United States v. Marci R. Wise , 158 F. App'x 173 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 9, 2005
No. 05-10977
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00427-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCI R. WISE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 9, 2005)
Before HULL, WILSON and HILL, Circuit Judges.
PER CURIAM:
Marci R. Wise appeals her 24-month sentences, imposed after she pled
guilty to 15 counts of bank fraud, in violation of 18 U.S.C. § 1344. On appeal,
Wise argues that the district court: (1) violated her ex post facto and due process
rights by sentencing her under an advisory, as opposed to mandatory guidelines
regime; (2) incorrectly applied a “vulnerable victim” enhancement; and (3)
imposed an unreasonable sentence. For the reasons stated more fully below, we
affirm.
After the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296(2004), but before the Supreme Court’s decision in United States v. Booker, 543
U.S. ___, 125 S.Ct. 738 (2005), Wise pled guilty to all 15 counts of bank fraud
charged in her indictment. At her plea colloquy, Wise was informed that the
maximum possible sentence on each count was 30 years’ imprisonment, and that
the court would be considering the Sentencing Guidelines after reviewing a
presentence investigation report (PSI).
According to the undisputed facts in the PSI, an investigation into Wise
started in February 2003, when Ken Sternberg contacted the Northlake Branch of
Wachovia Bank in Atlanta, Georgia, regarding interest income information for his
father’s certificates of deposit (CD) for the tax year of 2002. His father, Samuel
Sternberg, is 95 years’ old, feeble, and legally blind, and his son handles his
financial affairs. Although Sternberg was supposed to have five CDs, bank records
showed only four CDs, with one having been cashed out in November 2002 and
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disbursed in two official checks to Visa and Discover accounts, belonging to
former branch manager Marci Wise. It was discovered that, between August 27,
1999, and December 5, 2002, Wise had withdrawn $65,033.97 from Sternberg’s
CDs, using withdrawal forms and pay-out tickets prepared by Wise and indicating
that the “customer could not sign” and using a forged signature. With interest, the
total loss to Sternberg and, therefore, to Wachovia Bank, was $70,983.27.
In addition, the investigation revealed that Wise was receiving bank
statements for Sylvia Raiford, who has Parkinson’s disease and, because of
difficulty handling her financial affairs, has her daughter assist her with her
finances. Between May 2, 2001, and December 5, 2002, Wise obtained
$127,244.58 from Raiford’s accounts. According to Raiford, Wise helped her with
her banking and brought her withdrawals in $50-$100 amounts, as Raiford was in
an assisted living home across the street from the bank, and also helped Raiford
pay her bills by setting up an automatic withdrawal plan. Raiford, after the sale of
her home in 2001, had $200,000 in her account and told Wise that she wanted to
invest it, to which Wise replied that it was not enough money to invest. At some
point, Wise suggested that Raiford have her bank statements sent directly to Wise,
so that Wise could ensure that Raiford’s bills were being paid in a timely fashion,
and Raiford agreed, but never authorized Wise to make withdrawals on her
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account. Further investigation revealed that Wise had deposited two of Raiford’s
disability checks, totaling $819.91, into her own account. The total amount of loss
in the case was calculated to be $199,867.67.
In an interview, Wise admitted that she had withdrawn funds from
Sternberg’s CDs on a number of occasions. She further admitted that Raiford was
a customer whom she had helped on several occasions, indicating that Raiford was
getting sicker with Parkinson’s disease, and Wise was helping her do more and
more. Wise admitted that she had taken money from Raiford’s account and
deposited it into her own.
The PSI set Wise’s base offense level at 6, pursuant to U.S.S.G. § 2B1.1(a).
Because the loss involved more than $120,000, Wise received a 10-level
enhancement, pursuant to § 2B1.1(b)(1)(F). Among the enhancements Wise
received was a two-level adjustment because she knew or should have known that
the victims of the offense were “vulnerable victims” under U.S.S.G. § 3A1.1(b)(1).
Her total adjusted offense level was set at 19. Wise’s criminal history was
category I, which, at offense level 19, set a guidelines imprisonment range of 30 to
37 months.
Wise first raised a general objection to all of the enhancements, arguing that,
pursuant to Blakely, the enhancements were invalid because they were not charged
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in the indictment or proven beyond a reasonable doubt to a jury. She also argued
that the “vulnerable victim” enhancement was improper because (1) Sternberg’s
financial affairs were conducted by his able-bodied son; (2) Wise was the only
person who handled Raiford’s accounts and, therefore, the embezzlement was done
because Wise thought that it would not be easily detected; (3) Wise’s conduct was
motivated by pure opportunity, not the vulnerability of the victims; and
(4) Wachovia was the true victim and, as it is a bank, was not vulnerable.
