United States v. Luppold , 259 F. App'x 560 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4495
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HUNTER CLARK LUPPOLD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Thomas E. Johnston,
District Judge. (1:06-cr-00221)
Submitted: November 30, 2007 Decided: December 21, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Benjamin Bryant, CAREY, SCOTT & DOUGLAS, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, John K. Webb, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hunter Clark Luppold pled guilty to interstate
transportation of stolen goods valued at more than $5000, in
violation of 18 U.S.C. §§ 2314, 2 (2000). In sentencing Luppold,
the district court departed upward by two levels pursuant to U.S.
Sentencing Guidelines Manual § 2B1.1, comment. (n.19) (2006), and
imposed a sentence of forty-two months imprisonment. On appeal,
Luppold argues that he was not given notice of the court’s
intention to depart on certain grounds, contests the court’s
decision to depart and the extent of the departure, and also
contends that the court clearly erred in finding that he had an
aggravated role in the offense. See USSG § 3B1.1(c). We affirm.
Between June 2005 and February 2006, Luppold, with the
aid of Joshua Shutt and Joshua Honaker, broke into at least twenty
remote switch boxes in West Virginia owned by Frontier Corporation
(a subsidiary of Citizens Communications) and Verizon
Communications. They stole more than 1200 telecommunications
computer cards and circuit boards and sold at least 189 of them to
a company in Florida. The cost of repairs resulted in a loss to
Frontier and Verizon totaling more than $400,000. The offense also
resulted in repeated loss of telephone and cellular phone service
in areas of West Virginia and Virginia. At the time, Luppold was
nineteen years old and a student at Concord University. Initially,
Luppold and Shutt committed the thefts together. After Shutt was
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killed in a car accident in October 2005, Luppold asked Honaker if
he wanted to earn money by driving for him. Honaker accepted the
invitation. He lived with Luppold and was generally aware of what
Luppold and Shutt had been doing. Thereafter, Honaker drove
Luppold to various remote switch boxes and waited in the car while
Luppold broke into the boxes. Honaker did not otherwise
participate in the thefts except once, when he helped Luppold make
a key out of an Allen wrench so he could open the boxes more
easily. Luppold paid Honaker $1000 the first time he drove and
undetermined amounts thereafter.
In the presentence report, the probation officer
recommended a base offense level of 6 under USSG § 2B1.1, with a
14-level enhancement for a loss over $400,000, see USSG
§ 2B1.1(b)(1)(4), and a 2-level adjustment for being an organizer,
leader, manager, and supervisor of Honaker, see USSG § 3B1.1(c).
With a 3-level adjustment for acceptance of responsibility, USSG
§ 3E1.1, the recommended offense level was 19. Luppold was in
criminal history category I. His advisory guideline range was 30-
37 months. The probation officer suggested that an upward
departure might be warranted under Application Note 19 to § 2B1.1,
which states that an upward departure may be appropriate when the
offense level “substantially understates the seriousness of the
offense,” principally because of non-monetary harm caused by the
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offense. The probation officer offered the following in support of
this recommendation:
[T]he thefts of communication cards disrupted 911 centers
for hours, disrupted cellular and residential telephone
calls for hours, potentially impacted national security
circuits, and caused additional economic and non-economic
harm to Verizon and Frontier beyond the amount of
restitution in the plea agreement. The probation officer
notes Luppold’s conduct was not limited to a single
incident of vandalism and theft, but [was] rather a long,
ongoing series of incidents which had a wide ranging,
serious impact and required numerous hours to correct.
At sentencing, the district court determined, over
Luppold’s objection, that the aggravated role adjustment applied
because (1) Luppold was the only decision-maker during the time
Honaker was involved; (2) Honaker’s participation was very limited;
and (3) Luppold recruited Honaker into the scheme. The court found
that the record was not clear enough about how much money either
Luppold or Honaker obtained, or the manner in which the money was
divided, to rely on Luppold’s having kept most of the money as a
factor supporting the role adjustment. However, the court found
that Luppold exercised control and authority over Honaker, who
would not have been able to commit the offense alone.
Luppold’s attorney noted that the probation officer had
recommended a departure and argued against a departure, but did not
address any of the grounds put forward in the presentence report.
After finding that Luppold had received notice of a possible
departure as required by Fed. R. Crim. P. 32(h), the court departed
upward by two levels.
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First, the court found that Luppold’s primary objective
of the offense was non-monetary. See Application Note 19(A)(I).
The court based this finding on Honaker’s statement to the state
police that Luppold committed the thefts for the thrill of it.
Second, the court found that the offense risked substantial non-
monetary harm, see Application Note 19(A)(ii), because the theft of
the communications cards disrupted at least one 911 call center, as
well as other means of communication in two different states, for
hours at a time, thus causing a risk to public health and safety.
The court also found that the offense created a substantial loss to
Frontier and Verizon that went beyond the expense of repairing the
damage, due to disruption of both businesses, delay in expansion
projects, and damage to the companies’ reputations. See
Application Note 19(A)(iv). Last, the court noted a factor not
set out in Application Note 19, that the offense had exposed the
vulnerability of the country’s critical telecommunications
infrastructure.
