United States Court of Appeals,
Eighth Circuit.
UNITED STATES of America, Appellee,
v.
Julianne K. SAMPLE, Appellant.
No. 99-3475.
Submitted: Feb. 15, 2000.
Filed: May 31, 2000.
Defendant pleaded guilty to credit card fraud, and was sentenced by the United States District Court for the Western District of Missouri, Nanette K. Laughrey, J. Defendant appealed her sentence. The Court of Appeals, Hansen, Circuit Judge, held that: (1) defendant received proper notice of intent to depart upwards; (2) degree of psychological harm to victims of defendant's identity theft scheme was an encouraged factor not taken into account by an applicable Guideline, warranting upward departure; and (3) departure from a 15-to 21-month sentencing range to 30 months was reasonable.
Affirmed.
[1] Sentencing and Punishment 
935
(Formerly 110k1306)
Upward
departure from sentencing range for defendant's credit card fraud, based on
degree of psychological harm to victims of defendant's identity theft scheme,
was based on factors outlined in Application Notes for guideline applicable when
the loss does not reflect the seriousness of the defendant's conduct, and thus
indication in the presentence investigation report (PSIR) that a departure
might be warranted pursuant to that guideline afforded defendant proper notice,
despite contention that departure was pursuant to guideline which authorizes an
upward departure "[i]f a victim or victims suffered psychological injury
much more serious than that normally resulting from commission of the
offense." Fed.Rules
Cr.Proc.Rule 32, 18 U.S.C.A.; U.S.S.G.
§ § 2F1.1,
2F1.1, comment. (nn. 11, 12), 5K2.3, p.s., 18 U.S.C.A.
[2] Sentencing and Punishment 935
Inclusion
in a presentence investigation report (PSIR) of the specific grounds that may
form the basis for an upward departure satisfies requirement of notice if
district court intends to depart upward from a defendant's prescribed
sentencing range. Fed.Rules
Cr.Proc.Rule 32, 18 U.S.C.A.
[3] Criminal Law 1147
District
court's decisions to impose an upward sentencing departure as well as the
reasonableness of the extent of the departure are reviewed under a unitary
abuse of discretion standard.
[4] Sentencing and Punishment 804
(Formerly 110k1263)
[4] Sentencing
and Punishment 909
(Formerly 110k1240(3))
If the district court is basing its
departure decision on a factor that is specifically encouraged as a basis for
departure by the Sentencing Commission, the district court may depart, provided
that the applicable Guideline does not already take the factor into
account. 18
U.S.C.A. § 3553(b)
[5] Criminal Law 1158(1)
In
conducting review of sentencing departure, Court of Appeals defers to the
district court on the critical issue of whether a given factor is present to a
degree not adequately considered by the Sentencing Commission. 18
U.S.C.A. § 3553(b).
[6] Sentencing and Punishment 844
(Formerly 110k1281)
The degree
of psychological harm to victims of defendant's identity theft scheme was an
encouraged factor not taken into account by an applicable Sentencing Guideline,
warranting upward departure in sentencing for credit card fraud, where factual record contained sufficient
evidence that defendant caused her victims to suffer severe emotional
trauma. U.S.S.G.
§ § 2F1.1,
2F1.1,
comment (n. 11), 18 U.S.C.A.
[7] Sentencing and Punishment 844
(Formerly 110k1281)
An upward
departure from a 15- to 21-month sentencing range to 30 months for credit card
theft, on ground the loss did not reflect the seriousness of the defendant's
conduct because of psychological harm to victims of defendant's identity theft
scheme, was reasonable. U.S.S.G.
§ § 2F1.1,
2F1.1, comment. (nn. 11, 12), 18 U.S.C.A.
[8] Sentencing and Punishment 973
(Formerly 110k1313(2))
The
government bears the burden of proving by a preponderance of the evidence the
amount of loss for sentencing purposes.
[9] Sentencing
and Punishment 978
(Formerly 110k1313(2))
The district
court did not clearly err in its findings regarding the amount of loss from
defendant's credit card fraud, based on its finding that the detailed
statements that defendant gave to a Secret Service agent were more credible
than the statement of loss that she provided during the sentencing hearing.
