United States v. Birdwell

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 23, 2002
• Docket: 01-11126
• Status: Unpublished

Opinion

UNITED STATE COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 01-11126 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRON BIRDWELL,

Defendant-Appellant.

______________________________________________________________________________

On Appeal from the United States District Court, Northern District of Texas USDC No. 4:01-CR-45-3-A ______________________________________________________________________________ April 22, 2002

Before REYNALDO G. GARZA, SMITH, and PARKER, Circuit Judges

REYNALDO G. GARZA, Circuit Judge:1

Larron Birdwell pleaded guilty pursuant to a plea agreement to conspiring to fraudulently

use identities. Birdwell and others fraudulently used another individual’s name to purchase

Circuit City gift cards, which were ultimately put towards the purchase of large screen televisions.

In addition, Birdwell opened a fictitious bank account using yet another person’s name and

cashing several thousand dollars’ worth of bogus checks.

1 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. The presentence report (PSR) detailed a scheme in which Birdwell and his associates

burglarized homes and automobiles in order to steal the victims’ identities, with which they then

opened bank accounts and obtained credit cards. Twenty-eight identified victims sustained

economic losses totaling $87,968.20.

Included in an addendum was a statement from one of the victims, Pam Brophy, detailing

how her terminally ill husband was barraged with phone calls at all hours of the day from credit

people. She mentioned that her credit had been ruined and that she had been forced to miss much

work.

The district court noted that an upward departure might be warranted and ordered the

Government to compile a report regarding information from other victims. This report included

statements from several victims detailing the magnitude of the harm suffered. One victim, a legal

alien, was afraid that if her identification were used in criminal activity she would be deported.

Other victims told of ruined credit ratings and the humiliation of not being able to obtain credit

cards. An 82-year-old widow, whose accounts were being “drained $4,000 almost daily,” had a

slight stroke after discovering the withdrawals while reading her bank statement. R. 1, 87.

The district court found that the offense “caused and risked reasonably foreseeable

nonsubstantial and nonmonetary harm in a very significant way,” and that Birdwell’s conduct had

caused reasonably foreseeable physical and psychological harm or severe emotional trauma to

several of the victims. R.5, 63-65. In addition, the district court found that the loss was

understated as some loss information could not be obtained from many of the victims.

Birdwell was sentenced to 27 months’ imprisonment, a three-year term of supervised

relief, $91,717.86 worth of restitution, and a $100 special assessment.

2 Birdwell argues that the district court abused its discretion in upwardly departing from the

sentencing guidelines because the factual finding that the victims suffered psychological harm or

severe emotional trauma was not supported by the record. A district court’s departure from the

sentencing guidelines is reviewed for an abuse of discretion. See Koon v. United States, 518 U.S.

81, 98 (1996); United States v. Nevels, 160 F.3d 226, 229 (5th Cir. 1998). The decision that the

departure factors were sufficient enough to remove the case from the “heartland” of the applicable

guidelines must be accorded “substantial deference” because of a trial court’s “special

competence” in determining what is ordinary and what is atypical. United States v. Threadgill,

172 F.3d 357, 376 (5th Cir. 1999).

A district court must impose a sentence within the applicable guideline range if it finds the

case typical of the sort envisioned by the guidelines, but if it finds “that 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,” it may depart from the applicable

guidelines. 18 U.S.C. § 3553(b). Specifically, in Koon, the Supreme Court noted the following

questions that a court should address when considering an upward departure from the guidelines:

1) what features of this case take it outside of the Guideline’s “heartland” and make it special or

unusual? 2) has the Sentencing Commission forbidden departures based on those features? 3) if

not, has the Sentencing Commission encouraged departures based on those features? 4) if not, has

the Sentencing Commission discouraged departures based on those features. See Koon, 518 U.S.

at 95.

3 Birdwell contends that there was no evidence of psychological harm like that detailed in

U.S.S.G. § 5K2.3 (extreme psychological injury), but this ignores the commentary following

§2F1.1, which allows an upward departure when the loss does not fully capture the harmfulness or

seriousness of the conduct. Relevant examples, as the district court noted, include fraud that

caused or risked reasonably foreseeable, substantial non-monetary harm or caused reasonably

foreseeable physical or psychological trauma. See § 2F1.1, comment.

In United States v. Wells, 101 F.3d 370 (5th Cir. 1996), a case involving credit card fraud,

we held that the district court could have reasonably found that victims’ harm and trauma, which

involved arrests, warrants, court appearances, forgery charges, and credit difficulties, to be

sufficiently unusual to remove the case from the heartland of the applicable guideline. See id. at

372-74.

Birdwell’s argument that the record does not support a finding that the victims suffered

psychological harm is premised on cases from other circuits. In light of Wells, however, the

district court could have reasonably concluded that the victims’ travails, including substantial

inconvenience, credit difficulties, and psychological harm, removed the case from the guideline’s

heartland, making the three-level upward departure appropriate.

AFFIRMED.