United States v. Erwin

67 F. App'x 876
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 12, 2003
DocketNo. 01-3917
StatusPublished
Cited by2 cases

This text of 67 F. App'x 876 (United States v. Erwin) 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. Erwin, 67 F. App'x 876 (6th Cir. 2003).

Opinion

OPINION

CARR, District Judge.

Defendant-Appellant Joseph E. Erwin pled guilty to mail fraud and wire fraud. He was sentenced to a term of 60 months’ imprisonment for mail fraud, and a consecutive term of 60 months’ imprisonment for wire fraud. Erwin appeals his sentencing enhancements for committing relevant conduct while on probation, using sophisticated means to commit the offense, and attempting to obstruct the administration of justice. For the reasons set forth below, we AFFIRM the sentence of the district court.

I. BACKGROUND

Defendant was the branch manager and registered principal of a Columbus, Ohio, branch of Eisner Securities, Inc., a firm with its principal place of business in St. Louis, Mo. As branch manager, defendant had access to his clients’ brokerage accounts and authority to manage those accounts. If a client requested distribution [878]*878of account earnings, Erwin would request the distribution on behalf of the client, and Eisner would send a check to the address listed on the client’s account.

Between May, 1997, and September, 2000, Erwin fraudulently obtained money from eleven clients’ accounts. Erwin changed the addresses listed on these clients’ accounts, so that distributions would be sent to Erwin. Erwin then requested distributions that were not authorized by the clients, and Eisner sent checks to the altered addresses. After Erwin received the unauthorized account distributions, he endorsed them in the names of the clients and deposited them into his own bank accounts. Erwin then manipulated his clients’ account statements to conceal the withdrawals.

One of Erwin’s clients noticed an unauthorized withdrawal and informed Eisner. On September 18, 2000, Eisner’s CEO told Erwin that his brokerage license was suspended pending an investigation. On September 19, 2000, Eisner notified state and federal securities enforcement authorities of Erwin’s apparent fraud. On September 20, 2000, an Eisner compliance officer caught Erwin removing the files of the eleven defrauded clients from his Columbus office.

In all, Erwin withdrew $2,804,987.80 from the eleven clients’ accounts. Of that amount, $658,250.51 was wire-transferred between the accounts, and $2,187,647.29 was deposited into accounts for which Erwin was the signator. The latter amount was the collective loss to the victims.

Between January 16, 1996, and December 1, 1998, while Erwin was employed with Securities America, Inc., he made twelve unauthorized withdrawals from the accounts of the same victims as those he targeted while at Eisner. Those withdrawals were made by check or wire transfer and totaled $174,243.14. The money was deposited into accounts for which Erwin was the signator. Also during this period, Erwin was serving a year’s probation, to which he had been sentenced on September 28, 1995, following conviction for driving under the influence of alcohol.

The indictment charged Erwin with mail fraud, in violation of 18 U.S.C. § 1341, and wire fraud, in violation of 18 U.S.C. § 1343. He pled guilty to both counts on February 9, 2001. At his sentencing hearing, on July 24, 2001, Erwin filed four objections to the presentence report, all of which were overruled.

On August 21, 2001, the District Judge sentenced Erwin to a term of imprisonment of 60 months on Count 1, and a consecutive term of 60 months on Count 2, followed by a three-year term of supervised release. He was ordered to pay restitution in the amount of $2,013,414.12. Erwin filed a timely notice of appeal on August 24, 2001.

II. ANALYSIS

A. Standard of Review

The Sixth Circuit reviews the district court’s factual findings relating to sentencing for clear error. United States v. Latouf, 132 F.3d 320, 331 (6th Cir.1997). The government need only prove the facts used in sentencing determinations by a preponderance of the evidence. United States v. Chambers, 944 F.2d 1253, 1271 (6th Cir.1991). A finding of fact is clearly erroneous when, although there may be some evidence to support the finding, the reviewing court, upon review of the entire record, is left with the definite and firm conviction that a mistake has been committed. Latouf, 132 F.3d at 331. The Sixth Circuit reviews the district court’s legal conclusions, and interpretations of the Sentencing Guidelines, de novo. United [879]*879States v. Sanders, 95 F.3d 449, 454 (6th Cir.1996).

B. Committing Relevant Conduct On Probation

Erwin argues that the district court should not have enhanced his sentence for committing relevant conduct while on probation.

The Sentencing Guidelines require the district court to compute the defendant’s criminal history category by assigning points for certain prior sentences. U.S. Sentencing Guidelines Manual § 4A1.1. The district judge enhanced Erwin’s sentence under § 4Al.l(d), which provides for a two-level enhancement “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. Application Note four of § 4A1.1 defines ‘instant offense’ as including ‘any relevant conduct.’ 1,1

On September 28, 1995, Erwin was sentenced to one year of probation after being arrested for driving under the influence. His probation term expired on September 26, 1996. The government argues that Erwin’s withdrawals from the victims’ Securities America accounts, which occurred between January 16, 1996, and December 1, 1998, are relevant conduct. Because some of those withdrawals occurred while Erwin was on probation, the government argues that the two-point enhancement should apply.

Erwin argues that the Securities America withdrawals are not relevant conduct, because he was not charged with those acts in the indictment. Because he was not on probation during his employment at Eisner, when he committed the acts for which he was convicted, he argues the two-level enhancement is not proper.

Whether a defendant’s actions amount to relevant conduct under the sentencing guidelines is a question of fact subject to a clearly erroneous standard. United States [880]*880v. Kappes, 936 F.2d 227, 229 (6th Cir.1991).

In this case, the two counts on which the defendant was convicted were grouped under § 3D1.2(d). (Presentence report, J.A. at 151). Under § lB1.3(a)(2), therefore, “relevant conduct” includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant,” § lB1.3(a)(l)(A), involving “the same course of conduct or common scheme or plan as the offense of conviction.” § lB1.3(a)(2).

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67 F. App'x 876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-erwin-ca6-2003.