not have to be charged as a conspiracy. Id. at

§ 1B1.3(a)(1)(B); see also United States v. Jarvis, 258 F.3d 235,

245 (3d Cir. 2001) (finding that losses of victims that the

defendant was not held responsible for in terms of his conviction

may nonetheless properly be considered under a preponderance

of the evidence standard as relevant sentencing information

under USSG § 1B1.3(a)). 

 Here, there was evidence from which the District Court

could reasonably infer that there was an implicit agreement

between Robinson and Lynn to cash stolen checks for Jeffress.

5
Batoon's argument fails to recognize that the

agreement can be explicit or an “implicit

agreement fairly inferred from the conduct of the

defendant and others.” U.S. Sentencing

Guidelines Manual § 1B1.3, cmt. n. 2. Here, from

Batoon's conduct (specifically his remaining in

Del Rosario's apartment for a significant amount

of time while several others came and went), the

District Court found an implied agreement

between Del Rosario and Batoon to provide

security. 

Id. at 353-54.

9

Robinson and Lynn knew each other, Robinson knew Lynn was

cashing stolen checks for Jeffress, and they were in the same

check-cashing store at the same time on two occasions.

Moreover, there was evidence that Jeffress drove the checkcashers to and from the check-cashing location, so an inference

could be drawn that Robinson and Lynn came and went to the

location together. After reasonably inferring from Robinson

and Lynn’s conduct that an implicit agreement existed between

the two, it follows that the checks Lynn cashed were reasonably

foreseeable to Robinson and were in furtherance of their joint

criminal activity. Therefore, the District Court did not clearly

err in finding by a preponderance of the evidence that Robinson

and Lynn were engaged in joint criminal activity, that the

checks Lynn cashed were within the scope of and in

furtherance of their agreement and were reasonably foreseeable
10

to Robinson, and that therefore Robinson was responsible for

the checks Lynn cashed for sentencing purposes. 

Lastly, Robinson contends that the victim-based

enhancement should not have been applied to his sentence

because it was not applied to his co-defendant Davis’ sentence,

despite the Probation Department’s having found Davis

criminally responsible for 25 out of the 27 checks involved in

the scheme. Robinson urges that a district court, in determining

an appropriate sentence, is to consider “the need to avoid

unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.”

18 U.S.C.A. § 3553(a)(6). Robinson contends that by not

applying the same enhancement to his co-defendant Davis, the

District Court ignored § 3553(a)(6). We disagree. 

In order for us to conclude that the District Court erred

in not considering the need to avoid unwarranted sentencing

disparities, Robinson would need to show that he was similarly

situated to Davis. See United States v. Charles, 467 F.3d 828,

833 (3d Cir. 2006) (“[The defendant] has not shown that any of

the defendants in the District Court cases to which he cites are

similarly situated to him for purposes of comparing career

offenders with a history of institutional misconduct, . . . and

therefore relevant for a § 3553(a)(6) comparison. Even if he

had, a mere similarity would not be enough to overcome the

high level of deference we accord sentencing judges.”); United

States v. Parker, 462 F.3d 273, 277-78 (3d Cir. 2006)

(“Although § 3553(a) does not require district courts to

consider sentencing disparity among co-defendants, it also does

not prohibit them from doing so,” but “§ 3553(a)(6) by its
11

terms plainly applies only where co-defendants are similarly

situated.”). Robinson extracts certain information from Davis’

Presentence Report, prepared by the Probation Department.

However, Robinson fails to discuss any specifics of Davis’ plea

agreement, sentencing arguments, or the District Court’s

sentencing analysis. We have no basis for concluding that the

District Court viewed Davis’ conduct similarly to Robinson’s

in terms of the victims, particularly because Robinson’s victim

enhancement resulted from his being responsible for Lynn’s

conduct as well. We cannot conclude that Robinson’s sentence

was unreasonable based on the mere allegation of a difference

between the Court’s sentencing calculations in the two cases.

For the foregoing reasons we will AFFIRM the

Judgment and Commitment Order of the District Court.