United States v. Occident , 243 F. App'x 777 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4829
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CONSTANCE OCCIDENT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cr-00461-GBL)
Submitted: May 23, 2007 Decided: July 6, 2007
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Vincent J. Sanzone, Jr., Anthony Scordo, Elizabeth, New Jersey, for
Appellant. Chuck Rosenberg, United States Attorney, Vince Gambale,
Jack Hanly, Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, Constance Occident was convicted
of conspiracy to commit wire fraud, conspiracy to commit access
device fraud and wrongfully disclose individually identifiable
health care information, and aggravated identity theft (four
counts), in violation of 18 U.S.C. §§ 371, 1028A, and 1349 (2000).
The court sentenced Occident to twenty-four months imprisonment on
each of the conspiracy counts, to run concurrently, and a mandatory
consecutive twenty-four month sentence on the aggravated identify
theft counts. See 18 U.S.C. § 1028A(b). She has noted a timely
appeal.
The evidence presented at Occident’s trial, viewed in the
light most favorable to the Government, see United States v.
Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.
From 1999 to July 2005, Occident was employed as a nurses’ aide by
INOVA Alexandria Hospital. During the course of her employment,
Occident obtained the personal identification information of
numerous patients and co-workers and then provided the stolen
identification information to co-defendant Beurn Daphne Ferdinand,
who resided in New York City. The information was used to
establish new credit card accounts and to access existing accounts
and obtain replacement credit cards. Using the fraudulently
obtained credit cards, Occident and (primarily) Ferdinand purchased
a number of mostly luxury items totaling $244,370.07.
- 2 -
Occident admitted to taking the identifying information
from her co-workers’ pay stubs and paychecks, and from patient
information sheets, and providing the information to Ferdinand.
Occident claimed, however, that she did not know that Ferdinand was
using the information to obtain credit cards. Rather, Occident
testified that she believed that Ferdinand was planning to use the
names as references on job applications. Occident also testified,
at great length, about Ferdinand’s ability to use voodoo to make
Occident comply with her demands.
At the conclusion of the trial, the district court issued
detailed findings of fact and conclusions of law and found Occident
guilty of counts 1, 2, 8 through 10, and 12. At sentencing, the
court adopted the presentence report’s determination of loss
resulting from the identity information stolen by Occident and
provided to Ferdinand. With a total adjusted offense level of 23
and criminal history category I, Occident’s sentencing range was
forty-six to fifty-seven months imprisonment on counts 1 and 2.
The district court imposed a below-guidelines sentence of twenty-
four months, and a mandatory minimum consecutive twenty-four-month
sentence with respect to the remaining counts.
Occident first contends that the district court’s factual
findings were insufficient under United States v. Booker, 543 U.S.
220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), to
sustain her convictions for aggravated identity theft which
- 3 -
resulted in a mandatory consecutive twenty-four month sentence.
Second, Occident claims that the evidence was insufficient to
support her conviction for conspiracy to commit wire fraud.
The elements of aggravated identity theft, 18 U.S.C.
§ 1028A, are: (1) knowing use, possession, or transfer, without
lawful authority, of the means of identification of another person
and (2) that such conduct occurred during and in relation to a
felony enumerated in 18 U.S.C. § 1028A(c). See United States v.
Montego, 442 F.3d 213, 215 (4th Cir.), cert. denied, 127 S.Ct. 366(2006). In turn, § 1028A(c)(5) defines an enumerated felony to
include “any provision contained in chapter 63 (relating to mail,
bank, and wire fraud).”
The district court made specific findings that, pursuant
to an agreement with Ferdinand, Occident stole identifying
information of four named patient victims. The court further found
that Occident had used a credit card obtained in one of their names
to make fraudulent purchases on her own, and had provided the
identifying information of the other victims to Ferdinand for her
to use to obtain credit cards and make purchases. We conclude that
these findings of fact were sufficient, under Fed. R. Crim. P.
23(c), as to each of the elements of aggravated identity theft.
Occident also claims that there was insufficient evidence
to support the guilty verdict as to the conspiracy to commit wire
fraud charge and, therefore, there was no predicate offense to
- 4 -
support the conviction for aggravated identity theft. To prove
wire fraud under 18 U.S.C. § 1343, the government must establish:
(1) a scheme to defraud, and (2) the use of a wire communication in
furtherance of that scheme. See United States v. Bollin, 264 F.3d
391, 407 (4th Cir. 2001). To prove conspiracy to commit wire
fraud, the government need only prove that the defendant knowingly
and voluntarily agreed to participate in a scheme to defraud and
that the use of the interstate wires in furtherance of the scheme
was reasonably foreseeable. United States v. Ross, 131 F.3d 970,
981 (11th Cir. 1997). The evidence here was more than sufficient
to support the district court’s finding that Occident knowingly
participated in a scheme to commit credit card fraud. Further, the
district court’s refusal to accept Occident’s “voodoo defense” is
a credibility determination not subject to review by this court.
See United States v. Saunders, 886 F2d 56, 60 (4th Cir. 1989).
Next, Occident argues that the district court clearly erred in
determining the amount of loss because there was no basis for the
court to find that the losses incurred by Ferdinand were
foreseeable to Occident or that all losses were directly
attributable to the identity information furnished by Occident.
This Court reviews the district court’s estimate of loss for clear
error. United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).
The Guidelines require that, for purposes of determining the
offense level for property and financial crimes, loss is the
- 5 -
greater of actual or intended loss. U.S. Sentencing Guidelines
Manual § 2B1.1, cmt. n.3(A) (2005). “Actual loss” is defined as
“the reasonably foreseeable pecuniary harm that resulted from the
offense.” Id. Finally, the district court makes a “reasonable
estimate of the loss, given the available information.” Miller,
316 F.3d at 503; USSG § 2B1.1, comment. n.3(C).
Occident was properly held accountable for the losses
resulting from Ferdinand’s use of the fraudulent credit card
accounts. See USSG § 1B1.3 (a)(1)(B) (providing that a defendant
involved in a joint criminal undertaking may be held responsible
for relevant conduct that includes all reasonably foreseeable
conduct of his co-conspirators that is in furtherance of the
conspiracy). The presentence report provided an itemized total of
fraudulent charges incurred by eighteen banks and other creditors
and Occident did not dispute those figures. Contrary to Occident’s
assertion, the losses identified in the presentence report were
limited to those directly attributable to the identifying
information that Occident supplied to Ferdinand. Therefore, the
district court’s findings regarding loss were not clearly
erroneous.
Accordingly, we affirm Occident’s conviction and
sentence. We dispense with oral argument because the facts and
- 6 -
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
- 7 -