[10] Criminal Law 1158(1)
Questions
of witness credibility are committed squarely to the domain of the sentencing
court and are virtually unreviewable on appeal.
*1030
Anita Lee Burns, Kansas City, Missouri, argued,
for Appellant.
Linda
L. Parker, Assistant U.S. Attorney, Kansas City,
Missouri, argued, for Appellee.
Before WOLLMAN, Chief Judge, HANSEN, and MORRIS
SHEPPARD ARNOLD, Circuit Judges.
HANSEN, Circuit Judge.
Following her plea of guilty to one count of
credit card fraud, the district court [FN1] sentenced
Julianne K. Sample to 30 months in prison. Sample appeals her sentence. We affirm.
FN1. The Honorable
Nanette K. Laughrey, United States District Judge for the Western District of
Missouri.
I.
Facts and Background
From 1995 to 1997, Sample engaged in an
elaborate financial fraud and identity theft scheme in the greater Kansas City,
Missouri, metropolitan area. Sample
perpetrated her scheme by procuring personal information about her roommates,
casual acquaintances, visitors, and individuals whom she met through other
friends. Sample also worked in tandem
with her boyfriend, Thomas Melton. Melton, a former employee of Builders Square
in Kansas City, often forwarded personal information obtained from his
customers to Sample. The information
that Sample acquired, either on her own or in combination with Melton, included
social security numbers, dates of birth, addresses, and physical descriptions.
Once Sample purloined this information from her unsuspecting victims, she began
the process of stealing their
identities. Sample used the personal
information to open various bank accounts, secure credit cards, and even
establish false driver's licenses in the names of her victims. Sample then utilized the credit cards to
make multiple purchases in her victims' names. She also wrote checks and
withdrew money from her fraudulent bank accounts. In one instance, Sample, posing as Missouri
resident Keri Shirk, visited a regional health center in Independence,
Missouri. While at the health center,
Sample altered Shirk's medical records and obtained a prescription in Shirk's
name.
Law enforcement officers eventually discovered
Sample's scheme and apprehended her.
Sample pleaded guilty in a Kansas state court to one count of forgery
and two counts of felony theft. A
Kansas state court judge sentenced Sample to serve 18 months in prison. While incarcerated in Kansas, Sample admitted
to an agent of the United States Secret Service that she orchestrated an
extensive identity takeover *1031 scheme and stole thousands of dollars
from various unsuspecting victims in western Missouri and Kansas. Sample "guesstimated" that she
either caused or intended to cause her victims to lose a combined amount in
excess of $70,000.
Following her interview with the Secret
Service, a federal grand jury indicted Sample in the Western District of
Missouri for one count of credit card fraud. See 18
U.S.C. § 1029(a)(2). Sample entered
into a plea agreement with the government. Pursuant to the agreement, Sample pledged to
plead guilty to the charge contained in the indictment. The government agreed that the total amount
of actual and intended loss to Sample's victims fell between $40,000 and
$70,000. The parties acknowledged in
the agreement, however, that the district court retained discretion with regard
to all sentencing decisions.
Prior to Sample's sentencing hearing, the
United States Probation Office prepared a presentence investigation report
(PSIR). The PSIR concluded that contrary
to Sample's plea agreement with the government, the total amount of actual and
intended loss in this case was greater than $70,000 but less than
$120,000. The PSIR also stated that an
upward departure from the sentencing range prescribed in the United States
Sentencing Guidelines might be warranted in this case based upon the factors
delineated in United
States Sentencing Guidelines Manual §
2F1.1 (Application Notes 11 and 12.) The PSIR, however, did not affirmatively
recommend an upward departure. (See
PSIR at 24.) Sample objected to the
inclusion of the upward departure information.
She stated that no grounds existed to support such a departure. The probation officer declined to retract
the information.
