United States v. Williamson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30484
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER TOOGOOD,
Defendant-Appellant.
-----------------------------------------------------------------
_____________________
No. 00-30946
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WILLIAMSON,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
(99-CR-389-1-J)
_________________________________________________________________
August 24, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.
1
E. GRADY JOLLY, Circuit Judge:*
Peter Toogood and his uncle, John Williamson, were both
indicted on charges of unlawfully transporting in interstate
commerce more than $5,000 knowing that it was stolen or converted
by fraud. Toogood and Williamson both pleaded guilty pursuant to
a written plea agreement and now challenge the district court’s
decision to depart upward in sentencing both defendants. Finding
no error in the upward departure given both defendants in this
case, we AFFIRM.
I
Toogood and Williamson engaged in a lengthy and concerted
effort to defraud the 83-year old female victim in this case. Each
defendant appeared at the victim’s home on multiple occasions.
They posed as repairmen, fiddled with her fuse box, and then told
her that they had fixed the problems. They demanded $40,000 on one
occasion and $20,000 on another for these “repairs.” To meet their
demands, the victim went with them to various banks and financial
institutions, where they cajoled or forced her to make withdrawals.
On another occasion, the defendants purchased two watches for
$31,550 on the victim’s credit card and entered the victim’s
residence after the UPS package containing the watches arrived at
her home. They ultimately defrauded her out of approximately
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
$101,000. After the scheme was uncovered, the victim told the
probation officer that she had been afraid to report what had
happened out of fear for her life.
Toogood’s presentence report (“PSR”) identified the following
factors as possibly warranting an upward departure: The loss did
not fully capture the harmfulness of the conduct, because it did
not take into consideration the interest that continued to mount on
the victim’s credit card, the interest that could have been earned
on her savings account but for Toogood’s conduct, or the impact of
psychological injury caused by the offensive conduct. The PSR also
noted that a departure was allowed on a finding of aggravating
circumstances of a kind or to a degree not adequately taken into
consideration by the guidelines. The PSR calculated an offense
level of 13 and a criminal history category of III for Toogood,
corresponding to a guideline range of 18 to 24 months’
imprisonment. The district court denied Toogood’s objection to an
upward departure and sentenced him to 48 months.
Williamson’s PSR set a total offense level of 13, with a
criminal history category of IV, for a guideline range of 24 to 30
months’ imprisonment. Williamson’s PSR identified the same factors
warranting an upward departure, plus the additional factor that his
criminal history did not adequately reflect the seriousness of his
past criminal conduct or the likelihood that he would commit other
crimes. The district court recounted Williamson’s lengthy criminal
3
history, noting that the instant offense was “far from the first
time” that he had “scam[med] old ladies.” The court sua sponte
departed upward pursuant to § 2B.1. and § 5K2.3 and sentenced
Williamson to 60 months’ imprisonment.
II
Whether a factor is a permissible basis for departure under
any circumstances is a question of law. United States v.
Threadgill, 172 F.3d 357, 375 (5th Cir. 1999). The district
court’s resolution of whether the departure factors were sufficient
to remove the case from the heartland of the applicable guideline
must be accorded “substantial deference” because of the district
court’s “special competence” in determining what is ordinary or
unusual. Id. at 376. Likewise, this court generally defers to the
sentencing court’s superior “feel” for the case is determining
whether the degree of departure was reasonable. United States v.
Lara, 975 F.2d 1120, 1125 n.3 (5th Cir. 1992)(citation omitted).
This court “will not lightly disturb . . . decisions implicating
degrees of departure.” Id.Toogood and Williamson argue that the district court
improperly relied upon its own dissatisfaction with the applicable
sentencing range to upwardly depart. See United States v.
McDowell, 109 F.3d 214, 219 (5th Cir. 1997). To the extent that
the district court may have relied upon any impermissible basis of
departure, the court’s error would be harmless if the district
4
court would have imposed the same sentence even in the absence of
the error--that is, if another permissible basis of departure
existed. See United States v. Rogers, 126 F.3d 655, 661 (5th Cir.
1997)(citation omitted).
In Williamson’s case, the district court had as a separate
basis for departure the seriousness of his past criminal conduct
and likelihood of recidivism that was not adequately reflected in
his criminal history category. The court found that Williamson had
made it “his business . . . to go around scamming people” and that
he had previously defrauded a 92-year old woman out of $36,900.
Because a finding that the criminal history category of a defendant
fails to represent the seriousness of a defendant’s past criminal
conduct is a permissible factor justifying upward departure, we
will not interfere with Williamson’s sentence under the guidelines.
See United States v. Laury, 985 F.2d 1293, 1310 (5th Cir. 1993);
U.S.S.G. § 4A1.3 (permitting upward departure if “reliable
information indicates that the criminal history category does not
adequately reflect the seriousness of the defendant’s past criminal
conduct or the likelihood that the defendant will commit other
crimes.”).
Upwardly departing in Toogood’s case, the court relied upon
the psychological injury under U.S.S.G. § 5K2.3 and the fact that
the loss determination did not fully capture the harmfulness of the
conduct under § 2B1.1. Although it is true that interest income
5
from the defrauded funds should not be considered as loss in this
case under the guidelines, United States v. Henderson, 19 F.3d 917,
928-29 (5th Cir. 1994), the district court noted that the loss
attributed to the defendants’ conduct did not take into
consideration the $300 a month in interest that was being charged
to the victim’s credit account after the defendants had “raided her
savings accounts.” In addition, the district court had before it
evidence of psychological harm in this case, where the 83-year old
victim was defrauded by the defendants on numerous occasions over
a two-month period of time in multiple hand-to-hand transactions.
This non-monetary harm can be considered by the district court in
departing upward under the guidelines, especially when
circumstances make the harm “unusual.” See United States v. Wells,
101 F.3d 370, 374-75 (5th Cir. 1996); United States v. Anderson, 5
F.3d 795 (5th Cir. 1993). Given the applicable guidelines and the
evidence of harm before the district court, and because we afford
the “greatest deference” and “will not lightly disturb” the
district court’s determination of whether an applicable factor is
sufficient to warrant upward departure, the judgment of sentence as
to both Toogood and Williamson is
A F F I R M E D.
6