United States v. Jay David Soulliere, Jr.

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 23, 2023
• Docket: 22-1342
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0100n.06

No. 22-1342

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 23, 2023 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF JAY DAVID SOULLIERE, JR., ) MICHIGAN Defendant-Appellant. ) ) OPINION )

Before: BATCHELDER, GRIFFIN, and READLER, Circuit Judges.

PER CURIAM. Jay David Soulliere, Jr., appeals his 51-month sentence for identity-theft

offenses. As set forth below, we AFFIRM Soulliere’s sentence.

A federal grand jury returned an indictment charging Soulliere and Matthew Vodak, Jr.,

with conspiracy to commit identity theft, in violation of 18 U.S.C. §§ 371 and 1028A (Count 1);

conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 (Count 2); and two counts of

aggravated identity theft, in violation of 18 U.S.C. §§ 2 and 1028A (Counts 3 and 4). According

to the indictment, Soulliere, a contract employee with the Small Business Administration (SBA),

provided Vodak with the personally identifiable information (PII) of third parties maintained in

the SBA’s computer systems, and Vodak used that PII to make fraudulent documents and

purchases in the names of those third parties and on their credit. Among other allegations, Vodak

purchased a Land Rover from Jaguar of Troy with a counterfeit check and driver’s license using

the identity of B.P., whose PII Soulliere obtained from the SBA’s files. No. 22-1342, United States v. Soulliere

Soulliere pleaded guilty to Counts 1 and 4 pursuant to a written plea agreement. Following

his guilty plea, Soulliere absconded from pretrial supervision. He was arrested nearly a month

later, and the district court revoked his bond.

Prior to sentencing, Soulliere raised several objections to the presentence report, including

objections to the application of a 4-level enhancement for a loss amount more than $15,000 but

less than $40,000 under USSG § 2B1.1(b)(1)(C), a 2-level enhancement for an offense resulting

in substantial financial hardship to a victim under USSG § 2B1.1(b)(2)(A)(iii), a 2-level

enhancement for an offense involving the “unauthorized transfer or use of any means of

identification unlawfully to produce or obtain any other means of identification” under USSG

§ 2B1.1(b)(11)(C)(i), a 2-level enhancement for abuse of a position of trust under USSG § 3B1.3,

and a 2-level enhancement for obstruction of justice under USSG § 3C1.1. Soulliere also objected

to the denial of a reduction for acceptance of responsibility under USSG § 3E1.1 and requested a

reduction for being a minimal or minor participant in the offense under USSG § 3B1.2. At

sentencing, the government conceded the enhancement for unauthorized transfer or use of

identification, and Soulliere withdrew his objection to the enhancement for obstruction of justice.

The district court overruled Soulliere’s other objections and denied any reduction for acceptance

of responsibility or mitigating role. Applying a guidelines range of 24 to 30 months based on a

total offense level of 16 and a criminal history category of II, the district court sentenced Soulliere

to imprisonment of 27 months on Count 1 and a mandatory consecutive term of 24 months on

Count 4, for a total of 51 months.

This appeal followed. Soulliere argues that the district court erred in (1) attributing to him

the loss associated with Vodak’s purchase of the Land Rover, (2) denying him a reduction for

-2- No. 22-1342, United States v. Soulliere

acceptance of responsibility, (3) applying the enhancement for substantial financial hardship, and

(4) denying him a reduction for being a minimal or minor participant.

Loss Amount: Soulliere first argues that the district court erred in applying a 4-level

enhancement for a loss amount more than $15,000 but less than $40,000 under USSG

§ 2B1.1(b)(1)(C) by attributing to him Vodak’s purchase of the Land Rover. “Given the difficulty

of calculating loss in a fraud case, ‘the district court need only make a reasonable estimate of the

loss using a preponderance of the evidence standard.’” United States v. Igboba, 964 F.3d 501, 508

(6th Cir. 2020) (quoting United States v. Ellis, 938 F.3d 757, 760 (6th Cir. 2019)). “In determining

the amount of loss attributable to a defendant pursuant to Guidelines § 2B1.1(b), the district court

may consider any ‘relevant conduct.’” United States v. Donadeo, 910 F.3d 886, 894 (6th Cir.

2018) (quoting USSG § 1B1.3). We review de novo the district court’s determination regarding

what constitutes “relevant conduct” under USSG § 1B1.3. United States v. Amerson, 886 F.3d

568, 573 (6th Cir. 2018). Relevant conduct includes:

(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were-- (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity; that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; ... (3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions . . . .

-3- No. 22-1342, United States v. Soulliere

USSG § 1B1.3(a). “Accordingly, the amount of loss attributable to a defendant may include any

loss that resulted from his/her own criminal conduct, as well as any loss that resulted from certain

conduct of others.” Donadeo, 910 F.3d at 894.

The district court attributed to Soulliere only those loss amounts associated with the PII

obtained from the SBA’s files, which included the loss to Jaguar of Troy for Vodak’s purchase of

the Land Rover. Vodak purchased the Land Rover using the identity of B.P., whose PII was

obtained from the SBA’s files. At sentencing, Soulliere acknowledged that he supplied B.P.’s PII

to Vodak but argued that he did not know that Vodak was going to use that information to purchase

a vehicle.

The government asserts that Soulliere “committed” and “willfully caused” the transfer of

B.P.’s PII to Vodak within the meaning of USSG § 1B1.3(a)(1)(A) and that the loss associated

with the Land Rover purchase was a “harm that resulted from” his transfer of B.P.’s PII to Vodak

within the meaning of USSG § 1B1.3(a)(3). “[T]he term ‘resulted from’ establishes a causation

requirement.” United States v. Rothwell, 387 F.3d 579, 583 (6th Cir. 2004) (quoting United States

v. Marlatt, 24 F.3d 1005, 1007 (7th Cir. 1994)). “Causation includes two distinct principles, cause

in fact, or what is commonly known as ‘but for’ causation, and legal causation.” Id. “For harms

to be ‘proximately’ [legally] caused by the criminal conduct, they must be ‘reasonably

foreseeable.’” United States v. Gamble, 709 F.3d 541, 549 (6th Cir. 2013) (quoting United States

v. Evers, 669 F.3d 645, 659 (6th Cir. 2012)). The fraudulent purchase of the Land Rover and

resulting loss to Jaguar of Troy would not have occurred but for Soulliere’s transfer of B.P.’s PII

to Vodak. As the district court observed, “[t]hese offenses don’t occur without” Soulliere. The

district court asked defense counsel, “Why isn’t it reasonably foreseeable that Mr. Vodak would

use the information however he wanted . . . to rip people off?” In response, defense counsel

-4- No. 22-1342, United States v. Soulliere

conceded, “It is reasonably foreseeable probably . . . .” The district court properly attributed the

loss associated with the fraudulent purchase of the Land Rover to Soulliere as a loss resulting from

his own criminal conduct in transferring B.P.’s PII to Vodak. Accordingly, we need not address

the parties’ arguments about jointly undertaken criminal activity.

Acceptance of Responsibility: Soulliere contends that the district court erred in denying

him a reduction for acceptance of responsibility under USSG § 3E1.1, which provides for a

reduction in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense.” USSG § 3E1.1(a). Because the district court “is in a unique

position to evaluate a defendant’s acceptance of responsibility,” the district court’s determination

“is entitled to great deference on review.” USSG § 3E1.1, comment. (n.5). We therefore review

for clear error the district court’s factual determination that a defendant has not accepted

responsibility. United States v. Coss, 677 F.3d 278, 290 (6th Cir. 2012).

Soulliere received a 2-level enhancement for obstruction of justice under USSG § 3C1.1

because he absconded from pretrial supervision. “Conduct resulting in an enhancement under

USSG § 3C1.1 . . . ordinarily indicates that the defendant has not accepted responsibility for his

criminal conduct.” USSG § 3E1.1, comment. (n.4). “Only in an ‘extraordinary’ case may a

defendant receive both an offense-level increase for obstruction and an offense-level decrease for

acceptance of responsibility.” United States v. Thomas, 933 F.3d 605, 612 (6th Cir. 2019).

Soulliere contends that his case is an extraordinary one warranting both adjustments.

“The ‘extraordinary’ case typically contains a common sequence: A defendant interferes

early on with the investigation (triggering the obstruction enhancement), but later confesses to this

obstruction and cooperates going forward (triggering the acceptance-of-responsibility reduction).”

Id. Soulliere’s conduct did not follow that sequence. Following his guilty plea, Soulliere failed to

-5- No. 22-1342, United States v. Soulliere

report for drug testing and then tested positive for methamphetamine, which he denied using. The

district court consequently ordered Soulliere to reside at a halfway house pending sentencing. At

the halfway house, Soulliere committed 34 program violations in less than a month. Soulliere then

failed to return to the halfway house after a medical appointment and absconded from pretrial

supervision. When he was arrested nearly a month later, Soulliere lied about his identity,

challenged the validity of the warrant for his arrest, and had in his possession another person’s

identification. Soulliere contends that, after he absconded from supervision, he offered to provide

the government with information about other cases; the government declined his offer because his

credibility was “totally shot” at that point. Soulliere’s post-plea conduct was inconsistent with

acceptance of responsibility—as the district court stated, the issue was “not even close.” See

United States v. Sanders, 501 F. App’x 455, 458 (6th Cir. 2012).