The district court sentenced Sample on September
10, 1999. During Sample's sentencing
hearing, the district court held that an upward departure was warranted in this
case. The district court based its
departure decision on the degree of psychological harm that Sample inflicted
upon her victims. The district court also
rejected the amount of loss stated in the plea agreement and adopted an amount
consistent with Sample's statement to the Secret Service. The district court then sentenced Sample to
30 months in prison. Sample appeals her
sentence to this court.
II.
Discussion
A. Upward Departure: Adequacy of Notice
[1] Sample challenges the district court's decision to impose
an upward departure in this case.
Sample contends that the district court failed to afford her proper
notice that it was considering a departure from the applicable sentencing
range. Sample failed to raise her lack
of notice argument during the sentencing hearing. Hence, we must review the adequacy of notice
issue for plain error. See United
States v. McCarthy,
97 F.3d 1562, 1580 (8th Cir.1996), cert.
denied, 519
U.S. 1139, 117 S.Ct. 1011, 136 L.Ed.2d 888 and
520 U.S. 1133, 117 S.Ct. 1284, 137 L.Ed.2d 359 (1997).
[2] Rule
32 of the Federal Rules of Criminal Procedure
requires a district court to provide a defendant notice if it intends to depart
upward from a defendant's prescribed sentencing range. See Burns
v.. United States,
501 U.S. 129, 138-39, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). Inclusion in a PSIR of the specific grounds that may form
the basis for an upward departure satisfies Rule
32's notice requirement. See id. In this
case, the PSIR indicated that a departure may be warranted pursuant to USSG
§ 2F1.1.
Sample contends that the PSIR failed to state the specific departure grounds
later relied upon by the district court.
Sample argues that the district court departed
on the basis of extreme psychological injury as stated in USSG
§ 5K2.3. Section
5K2.3 authorizes an upward departure "[i]f a
victim or victims suffered psychological injury much more serious than *1032
that normally resulting from commission of the offense." USSG
§ 5K2.3.
Sample contends that the district court based its departure decision on the
factors delineated in § 5K2.3 rather
than the factors listed in § 2F1.1. Hence,
argues Sample, she received insufficient notice of the departure. We disagree.
Application Notes 11 and 12 to USSG
§ 2F1.1
both authorize a district court to depart upward if the court finds that the
loss does not reflect the seriousness of the defendant's conduct. Note 11(c) specifically permits a departure
if "the offense caused reasonably foreseeable, physical or psychological
harm or severe emotional trauma."
At Sample's sentencing hearing, the district court stated that it was
"departing upward in this matter because of the extreme complications and
emotional distress that you have placed on your victims ... [W]hile you may not
have understood all of the details of how you were going to affect their lives,
I think you had a substantial understanding of the confusion that you would
create." (Sent. Tr. at 61.)
After reviewing the record, we conclude that
the district court based its departure decision on the factors outlined in
Application Notes 11 and 12 to USSG
§ 2F1.1.
The district court identified emotional harm as the reason for the departure
and stated that such harm was reasonably foreseeable. Such a departure basis is consonant with the
factors outlined in Application Note 11.
The PSIR plainly stated that the Application Note 11 factors may serve
as a possible basis for a departure, and the probation officer provided a copy
of the PSIR to Sample. As the district
court's departure decision directly correlates with the PSIR's plain language,
we must reject Sample's lack of notice argument.
B. Upward Departure: Sufficiency of the Basis/Reasonableness of
the Extent
[3][4][5] Sample next argues that the district court erred when it
decided to upwardly depart in this case.
