IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11299

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CASEY SHAWN SELF,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CR-64-1

Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Casey Shawn Self appeals his sentence of 180 months for pleading guilty

to possessing stolen mail and making, possessing, and uttering a counterfeit

security. Self argues that the district court erred in applying two enhancements

to his sentence and that the court denied him his right to allocution prior to

sentencing. Finding that any sentencing error made by the district court was

harmless and that no allocution error occurred, we AFFIRM. 

United States Court of Appeals

Fifth Circuit

F I L E D

February 17, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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BACKGROUND

For several years Self participated in a counterfeit check scheme with four

accomplices. Self’s girlfriend, LaDonna Garcia, introduced him to Susana Askar

Barakat in 2006 and the three started a counterfeiting scheme. Self would break

into mail collection boxes and personal mailboxes, with Garcia as a lookout, and

obtain personal information about his victims. Self, Garcia, and Barakat would

then use that information to make counterfeit checks, obtain counterfeit

identification cards, and obtain credit cards in others’ names. Garcia’s

involvement in the scheme ceased in December 2008 when she was arrested on

drug charges. After Garcia’s arrest, Self became involved in a relationship with

Balaina Collins, who replaced Garcia as the lookout and negotiated fraudulent

checks. Barakat’s boyfriend, Mark Coker, was the fifth member of the scheme

and purchased stolen bank account and routing numbers from Self. Coker also

obtained fraudulent memberships at Sam’s Club in atleasttwo different people’s

names. 

After complaints from postal customers in November 2008, postal

inspectors began investigating a string of thefts from postal boxes. During the

investigation, inspectors identified Self, Barakat, Collins, and Garcia in

surveillance videos negotiating fraudulent checks made from information stolen

from postal boxes. Self was arrested while attempting to negotiate a counterfeit

check in Dallas on August 9, 2009. Upon his arrest, Self used an alias, Brett

Bowerman, and he was released on bond the same day based on this false

identity. On August 30, 2009, authorities established surveillance on several

postal boxes in an area where several thefts had occurred. As part of this

operation, officers observed Self trying to gain access to a postal collection box. 

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Officers approached Self with weapons drawn in an attempt to apprehend him,

but Self ran from the officers and jumped on his motorcycle. As he sped away,

he drove right at an officer who had to dodge the motorcycle to avoid being hit. 

After his escape, Self continued his crime spree by stealing more mail and

continuing to negotiate fraudulent checks. This spree was finally halted when

Self was arrested on unrelated charges on February 20, 2010. Self again gave

a false name and identification to police, but as he was in the process of

establishing bond he was identified as Casey Self and held for the postal

inspector. 

Self and his accomplices stole $138,831.37 from identified victims and are

responsible for a potential overall loss exceeding $200,000. They defrauded 71

merchants and financial institutions and 77 known individual victims. The

postal inspector identified another 148 potential victims. After pleading guilty,

Self was sentenced to 180 months incarceration and three years of supervised

release. 

DISCUSSION

Self now appeals his sentence arguing that the district court erred by

increasing his sentence for obstruction of justice and for his role in the offense. 

Self also claims that the judge denied him his right to allocution. 

A. Sentencing 

This court reviews a district court’s sentencing decision for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The “district court’s

interpretation or application of the Sentencing Guidelines is reviewed de novo,

and its factual findings . . . are reviewed for clear error. There is no clear error

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if the district court’s finding is plausible in light of the record as a whole.” 

Cisneros-Gutierrez, 517 F.3d at 764 (quoting United States v. Juarez-Duarte,

513 F.3d 204, 208 (5th Cir. 2008)). This court will not deem factual findings

clearly erroneous unless a review of the evidence leaves it “with the definite and

firm conviction that a mistake has been committed.” United States v. Rose,

449 F.3d 627, 633 (5th Cir. 2006) (quoting United States v. Cabrera, 288 F.3d

163, 168 (5th Cir. 2002)).

1. Obstruction of Justice Sentence Enhancement 

Self argues that the comments to the sentencing guidelines counsel

against applying the obstruction of justice sentence enhancement in this case. 

