United States v. Williams

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Nos. 03-5107/5189/5192 ELECTRONIC CITATION: 2003 FED App. 0453P (6th Cir.) Williams, et al. File Name: 03a0453p.06 Berry, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Bruce I. UNITED STATES COURT OF APPEALS Griffey, OFFICE OF BRUCE IRWIN GRIFFEY, Memphis, FOR THE SIXTH CIRCUIT Tennessee, Mary C. Jermann, OFFICE OF THE FEDERAL _________________ PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, Jerry Stokes, Memphis, Tennessee, for Appellants. Tracy L. Berry, ASSISTANT UNITED STATES OF AMERICA , X UNITED STATES ATTORNEY, Memphis, Tennessee, for Plaintiff-Appellee, - Appellee. - - Nos. 03-5107/ _________________ v. - 5189/5192 > OPINION , MICHELLE WILLIAMS - _________________ (03-5107); TANISHA JONES - DAMON J. KEITH, Circuit Judge. Defendants-Appellants WARD (03-5189); ROBERT - Michelle Williams (“Williams”) and Robert Kelly, III KELLY , III (03-5192), - (“Kelly”) appeal their sentences following the entry of guilty Defendants-Appellants. - pleas to identity theft, 18 U.S.C. § 1028(a)(7). Defendant- - Appellant Tanisha Jones Ward (“Ward”) appeals her sentence N following the entry of a guilty plea to identity theft, 18 U.S.C. Appeal from the United States District Court § 1028(a)(7), and making a false statement, 18 U.S.C. for the Western District of Tennessee at Memphis. § 1001(a)(2). Williams, Kelly, and Ward were involved in a No. 02-20151—Julia S. Gibbons, District Judge. scheme that involved the use of false identifying information to obtain home loans. The district court found that the Argued and Submitted: October 21, 2003 enhancement in § 2B1.1(b)(9)(C)(i) of the 2002 Sentencing Guidelines for “the unauthorized transfer or use of a means of Decided and Filed: December 23, 2003 identification unlawfully to produce or obtain any other means of identification” applied to Williams’s and Kelly’s Before: KEITH, DAUGHTREY, and GILMAN, Circuit conduct. UNITED STATES SENTENCING GUIDELINES MANUAL Judges. § 2B1.1(b)(9)(C)(i) (2002). Due to ex post facto concerns, the district court sentenced Kelly and Ward using the 1998 _________________ Sentencing Guidelines (in effect at the time of the crime) rather than the 2002 Sentencing Guidelines (in effect at the COUNSEL time of sentencing). Williams appeals the application of the § 2B1.1(b)(9)(C)(i) enhancement. Kelly appeals the use of ARGUED: Bruce I. Griffey, OFFICE OF BRUCE IRWIN the 1998 Sentencing Guidelines, contending that the 2002 GRIFFEY, Memphis, Tennessee, for Appellants. Tracy L. Sentencing Guidelines should be applied without the

