United States v. Prochner

417 F.3d 54, 2005 U.S. App. LEXIS 14959, 2005 WL 1705919
CourtCourt of Appeals for the First Circuit
DecidedJuly 22, 2005
Docket04-1309
StatusPublished
Cited by61 cases

This text of 417 F.3d 54 (United States v. Prochner) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Prochner, 417 F.3d 54, 2005 U.S. App. LEXIS 14959, 2005 WL 1705919 (1st Cir. 2005).

Opinion

LEVIN H. CAMPBELL, Senior Circuit Judge.

Kenneth Prochner appeals from his sentence on a conviction of access device (credit card) fraud. Prochner pled guilty to knowingly possessing fifteen or more unauthorized credit card numbers with the intent to defraud in violation of 18 U.S.C. § 1029(a)(3). The district court sentenced him to 25 months in prison and three years of supervised release, and ordered restitution in the amount of $2,610.19. The sentence was based in part on enhancements for the amount of loss, number of victims, special skill, and obstruction of justice. 1 The district court also imposed special conditions of supervised release, including conditions that Prochner undergo evaluation for sex offender treatment; that he not engage in an occupation, business or profession that would require direct supervision of minors; and that he have no unsupervised contact with minors.

Prochner argues for the first time on appeal that his sentence should be vacated and the case remanded for resentencing under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He also challenges the enhancement for use of a special skill, the special conditions that he undergo evaluation for sex offender treatment and refrain from certain contact with minors, and the loss calculation for purposes of awarding restitution. 2

I.

A. The Arrest

On August 20, 2002, Prochner was trying to enter Canada from New York when Canadian law enforcement officers conducting border inspections discovered that he was carrying papers and a notebook containing numerous credit card numbers. Further investigation revealed that the credit card numbers had been reported as stolen or lost and that fraudulent activity had been reported on the accounts. Pro-chner did not have the permission of the *58 credit card accounts’ owners to use or possess the credit card numbers. After being advised of his rights, Prochner admitted that he had obtained the credit card numbers on the Internet. In a written statement to law enforcement, he explained that he accessed website order logs to obtain the credit card numbers and then accessed channels where he determined that the numbers were still valid.

In addition to the credit card numbers, Prochner had in his possession a handwritten journal that included references to adolescent males.

B. The Plea and Sentencing

The presentence report (PSR) determined that Prochner’s base offense level was 6. U.S.S.G. § 2Bl.l(a). 3 The PSR added 4 levels for the loss of $17,000 ($500 multiplied by 34 credit card numbers), id. §§ 2Bl.l(b)(l)(C), 2B1.1, cmt. n. 2(F)(i); 2 levels for the number of victims (between 10 and 50), id. § 2Bl.l(b)(2)(A); 2 levels for the use of a special skill, id. § 3B1.3; and 2 levels for obstruction of justice, id. § 3C1.1. The resulting offense level totaled 16. Because Prochner had no prior convictions and zero criminal history points, he was assigned to Criminal History Category I. The resulting guideline sentencing range was 21 to 27 months. The Probation Office calculated that Prochner owed $2,610.19 in restitution.

Prior to sentencing, Prochner objected to the enhancements for the amount of loss, special skill, and obstruction of justice, as well as the restitution figure. He argued that he should have been granted a reduction for acceptance of responsibility, and sought downward departures because of his mental and emotional condition, see U.S.S.G. § 5H1.3, and family and community ties, id. § 5H1.6.

After a hearing, the district court sentenced Prochner on January 21, 2004. The court rejected the objections to the PSR and denied Prochner’s requests for downward departure. The court sentenced Prochner to 25 months in prison and three years of supervised release, and ordered him to pay restitution in the amount of $2,610.19. The court recommended that Prochner be designated to a facility where he could undergo sex offender evaluation. It also imposed special conditions of supervised release, including: (1) that Prochner “participate, if directed to do so by the Probation Office and the Court, in a sex-offender-specific treatment program,” (2) that he be “prohibited from engaging in any occupation, business or profession that would require direct supervision of children under the age of 18,” and (3) that he be prohibited from “hav[ing] *59 any unsupervised contact with anyone under the age of 18.”

II.

A. Booker Challenge

Prochner argues that we should remand his case for resentencing in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 4 At the invitation of this court, both parties submitted supplemental briefing after the Supreme Court’s decision in Booker. As Prochner concedes, he did not raise any question in the district court concerning the constitutionality of the Guidelines nor of their application to his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Accordingly, we review his Booker contentions for plain error. United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005).

Prochner must satisfy the four-prong test in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993): that there is (1) an error (2) that is plain, and that the error (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings. Id. at 732, 113 S.Ct. 1770.

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417 F.3d 54, 2005 U.S. App. LEXIS 14959, 2005 WL 1705919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-prochner-ca1-2005.