Sample challenges the district court's decision to impose an upward
departure as well as the reasonableness of the extent of the departure. We review a district court's departure
decisions under a unitary abuse of discretion standard. See United
States v. Goings,
200 F.3d 539, 542 (8th Cir.2000). We note that departure is appropriate only
in extraordinary cases where there exists an "aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines." 18
U.S.C. § 3553(b); see also United
States v. Sharma,
85 F.3d 363, 364 (8th Cir.1996). We first determine whether the district
court is basing its departure decision on a factor that is specifically
encouraged, discouraged, or forbidden by the Sentencing Guidelines. See United
States v. O'Hagan,
139 F.3d 641, 657 (8th Cir.1998). If the factor is encouraged as a basis for
departure by the Sentencing Commission, the district court may depart, provided
that the applicable Guideline does not already take the factor into account. See
Koon
v. United States,
518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United
States v. Washington,
109 F.3d 459, 462 (8th Cir.1997). In conducting our review, we "defer to
the [district] court on the critical issue of whether a given factor is present
to a degree not adequately considered by the [United States Sentencing]
Commission." United
States v. Coon,
187 F.3d 888, 899-900 (8th Cir.1999)(internal
citations and quotations omitted), cert. denied, 529
U.S. 1017, 120 S.Ct. 1417, 146 L.Ed.2d 310 (2000).
[6] Section
2F1.1(b)(1) of the Sentencing Guidelines
specifically encourages an upward departure whenever the amount of loss fails
to capture the harmfulness and seriousness of the conduct. See USSG
§ 2F1.1,
comment (n.11(c), 12). The amount of
loss fails to capture the harmfulness and seriousness of the defendant's
conduct when the conduct causes reasonably *1033 foreseeable physical or
psychological harm, or severe emotional distress, to the victim of the
crime. See Coon,
187 F.3d at 900; USSG
§ 2F1.1,
comment (n.11(c)). The basis for the
district court's departure, therefore, is an encouraged factor not taken into
account by an applicable Guideline.
Accordingly, we will uphold the district court's departure decision, as
long as the factual record contains sufficient evidence to support the basis of
the departure decision.
In this case, the record is replete with
evidence that Sample caused her victims to suffer severe emotional trauma. Two of Sample's victims, Shirk and Paula
Jensen, testified at Sample's sentencing hearing regarding the degree of
disruption and turmoil wrought upon their lives as a result of Sample's
deceptions. Jensen testified as
follows:
Once I learned of this crime committed against me, I was
terrified to be alone, fearful that someone may steal my children, frightened
that someone may be following me, afraid to write a check, horrified that
someone was out there destroying my good name and credit, and there wasn't
anything I could do about it ... Try to imagine the time and frustration and
the endless hours spent on the phone and going in person to places in an effort
to prove my real identity. All the time
I was being treated like a criminal. No
one believed me ...
I cannot even begin to explain the embarrassment and the
humiliation that I feel when I'm rejected (sic) credit or when stores refuse to
accept my checks because of the criminal actions of Ms. Sample. Try to imagine how demoralizing it is to be treated like a
criminal for a crime committed against you.
Emotionally, it's very degrading.
Probably the most serious and traumatic situation involved
me almost being arrested after a minor traffic accident because warrants listed
under my [s]ocial [s]ecurity number came up because I'm an alias of her. I now have to carry this legal statement
with me at all times to prove my real identity ...
The anger, fear, and anxiety that this has caused is going
to leave me scarred forever. It will
never be over for me. I have a
difficult time trusting people because now, of course, I'm suspicious of what someone
is going to do to me. The time I've had
to spend towards getting this mess straightened out has taken me away from my
children. I'll never be able to get
that back.
I've had two missed days off (sic) work trying to get
different problems straightened out, and the frustration of the many phone
calls that I've had to deal with while I've been at work that relate to this
case has been overwhelming and distracting.
I'm an elementary school teacher, and it has been extremely difficult
for me to deal with these phone calls and then immediately step back into my
classroom emotionally ready to meet the educational needs of my students.
(Sent. Tr. at 33-35.) Shirk offered similar testimony.
Based upon our review of the record, we
conclude that more than enough evidence
exists for the district court to find that Sample caused her victims to suffer
severe emotional distress and trauma.
While Sample may not have been able to apprehend the precise effects of
the harm caused by her actions, she undoubtedly could foresee the level of
personal upheaval likely to result from an identity theft scheme. Consequently, we hold that the district
court committed no error when it decided to depart upwardly in this case.