Under U.S.S.G. § 3C1.1 a two-level enhancement is appropriate “[i]f (1) the

defendant willfully obstructed or impeded, or attempted to obstruct or impede,

the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (2) the obstructive conduct

related to . . . the defendant’s offense of conviction and any relevant conduct.”

(emphasis added). The comments do not precisely define what conduct qualifies

for the obstruction enhancement, but there is a list of types of conduct that do

not warrant the enhancement. § 3C1.1 cmt. 5. One such example is “providing

a false name or identification document at arrest, except where such conduct

actually resulted in a significant hindrance to the investigation or prosecution

of the instant offense.” § 3C1.1 cmt. 5(A). Self claims that the only potentially

obstructive conduct he committed falls within this comment and should thus not

be used to support an obstruction of justice enhancement. 

We do not resolve whether Self is correct that the court erred by adding a

two-level enhancement to his sentence for obstruction of justice, because any

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error is harmless. In United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th

Cir. 2009), this court recognized that an error can be harmless even if the

district court did not consider the correct guidelines range in its analysis. Such

an error is only harmless, however, if the court would have imposed the same

sentence absent the error.

In the instant case, the Pre-Sentence Report (“PSR”) calculated the

sentencing range as 210 to 262 months. The statutory maximum, however, was

180 months and the judge imposed that sentence only after indicating that he

did not think the punishment was sufficiently harsh. If the obstruction of justice

enhancement had not been applied, the sentencing guideline would have been

169 to 210 months with the same 180 statutory maximum. U.S.S.G. Ch. 5, Pt. A. 

That the sentence imposed on Self was within the lower range is relevant, but

not dispositive that no harmful error occurred. Delgado-Martinez, 564 F.3d at

753. The issue is whether the district court would have still sentenced Self to

the statutory maximum 180 months given this lower range. 

Though the burden to prove harmless error is heavy when the sentence

range is miscalculated, it has been met in this case. First, the judge’s reasoning

would not change if there had been no obstruction of justice enhancement. The

record suggests that the judge was committed to applying the statutory

maximum because of the devastating effect Self’s crimes had on the victims and

because of Self’s criminal history. The judge said the following to Self at

sentencing: 

I don’t think anybody on your side of this crime can understand the pain

that you cause to people who have their identity stolen, their bank

accounts drawn from. It’s very upsetting, and not only upsetting, it’s a lot

of trouble to have to go to stop all that and to repair the damage that’s

done, sometimes never repaired. So those people who have done nothing

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to you or to anyone else are suddenly in a much worse financial situation.

They may be very hard-working, worked very hard all their lives to

acquire a good credit rating, which in our society is very important, and

because of your actions, there are many people who have had that

threatened. So it’s a serious crime and one that our guidelines struggles

[sic], without success usually, to take account of because there is no way to

quantify the damage that that crime does to a person’s well being, sense

of well being, their psyche, and their financial credit rating in our society.

So I appreciate your expression of remorse, but the crime demands the

punishment that I intend to impose.

There is no indication that the judge’s commitment to apply the maximum

sentence allowed by law would be influenced by the elimination of the

obstruction ofjustice enhancement, especially since the sentence he imposed was

within the lower range endorsed by the defense. In fact, his statement suggests

that he did not think that the penalties allowed by law were severe enough. 

Moreover, the court did not mention obstruction of justice in its

justification for the sentence in its statement of reasons. The court highlighted

that Self had committed similar crimes in the past, had been “afforded

probation, terms of parole, and has served brief or intermediate sentences of

incarceration.” Despite these punishments, Self continued to break the law and

the judge imposed the statutory maximum sentence of incarceration as a result. 

 In sum, any error committed by the court in applying the obstruction of

justice enhancement was harmless. 

2. Role in the Offense Sentence Enhancement 

Self argues that the judge erroneously applied a three level increase for a

managerial role in the offense. Under U.S.S.G. § 3B1.1(b), a three level increase

in the offense level is appropriate if the defendant plays a managerial role (but

is not an organizer or leader) and the criminal activity involved five or more

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participants. Self’s main contention is that both Garcia and Barakat played a

larger role in the offense than he did. He claims that Garcia recruited him into

the scheme and that he did not manage any of his accomplices. 

