United States v. McGowan , 6 F. App'x 806 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 4 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 00-6044
v. (W.D. Oklahoma)
LAUREEN JOY MCGOWAN, (D.C. Nos. CR-99-94-M,
CR-99-153-M)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HENRY , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. BACKGROUND
In 1999, Laureen Joy McGowan entered pleas of guilty to various counts in
two indictments charging her with possession of stolen mail containing personal
checks, in violation of 18 U.S.C. § 1708 and 18 U.S.C. § 2. Ms. McGowan had
participated in thefts of mail from numerous Tulsa and Oklahoma City mail
delivery boxes. In the course of these thefts, Ms. McGowan and others stole the
entire contents of mailboxes, apparently in order to find packages of blank
checks, which were then passed using counterfeit identification cards. In January
2000, the district court sentenced Ms. McGowan to 51 months’ imprisonment,
which represented an upward departure from the guideline range, and a sentence
outside the “heartland” of mail fraud cases. Ms. McGowan now appeals that
sentencing departure, arguing that it was both improper and excessive. For the
reasons set forth below, we affirm the judgment of the district court.
II. DISCUSSION
We have held that
[t]he Sentencing Guidelines provide that each guideline carves out a
“heartland,” “a set of typical cases embodying the conduct that each
guideline describes.” U.S.S.G. ch. 1, pt. A, subpt. 4(b). The Guidelines
explain that “[w]hen a court finds an atypical case, one to which a
particular guideline linguistically applies but where conduct
significantly differs from the norm, the court may consider whether a
departure is warranted.” Id. As a result, a sentencing court may depart
from the Guidelines and impose a sentence outside the guideline range
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where it “finds ‘that 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.’” Id. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).
United States v. Sicken , 223 F.3d 1169, 1172 (10th Cir. 2000).
We review sentencing departures under an abuse of discretion standard
which “‘includes review to determine that the discretion [of the district court] was
not guided by erroneous legal conclusions.’” United States v. Collins , 122 F.3d
1297, 1302 (10th Cir. 1997) (quoting Koon v. United States , 518 U.S. 81, 100
(1996)). More specifically, we must determine: (1) whether the factual
circumstances supporting a departure are permissible departure factors; (2)
whether the departure factors relied upon are sufficient to remove the defendant
from the applicable Guideline heartland thus warranting a departure; (3) whether
the record sufficiently supports the factual basis underlying the departure; and
(4) whether the degree of departure is reasonable. See United States v. Gauvin ,
173 F.3d 798, 806-07 (10th Cir. 1999).
A. The Factors Justifying Departure
With regard to the first three characteristics cited by Gauvin , Ms.
McGowan contends that the factors relied upon for departure were insufficient to
remove her case “from the heartland of mail theft cases under [USSG] § 2B1.1.”
Aplt’s Br. at 15. The factors cited by the district court were (1) the number of
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victims; (2) the number of checks; (3) the possession of false identification cards
and the equipment to make them; (4) the theft of personal items having no
monetary value; and (5) the harms suffered by victims who were forced to correct
their credit and financial records. 3d Amended Judgment, filed Feb. 10, 2000
[hereinafter referred to as “Judgment”], at 13.
Ms. McGowan states that the number of victims did not require an
additional enhancement because it was been “implicitly considered” through a 9-
level enhancement for the loss amount under USSG §2B1.1(b)(1), and a two-level
enhancement for more than minimal planning under §2B1.1(b)(4)(a). Aplt’s Br.
at 16. In support, she cites United States v. Corrigan , 128 F.3d 330, 335 (6th Cir.
1997), which held that “[t]he number of victims is adequately considered in the
Sentencing Guidelines dealing with fraud,” and United States v. Stein , 127 F.3d
777, 780 (9th Cir. 1997), which held that “it is the rare case that the existence of
both” multiple victims and more than minimal planning “will take the case
outside the heartland of the Guidelines and justify a departure.” The government
does not directly respond to this argument. Instead, it cites Koon , 518 U.S. at 98,
for the proposition that the district court’s departure methodology was
permissible. See Aple’s Br. at 3-4.
We find the cases cited by Ms. McGowan inapposite. Both cases deal with
fraud offenses under §2F1.1, not property offenses under §2B1.1. The Guidelines
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for property offenses contain no provision akin to the multiple victim
enhancement of §2F1.1(b)(2)(B). Furthermore, §2F1.1(b)(2)(B) lists more than
minimal planning and multiple victims as alternative, not cumulative, reasons to
apply a two-level enhancement. See USSG §2F1.1(b)(2)(B) (“If the offense
involved (A) more than minimal planning, or (B) a scheme to defraud more than
one victim, increase by 2 levels.”) (emphasis added). As the Ninth Circuit
pointed out in Stein , this suggests the Sentencing Commission realized that in
most fraud schemes, “where one of these factors applies the other will apply as
well.” Stein , 127 F.3d at 780. We take the absence of a similar alternative
provision for multiple victims in §2B1.1(b)(4)(A) as an indication that the
Commission did not take the same view of multiple victim property offenses, and
that a large number of victims may constitute an adequate justification for an
additional departure. Here, the number of victims was around 300, which seemed
to the district court “substantially in excess” of a number typical for property
offenses, even those involving mail. Aplt’s Br. at 65 (Tr. of Sentencing Hearing).
