Defendant-Appellant Sadiki Komunyaka Leslie appeals from a July 12, 2010 judgment of the United States District Court for the District of Connecticut (Thompson, C.J.), following his guilty plea to conspiring to commit bank fraud in violation of 18 U.S.C. § 1349. At sentencing, Leslie argued that he was not responsible for the losses incurred during the time period he was incarcerated because his incarceration was evidence of his withdrawal from the conspiracy. The district court disagreed and attributed the actual losses incurred during the entire conspiracy to Leslie when it calculated his Sentencing Guidelines range. The district court sentenced Leslie to 51-months imprisonment. On appeal, Leslie argues that his incarceration was prima facie evidence that he withdrew from the conspiracy, which then shifted the burden to the government to prove the contrary. We disagree and find that the defendant failed to meet his burden of proving affirmative conduct necessary to show withdrawal.
Leslie devised and led a conspiracy to commit bank fraud in the greater Bridgeport, Connecticut area beginning in early 2004. Leslie and his co-conspirators took advantage of a flaw in the Bridgeport-based People's Bank's automated teller machine ("ATM") system. They first obtained checks associated with closed bank accounts or open accounts with little or no balance. They then deposited those checks at ATMs with ATM cards associated with open bank accounts, knowing that the checks would not be honored by the bank from which the check was issued. The fraudulently deposited checks became available for withdrawal before People's Bank could detect the fraud. During that period, Leslie and his co-conspirators withdrew the ATM maximum daily limit from the respective accounts and made additional cash withdrawals when they used the ATM card for purchases. Leslie devised the scheme and taught others how to execute it. Leslie's students recruited others to join the conspiracy.
Leslie was arrested on state charges and pled guilty in Connecticut Superior Court for bank fraud activity from 2004 to April 2005. While Leslie remained free on bond from April 2005 to June 2005, he continued to participate in the bank fraud conspiracy. On July 1, 2005, Leslie began serving his four year state prison sentence. He was released from prison on March 16, 2007, but was incarcerated again on July 24, 2007 for a parole violation. During Leslie's incarceration, his co-conspirators continued the scheme. In 2009, Leslie was transferred to federal custody; the federal government charged him with the subject federal crime covering the period April 2005 to December 2007.
As part of the plea agreement, the parties agreed that the total actual loss from the conspiracy was $310,475 and that the total amount of intended loss from the scheme was $509,447. At sentencing, Leslie argued that he was only responsible for $60,400—the amount of losses from the start of the charged conspiracy in April 2005 to his incarceration on July 1, 2005. This loss amount would have resulted in a six-level enhancement under the Guidelines, see U.S.S.G. § 2B1.1(b)(1)(D), and an imprisonment range of 27-33 months. The district court rejected Leslie's argument that he had withdrawn from the conspiracy when he was incarcerated. Accordingly, the district court agreed with the government that the intended loss from the entire conspiracy was attributable to Leslie, resulting in a fourteen-level enhancement under the Guidelines. See U.S.S.G. § 2B1.1(b)(1)(H). The district court, however, determining that it was more appropriate to assess only the actual losses to Leslie, calculated an imprisonment range of 51 to 63 months. Leslie now appeals the 51-month sentence imposed by the district court.
Leslie argues that the district court erred when it attributed losses to him that were incurred as a result of the conspiracy after he was incarcerated. We review a sentence for reasonableness, which is "akin to review for abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds of allowable discretion, committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact." United States v. Williams, 475 F.3d 468, 474 (2d Cir.2007) (internal quotation marks and ellipses omitted). "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v.
On appeal, Leslie argues that his incarceration was prima facie evidence that he withdrew from the conspiracy, which then shifted the burden to the government to prove that he remained in the conspiracy. This Court has yet to squarely address this argument in the sentencing context.
As an initial matter, it is well-settled that withdrawal from a conspiracy is an affirmative defense for which the defendant bears the burden of proof at trial. United States v. Pizzonia, 577 F.3d 455, 466 (2d Cir.2009); United States v. Flaharty, 295 F.3d 182, 192 (2d Cir.2002). Mere cessation of the conspiratorial activity by the defendant is not sufficient to prove withdrawal. United States v. Eppolito, 543 F.3d 25, 49 (2d Cir.2008); Flaharty, 295 F.3d at 192. The defendant "must also show that he performed some act that affirmatively established that he disavowed his criminal association with the conspiracy, either the making of a clean breast to the authorities, or communication of the abandonment in a manner reasonably calculated to reach co-conspirators." Eppolito, 543 F.3d at 49 (citations and internal quotation marks omitted). "Unless a conspirator produces affirmative evidence of withdrawal, his participation in a conspiracy is presumed to continue until the last overt act by any of the conspirators." United States v. Diaz, 176 F.3d 52, 98 (2d Cir.1999) (quoting United States v. Greenfield, 44 F.3d 1141, 1150 (2d Cir. 1995)).
We find no reason why placement of the burden should be any different in the sentencing context.
Leslie argues that imprisonment may be evidence of an affirmative act of withdrawal from a conspiracy; we agree. But "while arrest or incarceration may constitute a withdrawal from a conspiracy,
Here, the district court did not err in determining that Leslie failed to meet his burden of proving that he withdrew from the bank fraud conspiracy. Leslie's imprisonment did not, as a matter of law, constitute a withdrawal from the conspiracy. See United States v. Salameh, 152 F.3d 88, 155 (2d Cir.1998) (per curiam). He conceded at sentencing that he had no evidence to offer other than the mere fact of his incarceration to suggest that he withdrew from the conspiracy. In the absence of any other evidence of withdrawal, Leslie's imprisonment was tantamount to a "resignation from a criminal enterprise, [which,] standing alone, does not constitute withdrawal." United States v. Berger, 224 F.3d 107, 118 (2d Cir.2000).
Leslie's reliance on cases from the Third Circuit to support his burden-shifting argument is misplaced. Those cases do not address incarceration at all. See United States v. Steele, 685 F.2d 793 (3d Cir. 1982); United States v. Lowell, 649 F.2d 950 (3d Cir.1981). Furthermore, both Third Circuit cases support our view that mere cessation of conspiratorial activity is not sufficient to constitute withdrawal
Finally, there is evidence in the record that Leslie did not withdraw from the conspiracy during his incarceration. While out of prison in 2008, Leslie met with an unindicted co-conspirator who told Leslie that the bank fraud scheme was still ongoing. See Flaharty, 295 F.3d at 193. The evidence before the sentencing court of Leslie's incarceration; the nature of the bank fraud conspiracy that he formulated, led, and executed; and Leslie's contact with a co-conspirator upon his release from prison support the district court's finding that Leslie did not withdraw from the conspiracy during his incarceration. Accordingly, the district court did not err in attributing the actual losses of the entire conspiracy to Leslie.
For the foregoing reasons, the judgment of the district court is hereby