United States v. Cliffton S. Mormon

602 F. App'x 506
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 13, 2015
Docket14-12134
StatusUnpublished

This text of 602 F. App'x 506 (United States v. Cliffton S. Mormon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cliffton S. Mormon, 602 F. App'x 506 (11th Cir. 2015).

Opinion

PER CURIAM:

Cliffton Mormon appeals his sentence of 95 months of imprisonment for one count of conspiring to commit bank fraud, 18 U.S.C. § 1349, and two counts of aiding and abetting aggravated identity theft, id. §§ 1028A, 2. Mormon challenges the enhancement of his sentence for being an organizer or leader of a conspiracy to cash counterfeit checks; for an amount of loss exceeding $120,000; for having 50 or more victims; and for using sophisticated means or, alternatively, for relocating to evade law enforcement. Mormon also challenges, for the first time, the requirement that he complete 24 hours of community service by washing dishes at a soup kitchen or similar facility as a special condition of his supervised release. We affirm the special condition of Mormon’s supervised release and all except one enhancement applied to Mormon. Because the record does not support the finding that Mormon’s offense involved 50 victims, we vacate his sentence and remand for the district court to resentence Mormon using the two-level enhancement applied to an offense involving 10 or more victims.

The district court did not clearly err in finding that Mormon was an organizer or leader of the conspiracy. A defendant is subject to a four-level enhancement of his offense level if he was “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive,” United States Sentencing Guidelines Manual § 3Bl.l(a) (Nov.2013), and if he exercised authority over “one or more other participants,” id. § 3B1.1 cmt. n. 2. The factual proffer for Mormon’s pleas of guilty and the testimony at sentencing from John Bailey, an agent of the United States Postal Inspection Service, established that Mormon recruited a person to provide insider information about banking operations and that Mormon directed a counterfeit check-cashing operation that involved several persons. See id. § 3B1.1 cmt. n. 4. Mormon persuaded his girlfriend, an employee of Regions Bank, to join the conspiracy and directed her to provide information about bank procedures, to access bank databases to determine which accounts at different banks to pilfer, and to print images of checks to counterfeit. Mormon also moved from Atlanta, Georgia, where the headquarters of the conspiracy was located, to Birmingham, Alabama, to supervise local operations; he produced counterfeit checks in his hotel room but conducted meetings at a coconspirator’s residence; he supervised coconspirators who recruited persons to cash the counterfeit checks; and he performed surveillance when the recruits entered banks to cash the counterfeit checks. The evidence supports the finding that Mormon orchestrated the activities of the Birmingham counterfeiting operation.

The district court also did not clearly err in finding that the amount of loss attributable to Mormon exceeded $120,000. A defendant is responsible for monetary losses that he causes and that result from the reasonably foreseeable acts of his coconspirators in furtherance of the *509 conspiracy, id. §§ lB1.3(a)(l), 2B1.1 cmt n. 3. When the monetary losses exceed $120,000, the defendant is subject to a ten-level enhancement of his offense level. Id. § 2Bl.l(b)(l)(F). Evidence introduced during Mormon’s change of plea and sentencing hearings established that officers in southern Georgia found Mormon in possession of check stock paper; stolen checks; partially completed and stubbed counterfeit checks connected to 27 business bank accounts; a computer containing check-writing software and data entries showing that $84,000 in checks had been printed; and 24 images of checks that each had a face value exceeding $1,000. The district court reasonably considered the value of the images of the checks and Mormon’s production capabilities to determine the amount of loss. See United States v. Grant, 431 F.3d 760, 765 (11th Cir.2005); United States v. Wai-Keung, 115 F.3d 874, 877 (11th Cir.1997). The district court also reasonably attributed to Mormon the value of counterfeit checks that his known coconspirators negotiated using stolen account information, some of which was discovered in Mormon’s hotel room and some of which corresponded to accounts located by his girlfriend. See United States v. Baldwin, 774 F.3d 711, 727-28 (11th Cir.2014). Mormon’s cocon-spirators cashed $29,504 in counterfeit checks arid attempted to cash more checks valuing $42,622 at a Regions Bank; cashed $43,104 in counterfeit checks and attempted to cash more checks valuing $58,081 at a Wells Fargo Bank; and cashed one counterfeit check for $1,981.37 and attempted to cash a second check for $1,393.75 at a BBVA Compass Bank. The value of the check images and of the checks that Mormon’s coconspirators negotiated or attempted to negotiate exceed $120,000.

The district court clearly erred when it found that Mormon’s victims num- . bered at least 50. “[I]n a case involving a means of identification,” “any individual whose means of identification was used unlawfully or without authority” is a “victim.” U.S.S.G. § 2B1.1 cmt. n. 4(E). If there are 50 or more victims, a defendant is subject to a four-level increase in his offense level, id. § 2Bl.l(b)(2)(B), but a two-level increase applies to an offense involving 10 or more victims, id. § 2Bl.l(b)(2)(A). Mormon acknowledges that he “used” the means of identification of 3 banks and 18 account holders. Investigator Bailey testified that officers seized from Mormon a box containing 24 images of checks from different accounts, but the investigator testified that only two of those images were used to create “partially-completed counterfeit checks.” See United States v. Hall, 704 F.3d 1317, 1322 (11th Cir.2013). Although Investigator Bailey testified that he and his team “reviewed hundreds of checks that were passed” by the conspiracy, the record is devoid of evidence that those checks were created using the means of identification óf more than one individual or that those checks involved a victim different than those admitted to by Mormon. The government is required to introduce “sufficient and reliable” evidence to identify the victims of an offense, see United States v. Washington, 714 F.3d 1358, 1361 (11th Cir.2013), and that is particularly important in a case like this where the conspirators cashed several checks against the same accounts multiple times. Because the government identified, at most, 23 victims, the district court must resentence Mormon using the two-level enhancement applied to an offense involving 10 or more victims.

Even if we were to assume that Mormon is not subject to a two-level increase in his base offense level for relocating the check-cashing operation to evade law enforcement officials, see U.S.S.G. *510

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Bluebook (online)
602 F. App'x 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cliffton-s-mormon-ca11-2015.