1 Nos. 03-5107/5189/5192 United States v. 3 4 United States v. Nos. 03-5107/5189/5192 Williams, et al. Williams, et al.

§ 2B1.1(b)(9)(C)(i) enhancement. Ward appeals the district apply to her conduct. The government supported the court’s refusal to depart downward due to her family imposition of the enhancement because of Williams’s circumstances, aberrant behavior, and her relative culpability purchase and use of someone else’s social security number in compared to the other defendants. For the reasons set forth order to obtain two separate loans. According to the below, we AFFIRM the sentences of Williams, Kelly, and government, the bank loan number is equivalent to false Ward. identification. Williams argued that the enhancement did not apply because she engaged in a single act - the signing of the I. FACTUAL BACKGROUND loan documents containing the false information. Williams maintained that she purchased a loan package from Mr. Green From on or about September 25, 1998, and continuing to on and that she did not use the social security number in those or about June 21, 2000, Terrell Green, Marcus Martin, and documents to obtain additional false identification. Thomas Anthony Taylor provided false identifying information to persons who wanted to buy a house under a After hearing the arguments of the parties, the district court loan program administered by the Federal Housing rejected Williams’s position. According to the district court, Administration (“FHA”). The data included a social security § 2B1.1(b)(9) applied directly to the type of situation number, employment information, and salary information. Williams presented. The district court stated: Purchasers such as Kelly and Williams signed loan documents containing the false information and submitted To elaborate further, with respect to the application of the them to Community Mortgage Corporation (“CMC”) for the guideline we’ve just been talking about, the court refers federally guaranteed loans and the City of Memphis, to the guideline itself. The commentary application note Tennessee Division of Housing and Community Development nine, which refers to the definition of means of for down payment assistance loans. On or about May 16, identification, which is a very broad one, and 2000, Williams received loans from CMC and the City of encompasses a bank loan which we might not ordinarily Memphis valued in excess of $59,000. On or about May 19, think of as being included by that language, would note 2000, Kelly received over $90,000 in loans. Ward acted as also the Application Notes 7(C)(i) and 7(C)(ii) and then the realtor in each of the loans. In addition, on or about June the commentary background which discusses subsection 21, 2000, Ward used a false social security number, which she (B)(9)(C) in some detail. It appears to me that that received from Terrell Green, in order to apply for a FHA loan. enhancement does apply. Williams entered a plea of guilty to violating 18 U.S.C. J.A. at 159-160. § 1028(a)(7), through her use of Larmont F. White’s social security number, in order to commit the federal felony Kelly entered a guilty plea to the use of the social security violations of social security fraud and making a false number of Samuel Robert DeMoya. In objecting to the statement within the jurisdiction of an agency of the United presentence investigation report, Kelly argued that the two- States. On December 2, 2002, Williams filed objections to the point enhancement for more than minimal planning was not presentence report. At the sentencing hearing, Williams appropriate. On December 6, 2002, Kelly supplemented his argued that the two-point enhancement pursuant to objections contending that the probation office erred in using § 2B1.1(b)(9)(C)(i) of the 2002 Sentencing Guidelines did not the 1998 Sentencing Guidelines. Kelly contended that the Nos. 03-5107/5189/5192 United States v. 5 6 United States v. Nos. 03-5107/5189/5192 Williams, et al. Williams, et al.

2002 Sentencing Guidelines should be used, but that the use On or about July 3, 2002, Ward entered a plea admitting to of the 2002 Sentencing Guidelines should exclude the the use of the social security number of Allison Campbell and enhancement pursuant to § 2B1.1(b)(9)(C)(i). to making a false statement to a department of the United States. Unlike Williams and Kelly, Ward urged the district At the sentencing hearing, Kelly conceded that the use of court to depart downward from the applicable guideline range another’s social security number created a potential for harm by contending that her family circumstances were to that individual. Nonetheless, Kelly argued that the extraordinary, her criminal conduct was aberrant behavior, § 2B1.1(b)(9)(C)(i) enhancement applied only if the loan was and she was less culpable than some of the other co- in the name of the individual whose social security number defendants. The government responded by asking the district was stolen. Kelly stressed the fact that he was trying to get a court to recognize that the four-level enhancement received home loan for himself, not run a scam and split with the by the organizer of the activity provided adequate money. In the alternative, Kelly argued that, under the 1998 consideration for the difference between their roles in the Sentencing Guidelines, the enhancement for more than criminal conduct. The government also noted that the minimal planning was not appropriate because the facts conduct occurred over a two-year period and that Ward’s lack presented a simple case. The government supported the use of criminal history was already taken into account in of the 1998 Sentencing Guidelines due to ex post facto determining the guideline range. concerns. Specifically, the government contended that the use of the 2002 Sentencing Guidelines would require the The district court found that the facts of Ward’s case did enhancement proscribed in § 2B1.1(b)(9)(C)(i) as a result of not support a downward departure. In reaching its decision, the commentary background to § 2B1.1 and application notes the district court found that: Ward’s family responsibilities 7(C)(i), 7(C)(ii), and 9 for that guideline section. The were not so extraordinary as to suggest the need for a § 2B1.1(b)(9)(C)(i) enhancement would have put Kelly in a downward departure; the importance of payment of restitution higher guideline range than would be applicable under the did not override the need to serve a term of imprisonment; 1998 Sentencing Guidelines, even with the enhancement for Ward was more culpable than the individual defendants who more than minimal planning. applied for loans themselves due to her integral role in the transactions; and the conduct was too repeated and extensive In finding that the 1998 Sentencing Guidelines applied, the in terms of the period of time in order to constitute aberrant district court rejected Kelly’s attempt to prevent the behavior. Further, the district court found that the application of § 2B1.1(b)(9)(C)(i) on the basis that Kelly used aggregation of circumstances and factors was not sufficient to his own name rather than the name of the individual whose take the case “out of the heartland” and thereby justify a social security number he appropriated. According to the downward departure. district court, the commentary application notes and the commentary background made clear that the enhancement II. DISCUSSION would apply under the facts of the case at bar. The district court explained that even if the name was not used, there In reviewing a district court's application of the Sentencing would still be harm to the credit of the person whose social Guidelines, we "accept the findings of fact of the district court security number was used. The district court found that the unless they are clearly erroneous and . . . give due deference minimum offense level of 12 would apply in Williams’s case. to the district court’s application of the guidelines to the Nos. 03-5107/5189/5192 United States v. 7 8 United States v. Nos. 03-5107/5189/5192 Williams, et al. Williams, et al.