In response to the Supreme Court’s decision in Booker, Wise filed a
memorandum, arguing that the holding in Booker should not be applied to her
sentencing because it would disadvantage her and, therefore, violate her Fifth
Amendment due process rights. Wise’s argument was that the remedial portion of
Booker, making the guidelines advisory, was unexpected and would result in a
higher sentence for her than would the application of the guidelines as mandatory.
At sentencing, Wise explained that, since the guidelines were mandatory at
the time when she committed her offense and pled guilty, and the mandatory
application of enhancements found under the guidelines violated her Sixth
Amendment right in light of Booker, all of the enhancements being made to her
sentence were unconstitutional. However, she argued that the application of the
remedial portion of Booker, which rendered the guidelines advisory, should not be
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applied to her sentence because to do so would bring the enhancements back into
play, to her disadvantage, and violate her due process rights. In the event that the
court did not agree with her due process argument, Wise asked the court to
consider that this was her first criminal offense and that she was not likely to be a
recidivist, and to consider further that she voluntarily resigned from her job at the
bank and has shown remorse and a guilty conscience.
The government characterized Wise’s argument as an ex post facto
challenge and argued that Booker was a judicial decision not subject to ex post
facto challenges. As to the due process and fair notice concerns, the government
argued that Wise was mistakenly arguing that the statutory maximum sentence was
her guideline range, when instead, the actual statutory maximum sentence for bank
fraud was 30 years, which Wise knew because the court had informed her of the
maximum sentence at the plea colloquy.
The district court found, inter alia, that the vulnerable victim was applicable.
As to Wise’s due process challenge, the court stated that “it just seems to me that
those [two majority opinions in Booker] have to go hand and hand. . . . Now they
are separate opinions, but clearly they were worked out as a package.” It further
agreed with the government’s position that judicial decisions do not create “a lack
of due process.” The court then decided that it would sentence Wise under Booker,
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and calculated a guideline range of 24 to 30 months’ imprisonment, based on
offense level 17 and criminal history category I. Wise reiterated her argument
concerning other factors that the court should take into consideration when
imposing a sentence, and the government stated that “a sentence within the
guideline[s], the 24 to 30 months, is clearly reasonable.” The court then imposed a
24-month sentence on each of the 15 counts, to run concurrently, and imposed
$198,227.85 in restitution.
I. Wise’s Ex Post Facto/Due Process Challenge
On appeal, Wise argues that she has a due process right to prevent the
retroactive application of Booker’s remedial holding because her offense and plea
were entered before Booker, and an advisory application of the guidelines undoes
the benefit of her plea and works to her disadvantage. Wise further argues that ex
post facto concerns are raised because the retroactive application of a judicially
rewritten sentencing statute is the equivalent of retroactively applying penal
legislation. Finally, she argues that the guidelines should be applied, consistent
with Blakely,1 in a binding fashion because she relied upon Blakely when
determining her statutory maximum sentence and deciding to enter a plea. Her
1
Wise appears to argue that, under Blakely, any extra-verdict enhancements are in
violation of her Sixth Amendment rights. Nothing in Blakely, however, applies to the federal
Sentencing Guidelines. It was Booker that extended a principle from Blakely to the Sentencing
Guidelines. Her cites to Blakely in this regard are, therefore, in error.
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position is essentially that, after Booker: (1) all of the sentencing enhancements
made by the judge violated her Sixth Amendment right to a jury; and (2) the
guideline range, as calculated after the enhancements are removed, should be
binding and mandatory on the sentencing judge, not advisory as it is post-Booker.
We review questions of constitutional law de novo. United States v. Brown,
364 F.3d 1266, 1268 (11th Cir. 2004). In Bouie v. City of Columbia, 378 U.S.
347, 353 (1964), the Supreme Court held that judicial enlargement of a criminal
statute, applied retroactively, violated the Due Process Clause because it was
unforeseeable and like an ex post facto law. The Supreme Court later clarified
Bouie, holding that, while the Ex Post Facto Clause2 does not of its own force
apply to the Judicial Branch, the Due Process Clause encompasses the ex post facto
principle of fair warning. Rogers v. Tennessee, 532 U.S. 451, 462 (2001).
