United States v. Rashia Wilson

649 F. App'x 827
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 11, 2016
Docket15-11089, 15-11090
StatusUnpublished
Cited by1 cases

This text of 649 F. App'x 827 (United States v. Rashia Wilson) 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. Rashia Wilson, 649 F. App'x 827 (11th Cir. 2016).

Opinion

PER CURIAM:

On July 16, 2013, Rashia Wilson, having entered guilty pleas, was sentenced to prison for a total of 252 months in two consolidated cases, a Fraud Case and a Gun .Case, to prison terms totaling' 252 months. 1 The plea in the Fraud Case was to one count of wire fraud (filing false federal income tax returns to obtain refunds), 18 U.S.C. § 1343, and- one count of aggravated identity theft, 18 U.S.C. § 1028A. The plea in the Gun Case was to two counts of felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Wilson appealed her sentences, claiming that the district court erred in grouping the counts under Chapter Three, Part D of the Sentencing Guidelines and in using the sentences imposed in the Gun Case to increase her Criminal History Category for the Fraud Case. We agreed, vacated her sentences and remanded the cases for re-sentencing. Uni ted States v. Wilson, 593 Fed.Appx. 942, 946 (11th Cir.2014).

On remand, the district court sentenced Wilson to the same total sentence, imprisonment for a total of 252 years. Wilson appeals the total sentence, presenting three arguments. First, she argues that the district court erred by applying to the base offense level of the wire fraud count the U.S.S.G. § 2Bl.l(b)(ll)(B)(i) enhancement for production of an unauthorized access device where her conduct was “use,” not “production.” Second, she argues that her sentence is procedurally unreasonable because the court failed to address and consider her mitigation evidence, in particular her post-sentencing rehabilitation. Third, she asserts that her double jeopardy rights were violated when the court failed to credit her for time served. The government raises two issues. First, whether Wilson’s appeal of *829 the sentence on the fraud count is barred by her plea agreement’s sentence appeal waiver. Second, whether two clerical errors require that court’s written judgments conform to the court’s oral pronouncement of Wilson’s sentences.

Wilson’s plea agreement in the Fraud Case contains an appeal waiver. We decline to dismiss her appeal of the sentences in that case on the basis of the appeal waiver as the government may have waived the provision by expressly declining to invoke the waiver during Wilson’s initial consolidated appeal and because the parties have fully briefed the Fraud Case. We therefore address the merits of Wilson’s appeal in that case.

I.

We review the procedural reasonableness of a sentence for abuse of discretion. United States v. Barrington, 648 F.3d 1178, 1194 (11th Cir.2011). We review the district court’s findings of fact for clear error and its interpretation and application of the Guidelines to the facts de novo. Id. at 1194-95.

A factual finding is clearly erroneous when we have a definite and firm conviction. that a mistake has been made after reviewing all of the evidence. Id. at 1195, The district court may properly base factual findings upon any undisputed facts in the presentence investigation report. United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir.2014). Interpretation of the Sentencing Guidelines begins with a guideline’s “plain language and, absent ambiguity, no additional inquiry is necessary.” United States v. Cruz, 713 F.3d 600, 607 (11th Cir.2013) (quotation omitted).

Section 2B1.1(b)(11)(B) of the Sentencing Guidelines provides a two-level enhancement (of the base offense level for wire fraud) for the “production or trafficking” of any “unauthorized access device or counterfeit access device.” U.S.S.G. § 2B1.1(b)(11)(B)(i). “Production” includes “manufacture, design, alteration, authentication, duplication, or assembly.” U.S.S.G. § 2B1.1, comment, (n. 10(A)). The term “access device” includes account or personal identification numbers that can be used “to obtain money, goods, services, or any other thing of- value.” See 18 U.S.C. § 1029(e); Barrington, 648 F.3d at 1201. “Unauthorized access device” includes any access device that is stolen or obtained with the intent to defraud. U.S.S.G. § 2B1.1, comment, (n. 10(A)) (adopting the definition of “unauthorized access device” in 18 U.S.C. § 1029(e)(3)).

The undisputed facts set forth in the presentence investigation report show that, in order to obtain the improper tax refunds, it was necessary for Wilson to duplicate others’ Social Security numbers by entering them into tax preparation software with intent to defraud the United States. See Aguilar-Ibarra, 740 F.3d at 592. Thus, based on the enhancement’s plain language, the district court was entitled to conclude that Wilson’s relevant conduct (for the wire fraud count) included the duplication — i.e., “production” — of Social Security numbers that were obtained with intent to defraud — i.e., “unauthorized access devices.” See 18 U.S.C, § 1029(e); U.S.S.G. § 2B1.1(b)(11)(B)(i) & comment, (n. 10(A)).

H.

A sentence may be procedurally unreasonable if the district court improperly calculates the Guidelines sentence range, treats the Guidelines as mandatory rather than advisory, fails to consider the sentencing factors set out in 18 ,U-S.C. § 3553(a), bases the sentence on clearly erroneous facts, or fails to adequately ex *830 plain the chosen sentence. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). Although the district court will normally explain why it has rejected non-frivolous arguments for a different sentence, a brief explanation that the district court’s imposed sentence is “appropriate” is legally sufficient where “the record makes clear that the sentencing judge considered the evidence and arguments.” Rita v. United States, 551 U.S. 338, 357-59, 127 S.Ct. 2456, 2468-69, 168 L.Ed.2d 203 (2007).

When the district court elicited the parties’ objections after it pronounced sentence, Wilson did not object to her total sentence on the ground that it is procedurally unreasonable. We therefore review the objection for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.2014).

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Bluebook (online)
649 F. App'x 827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rashia-wilson-ca11-2016.