facts." 18 U.S.C. § 3742(e). In light of Buford v. United defendant uses another individual’s name, social security States, 532 U.S. 59, 63-66 (2001), this court has held that our number, or some other form of identification (the “means of standard of review of a district court's application of identification”) to “breed” (i.e., produce or obtain) new or provisions of the Sentencing Guidelines to the facts should be additional forms of identification. UNITED STATES treated deferentially and should not be disturbed unless SENTENCING GUIDELINES MANUA L § 2B1.1, cmt. background clearly erroneous. United States v. Jackson-Randolph, 282 (2002). Section 2B.1.1(b)(9)(C)(i) of the Sentencing F.3d 369, 389-90 (6th Cir.2002) (holding that the Supreme Guidelines authorizes a two-level increase in a defendant’s Court's reasoning in Buford leads to the use of a deferential base offense level in cases in which the defendant has standard of review in the application of the Sentencing unlawfully used any means of identification without Guidelines under circumstances involving fact-bound authorization to produce or obtain any other means of determinations). identification. UNITED STATES SENTENCING GUIDELINES MANUAL § 2B1.1(b)(9)(C)(i) (2002). If after the two-level A. Section 2B1.1(b)(9)(C)(i) enhancement increase, the offense level is less than level 12, then the offense level is to be increased to level 12. Id. The minimum On October 30, 1998, Congress enacted the Identity Theft offense level of 12 accounts for the seriousness of the offense and Assumption Deterrence Act of 1998 (“ITADA”), Pub. L. as well as the difficulty in detecting the crime prior to certain No. 105-318. The ITADA amended the fraud chapter of title harms occurring, such as a damaged credit rating or an 18 of the United States Code to create a new crime inability to obtain a loan. UNITED STATES SENTENCIN G prohibiting the unlawful use of personal identifying GUIDELINES MANUA L § 2B1.1, cmt. background (2002). The information, including, but not limited to, names, social minimum offense level also accounts for the non-monetary security numbers, and credit card numbers. Identity fraud harm associated with these types of offenses, such as harm to involves the misappropriation of another person’s personal the individual’s reputation or credit rating, inconvenience, and identifying information. Criminals use this information to other difficulties resulting from the offense. Id. establish credit in their name, run up debts on another person’s account, or take over existing financial accounts. The sentencing court found that the § 2B1.1(b)(9)(C)(i) The ITADA directed the Sentencing Commission to “review enhancement applied because Williams and Kelly used a and amend the Federal sentencing guidelines and the policy means of identification, i.e., a social security number of statements of the Commission, as appropriate, to provide an another, to obtain another means of identification, i.e., a bank appropriate penalty for each offense under section 1028 of loan number. Appellants argue that the enhancement was title 18, United States Code, as amended by this Act.” inapplicable to their conduct. Specifically, Williams argues Identity Theft and Assumption Deterrence Act of 1998, Pub. that the bank loan number is not the equivalent of a false L. No. 105-318 § 4(a), 112 Stat. 3007 (codified in 28 U.S.C. identification, and that she purchased the entire loan package, § 994 note). not a social security number. Thus, according to Williams, the social security number in those documents was not used Subsection 2B1.1(b)(9)(C) of the Sentencing Guidelines to obtain additional false identification. Kelly argues that the was implemented pursuant to Section 4 of the ITADA. It enhancement does not apply to his conduct because he focuses on an aggravated from of identity theft known as obtained the bank loan in his own name. Each of these “affirmative identity theft” or “breeding,” in which a arguments will be addressed in turn. Nos. 03-5107/5189/5192 United States v. 9 10 United States v. Nos. 03-5107/5189/5192 Williams, et al. Williams, et al.

