United States v. Heather Jones

533 F. App'x 448
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 10, 2013
Docket12-10599
StatusUnpublished
Cited by4 cases

This text of 533 F. App'x 448 (United States v. Heather Jones) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Heather Jones, 533 F. App'x 448 (5th Cir. 2013).

Opinion

PER CURIAM: *

Heather Nicole Jones pled guilty to one count of making, uttering, or possessing a forged and counterfeit security of a private entity, and aiding and abetting the same, in violation of 18 U.S.C. §§ 513(a) and 2. Jones now challenges her sentence, arguing that the district court erred in applying enhancements for: (1) the involvement in the offense of 250 or more victims; (2) an amount of loss in excess of $30,000; (3) the use of “sophisticated means”; and (4) the unauthorized use of a means of identification unlawfully to produce another means of identification. For the reasons set forth below, we conclude that the district court erred in enhancing Jones’s sentence based on the involvement in the offense of 250 or more victims, though we affirm the district court’s judgment in all other respects. Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 14, 2011, a grand jury indicted Heather Nicole Jones on one count of making, uttering, or possessing a forged and counterfeit security of a private entity, and aiding and abetting the same, in violation of 18 U.S.C. §§ 513(a) and 2. Jones pled guilty to the offense on January 6, 2012, and the district court subsequently sentenced her to a within-Guidelines term of fifty months’ imprisonment, to be followed by three years of supervised release. Jones appeals, raising several procedural challenges to her sentence.

Jones stipulated that on or about June 3, 2011, “[she], aided and abetted by others known and unknown, did make, possess, and utter a forged and counterfeit security in the amount of $2,000 purporting to be a security of Southside Bank, ... and did so with the intent to deceive Southside Bank.” Six days later, Jones was driven to the bank by Jereamine Deshawn Moore and Crystal Moore (collectively, “the Moores”). Upon their arrival, Crystal Moore gave Jones a fake identification card bearing Jones’s photograph, but the name and other personal information of a different individual. Jones entered the bank, presented the fake identification card to a teller, and, posing as the person identified on the card, “told the teller that she had run out of checks, but needed to write a check on her account.” At Jones’s request, the teller produced a $2,000 check drawn on the account of the person falsely identified on the card. Jones then marked the check payable to “cash,” forged the victim’s signature on the check, and returned it to the teller for payment. Suspecting fraud, the teller refused to cash the check, at which point Jones exited the bank.

Jones’s presentence report (“PSR”) reflects that after she left the bank, she reentered the Moores’s vehicle and the three fled the scene. Shortly thereafter, police officers stopped the vehicle based on information provided by the teller. After receiving consent to search the vehicle, officers discovered fourteen credit cards in *451 Crystal Moore’s name and three fraudulently obtained debit cards containing the names of other individuals. Officers verified that Jones was the individual who attempted to cash the check and arrested her.

Investigators later connected Jones’s activities to a larger scheme. As part of that scheme, an unindicted co-conspirator stole mail from at least six blue collection boxes belonging to the United States Postal Service (“USPS”). Using bank account information and other personal data contained in the stolen mail, or information illegally purchased by the Moores from a check-cashing business, co-conspirator Darin Eugene Foley created fraudulent identification cards. “Runners” then were recruited to cash fraudulent checks or withdraw funds directly from the victims’ accounts. The Moores oversaw the runners’ activities and maintained possession of the fraudulent identification information and checks. As explained in Jones’s PSR, although each runner worked with the Moores, “they each acted independently from the other, as their agreement for the jointly undertaken criminal activity was only entered into with [the Moores].”

As to Jones’s conduct, the PSR identified her as a runner and stated that “Jones is known to have negotiated between 10 and 20 fraudulent checks during the conspiracy.” The report also indicated, however, that “to date, none of the negotiated checks have been associated with her, with • the exception of the check she attempted to cash on the date of her arrest.” Accordingly, the PSR noted that “no loss amount has been determined as to [Jones].” Similarly, a chart in the PSR summarizing the intended and actual losses caused by each conspirator reflected that Jones was responsible for an intended loss of $2,000, and an actual loss of $0. However, based on evidence that Jones negotiated “between 10 and 20 checks,” the probation officer concluded that “a reasonable estimate of [Jones’s] loss would be the 15 checks she cashed, at an estimated rate of $2,000 each, combined with the $2,000 check she attempted to negotiate, resulting in an estimated loss of $32,000.”

The PSR assessed a Guidelines base offense level of six. See U.S.S.G. § 2B1.1(a)(2). Four enhancements then were assigned, resulting in a sixteen-level increase. First, a six-level increase was applied pursuant to § 2Bl.l(b)(2)(C), based on a finding that the offense involved 250 or more victims. This enhancement rested on the probation officer’s finding that mail was stolen from at least six USPS collection boxes, and Guidelines commentary that each such offense “shall be considered to have involved at least 50 victims.” Id. § 2B1.1 cmt. n. 4(C)(i)(II), (ii)(I). The PSR applied another six-level increase based on the estimated intended loss of $32,000. Id. § 2Bl.l(b)(l)(D). Next, because the fraudulent scheme involved the use of “sophisticated means,” the PSR assigned a two-level increase pursuant to U.S.S.G. § 2Bl.l(b)(10)(C). Finally, another two-level increase was applied because the offense involved “the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification.” Id. § 2Bl.l(b)(ll)(C)(i). After a three-level reduction for acceptance of responsibility, Jones’s total offense level was nineteen. With a category IV criminal history score, Jones’s offense level resulted in a Guidelines range of 46-57 months. Id. ch. 5, pt. A (sentencing table).

Jones filed objections to the PSR contesting the applicability of each enhancement. In connection with the enhancement based on the number of victims, Jones maintained that she had no involvement in stealing mail from USPS collec *452 tion boxes, and therefore could not be held responsible for such conduct, or for a presumed number of victims affected by such conduct. As to the amount-of-loss enhancement, Jones contended that the information in the PSR was internally inconsistent, speculative, and not based on reliable facts.

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Bluebook (online)
533 F. App'x 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-heather-jones-ca5-2013.