Accordingly, as we have held, Wise’s argument on appeal is not an ex post
facto issue, but rather, an issue of whether Wise had fair warning. See United
States v. Duncan, 400 F.3d 1297, 1307 (11th Cir. 2005) petition for cert. filed,
Duncan v. U.S., — S.Ct. — , 2005 WL 2493971 (U.S. Oct 11, 2005). In Duncan,
the defendant argued that, if Booker’s remedial holding, rendering the guidelines
advisory, were applied retroactively, his maximum sentence would be increased
2
The Ex Post Facto Clause provides that: “No Bill of Attainder or ex post facto Law
shall be passed.” U.S. Const. Art I Sec. 9.
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beyond that authorized by the jury’s verdict. Id. We rejected that argument,
noting that (1) the U.S. Code informed the defendant, at the time when he
committed his offenses, that he faced a maximum of life, and (2) the guidelines at
the time further gave notice that a judge would engage in fact-finding to determine
his sentence. Id. Ultimately, we held that the defendant’s due process rights to fair
warning were met because, at the time of the defendant’s criminal conduct, the
state of the law was that the U.S. Code set the maximum sentence, even though the
guidelines were mandatory. Id. at 1308.
Recently the Ninth Circuit, relying in part on Duncan, persuasively rejected
a nearly identical argument to the one that Wise makes here for three reasons: (1) it
was in direct conflict with the Supreme Court’s instruction that both Booker
opinions be applied retroactively to cases on direct review; (2) Ninth Circuit
precedent held that Bouie did not apply to retroactive sentencing enhancements;
and (3) the defendant was on notice that his sentence could be based on judicial
determinations and set within the applicable statutory maximum. United States v.
Dupas, 419 F.3d 916 (9th Cir. 2005).
Wise attempts to distinguish her situation from the one in Duncan by
arguing that, in Duncan, the defendant had been convicted and sentenced long
before the Supreme Court decided Blakely and, therefore, he could not have had
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any reliance on its holding, like Wise did. Furthermore, she argues that, unlike the
defendant in Duncan, she preserved her due process challenge at sentencing.
Wise’s distinctions are unavailing, and, like the defendants in Duncan and
Dupas, her due process right to fair warning was not violated. Here, Wise’s
sentence, based on the enhancements that were then binding on the judge, was 24
months’ imprisonment. Losing the extra-verdict enhancements, but making the
base offense level binding on the judge, Wise argues that her guidelines’ range
would be 12-18 months’ imprisonment. However, like in Duncan and Dupas,
Wise was on notice of her statutory maximum sentence and that her ultimate
sentence would be based on judicial determinations and set within that statutory
maximum. Wise’s conviction under § 1344, provided a statutory maximum of 30
years’ imprisonment. See 18 U.S.C. § 1344. According to the indictment, all of
Wise’s offense conduct took place prior to Blakely, and, as we noted in Duncan,
prior to Blakely “every federal court of appeals had held that Apprendi [ v. New
Jersey, 530 U.S. 466 (2002)], did not apply to guideline calculations made within
the statutory maximum.” See Duncan, 400 F.3d at 1308 (quotation and citations
omitted). Thus, the law at the time of Wise’s offense conduct was that the U.S.
Code was the source for determining a maximum statutory sentence. Id.
Accordingly, like with the defendant in Duncan, we conclude that Wise had
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sufficient warning to satisfy the due process concerns articulated in Rogers v.
Tennessee.” Id.
II. Vulnerable Victim Enhancement
Next, Wise argues that there was no evidence presented to support the
court’s finding that she knew or should have known that Sternberg or Raiford was
a vulnerable victim. She argues that she never initiated any contact with Sternberg,
and, in any event, it was Sternberg’s son who was responsible for his finances. As
to Raiford, Wise argues that she had assisted Raiford on other financial matters
before embezzling from her and, as a result, had authorization to handle some of
Raiford’s transactions, making Wise’s conduct difficult to detect. As such, Wise
argues, she did not target Raiford because of her age or illness, but because of
opportunity alone.
As a preliminary matter, even after Booker, we continue to review a district
court’s guideline calculations to ensure that the calculation is accurate. United
States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). “The district court’s
application of § 3A1.1 presents a mixed question of law and fact, which we review
de novo.” United States v. Amedeo, 370 F.3d 1305, 1317 (11th Cir. 2004). “The
district court's determination of a victim's ‘vulnerability’ is, however, essentially a
factual finding to which we give due deference.” Id. (citation and quotation
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omitted). The Supreme Court’s decision in Booker did not alter the standards of
review for guidelines issues. United States v. Phillips, 413 F.3d 1288, 1292 n.3
(11th Cir. 2005).