It was thus a permissible basis for a departure.
Ms. McGowan then proposes that the number of checks, the possession of
equipment to make false IDs, and the theft of items having no monetary value all
fell within the heartland of mail theft cases. She argues that because
§2B1.1(b)(3) requires a minimum enhancement to level 6 for the theft of
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“undelivered United States mail,” the Commission “has considered and addressed
the enhancements appropriate for theft of mail cases,” and “mail cases have their
own ‘heartland’ of conduct.” Aplt’s Br. at 17-18. Again, the government does
not specifically respond to these arguments, but generally contends that the
guidelines “do not adequately consider the harm to the individual victims.”
Aple’s Br. at 4.
Based on the Application Notes to §2B1.1, we agree with the government’s
position. The Commission noted that
[c]onsistent with statutory distinctions, an increased minimum offense
level is provided for the theft of undelivered mail. Theft of undelivered
mail interferes with a governmental function, and the scope of the theft
may be difficult to ascertain.
USSG §2B1.1, comment. (backg’d.). It appears that the intent of this
enhancement was not to take into account the theft of over 300 boxes of checks,
the possession of false identification, and the theft of items with no monetary
value. The presence of these factors may therefore appropriately take a mail theft
case outside the sentencing heartland.
Finally, Ms. McGowan contends that the court’s use of the “extensive
inconveniences and costs incurred, not only by financial institutions, but by the
individuals whose checks were stolen,” was unjustified. See Judgment at 13. She
proposes that like the use of false identification, the need for individuals to
correct their credit histories is a normal result of mail theft and does not take a
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case outside the mail theft “heartland.” See Aplt’s Br. at 19-23. We decline to
reach the merits of this argument, as we find that the district court’s departure
was already justified by the factors cited above.
B. The Degree Of Departure
The fourth question from Gauvin asks whether the degree of departure was
reasonable. Ms. McGowan argues that in this case it was not. According to the
judgment, the district court apparently intended to depart upwards by two levels.
However, upon discovering that this would vault Ms. McGowan into a new
criminal history category, in which an additional one-level reduction would be
granted for her acceptance of responsibility, the district court decided to add a
third level to the upward departure. That additional level resulted in a net upward
departure of two levels, giving Ms. McGowan an offense level of 15 and a
criminal history category of VI. See Judgment at 13-14. Ms. McGowan argues
that while the two-level departure “would have been a guided departure,” the
addition of the third level resulted in “an unguided departure contrary to the
structure of the guidelines.” Aplt’s Br. at 24.
Our review of a departure decision’s reasonableness is deferential. See
United States v. Whiteskunk , 162 F.3d 1244, 1253 (10th Cir. 1998). In United
States v. Bartsma , 198 F.3d 1191 (10th Cir. 1999), this court held that when a
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district court departs from the Guidelines, it must “specifically articulate reasons
for the degree of departure,” using any “reasonable methodology hitched to the
Sentencing Guidelines,” including “extrapolation from or analogy to the
Guidelines.” Id. at 1196 (quoting United States v. Collins , 122 F.3d 1297 (10th
Cir. 1997)). On review, we examine the district court’s stated reasons, along with
factors such as “the seriousness of the offense, the need for just punishment,
deterrence, protection of the public, correctional treatment, the sentencing pattern
of the Guidelines, the policy statements contained in the Guidelines, and the need
to avoid unwarranted sentencing disparities.” Collins , 122 F.3d at 1308-09.
While we have stated that the district court is not required to justify the degree of
departure with mathematical precision, it is required to include in its justification
“some method of analogy, extrapolation or reference to the sentencing
guidelines.” Bartsma , 198 F.3d at 1197 (quoting United States v. O’Dell , 965
F.2d 937, 939 (10th Cir. 1992)).
In selecting its level of departure, the district court stated that
[u]pon review of the Sentencing Guidelines, the Court finds §3A1.1,
hate crime motivation or vulnerable victim, is an appropriate section to
look to for guidance in determining the level of departure. The Court
notes, however, there are no “vulnerable victims” in this case.
Thus, after looking at §3A1.1 for guidance and in light of the
unusual circumstances in this case , and due to the impact of an upward
departure on the amount of adjustment for acceptance of responsibility,
the Court finds it is appropriate to depart upward by three levels,
resulting in an offense level of 15 and a criminal history category of VI.
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Judgment at 13-14 (emphasis added).
USSG §3A1.1(b)(1) permits a two level upward departure for an offense
committed against a vulnerable victim. USSG §3A1.1(b)(2) also permits a
cumulative enhancement of another two levels if there were a large number of
vulnerable victims. Taken together, these provisions would seem to permit as
much as a four level enhancement if used as an analogy. As the district court
could have enhanced Ms. McGowan’s sentence as much as four levels under the
provision it chose, it was not an abuse of discretion for it to choose a three level
departure.
III. CONCLUSION
For the reasons set forth above, we AFFIRM Ms. McGowan’s sentence.
Entered for the Court,
Robert H. Henry
Circuit Judge
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