“‘Means of identification’ has the meaning given that term unlawfully.” UNITED STATES SENTENCING GUIDELINES in 18 U.S.C. § 1028(d)(4), except that such means of MANUA L § 2B1.1, cmt. n. 7(C)(ii)(II) (2002). identification shall be of an actual (i.e., not fictitious individual), other than the defendant or a person for whose The Sentencing Guidelines also set forth examples of conduct the defendant is accountable under § 1B1.3 (Relevant conduct to which subsection (b)(9)(C)(i) does not apply. The Conduct).” UNITED STATES SENTENCING GUIDELINES first example involves a defendant’s use of a credit card from MANUAL § 2B1.1, cmt. n. 7(A) (2002). Under 18 U.S.C. a stolen wallet “only to make a purchase.” UNITED STATES § 1028(d)(4), “the term ‘means of identification’ means any SENTENCING GUIDELINES MANUAL § 2B1.1, cmt. n. name or number that may be used, alone or in conjunction 7(C)(iii)(I). The Sentencing Guidelines make clear that in with any other information, to identify a specific individual.” that case, the defendant “has not used the stolen credit card to 18 U.S.C. 1028(d)(3) (emphasis added). “Means of obtain another means of identification.” Id. The second identification” includes, inter alia, a name, social security example applies to a defendant who “forges another number, unique electronic identification number, or individual’s signature to cash a stolen check. Forging another telecommunication identifying information or access device individual’s signature is not producing another means of as defined in 18 U.S.C. § 1029(e). 18 U.S.C. identification.” UNITED STATES SENTENCING GUIDELINES § 1028(d)(3)(A)-(D). “[T]he term ‘access device’ means any MANUA L § 2B1.1, cmt. n. 7(C)(iii)(II). . . . account number . . . or other means of account access that can be used, alone or in conjunction with another access In this case, Williams and Kelly each used the social device, to obtain money, goods, services, or any other thing security number of someone else to obtain home loans in their of value, or that can be used to initiate a transfer of funds . . .” own names. Kelly argues that the bank loan number is not 18 U.S.C. § 1029(e)(1). another “means of identification.” As a bank loan number is an account number that can be used to obtain money, In providing guidance for the applicability of § 2B1.1(b)(9), however, it is a “means of identification” as that term is the Sentencing Commission set forth examples of conduct to defined in 18 U.S.C. § 1028. Further, the first example in the which the subsection would apply. The first example, which commentary specifically provides that “the account number is most applicable to this situation, provides for the of the bank loan is the other means of identification that has imposition of the enhancement when “[a] defendant obtains been obtained unlawfully.” UNITED STATES SENTENCING an individual’s name and social security number from a GUIDELINES MANUA L § 2B1.1(b)(9)(C)(i), cmt. n. 7(C)(ii)(I). source . . . and obtains a bank loan in that individual’s name. Accordingly, Kelly’s argument that a bank loan number is not In this example, the account number of the bank loan is the a “means of identification” lacks merit. other means of identification that has been obtained unlawfully.” UNITED STATES SENTENCING GUIDELINES Williams and Kelly both argue that their situation is MANUAL § 2B1.1, cmt. n.7(C)(ii) (2002). In the second different from the one in the example about the bank loan example, a defendant obtains an individual’s personal because they obtained the loans in their own names and, information, such as a name and address, and “applies for, therefore, did not use the social security number and name of obtains, and subsequently uses a credit card in that someone else. Thus, according to Williams and Kelly, their individual’s name. In this example, the credit card is the situation is more analogous to making a purchase with a other means of identification that has been obtained stolen credit card. While the defendant in the example used Nos. 03-5107/5189/5192 United States v. 11 12 United States v. Nos. 03-5107/5189/5192 Williams, et al. Williams, et al.

