United States v. Schirmaier

44 F. App'x 840

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 19, 2002
• Docket: No. 01-30440; D.C. No. CR-01-00210-TSZ
• Status: Published

Opinion

MEMORANDUM

*

For more than 20 years, defendant Heinz Schirmaier wrongfully used the identity of Charles Swanson. During that time, Schirmaier incurred debt, earned taxable income, married twice and was convicted of a criminal offense, all in the Swanson name. Through considerable effort and expense, Charles Swanson was able to track down his impersonator and report Schirmaier’s location to authorities. When approached by government agents, Schirmaier relinquished all of “his” Swanson identification and credit cards, only to promptly re-apply for new ones and continue the fraud. On these facts, the district court did not err in granting the government’s motion for a three-level enhancement. The record supports departure on the basis of both the substantial non-monetary harm to the victim, and endangerment to the financial security of the victim. See U.S.S.G. § 2B1.1 comm. n. 15(A)(ii), (v). The record also clearly reflects that the court did not depart on the basis of U.S.S.G. § 2B1.1 comm. n. 15(A)(iv), contrary to appellant’s assertions. Although it is arguable that the non-monetary harm factor was identified in the specific offense guideline, we conclude that Schirmaier’s lengthy and persistent charade took his crime substantially outside the “heartland” for this offense and thus the district court was well within its discretion in granting a further upward departure. See Koon v. United States, 518 U.S. 81, 92-3, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.