United States v. Cliffton S. Mormon , 602 F. App'x 506 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12134
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-00082-LSC-TMP-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFTON S. MORMON,
a.k.a. Kurt,
a.k.a. Curt,
a.k.a. Tippy,
a.k.a. Tip,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(March 13, 2015)
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Before HULL, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
Cliffton Mormon appeals his sentence of 95 months of imprisonment for one
count of conspiring to commit bank fraud, 18 U.S.C. § 1349, and two counts of
aiding and abetting aggravated identity theft, id. §§ 1028A, 2. Mormon challenges
the enhancement of his sentence for being an organizer or leader of a conspiracy to
cash counterfeit checks; for an amount of loss exceeding $120,000; for having 50
or more victims; and for using sophisticated means or, alternatively, for relocating
to evade law enforcement. Mormon also challenges, for the first time, the
requirement that he complete 24 hours of community service by washing dishes at
a soup kitchen or similar facility as a special condition of his supervised release.
We affirm the special condition of Mormon’s supervised release and all except one
enhancement applied to Mormon. Because the record does not support the finding
that Mormon’s offense involved 50 victims, we vacate his sentence and remand for
the district court to resentence Mormon using the two-level enhancement applied
to an offense involving 10 or more victims.
The district court did not clearly err in finding that Mormon was an
organizer or leader of the conspiracy. A defendant is subject to a four-level
enhancement of his offense level if he was “an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive,” United
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States Sentencing Guidelines Manual § 3B1.1(a) (Nov. 2013), and if he exercised
authority over “one or more other participants,” id. § 3B1.1 cmt. n.2. The factual
proffer for Mormon’s pleas of guilty and the testimony at sentencing from John
Bailey, an agent of the United States Postal Inspection Service, established that
Mormon recruited a person to provide insider information about banking
operations and that Mormon directed a counterfeit check-cashing operation that
involved several persons. See id. § 3B1.1 cmt. n.4. Mormon persuaded his
girlfriend, an employee of Regions Bank, to join the conspiracy and directed her to
provide information about bank procedures, to access bank databases to determine
which accounts at different banks to pilfer, and to print images of checks to
counterfeit. Mormon also moved from Atlanta, Georgia, where the headquarters of
the conspiracy was located, to Birmingham, Alabama, to supervise local
operations; he produced counterfeit checks in his hotel room but conducted
meetings at a coconspirator’s residence; he supervised coconspirators who
recruited persons to cash the counterfeit checks; and he performed surveillance
when the recruits entered banks to cash the counterfeit checks. The evidence
supports the finding that Mormon orchestrated the activities of the Birmingham
counterfeiting operation.
The district court also did not clearly err in finding that the amount of loss
attributable to Mormon exceeded $120,000. A defendant is responsible for
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monetary losses that he causes and that result from the reasonably foreseeable acts
of his coconspirators in furtherance of the conspiracy, id. §§ 1B1.3(a)(1), 2B1.1
cmt n.3. When the monetary losses exceed $120,000, the defendant is subject to a
ten-level enhancement of his offense level. Id. § 2B1.1(b)(1)(F). Evidence
introduced during Mormon’s change of plea and sentencing hearings established
that officers in southern Georgia found Mormon in possession of check stock
paper; stolen checks; partially completed and stubbed counterfeit checks connected
to 27 business bank accounts; a computer containing check-writing software and
data entries showing that $84,000 in checks had been printed; and 24 images of
checks that each had a face value exceeding $1,000. The district court reasonably
considered the value of the images of the checks and Mormon’s production
capabilities to determine the amount of loss. See United States v. Grant, 431 F.3d
760, 765 (11th Cir. 2005); United States v. Wai-Keung, 115 F.3d 874, 877 (11th
Cir. 1997). The district court also reasonably attributed to Mormon the value of
counterfeit checks that his known coconspirators negotiated using stolen account
information, some of which was discovered in Mormon’s hotel room and some of
which corresponded to accounts located by his girlfriend. See United States v.
Baldwin, 774 F.3d 711, 727–28 (11th Cir. 2014). Mormon’s coconspirators cashed
$29,504 in counterfeit checks and attempted to cash more checks valuing $42,622
at a Regions Bank; cashed $43,104 in counterfeit checks and attempted to cash
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more checks valuing $58,081 at a Wells Fargo Bank; and cashed one counterfeit
check for $1,981.37 and attempted to cash a second check for $1,393.75 at a
BBVA Compass Bank. The value of the check images and of the checks that
Mormon’s coconspirators negotiated or attempted to negotiate exceed $120,000.
