United States v. Alexander

71 F. App'x 106
Court of Appeals for the Third Circuit·Decided July 17, 2003·No. No. 02-4060·Published

Opinion

OPINION

BARRY, Circuit Judge.

On July 12, 2002, appellant Andre Alexander pled guilty to a one-count information charging him with conspiring to transmit threatening communications in interstate commerce in violation of 18 U.S.C. §§ 371 and 875(c). The indictment arose out of Alexander’s scheme to extort money from his family to pay his gambling debts. On October 25, 2002, the District Court sentenced Alexander to 46 months imprisonment, a three-year term of supervised release, $2,100 in restitution, and a $100 special assessment. Alexander now appeals, arguing that the District Court erred in applying a two-level sentencing enhancement because Alexander’s mother and great-grandmother were particularly vulnerable victims within the meaning of section 3A1.1 of the sentencing guidelines. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291 and will affirm.

I.

The charges against Alexander arose from the scheme he devised while gambling in Atlantic City, New Jersey, to extort money from his family to pay his gambling debts. Pursuant to the scheme, Alexander and an accomplice he recruited on the Atlantic City boardwalk made several telephone calls to members of Alexander’s family and falsely told them that Alexander was being held by individuals to whom he owed a gambling debt who would hurt or kill him if the family did not pay the debt.

On October 16, 2001, before he had even recruited his accomplice, Alexander placed several calls to his mother, Loretta Kelly, at her home in Los Angeles, California and at her place of employment. Alexander asked his mother to wire him $700 to pay off gambling debts to men who were threatening to hurt him if the debts were not paid. Ms. Kelly wired the $700 to Alexander in Atlantic City that same day.

Alexander again called his mother at work the next day, October 17, 2001, in an effort to obtain another $500. When he was unable to reach his mother, he called her residence and spoke with his 92-year-[108]*108old great-grandmother, Bertha White, telling her the same false story that he had told his mother the day before. Ms. White arranged a three-way call between her, Alexander, and Ms. Kelly. Alexander falsely told the women that he was calling from the hospital because the men to whom he owed money had hit him on the head with a hammer. Ms. Kelly immediately wired Alexander the $500.

Later that same day, after already losing the money his mother had wired, Alexander recruited Timothy Hernandez to pose as a debt collector and make more calls to his mother’s residence to obtain more gambling money. Hernandez called the residence and spoke to Ms. White. Hernandez told her that Alexander would be hurt unless the family immediately sent an additional $2,100 to satisfy Alexander’s debts. Ms. White called Ms. Kelly at work to tell her about the threats and then contacted the police to report that Alexander had been kidnaped.

That evening, the police came to Ms. Kelly’s residence and recorded several telephone conversations between Alexander and Hernandez in Atlantic City and Ms. Kelly, Ms. White, and Ms. Kelly’s cousin, Rene Childress, in Los Angeles. Over the course of these conversations, Hernandez threatened to “rough-up” Alexander if the family failed to pay the $2,100. In one of the calls, Mr. Childress got on the line and told Alexander that his mother couldn’t speak on the telephone because she had fainted due to her high blood pressure and might have to be taken to the hospital.

During the course of the recorded calls, law enforcement officials determined that the calls were originating from the Sands Casino in Atlantic City. FBI agents in Atlantic City then reviewed footage from the casino’s security video cameras, which showed that Alexander was walking around freely in the casino without an escort. Despite the fact that they were informed by the FBI that Alexander did not appear to be in danger and that his story was likely a hoax, the family wired the $2,100 to Atlantic City.

When later confronted by FBI agents, Alexander admitted that the threats to his family were a hoax that he devised to obtain more gambling money, and also admitted that he had approached Hernandez on the boardwalk earlier that day and offered him $200 to act as a debt collector. On July 12, 2002, Alexander pled guilty to a one-count information charging him with conspiring to transmit threatening communications in interstate commerce, in violation of 18 U.S.C. §§ 371 and 875(c).

At his sentencing hearing on October 25, 2002, Alexander objected to the recommendation in the pre-sentence investigation report that the District Court apply a two-level enhancement because he knew or should have known that his mother and great-grandmother were particularly vulnerable victims, as defined in section 3A1.1 of the sentencing guidelines. The District Court rejected Alexander’s arguments and applied the two-level enhancement. In doing so, the Court found that Ms. Kelly and Ms. White were vulnerable victims “not only based on their relationship and kinship to the defendant, but due to their respective physical conditions and ages.” The District Court emphasized that “the strong familial bond between Alexander and the victimized family members made them particularly susceptible and vulnerable to the crime in this case.”

Applying the two-level vulnerable victim enhancement, in addition to other enhancements not challenged by Alexander on appeal, the District Court concluded that Alexander’s total offense level was 15, which, combined with his career offender criminal history category of VT, resulted in a guide[109]*109line range of 41 to 51 months. As noted above, a 46 month term of imprisonment was imposed. Alexander timely appealed.

II.

The only issue raised by Alexander is whether the District Court erred in applying the two-level vulnerable victim enhancement, pursuant to section 3A1.1 of the sentencing guidelines. Alexander argues that the District Court’s finding that the close familial bond between Alexander and the victims of his extortion scheme— his mother and great grandmother — was insufficient, standing alone, to support a finding that they were vulnerable victims for purposes of the enhancement. The District Court’s legal interpretation of the sentencing guidelines is subject to plenary review, United States v. Monostra, 125 F.3d 183, 188 (3d Cir.1997), while we review its findings of fact and its application of section 3A1.1(b)’s vulnerable victim enhancement to the facts for clear error. See United States v. Zats, 298 F.3d 182, 185 (3d Cir.2002) (finding that the Supreme Court’s mandate in Buford v. United States, 532 U.S. 59, 121 S.Ct.

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