United States v. James Lee Cobb, III

842 F.3d 1213, 2016 U.S. App. LEXIS 21391, 2016 WL 6994208
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 30, 2016
Docket15-12817
StatusPublished
Cited by28 cases

This text of 842 F.3d 1213 (United States v. James Lee Cobb, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. James Lee Cobb, III, 842 F.3d 1213, 2016 U.S. App. LEXIS 21391, 2016 WL 6994208 (11th Cir. 2016).

Opinion

PER CURIAM:

Defendant James Lee Cobb, III, appeals his 324-month sentence, imposed after pleading guilty to conspiracy to commit wire and mail fraud, aggravated identity theft, and possession of a firearm by a convicted felon. On appeal, Defendant challenges his sentence on numerous grounds. He argues that: (1) the district court clearly erred in estimating the loss amount and the number of victims for sentencing enhancement purposes, and in calculating the amount of restitution; (2) the district court erred by applying the vulnerable-victim enhancement; and (3) the district court plainly erred by imposing an enhancement for production of an unauthorized access device and by designating Defendant an armed career criminal. After careful review, we affirm.

I. BACKGROUND

A. Factual Background 1

Beginning in approximately 2011, and continuing until 2013, Defendant and his wife Eneshia Carlyle, stole identities from patients at the Department of Veterans’ Affairs (“VA”), ambulance services, hospitals, and clinics, to electronically file fraudulent tax returns. Defendant and his wife used prepaid debit cards to access the refunds produced by these fraudulent tax returns.

The investigation into Defendant began in August 2012, following a routine traffic stop by the Tampa .Police Department. Defendant consented to a search of his vehicle, and officers found receipts and debit cards imprinted with names other than Defendant’s.

Following a trash pull at Defendant’s residence—which revealed several debit cards with various names on them, a sheet containing personal identifying information, and a receipt for a cash-back transac *1216 tion—officers executed a search warrant at the residence. Officers found over 300 debit cards, as well as medical records from the VA, ambulance services, and hospitals. These records contained approximately 7,000 pieces of personal identifying information. The search also revealed two firearms. In addition, officers found three keys to storage units inside of Defendant’s wife’s purse. A subsequent search of those storage units revealed trash bags filled with medical records containing personal identifying information, prepaid debit cards, and a Mercedes.

B. Procedural History

A federal grand jury subsequently issued a superseding indictment against Defendant, charging him with: (1) conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349 (“Count 1”); (2) wire fraud, in violation of 18 U.S.C. § 1343 (“Counts 2 through 5”); (3) aggravated identity théft, in violation of 18 U.S.C. § 1028A (“Counts 6 through 9”); and (4) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (“Count 10”). Defendant initially pleaded not guilty, but before trial was set to begin, he pled guilty to Counts 1 through 10.

Using the 2014' Sentencing Guidelines, the probation officer prepared a Presen-tence Investigation Report (“PSR”). Pursuant to U.S.S.G. § 3D1.2(d), the PSR grouped Counts 1 through 5 (mail and wire fraud offenses) and assigned Defendant a base offense level of 7. Defendant received the following enhancements: (1) an 18-level enhancement under U.S.S.G. § 2Bl.l(b)(l)(J), because the intended loss was more than $2,500,000; (2) a 6-level enhancement under § 2Bl.l(b)(2)(C), because the offense involved 250 or more victims; (3) a 2-level enhancement under § 2Bl,l(b)(10), because the offense involved sophisticated means; (4) a 2-level enhancement under § 2Bl.l(b)(ll)(B), because Defendant produced an unauthorized access device; (5) a 2-level enhancement under § 3Al.l(b)(l), because Defendant knew or should have known that a victim of the offense was a vulnerable victim; (6) a 4-level enhancement under U.S.S.G. § 3Bl.l(a), because Defendant was an organizer or leader of the conspiracy; and (7) a 2-level enhancement under § 3C1.1, for obstruction of justice. Defendant’s resulting adjusted offense level was 43.

As to Count 10 (possession of a firearm by a convicted felon offense), the PSR assigned Defendant a base offense level of 26, pursuant to U.S.S.G. § 2K2.1. The PSR also noted that Defendant faced a mandatory minimum of 24 months’ imprisonment for Counts 6 through 9 (aggravated identity theft offenses). Because Defendant’s offense level of 43 was greater than 26, the PSR determined that Defendant’s ' combined total offense level was 43.

The PSR also determined that Defendant qualified as an armed career criminal for purposes of U.S.S.G. § 4B1.4, based on his three prior Florida convictions for serious drug offenses: (1) a 2008 conviction for trafficking in cocaine; (2) a 2008 conviction for possession of cocaine with intent to sell/deliver; and (3) a 2008 conviction for attempted possession with intent to distribute and to possess with intent to distribute less than 50, kilograms of marijuana within 1,000 feet of a school. Nevertheless, Defendant’s offense level remained at 43, as it was greater than his offense level pursuant to the armed-career-criminal enhancement.

With a two-level reduction for acceptance of responsibility, Defendant’s total offense was 41. Based on a total offense level of 41 and a criminal history category of VI, Defendant’s guideline range was 360 months to life imprisonment. In addition, Defendant faced a mandatory minimum of *1217 24 months’ imprisonment for Counts 6 through 9, to be imposed consecutively to any other sentence. The PSR also noted that Defendant owed restitution in the amount of $1,820,759. .

- Of relevance to this appeal, Defendant objected to the PSR’s calculation of restitution, as well as the enhancements corresponding to the loss amount and the number of victims. He further objected- to the imposition ' of thé vulnerable-victim enhancement, the production-of-an-unauthorized-access-device enhancement, and the armed-career-criminal enhancement.

At the sentencing hearing, Defendant withdrew his objections to the enhancements for production of an unauthorized access device, as well as to his designation as an armed career criminal. In light of Defendant’s numerous factual objections to the PSR, the Government called several witnesses to testify about the traffic stop and the trash pull.

Tampa Police Department Detective Sharia Canfield testified that she examined the evidence recovered from the trash pull and the search of Defendant’s residence. She stated that approximately 7,000 means of identification were found in Defendant’s residence, some of which were taken from patient medical records. The records included handwritten notations, such as “not good” or “zero.” Based on her experience investigating tax fraud, Detective Canfield interpreted these notations to mean that an attempt to do a fraudulent tax return was unsuccessful. She stated that Defendant used the means of identification in these records to file fraudulent tax returns for individuals between the ages of 28 days and 108 years old.

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Bluebook (online)
842 F.3d 1213, 2016 U.S. App. LEXIS 21391, 2016 WL 6994208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-lee-cobb-iii-ca11-2016.