United States v. Jeffrey Altine , 315 F. App'x 179 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12093 ELEVENTH CIRCUIT
November 20, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-80154-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY ALTINE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 20, 2008)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
On March 28, 2008, the district court sentenced appellant, pursuant to a plea
agreement, to a prison term of 46 months for conspiracy to commit bank fraud.1
He now appeals his sentence, contending that the district court (1) erred in
increasing his base offense level by two-levels for use of “sophisticated means,”
U.S.S.G. § 2B1.1(b)(9)(C); (2) erred in increasing his base offense level by two-
levels for “abuse of position of trust,” U.S.S.G. § 3B1.3; and (3) his sentence,
which was imposed at the low-end of the Guidelines sentence range, was
unreasonable. We consider these contentions in turn.
I.
Section 2B1.1(b)(9)(C) provides that a sentencing court may increase the
base offense level for bank fraud by two levels if “the offense otherwise involved
sophisticated means.” Id. The term “the defendant” applies to the defendant
himself and not his co-conspirator. United States v. Maung, 267 F.3d 1113, 1119
(11th Cir. 2001). In contrast, the term “the offense” focuses “on the offense, which
includes the activities of co-conspirators for which the defendant is held
responsible.” Id. Here, the district court properly increased appellant’s base
offense level based on the sophisticated means of the conspiracy as a whole, and
not his individual actions within the conspiracy.
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See 18 U.S.C. §§ 371 and 1344. Appellant, a bank employee, had used his position to
obtain names, birth dates, and social security numbers of several of the bank’s customers in
order to facilitate a bank fraud conspiracy that included a network of approximately 90
individuals and several financial institutions.
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II.
Appellant argues that § 3B1.3 does not apply to ordinary bank tellers such as
himself. Section 3B1.3 provides for a two-level enhancement of the base offense
level “if the defendant abused a position of public or private trust . . . in a manner
that significantly facilitated the commission or concealment of the offense.” Id.
Guidelines application note one states that the “adjustment does not apply in the
case of an embezzlement or theft by an ordinary bank teller . . . .” Id. at § 3B1.3,
comment. (n.1). However, application note two states:
Notwithstanding Application Note 1, or any other provision of this
guideline, an adjustment under this guideline shall apply to the
following:
...
(B) A defendant who exceeds or abuses the authority of his or her
position in order to obtain unlawfully, or use without authority, any
means of identification. “Means of identification” has the meaning
given that term in 18 U.S.C. § 1028(d)(7).
Id. at § 3B1.3, comment. (n.2(B)). “Means of identification” is “any name or
number that may be used, alone or in conjunction with any other information, to
identify a specific individual” including, among other things, name, social security
number, and date of birth. 18 U.S.C. § 1028(d)(7)(A).
Notwithstanding his job title, appellant was subject to application note two
because he used his position as a bank employee to obtain, without authority, the
names, birth dates, and social security numbers of several customers to facilitate
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bank fraud. In sum, the court properly applied the abuse-of-position-of-trust
enhancement.
III.
Appellant argues that, in light of the 18 U.S.C. § 3553(a) sentencing factors,
his low-end of the Guidelines’ sentence is unreasonable because the sentence is
greater than necessary to satisfy the purposes of sentencing.
We review the sentencing process for both procedural error and substantive
reasonableness. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008)
(citing Gall v. United States, 552 U.S. __, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).
A sentence is the product of procedural error if the district court failed to consider
the 18 U.S.C. § 3553(a) factors. Id. A sentence is substantively unreasonable if
the court abused is discretion in fashioning it.
Section § 3553(a) requires the sentencing court to impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection,” namely, to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, protect the public from future crimes of the defendant, and provide the
defendant with needed educational or vocational training or medical care. See 18
U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors
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in determining a particular sentence: the nature and circumstances of the offense
and the history and characteristics of the defendant, the kinds of sentences
available, the applicable guideline range, the pertinent policy statements of the
Sentencing Commission, the need to avoid unwanted sentencing disparities, and
the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).
In this case, the district court committed no procedural error because it
considered the § 3553(a) factors throughout the sentencing hearing. The court did
not abuse its discretion by imposing a sentence at the low-end of the Guidelines
sentence range after noting the seriousness of the crime and the need for general
deterrence.
AFFIRMED.
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