[7] Sample argues that even if the district court had the
discretion to issue an upward departure, it erred when it sentenced Sample to
30 months in prison. Absent the
departure, Sample's sentencing range would have been 15 to 21 months in
prison. Sample contends that an upward
departure from a 15- to 21-month sentencing range to 30 months is
unreasonable. Sample's argument lacks
merit.
*1034 We review for abuse of discretion
the reasonableness of the extent of an upward departure. See United
States v. Johnson,
56 F.3d 947, 958 (8th Cir.1995). In conducting our review, we are mindful
that the "district court's decision on this matter is quintessentially a
judgment call and we respect the district court's superior feel for the
case." Id. (internal
quotations and citations omitted). The
district court's judgment call is, of course, inexorably linked with the facts
and circumstances of the particular crime at issue.
In the instant case, Sample's identity theft
scheme exhibits a degree of callousness
sufficient to justify a nine-month upward departure. In fact, we believe that the district
court's decision to issue an upward departure of nine months was more than
reasonable under the circumstances of this case. Sample's challenge to the reasonableness of
the extent of the upward departure therefore fails.
C. The Amount of Loss
Sample challenges the district court's
determination of her base offense level under the Sentencing Guidelines. Sample argues that the district court erred
when it rejected the amount of loss stipulation contained in her plea agreement
with the government. The plea agreement
provided that the total amount of actual and intended loss caused by Sample's
identity theft scheme fell between $40,000 and $70,000. The district court found instead that the
total amount of loss in this case was less than $120,000 but greater than the
$70,000 maximum figure provided in the plea agreement. We review the district court's factual
findings regarding the amount of loss for clear error. See United
States v. Roggy,
76 F.3d 189, 192 (8th Cir.), cert. denied,
517
U.S. 1200, 116 S.Ct. 1700, 134 L.Ed.2d 799 (1996). We review a district court's application of
the guidelines to the facts de novo. See
United
States v. Molina,
172 F.3d 1048, 1058 (8th Cir.), cert. denied,
528
U.S. 893, 120 S.Ct. 221, 145 L.Ed.2d 186 (1999).
[8] The government bears the burden of proving the amount of
loss by a preponderance of the
evidence. See United
States v. Jackson,
155 F.3d 942, 948 (8th Cir.), cert. denied,
525
U.S. 1059, 119 S.Ct. 627, 142 L.Ed.2d 565 (1998).
In this case, however, the government offered no testimonial evidence regarding
either the actual or intended amount of loss.
Sample testified that the total amount of both actual and intended loss
fell between $40,000 and $70,000. She
told the court that her earlier statements to the Secret Service agent were
mere guesstimates. The district court
rejected Sample's $40,000 to $70,000 calculation. Instead, the district court relied upon the
amount of loss guesstimate conveyed by Sample to the Secret Service, which was
enumerated within the PSIR.
[9][10] In arriving at its finding regarding the amount of loss,
the district court noted that Sample "was able to remember a number of
details about the debriefing that she gave to the Secret Service agent ...
[a]nd [she] is sufficiently sophisticated in the criminal justice system to
understand the consequences of talking to the police about any matter. And I think, especially given the nature of
these kinds of crimes, it is very difficult for law enforcement to exactly
identify what has been lost, and the person who really is in the best position
to do that is, in fact, the defendant."
(Sent. Tr. at 60.) Hence, the
district court found that the detailed statements that Sample gave to the
Secret Service were more credible than the statement of loss that Sample
provided during the sentencing hearing.
The district court's decision, in
essence, was based on witness credibility.
Questions of witness credibility are committed squarely to the domain of
the sentencing court and are virtually unreviewable on appeal. See United
States v. Hernandez,
187 F.3d 806, 808-09 (8th Cir.1999). Accordingly, we must conclude that the
district court did not clearly err in its findings regarding the amount of
loss. Consequently, Sample's *1035
challenge to the district court's determination of her base offense level
fails.
III.
Conclusion
For the reasons stated above, we affirm the
judgment of the district court.
213 F.3d 1029
END OF
DOCUMENT