The court also made the following findings under 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007): that the nature and
circumstances of the offense were substantially more serious than
were reflected by the applicable guideline, see § 3553(a)(1),
(a)(2)(A); that an upward departure would provide a more just
punishment for the offense and promote respect for the law, see
§ 3553(a)(2)(A); that a departure would serve to deter future
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thefts, see § 3553(a)(2)(B); and that a departure would serve the
policy set out in § 3553(a)(6), to avoid unwarranted disparity in
sentencing, by treating more seriously a defendant who causes more
than monetary harm.
On appeal, Luppold first challenges the role adjustment.
A two-level adjustment may be made under § 3B1.1(c) when the
defendant is an organizer, leader, manager, or supervisor in a
criminal activity involving fewer than five participants. The
district court’s determination that the defendant was a leader or
organizer in the offense is a factual issue that is reviewed for
clear error. United States v. Sayles, 296 F.3d 219, 224 (4th Cir.
2002).
Luppold contends that the district court clearly erred in
making the adjustment because there was no evidence that Luppold
controlled Honaker; rather, Honaker voluntarily agreed to help
Luppold with the thefts when he was invited to do so. Luppold also
argues that the district court mistakenly conflated the concepts of
organization and management with the management and control of
another person, and equated greater guilt on Luppold’s part with
control over the less-guilty Honaker. We disagree. The district
court did not clearly err in finding that Luppold recruited Honaker
as an accomplice, planned and organized the offense both before and
after Honaker entered it, and exercised some degree of control over
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Honaker’s activities while he was a participant. We conclude that
these findings warranted the two-level role adjustment.
Next, Luppold contests the upward departure. Under
United States v. Booker, 543 U.S. 220 (2005), a sentence is
reviewed for reasonableness. United States v. Moreland, 437 F.3d
424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
Initially, Luppold contends that he first learned of the district
court’s intention to depart upward at the sentencing hearing and
that, for this reason alone, resentencing is required. Rule 32(h)
of the Federal Rules of Criminal Procedure requires the sentencing
court to give the parties reasonable notice when it is considering
a departure on a ground not identified as a possible basis for
departure either in the presentence report or in a party’s
prehearing submission. After Booker, the notice requirement
remains in effect and applies both to departures and variances.
United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006).
However, the plain error standard of review applies when the
defendant has not raised the notice issue in the district court.
United States v. McClung, 483 F.3d 273, 276 (4th Cir. 2007),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 12, 2007)
(No. 07-5347). Because Luppold did not object to the lack of
notice, his claim of error must be reviewed for plain error. Id.
at 276. The notice requirement is satisfied if the presentence
report recommends a departure on a particular ground. United
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States v. Bellamy, 264 F.3d 448, 455 (4th Cir. 2001). Luppold
claims that he was not given notice that the court was considering
a departure based on the allegation that he committed the offense
for the thrill of it or because he exposed the vulnerability of the
telecommunications infrastructure. However, he was on notice that
the court would consider whether non-monetary harms warranted a
departure under Application Note 19, and that the list of factors
potentially supporting a departure in Note 19 was not exhaustive,
giving the court the opportunity to identify non-monetary
motivations and harms particular to his offense that might warrant
a departure. Luppold thus received adequate notice.
Luppold also argues that the court departed on improper
grounds. When reviewing either a departure or a variance, the
appeals court considers “whether the sentencing court acted
reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from the
sentencing range.” United States v. Hernandez-Villanueva, 473 F.3d
118, 123 (4th Cir. 2007). If the sentencing court determines that
a sentence within the guideline range will not serve the purposes
of § 3553(a), the “court should first look to whether a departure
is appropriate based on the Guidelines Manual or relevant case
law.” Moreland, 437 F.3d at 432. “If an appropriate basis for
departure exists, the court may depart.” Id.- 8 -
Luppold claims that the court’s finding that he exposed
the vulnerability of the country’s telecommunications
infrastructure was not supported by any evidence and, to the extent
that such vulnerability exists, it was already known to many people
who work in that industry. Thus, he could not have exposed an
already known fact. However, the relative ease with which Luppold
and his accomplices committed the offense and the wide-spread harm
that resulted amply support the court’s finding.
Last, Luppold contests the extent of the departure. He
asserts that the two-level departure increased his sentence as much
as it would have increased under § 2B1.1(b)(1) if the offense had
caused almost twice the monetary harm that it did. He claims that
the departure is thus in conflict with USSG § 5K2.5, p.s. (Property
Damage or Loss), which encourages a departure for property damage
or loss not already accounted for in the applicable guideline.
Under § 5K2.5, the degree of departure “should depend on the extent
to which the harm was intended or knowingly risked,” and also
should be governed by “the extent to which the harm to property is
more serious than other harm caused or risked” by the offense.
However, property damage and loss are monetary concerns. The
principal focus of Application Note 19 to § 2B1.1, and of the
district court in its decision to depart, was non-monetary harm
caused by Luppold’s offense. We conclude that the two-level
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departure was not excessive and that the resulting sentence was
reasonable.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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