United States v. DeSouza

86 F. App'x 116
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 13, 2004
DocketNo. 02-6031
StatusPublished

This text of 86 F. App'x 116 (United States v. DeSouza) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. DeSouza, 86 F. App'x 116 (6th Cir. 2004).

Opinions

ROGERS, Circuit Judge.

Rupert C. DeSouza pled guilty to one count of identity theft due to his part in a scheme to purchase vehicles using false identities. In this scheme, DeSouza was aided by Kyshon Hardemon, who would often use false names to purchase vehicles for DeSouza. After being stopped for driving with a false license and an altered temporary tag, DeSouza failed to appear at a hearing. Roughly a year later, he was caught in Florida and charged in federal court in Tennessee with seven counts of identity theft. At that time DeSouza pled guilty to one count, and the other counts were dropped. He now appeals, claiming the district court erred by: (1) enhancing his sentence two levels based on § 3C1.1 of the 1998 United States Sentencing Guidelines (“U.S.S.G.”) because he obstructed justice by failing to appear at the hearing for his motor vehicle violations, and (2) enhancing his sentence an additional two levels under U.S.S.G. § 3Bl.l(c) for his role in leading and supervising Hardemon in criminal activity. Because the district court correctly calculated his sentence under the U.S.S.G., we affirm the judgment of the district court.

Facts

A federal grand jury indicted DeSouza on October 24, 2000 on seven counts relating to identity theft. A plea agreement was reached under which DeSouza would plead guilty to count two of the indictment. Count two of the indictment alleged that DeSouza used the identity of another person to steal a vehicle worth more than $1000. In return for DeSouza pleading guilty to count two, the other six counts were dropped.

As the Presentence Report set forth, DeSouza used false identification, and persuaded others to identify themselves falsely, in order to purchase automobiles. For example, on June 18, 1999, DeSouza allegedly used his name and a credit card from a “Jamie Sackett,” whom he identified as his cousin, to rent a Ford Expedition that was never returned. Sackett, when contacted, stated that she did not know De-Souza and that someone had opened several credit cards in her name. Roughly seven months later he allegedly used the identity of “Daniel Grano” to buy a 1993 Mercedes, but the real Grano was unaware of the Mercedes purchase and also had someone open credit cards in his name.

DeSouza and Kyshon Hardemon apparently used roughly the same modus operandi on several other occasions. In February 2000, Hardemon pretended to be “Melissa Hill” to purchase a 2000 Impala. That same month, DeSouza visited a local Lexus dealer and stated that he was looking for a car for his sister. The next day, DeSouza returned with Hardemon to the dealer and used the name of “Melissa Hill” to buy a used 1998 Lexus. They left with the car, and later returned to purchase a [118]*1181999 Lexus, but that loan was declined by Toyota Motor Credit Corporation. After about two weeks, Hardemon returned the 1998 Lexus to the dealer.

That same day, DeSouza and Hardemon apparently went to a Chevy dealer and told the sales people that Hardemon was DeSouza’s sister, “Meredith Sydnor,” and that she wanted to purchase a 2000 Corvette. Sydnor was approved for an almost $50,000 loan, and DeSouza and Hardemon left with the car. The real Meredith Sydnor lived in a different city, and her credit information was fraudulently used. Later the same day, DeSouza and Hardemon went to a Lincoln Mercury dealer where they bought a used Lincoln Navigator.

About two weeks later, on April 6, 2000, authorities found and followed DeSouza, who was driving a Navigator and then a Corvette. DeSouza was arrested on an outstanding warrant relating to the Ford Expedition. The officers seized the Navigator. At the time, DeSouza had four vehicles: a Lincoln Navigator, a Corvette, an Impala, and a Ford Expedition. He was arrested at that time, but the charges were dropped.

Hardemon, when interviewed by investigators that day, stated that DeSouza told her his cousin, Meredith Sydnor from New York, was going to help him finance a car. She claimed that DeSouza had asked her to sign Sydnor’s name because Sydnor could not come to Tennessee, and that she talked to a woman on the phone claiming to be Sydnor.

On September 12, 2000, DeSouza and a unknown female allegedly bought a 1997 Nissan Altima in the name of Bruce Smith. On October 6, 2000, the police stopped DeSouza because he was driving a 1997 Nissan Altima with an altered temporary tag. He was also carrying a driver’s license with a false name.

DeSouza was scheduled for a court appearance on October 9, 2000, for a misdemeanor theft charge and for motor vehicle violations relating to the license alteration, but he failed to appear. He was apprehended in Florida on December 21, 2001.

Discussion

I. Obstruction of Justice: U.S.S.G. § 3C1.1

The district court correctly enhanced DeSouza’s sentence under U.S.S.G. § 3C1.1. As stated in United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), “the clear error standard is ... appropriate for reviewing sentencing decisions under § 3C1.1 where the sole issue before the district court is a fact-bound application of the guideline provisions.” Jackson-Randolph, 282 F.3d at 390. However, where a Guidelines-interpretation issue is purely legal, the de novo review standard still applies. See, e.g., United States v. Canestraro, 282 F.3d 427, 431 (6th Cir.2002).

Section 3C1.1 provides that

[i]f (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.

Application note 4(e) further provides that the adjustment applies to “willfully failing to appear, as ordered, for a judicial proceeding.” However, Application note 5(d) states that this section does not apply to defendants who “avoid[] or flee[] from arrest.”

[119]*119This court has held that, with regard to § 8C1.1:

[W]e agree with our sister circuits that have held that obstructive conduct occurring during the state investigation or prosecution and preceding federal involvement triggers the enhancement even if the federal charge is not identical to the state charge, so long as the underlying behavior is connected to both offenses.

United States v. Roberts, 243 F.3d 235, 238 (6th Cir.2001). Further, the court noted that “[t]he determinative factor was that both sets of charges [the state and federal charges], and the obstruction activity, were related to the same -underlying activity.” Id. at 239-40.

Count two of the indictment, to which he pled guilty, involved the theft of the Navigator. At the sentencing hearing, DeSouza was sentenced to imprisonment for 30 months followed by three years of supervised release.

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