United States v. Robert Russell Passmore, Also Known as Clifford Parkinson, Also Known as Mark Nash

984 F.2d 933, 1993 U.S. App. LEXIS 1264, 1993 WL 15220
Court of Appeals for the Eighth Circuit·Decided January 28, 1993·No. 92-2448·Published·Cited by 28 cases

Opinions

FRIEDMAN, Senior Circuit Judge.

The only questions in this appeal are whether the district court improperly (1) departed upwardly from the Federal Sentencing Guidelines because of (a) the defendant’s illicit and pernicious relationship with a young girl and (b) the pervasiveness of the defendant’s criminal conduct and (2) refused a downward adjustment under the Guidelines based on the defendant’s alleged acceptance of responsibility. We affirm.

I.

A. 1. The background facts as set forth in the presentence report, to which neither the defendant nor the government objected, are as follows:

In 1987, the appellant Passmore, then thirty-two years old, met and became involved with an eleven-year-old girl, P. They lived together for almost a year, regularly having sex. After separating for a time, they resumed their relationship and traveled together to various places in the United States. P had a child by Passmore at the age of fifteen.

To support themselves, they operated at least four fraudulent schemes to obtain money by inducing people to call toll free 800 telephone numbers and send them money for nonexistent merchandise. They operated the first three of these schemes in Colorado, Arkansas and Wyoming. In operating these schemes, Passmore had P answer the telephone as the person operating the business. He also had her open checking accounts in fictitious names and they wrote a number of bad checks.

The fourth scheme, which resulted in Passmore’s conviction, occurred in South Dakota. They placed ads in newspapers in Washington, D.C., Dallas and Seattle, offering to sell tickets to professional football games. Callers to the 800 number were told that there were four tickets for a forthcoming game, which would be sold to the first person to submit payment of fifty dollars per ticket by certified check or money order. Forty-seven persons called the 800 number and ordered tickets, totalling $7710. Passmore and P received $3630 from the sale of these fictitious tickets.

2. Passmore was indicted at the United States District Court for the District of South Dakota on fourteen counts of mail and wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343 (1988). Pursuant to a [935] plea agreement, Passmore pleaded guilty to one count of mail fraud. The district court** sentenced Passmore to thirty-six months imprisonment, followed by three years of supervised release.

B. The presentence report determined that under section 2Fl.l(a) of the Guidelines, the base offense level of the crime to which Passmore pleaded guilty (mail fraud) was six, which the report increased by five to reflect the following specific offense characteristics: the monetary amount involved, U.S.S.G. § 2Fl.l(b)(l)(D), including money received from similar schemes, U.S.S.G. § 1B1.3, and the facts that the scheme involved more than minimal planning and defrauded more than one victim, U.S.S.G. §§ 2F1.1(b)(2)(A), (B). The pre-sentence report also added two points for obstruction of justice, U.S.S.G. § 3C1.1, and subtracted two points for acceptance of responsibility, U.S.S.G. § 3E1.1(5), which resulted in a total offense level of eleven. This produced a Guideline imprisonment range of eight — fourteen months. The pre-sentence report found no factors that would warrant departure from the Guidelines range.

The district court adopted the presen-tenee report with the following changes:

The court added two points for Pass-more’s aggravating role in the offense, U.S.S.G. § 3Bl.l(e), and did not allow a two-point reduction for acceptance of responsibility. This produced a total offense level of fifteen, with a Guideline range of eighteen — twenty-four months imprisonment.

The court then departed four levels upward pursuant to section 5K2.0 to produce a total offense level of nineteen, with a sentencing range of thirty — thirty-seven months imprisonment. As noted, the court sentenced Passmore to thirty-six months imprisonment.

At the sentencing hearing, the court explained the four level upward departure as follows:

The departure reasons would be generally as follows: first, the Court did consider that [P] was a vulnerable victim and this conduct occurred over many, many months, indeed, years. It was continuing conduct. The defendant — the victim learned much sophistication from the defendant. The Court considers by reason of a long and protracted period of involvement between the defendant and the victim, that this conduct has altered perhaps for years to come the attitude, the morals, indeed the mental attitude of this victim. The conduct took place not only over a period of years, but also over the various states of Colorado, Arkansas, Wyoming, South Dakota, possibly California. The crime itself was a sophisticated type of a crime which involved an intricate plan of deception, which reached victims all over the United States, practically, from coast to coast.
The defendant was 20 years older than the victim, who was 11, going on 12.
The court further stated:
I don’t also accept your position that it takes a psychologist or a psychiatrist to come to a conclusion that a young lady who starts at 12 years of age and lives in an illicit relationship with a male who is the father of an unborn child over a period of years in a marriage-type relationship, I don’t think you need a psychologist or psychiatrist to say that this will cause some long-term emotional problems with this young lady.

Finally, after imposing sentence, the court stated:

As respects the departure, the Court does want to make one further comment and that is that in addition to the Court’s comments concerning the illegal acts of sexual abuse, in this case the defendant also led this young lady into committing criminal acts.

II.

“The district court may depart from the Guidelines if it finds aggravating or miti[936] gating circumstances which are not adequately taken into consideration by the Guidelines, 18 U.S.C. § 3553(b), and it provides the specific reason for the departure. 18 U.S.C. § 3553(c). We review the reasonableness of an upward departure based on circumstances not adequately considered by the Guidelines under an abuse of discretion standard. ... This review is ‘quintessentially a judgment call’ and we respect the district court’s superior ‘feel’ for the case.” United States v. Perkins, 929 F.2d 436, 437-38 (8th Cir.1991) (citations omitted).

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United States v. Robert Russell Passmore, Also Known as Clifford Parkinson, Also Known as Mark Nash, 984 F.2d 933, 1993 U.S. App. LEXIS 1264, 1993 WL 15220 (8th Cir. 1993).

984 F.2d 933 (United States v. Robert Russell Passmore, Also Known as Clifford Parkinson, Also Known as Mark Nash) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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