United States v. Evans

526 F.3d 155, 2008 U.S. App. LEXIS 11245, 2008 WL 2174237
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 27, 2008
Docket06-4789
StatusPublished
Cited by390 cases

This text of 526 F.3d 155 (United States v. Evans) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Evans, 526 F.3d 155, 2008 U.S. App. LEXIS 11245, 2008 WL 2174237 (4th Cir. 2008).

Opinions

Affirmed by published opinion. Judge MOTZ wrote the majority opinion, in which Senior Judge HILTON joined. Judge GREGORY wrote a separate opinion concurring in the judgment.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Charged with possessing and uttering a forged security, committing identity fraud, and possessing stolen mail, Ulysses Ray Evans pled guilty to identity fraud pursuant to a plea agreement in which he reserved his right to appeal a sentence in excess of the advisory Guidelines range. The district court sentenced him to 125 months’ imprisonment, a more than 300 percent deviation from the Guidelines range of twenty-four to thirty months.1 Evans appeals, maintaining that his sentence is unreasonable. We placed the case in abeyance awaiting the Supreme Court decision in Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). That opinion now has issued, and we affirm.

I.

In 2004, Evans purchased personal information about Wachovia Bank account holders Robert Reed and Paul Richards. Using this information, Evans ordered and received boxes of checks for accounts held by Reed and Richards. Over the next several months, Evans negotiated many fraudulent checks on Reed’s and Richards’ accounts. This identity theft caused substantial financial losses to a number of businesses, as well as significant financial hardship and emotional suffering for the victims.

On October 17, 2004, Reed contacted the local police department in Winterville, North Carolina, to report that someone had fraudulently written numerous checks, totaling $4,774.80, on his account to various local businesses. After investigation, police officers discovered that Evans had negotiated the stolen checks on the Reed account and had in fact written fifty-four checks on that account between October 9 and October 19, 2004. Police contacted [159]*159Evans and arranged for him to surrender himself — but Evans then failed to do so.

On November 30, 2004, a Wachovia fraud investigator notified postal inspectors that Richards’ account had been compromised. A person later identified as Evans impersonated Richards, changed the account’s address to a residence in Charlotte, North Carolina, and ordered a box of checks delivered to the new address. Between November 17, 2004, and December 22, 2004, Evans negotiated sixty-four checks on the Richards account. Police arrested Evans at the Charlotte address on December 2, 2004.

When postal inspectors later interviewed Evans, he admitted to purchasing personal information about Reed and Richards from a childhood friend employed by Wachovia Bank. He also told the inspectors that he wrote fake driver’s license numbers and social security numbers on the checks, and that he had false identification cards made in Reed’s and Richards’ names.

Evans’ fraudulent negotiation of these checks caused an aggregate loss of $13,634.89 to businesses in North Carolina, South Carolina, and Virginia. He used seven social security numbers (six belonging to actual persons) and ten driver’s license numbers (all belonging to actual persons) to negotiate the checks.

Furthermore, Evans told authorities that between June 2004 and his arrest in September 2005, he bought approximately ten to twenty false identification cards in order to perpetrate additional identity theft crimes using the personal information of new potential victims that he had obtained. Evans successfully committed identity theft with at least one new victim’s information.

Following his arrest and indictment for these crimes, Evans agreed to plead guilty to identity theft. In his plea agreement, Evans recognized that the court might sentence him to imprisonment for a term of up to fifteen years (or 180 months) without parole.

The probation department prepared a Prehearing Sentence Report (PSR), which described Evans’ crimes and the severe repercussions for his victims. The PSR related that Richards and his wife informed a probation officer that they had lost their faith in “the system” and felt violated because Evans had compromised their personal information. They believed that his actions had damaged their reputations and worried that they could not write checks for fear that stores would not accept those checks. The Richardses viewed the crimes as a “nightmare,” and the probation officer observed that “[t]he Richards are still suffering the long lasting effects of their information being stolen and used in an illegal fashion.”

Robert Reed and his wife similarly told the probation officer they had spent substantial time, as well as money, to rectify the harm Evans had caused them. They said they had communicated with eight different police departments regarding the checks that Evans forged. The Reeds explained that Evans’ crime had permanently affected them and they feared for their safety and worried about who else might have their personal information. The Reeds also related that they had been threatened with a civil lawsuit, arrest, and prosecution because of Evans’ actions.2

The PSR also set forth Evans’ extensive criminal history. It listed forty-five prior convictions, most of which involved false [160]*160pretenses, use of fraudulent checks, forgery, or other fraud. In regard to his most recent prior offense, the PSR noted that Evans had been convicted in federal court for various fraud charges arising from his use of individuals’ credit reports to obtain credit cards and withdraw money in their names. Further, Evans also had been convicted of an additional eighteen nonscoreable offenses and had violated probation fifteen times.

The PSR calculated the appropriate advisory Guidelines range using the 2005 edition of the U.S. Sentencing Commission Guidelines Manual (U.S.S.G.). Under U.S.S.G. § 2B1.1, Evans’ crimes warranted an initial offense level of twelve, beginning with a base offense level of six, adding four levels due to the amount of money involved, and adding another two levels due to the number of victims affected. See U.S.S.G. § 2B1.1(a)(2), (b)(1)(C), (b)(2)(A). The PSR recommended a reduction of two levels, because Evans accepted responsibility for his actions. See U.S.S.G. § 3E1.1(a). Thus, Evans received a final total offense level of ten. That level, coupled with a criminal history category of VI, led to an advisory Guidelines range of twenty-four to thirty months. The Government then moved, pursuant to U.S.S.G. § 5K1.1, for a downward departure from the Guidelines range based on Evans’ assistance in prosecuting the bank employee who sold Evans the victims’ personal information.

The district court notified the parties that it contemplated an upward deviation from the advisory Guidelines range because the court believed the range underrepresented Evans’ “substantial criminal history” and “understate[d] the seriousness” of Evans’ offenses. The court then held a thorough sentencing hearing at which it carefully considered the arguments of both sides. At the conclusion of the hearing, the court explained at length its grounds for rejecting the Government’s motion for a downward departure and instead deviating upward from the Guidelines range to sentence Evans to 125 months’ imprisonment. The court also issued a fifteen-page written opinion detailing its reasons for concluding that this sentence presented no conflict with the Guidelines and best furthered the factors set forth in 18 U.S.C. § 3553

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Cite This Page — Counsel Stack

Bluebook (online)
526 F.3d 155, 2008 U.S. App. LEXIS 11245, 2008 WL 2174237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-evans-ca4-2008.