two means of identification in order to obtain the bank loan, instances. Williams knew that the loan package included a the definition of “means of identification” provided in 18 social security number other than her own and that the social U.S.C. § 1028 does not require that a name and social security security number would be used to obtain the loan. number be used together in order for them to become a Accordingly, the sentencing court did not err in finding that “means of identification.” To the contrary, it states that any the § 2B1.1(b)(9)(C)(i) enhancement applied to Williams’s name or number may be used “alone or in conjunction with and Kelly’s conduct. any other information, to identify a specific individual.” 18 U.S.C. 1028(d)(3) (emphasis added). A social security B. Ex post facto considerations number is clearly defined as a “means of identification” and, thus, its use to obtain a loan falls within the scope of the If a district court determines that use of the version of the statute and the Sentencing Guidelines even if another form Sentencing Guidelines in effect on the date of sentencing was not used. 18 U.S.C. § 1028(d)(3). would violate the ex post facto clause, the version of the Sentencing Guidelines in effect on the date the offense of Further, unlike the use of a stolen credit card to make a conviction was committed should be used. UNITED STATES purchase, obtaining a bank loan involves the opening of a new SENTENCING GUIDELINES MANUA L § 1B1.11(b)(1) (2002). In line of credit. Opening a new line of credit, as opposed to this case, Kelly was sentenced on January 17, 2003. The facts using a line of credit that already exists, is what distinguishes revealed that Kelly used the fraudulent social security number the first set of examples, where the enhancement applies, when he applied for a home loan on or about May 22, 2000. from the second set of examples, where the enhancement does The district court applied the 1998 Sentencing Guidelines to not apply. In the examples where the enhancement applies, Kelly’s conduct because it determined that the 2002 a bank loan that did not otherwise exist is created and a new Sentencing Guidelines would result in a higher offense level. credit card is obtained. In the examples where the The court’s finding was based on the fact that the enhancement does not apply, the defendant used an existing § 2B1.1(b)(9)(C)(i) enhancement would apply if the 2002 credit card to make a purchase and cashed a check from an Sentencing Guidelines were utilized. With the enhancement, existing bank account. Thus, while the use of someone’s the adjusted offense level using the 2002 Sentencing credit card to make a purchase is a punishable offense, the Guidelines is 12 while the 1998 Sentencing Guidelines results nature of the harm is different from that which results from in an offense level of 9. As previously discussed, the using someone’s identifying information to establish new § 2B1.1(b)(9)(C)(i) enhancement was applicable to Kelly’s credit. conduct. Accordingly, the district court did not err in using the 1998 Sentencing Guidelines due to ex post facto concerns. Finally, Williams’s argument that she bought a loan package and not a social security number and, thus, that her C. District court’s refusal to grant Ward’s downward conduct is not within the purview of the enhancement, is departure similarly without merit. Whether Williams bought the social security number as part of a package that was used to procure Generally, we will not “review a district court’s refusal to a loan or bought the social security number and used it to fill exercise its discretion to grant a downward departure.” out a loan application is irrelevant. The harm to the person United States v. Ridge, 329 F.3d 535, 544 (6th Cir. 2003). whose social security number was used is the same in both We do have jurisdiction, however, to review a district court's Nos. 03-5107/5189/5192 United States v. 13 14 United States v. Nos. 03-5107/5189/5192 Williams, et al. Williams, et al.

belief “that it lacked any authority to depart downward as a argument, Judge Gibbons stated: “You know, I don’t really matter of law.” Id. (quoting United States v. Ebolum, 72 F.3d have a lot of flexibility in this case. And that doesn’t mean I 35, 37 (6th Cir.1995)). We review de novo whether the don’t recognize my ability to depart downward, because I district court was aware of its authority to make a downward do.” J.A. at 251. After consideration of all of Ward’s departure, examining the transcript of the sentencing hearing arguments for downward departure, Judge Gibbons stated: to make this determination. Id. We presume that the sentencing court has properly exercised its discretion when it The factors are just not here for a downward departure decides that a departure is not warranted, as “there is no duty that take this case out of the norm of cases. A number of on the trial judge to state affirmatively that he knows he the factors that you’ve mentioned are already covered in possesses the power to make a downward departure, but the guidelines, a number of others. The facts in this case declines to do so.” United States v. Byrd, 53 F.3d 144, 145 just don’t warrant a downward departure on that basis, (6th Cir.1995). even when all the factors are considered together.

In its introduction to the Sentencing Guidelines, the J.A. at 255. As the sentencing court was aware of its Sentencing Commission states that it “intends the sentencing authority to depart, Ward lacks a basis to challenge the courts to treat each guideline as carving out a ‘heartland,’ a sentencing court’s denial of her motion for a downward set of typical cases embodying the conduct that each guideline departure. describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct CONCLUSION significantly differs from the norm, the court may consider whether a departure is warranted.” UNITED STATES For the foregoing reasons, we AFFIRM the sentences of SENTENCING GUIDELINES MANUA L ch. 1, pt. A, subpt. 4(b) Williams, Kelly, and Ward. (2002). By statute, a district court may sentence outside the prescribed guideline range if “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); UNITED STATES SENTENCING GUIDELINES MANUA L § 5K2.0 (2002). In this case, a de novo review of the transcript from Ward’s sentencing hearing reveals that the district court explicitly recognized that it possessed the discretion to depart downward. The government argued that “while the court does have the ability to give a downward departure in this case, that the conduct is not outside the heartland.” J.A. at 250. After defense counsel’s response to the government’s