Pursuant to § 3A1.1(b)(1), a two-level enhancement applies if “the
defendant knew or should have known that a victim of the offense was a vulnerable
victim.” U.S.S.G. § 3A1.1(b)(1). As set forth in the commentary, for purposes of
subsection (b), “vulnerable victim” means “a person (A) who is a victim of the
offense of conviction . . .; and (B) who is unusually vulnerable due to age, physical
or mental condition, or who is otherwise particularly susceptible to the criminal
conduct.” U.S.S.G. § 3A1.1, comment. (n.2).
In United States v. Yount, 960 F.2d 955, 957 (11th Cir. 1992), we explained
that § 3A1.1(b) “appears to require that the victim of the offense must have been
unusually vulnerable and specifically targeted in the offense.” There, the
defendant embezzled money from trust accounts of the elderly, all of whom
required assisted living. Id. at 956. We stated that “[t]he record in this case
demonstrates that the five trust accountholders were very old, infirm, and no longer
capable of managing their own financial affairs. We cannot imagine any group
that would be more ‘unusually vulnerable.’” Id. at 957.
With respect to at least one of the victims, Raiford, Yount is instructive. The
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facts indicate that Wise was aware that Raiford lived in a retirement home, suffered
from Parkinson’s, and required assistance with her finances. Wise suggested that
Raiford have her bank statements sent directly to Wise, meaning that Raiford had
no knowledge of her account activity. It even appears that Wise told Raiford that
the $200,000 that she had received for selling her home was not enough money to
invest, giving Wise an opportunity to fraudulently transfer over $127,000 of it to
her own accounts. It was not clearly erroneous for the district court to find that the
“pure opportunity” that Wise had was occasioned by Raiford’s dependency, trust,
and physical and mental condition, coupled with Wise’s personal knowledge and
control of Raiford’s bank statements and accounts. As in Yount, it is hard to
imagine someone more “unusually vulnerable” to this crime than Raiford, and it
was not clearly erroneous for the district court to find that Wise knew or should
have known that, and took advantage of it in the worst possible way by garnering
Raiford’s trust and then stealing from her account. Because the vulnerable victim
enhancement was properly applied with regard to Raiford, we find it unnecessary
to decide whether it was properly applied as to Sternberg.
III. Reasonableness of Wise’s Sentence
Wise argues that the district court’s sentence was unreasonable because it
sentenced her within the guideline range as calculated and, according to Wise,
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must not have considered the mitigating factors that she brought to the court’s
attention, such as that this was her first conviction and she was unlikely to be a
recidivist.
Pursuant to the Supreme Court’s instructions in Booker, we review a district
court’s sentence, imposed after consulting the guidelines and considering the
factors set forth at 18 U.S.C. § 3553(a), for reasonableness. Booker, 543 U.S. at
___, 125 S.Ct. at 767; see also United States v. Winingear, 422 F.3d 1241, 1244
(11th Cir. 2005) (“[a]fter the district court has accurately calculated the Guideline
range, it ‘may impose a more severe or more lenient sentence’ that we review for
reasonableness.”) (citation omitted). Among the factors that a district court should
consider are the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for adequate deterrence and protection of
the public, the pertinent Sentencing Commission policy statements, and the need to
avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
In the instant case, the district court consulted the guidelines, which
recommended a sentence of between 24 and 30 months’ imprisonment, and then it
proceeded to determine what a “reasonable decision” would be. The court had
before it Wise’s memorandum, setting forth arguments in favor of a lighter
sentence, as well as her arguments at sentencing regarding her criminal history,
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likelihood of recidivism, the fact that she had showed remorse, and her level of
cooperation. The government believed that a sentence within the guideline range
was reasonable, given that Wise had committed a serious bank fraud involving
almost $200,000. On the basis of the foregoing, the district court believed that a
24-month sentence was appropriate. Given the circumstances of Wise’s crime,
involving the victimization of the elderly, abuse of trust, and 15 counts of fraud
involving a substantial sum of money, as well as the fact that she was a first-time
offender who had showed remorse and cooperated with the investigation, we
conclude that a 24-month sentence, the lowest sentence recommended by the
Sentencing Commission, appears very reasonable. See Winingear, at 1246.
On the basis of the foregoing, we conclude that the district court committed
no reversible error when sentencing Wise. We, therefore, affirm.
AFFIRMED.
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