United States v. Donald James King

454 F.3d 187, 2006 U.S. App. LEXIS 17274, 2006 WL 1889976
CourtCourt of Appeals for the Third Circuit
DecidedJuly 11, 2006
Docket05-1728
StatusPublished
Cited by137 cases

This text of 454 F.3d 187 (United States v. Donald James King) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Donald James King, 454 F.3d 187, 2006 U.S. App. LEXIS 17274, 2006 WL 1889976 (3d Cir. 2006).

Opinion

*189 OPINION OF THE COURT

SLOVITER, Circuit Judge.

If the procedural requirements for sentencing defendants that this court established are so inflexible that we cannot affirm any sentence when the district court fails to articulate its analysis in precisely the terms of those requirements, then we must vacate the sentence imposed in this case no matter how reasonable we believe it is. Under the circumstances of this case, we will not vacate the sentence imposed by the District Court. Instead, we affirm, but write to dispel any erroneous impression that we have relaxed those requirements. We proceed to explain our disposition.

I.

Defendant Donald James King appeals his sentence of seventy-two months imprisonment that was imposed by the District Court following his plea of guilty to one count of bank fraud in violation of 18 U.S.C. § 1344, and one count of use of a false social security number in violation of 42 U.S.C. § 408(a)(7)(B). King claims that the sentence is unreasonable and in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the District Court did not follow proper procedure for imposing a sentence in excess of the range recommended by the Sentencing Guidelines (30-37 months imprisonment). 1

The events giving rise to this criminal prosecution took place during the years 1998 and 1999. Appellant King is a sixty-seven year old male who engaged in what is commonly known as “identity theft”— unauthorized use of the personal information of another person for the purpose of securing loans, obtaining credit cards, and financing purchases. In carrying out this crime, King used the social security number and date of birth of another man with the same name (hereafter “Victim”). In his plea colloquy, King admitted to employing these means to engage in a laundry list of transactions, including a mortgage on his primary residence, several consumer lines of credit and credit cards resulting in defaults totaling over $14,000, and loans for the purchase of expensive consumer items, such as a home entertainment system and luxury cars. 2 Some of *190 these vehicles, which included a Mercedes, a BMW, and a Lexus, were repossessed and resold, but some were never recovered. King admitted that his activities caused losses to financial institutions of $166,000.

On September 26, 2002, King pled guilty to bank fraud in violation of 18 U.S.C. § 1344, which carries a maximum sentence of thirty years imprisonment, and use of a false social security number in violation of 42 U.S.C. § 408(a), which carries a statutory maximum of five years. King failed to appear for his initial sentencing hearing on November 18, 2003. He was arrested on a bench warrant on March 16, 2004, after attempting to refinance one of the loans at issue in this prosecution.

King was sentenced on February 25, 2005. The Booker decision was announced approximately six weeks before King’s sentencing hearing. The District Court started by calculating the applicable range under the Sentencing Guidelines. 3 It adopted the Presentence Report (“PSR”) and the stipulation of the parties that the amount of loss for sentencing purposes was $166,000, which corresponded to a base offense level of six. U.S.S.G. § 2F1.1. A seven-level increase was applied because the loss exceeded $120,000, and a two-level increase was applied because the offense involved more than minimal planning. See U.S.S.G. § 2Fl.l(b)(2)(A). Another two-level increase was applied for obstruction of justice due to King’s absconding before his sentencing hearing. U.S.S.G. § 3C1.1. King’s pífense level was accordingly seventeen, while his criminal history category was III, leading to an applicable Guidelines range of 30-37 months imprisonment.

The Government moved for a five-level upward departure in offense level based on severe non-economic harm to the Victim. U.S.S.G. § 2F1.1 cmt. 11. The District Court declined to consider this evidence strictly within the framework of the Guidelines, stating that it would instead take the Government’s argument and evidence into account when determining the ultimate sentence under 18 U.S.C. § 3553(a). In response to the Government’s motion for a five-level upward departure, the District Court stated:

I guess my feeling is I really hadn’t thought much about this, anything about this issue until this morning when I received defendant’s sentencing memorandum. And I’m not sure that motions for upward departure are relevant in the post Booker era.
It seems to me at first blush that it’s more likely to not consider motions for upward departure, but then consider evidence of this type when making a final determination as to what the sentence should be after taking the consideration and the sentencing guidelines.
So I’ll hear what each of you have to say with reference to that.

App. at 71.

In support of its motion, the Government presented the testimony of the Victim. The Victim testified regarding the impact King’s criminal activities had had on his life. He testified that he had first become aware someone was using his per *191 sonal information in 1982, when he received a coupon book for a $3,000 loan that he had not taken out. He also started receiving numerous bills for credit cards at retail stores such as Sears and Bradlees, for items that he had never purchased. His employer (a large utility company) helped him investigate and he discovered that the defendant had been using his personal information. The Victim testified in state court regarding these events and King ultimately pled guilty to forgery in the Philadelphia Court of Common Pleas in 1983. The following year, the Victim’s driver’s license was suspended because King had been making unauthorized use of a copy of the Victim’s license. King was convicted in Delaware state court for this offense. PSR 13. The Victim was forced to change the name on his license as a result of this event. Similar incidents began to occur again in 1998, when a block the Victim had installed on his credit expired.

The Victim estimated that since then he had spent over 500 hours calling loan agencies, banks, and department stores to protest charges he never made and to clear his credit. He had been forced to change the name on his driver’s license because it was repeatedly suspended due to unpaid car loans and parking tickets on cars falsely registered to him. 4

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Bluebook (online)
454 F.3d 187, 2006 U.S. App. LEXIS 17274, 2006 WL 1889976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-donald-james-king-ca3-2006.