1

The Honorable James M. Rosenbaum, Chief Judge, United States District

Court for the District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1525

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Tyrone Powell Crawford, also known *

as Robert Felin, *

*

Appellant. *

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Submitted: May 11, 2005

Filed: July 21, 2005

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Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Tyrone Powell Crawford appeals from the sentence imposed on him by the

district court1

 following his plea of guilty to mail fraud, a violation of 18 U.S.C. §

1341 (Count 1); wire fraud, a violation of 18 U.S.C. § 1343 (Count 2); money

laundering and aiding and abetting money laundering, violations of 18 U.S.C. §§ 2(a)

and 1956(a)(1)(b)(i) (Count 3); and two counts of forged securities, violations of 18

U.S.C. § 513(a) (Counts 4 and 5). We affirm.
2

The restitution included compensation for direct and indirect loss (e.g., lost

wages, legal expenses, child care) suffered by the victims.

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I.

Crawford created fraudulent mortgage documents based on three properties

located in Minneapolis. He owned two of the properties; the third belonged to an

innocent and unsuspecting third party. After recording the mortgage documents with

the county, he sold the fictitious mortgages over the Internet on the secondary market.

Crawford’s transactions defrauded his victims of $293,112.62. Crawford has been

unable to produce these funds: he maintains that he never received a wire transfer of

$76,719.19 and that another $100,000.00 was stolen from the top of his refrigerator.

The district court grouped counts 1, 2, 4 and 5. It found a base offense level

of 6 and increased the offense level by 12 because the amount of loss exceeded

$200,000.00. The district court then added two offense levels each for its findings

that Crawford had: (1) used sophisticated means; (2) used or transferred unauthorized

identification; (3) been an organizer, leader, or manager; and (4) obstructed justice.

These enhancements resulted in an offense level of 26 on counts 1, 2, 4 and 5. As to

count 3, the district court began with a base offense level of 22 and added two levels

each for Crawford’s conviction under 18 U.S.C. § 1956, his role as an organizer, and

his obstruction of justice. These enhancements resulted in an offense level of 28 on

count 3, which, with Crawford’s criminal history category of IV, produced a

sentencing range of 110-137 months.

The district court sentenced Crawford to 60 months for each conviction on

counts 1 and 2 and to 120 months for each conviction on counts 3, 4, and 5. Because

the district court ordered all sentences to run concurrently, the total length of

Crawford’s sentence was 120 months. The district court also ordered $500.00 in

special assessments and $323,526.12 in restitution.2
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II.

Crawford challenges the district court’s sentencing enhancements based upon

its findings that Crawford used sophisticated means, used unauthorized identification,

was an organizer of the crime, and obstructed justice, and that the amount of loss was

greater than $200,000.00. Although Crawford based his appeal on Blakely v.

Washington, 124 S. Ct. 2531 (2004), we now address his arguments in the light of the

post-Blakely decisions of United States v. Booker, 125 S. Ct. 738 (2005), and United

States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc). 

A.

Crawford’s objection to the enhancement based on the amount of loss is

without merit. We have recently held that a fact in a presentence investigation report

(PSR) not specifically objected to is a fact admitted by the defendant for purposes of

Booker. See United States v. McCully, 407 F.3d 931, 933 (8th Cir. 2005).

Crawford’s PSR indicated that he fraudulently obtained $293,112.62 through his

illicit transactions. Although he objected to having received $76,719.19 of that

amount, the uncontested total amount of fraud still exceeds $200,000.00.

Accordingly, we conclude that, for purposes of Booker, Crawford admitted to the

amount of loss triggering the twelve-level enhancement. 

B.

Because Crawford did not raise a Blakely or Booker objection to the district

court’s enhancements at sentencing, we review the challenged enhancements for plain

error under the four-part test of United States v. Olano, 507 U.S. 725 (1993). Pirani,

406 F.3d at 549. Pursuant to Olano, before we can correct an error not raised at trial,

“there must be (1) error, (2) that is plain, and (3) that affects substantial rights.

Johnson v. United States, 520 U.S. 461, 466-67 (1997). If all three conditions are

met, we may remedy the error only if it “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. 
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We assume for purposes of this appeal that the district court would have

calculated Crawford’s overall sentence based on the higher offense level

corresponding to count 3.

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Because the district court considered the United States Sentencing Guidelines

to be mandatory at the time that it sentenced Crawford, it erred when it increased

Crawford’s sentence based upon judge-found facts not admitted by the defendant

(that Crawford used sophisticated means, that he used unauthorized identification,

that he was an organizer of the crime, and that he obstructed justice). In these

circumstances, the first two Olano factors are satisfied. See Pirani, 406 F.3d at 550.

Whether the errors affected Crawford’s substantial rights is another matter. To satisfy

this factor, “the defendant must show a ‘reasonable probability,’ based on the

appellate record as a whole, that but for the error he would have received a more

favorable sentence.” Id. at 552.

Absent the challenged enhancements, Crawford would have been sentenced at

an offense level of 18 on counts 1, 2, 4, and 5 and an offense level of 24 on count 3.

The sentencing range corresponding to the latter is 77-96 months.3

 Although that

range is lower than the range at which Crawford was sentenced, nothing in the record

suggests a reasonable probability that Crawford would have received a more

favorable sentence absent the Booker errors. The sentencing transcript, in fact,

reflects that the district court was unimpressed with Crawford’s attempts to

demonstrate remorse and acceptance of responsibility. For example, despite the

government’s support of a two-level reduction for acceptance of responsibility, the

district court made clear that no reduction was warranted. See May 8, 2003, Sen. Tr.

at 12 (“There is no way I will give your client acceptance of responsibility. Period.

Not one point, not two, or three.”). After Crawford offered a statement of contrition,

the district court responded:

Well, Mr. Crawford, . . . those were all very nice words. Unfortunately,

. . . it’s one thing to talk the talk. But . . . those words were not followed
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by you in any regard. You said there’s no explanation [for your actions],

sure there’s an explanation. The explanation is you’re a thief. And you

stole from people. You said you never meant to hurt anyone. That’s

absurd. I don’t believe that. And you don’t believe that. How could

you possibly imagine that it wouldn’t hurt two innocent people who

were living in a home that they’d lived in for years, and you sold it?

How can you imagine that when a bank gave you a hundred thousand

dollars that you weren’t entitled to, or a house that you didn’t own was

sold, somebody wasn’t going to be hurt? The words fall on the ground

like stones. They’re useless. You know it, and I know it. But in this

case, I got to call it for what it is. It’s ridiculous.

Id. at 22-23. In light of these comments, and in the absence of any evidence to

suggest that the district court had any thought that mitigating factors existed,

Crawford has not demonstrated a reasonable probability of prejudicial error. 

The sentence is affirmed.

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