The determination that a defendant is a manager or supervisor under

§ 3B1.1 is a factual finding reviewed for clear error. Rose, 449 F.3d at 633. “To

qualify for an adjustment under this section, the defendant must have been the

organizer, leader, manager, or supervisor of one or more other participants.” 

§ 3B1.1 cmt. 2. In making this determination, a sentencing court should

consider: (1) the exercise of decisionmaking authority; (2) the nature of

participation in the commission of the offense;(3)the recruitment of accomplices;

(4) the claimed right to a larger share of the fruits of the crime; (5) the degree of

participation in planning or organizing the offense; (6) the nature and scope of

the illegal activity; and (7) the degree of control and authority exercised over

others. § 3B1.1 cmt. 4.

Despite Self’s denial that he played a large part in the scheme, several of

the factors are satisfied. Self was the one who broke into the postal collection

boxes and stole the information, which he and Barakat later used to make

fraudulent checks and identification. Although Garcia recruited Self and taught

him how to make the fraudulent checks and identification, as Postal Inspector

Hernandez testified at sentencing, Self took what he learned and ran with it. 

Self’s idea was to target postal collection boxes. Self also recruited Collins into

the scheme as his lookout when he broke into the postal collection boxes. Collins

took directions from Self in the criminal activity, including how to cash

counterfeit checks and to use a fake driver’s license as identification. Under the

guidelines and Fifth Circuit case law, supervising even one other co-conspirator

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is sufficient to justify the greater enchantment for a leader or organizer. United

States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001). Thus, the district court was

justified in applying the managerial role enhancement to Self’s sentence. 

B. Allocution

Self asserts that the district court plainly erred by denying him an

opportunity to allocute before imposing the sentence. Plain error review applies

because Self did not object on this ground in the district court. See United States

v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). Thus, Self must show that

the court made a clear or obvious error that affects his substantial rights. See

Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009). If Self

makes such showing, the court has the discretion to correct the error but only if

it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. 

Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal Procedure requires the

district court to “address the defendant personally in order to permit the

defendant to speak or present any information to mitigate the sentence” before

imposing sentence. The district court must apply Rule 32 “quite literally” and

“make ‘a personal inquiry directed to the defendant.’” United States v.

Magwood, 445 F.3d 826, 829 (5th Cir. 2006) (quoting United States v. Dickson,

712 F.2d 952, 956 (5th Cir. 1983)). The record must indicate “that the defendant

knew he had a right to speak on any subject of his choosing prior to the

imposition of sentence.” United States v. Echegollen-Barrueta, 195 F.3d 786, 789

(5th Cir. 1999); see also United States v. Hernandez, 291 F.3d 313, 315-16 & n.1

(5th Cir. 2002) (determining that an invitation by the district court to the

defendant to speak on any statement amounted to compliance with Rule 32).

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After the district court ruled on Self’s objections to the PSR, the court

announced the applicable guidelines “range.” The following exchange then

occurred:

[The Court]: Mr. Curtis, I intend to sentence your client as required by the

guidelines. Do you, nevertheless, wish to make any remarks on behalf of

Mr. Self?

Mr. Curtis: Your, Honor, I believe I’ve made the remarks that I need to

make at this time, but I think Mr. Self would probably like to speak.

[The Court]:Mr. Self, would you like to speak on your own behalf or

present any information in mitigation of your sentence?

Self then spoke, apologizing for his actions and stating that he has never been

given any kind of rehabilitation for his drug addition. The district court

responded that it would recommend rehabilitation for Self and then commented

on how Self’s actions affected the victims. After asking if the Government had

anything to say, the district court imposed a sentence of 180 months of

imprisonment. The district court did not actually impose Self’s 180-month

sentence until after Self was given the opportunity to speak. The court

considered Self’s remarks as evidenced by the recommendation for

rehabilitation. His right to allocution was not violated. 

CONCLUSION

For the foregoing reasons, the conviction and sentence are AFFIRMED.

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