Substantial Financial Hardship: Soulliere next argues that the district court erred in

applying a 2-level enhancement for an offense resulting in substantial financial hardship to one or

more victims under USSG § 2B1.1(b)(2)(A)(iii). We review for clear error the district court’s

factual finding that a victim suffered substantial financial hardship. United States v. Johnson, 830

F. App’x 153, 161 (6th Cir. 2020).

The enhancement for substantial financial hardship “focuses on the ‘extent of the harm’ to

a particular victim and requires a showing that the loss was ‘more than minimal or trivial’ as

gauged by the victim’s specific financial circumstances.” United States v. Skouteris, 51 F.4th 658,

672 (6th Cir. 2022) (internal citations omitted). In determining whether the enhancement applies,

the district court “may make reasonable inferences about the victims’ financial circumstances and

about their level of financial harm, so long as those inferences find some support in the record.”

United States v. Howder, 748 F. App’x 637, 644 (6th Cir. 2018).

-6- No. 22-1342, United States v. Soulliere

The commentary to USSG § 2B1.1 provides a non-exhaustive list of factors to assist the

district court in determining whether the offense resulted in substantial financial hardship to a

victim, including whether the victim “suffer[ed] substantial harm to his or her ability to obtain

credit.” USSG § 2B1.1, comment. (n.4(F)(vi)). According to the presentence report, one of the

victims, M.F., reported that finding creditors for his business had been challenging as a result of a

50-point drop in his credit score due to “constant” credit inquiries in his name, while another

victim, B.P., had been unable to purchase a home on two occasions because of the damage to his

credit score, which had dropped from 740 to 620 due to fraudulent purchases and credit inquiries

in his name. Soulliere did not present any evidence calling “the reliability or correctness of the[se]

alleged facts into question.” United States v. Small, 988 F.3d 241, 257 (6th Cir. 2021) (quoting

United States v. Cover, 800 F.3d 275, 278 (6th Cir. 2015)), cert. denied, 142 S. Ct. 191 (2021).

The district court did not clearly err in determining that the damage to the victims’ credit warranted

application of the enhancement for substantial financial hardship.

Mitigating Role: Soulliere argues that the district court erred in denying him a mitigating-

role reduction under USSG § 3B1.2, which “provides a range of adjustments for a defendant who

plays a part in committing the offense that makes him substantially less culpable than the average

participant in the criminal activity.” USSG § 3B1.2, comment. (n.3(A)). USSG § 3B1.2 authorizes

a 4-level reduction for a “minimal participant,” a defendant who is “plainly among the least

culpable of those involved in the conduct of a group,” id. comment. (n.4); a 2-level reduction for

a “minor participant,” a defendant “who is less culpable than most other participants in the criminal

activity, but whose role could not be described as minimal,” id. comment. (n.5); and a 3-level

reduction for a defendant whose role falls somewhere in between. The decision to grant a

mitigating-role reduction “is based on the totality of the circumstances and involves a

-7- No. 22-1342, United States v. Soulliere

determination that is heavily dependent upon the facts of the particular case.” Id. comment.

(n.3(C)). We therefore review the denial of a mitigating-role reduction for clear error. United

States v. Randolph, 794 F.3d 602, 616 (6th Cir. 2015).

The district court did not clearly err in determining that Soulliere was “an average

participant” and therefore not entitled to a mitigating-role reduction. The district court pointed out

that “[t]hat these offenses don’t occur without” Soulliere. Although “[t]he fact that a defendant

performs an essential or indispensable role in the criminal activity is not determinative,” such a

defendant must be “substantially less culpable than the average participant in the criminal activity”

to receive a mitigating-role reduction. USSG § 3B1.2, comment. (n.3(C)). Given that Soulliere

had access to the PII of third parties by virtue of his employment with the SBA, Soulliere provided

Vodak with that PII, they discussed splitting the proceeds from the use of M.F.’s PII, and Soulliere

himself attempted to use B.P.’s PII to obtain benefits from the Michigan Department of Health and

Human Services, Soulliere was not “substantially less culpable than the average participant” in

this two-person conspiracy.

For these reasons, we AFFIRM Soulliere’s sentence.

-8-