The district court clearly erred when it found that Mormon’s victims
numbered at least 50. “[I]n a case involving a means of identification,” “any
individual whose means of identification was used unlawfully or without
authority” is a “victim.” U.S.S.G. § 2B1.1 cmt. n.4(E). If there are 50 or more
victims, a defendant is subject to a four-level increase in his offense level, id.
§ 2B1.1(b)(2)(B), but a two-level increase applies to an offense involving 10 or
more victims, id. § 2B1.1(b)(2)(A). Mormon acknowledges that he “used” the
means of identification of 3 banks and 18 account holders. Investigator Bailey
testified that officers seized from Mormon a box containing 24 images of checks
from different accounts, but the investigator testified that only two of those images
were used to create “partially-completed counterfeit checks.” See United States v.
Hall, 704 F.3d 1317, 1322 (11th Cir. 2013). Although Investigator Bailey testified
that he and his team “reviewed hundreds of checks that were passed” by the
conspiracy, the record is devoid of evidence that those checks were created using
the means of identification of more than one individual or that those checks
involved a victim different than those admitted to by Mormon. The government is
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required to introduce “sufficient and reliable” evidence to identify the victims of an
offense, see United States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013),
and that is particularly important in a case like this where the conspirators cashed
several checks against the same accounts multiple times. Because the government
identified, at most, 23 victims, the district court must resentence Mormon using the
two-level enhancement applied to an offense involving 10 or more victims.
Even if we were to assume that Mormon is not subject to a two-level
increase in his base offense level for relocating the check-cashing operation to
evade law enforcement officials, see U.S.S.G. § 2B1.1(b)(10)(A), the district court
did not clearly err when it enhanced Mormon’s offense level on the alternative
ground that he used sophisticated means, see id. § 2B1.1(b)(10)(C). Mormon used
especially complex or intricate conduct to execute the scheme and to conceal the
counterfeit operation and his involvement in the operations. Id. § 2B1.1 cmt.
n.9(B); see United States v. Ghertler, 605 F.3d 1256, 1267–68 (11th Cir. 2010). He
determined which bank accounts to target and how much money to draw using
confidential information that his girlfriend acquired about the check numbers and
their amounts that had cleared to ensure that the counterfeit checks matched the
pattern of activity of the accounts. Mormon also acquired images of real checks
from which he copied account and routing numbers and other information that he
used to create counterfeit checks of sufficient quality that they were accepted by
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banks. And Mormon had coconspirators recruit persons to cash the checks; he
concealed his identity and his base of operations from those recruits; and the
recruits were ordinarily homeless or transient persons who were difficult to trace
and were easily enticed to serve on a temporary basis in exchange for money or
other things of value. The district court was entitled to find that Mormon’s scheme
was sophisticated.
The district court did not plainly err by ordering Mormon to complete 24
hours of community service by washing dishes at a soup kitchen or similar facility
during his supervised release. “Community service may be imposed as a condition
of supervised release,” U.S.S.G. § 5D1.3(e)(3); see also id. § 5F1.3, and the district
court reasonably determined that requiring Mormon to wash dishes enabled him to
use that past employment to benefit others who were less privileged while teaching
him the value of honest employment, see 18 U.S.C. §§ 3583(d)(1), 3553(a). The
district court found that Mormon’s fraud “demonstrate[d] an absolute callous
disregard for [the] law, for people’s rights, [and] for the interest of others,” and the
district court reasonably could have determined that Morman could best make
amends by serving the persons whom he enticed to engage in criminal activities for
his financial gain. Mormon argues that his term of community service involves a
“greater deprivation of liberty than is reasonably necessary” to achieve the
statutory goals of sentencing, id. § 3583(d)(2), but the condition that Mormon
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serve for “four hours per week for six weeks” is far below the maximum term of
community service recommended by the advisory guidelines. See U.S.S.G. § 5F1.3
cmt. n.1. “[T]here can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it,” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003), and Mormon fails to cite any precedent
holding that community service in the form of washing dishes for the length of one
day is an excessive deprivation of liberty.
We AFFIRM the special condition of Mormon’s supervised release and the
enhancement of his sentence for being an organizer or leader of a conspiracy to
cash counterfeit checks, for causing a loss of more than $120,000, and for his use
of sophisticated means. But because the record does not support the finding that
Mormon’s offense involved 50 victims, we VACATE his sentence and REMAND
for the district court to resentence Mormon using the two-level enhancement
applied to an offense involving 10 or more victims.
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