United States v. Jeremy Jones ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0333n.06
Case No. 19-5069
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 09, 2020
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
JEREMY JONES, ) TENNESSEE
)
Defendant-Appellant. )
BEFORE: BOGGS, SUTTON, and WHITE, Circuit Judges.
SUTTON, Circuit Judge. After Jeremy Jones stole the identities of over a hundred people,
a jury found him guilty of aggravated identity theft and several related crimes. On appeal, Jones
targets a double-jeopardy violation and challenges his sentence. We vacate one of the convictions
but affirm in all other respects.
Jones convinced a few friends to give him their personal information, promising to help
them improve their credit or to use the information for joint business ventures. He instead used it
to take out car loans for himself. When that worked, Jones upped the game. He enlisted the help
of his ex-girlfriend, Carla Daughtery, who worked at a neurology clinic in Memphis. For over a
year, Daughtery periodically gave Jones the personal information of doctors, nurses, and patients
at the clinic. He used it for more of the same: setting up loans, credit cards, and bank accounts in
Case No. 19-5069, United States v. Jones
the victims’ names. Jones promised Daughtery “big money” for her help. R. 172 at 7. But he
kept the money for himself.
The government learned about Jones’s scheme when some financial institutions reported
the suspicious transactions. After linking several of them to Jones’s IP address, the government
executed a search warrant at his home. The search revealed extensive evidence tying Jones to
identity theft, including a computer with the personal information of over 100 individuals, along
with credit cards and loan applications in their names. Because most of the victims were patients
of the same neurology clinic, the government managed to uncover Daughtery’s role in the scheme
and convinced her to testify against Jones. A grand jury indicted him on four counts: conspiracy
to commit identity theft and mail fraud, identity theft, mail fraud, and aggravated identity theft.
See 18 U.S.C. §§ 371, 1028(a)(7), 1028A, 1341.
Jones contacted some of the friends he had first swindled and encouraged them to change
their stories. That led to two charges of obstruction of justice. A jury convicted Jones on all
counts.
At sentencing, the court determined that Jones was responsible for losses of $1.98 million,
which led to a 16-level enhancement. See U.S.S.G. § 2B1.1(b)(1)(I). With that enhancement and
a few others factored in, Jones’s guidelines range stood at 94 to 111 months. See 18 U.S.C.
§ 1028A(a)(1), (b)(2); U.S.S.G. § 2B1.6. The court imposed a within-guidelines sentence of 102
months. Jones appeals on three grounds.
Double Jeopardy. The Double Jeopardy Clause says that no one should “be twice put in
jeopardy” for “the same offense.” U.S. Const. amend. V. A defendant may be convicted of
multiple crimes arising from the same course of conduct so long as each crime “requires proof of
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a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932); see
United States v. Kurlemann, 736 F.3d 439, 452 (6th Cir. 2013).
As the government concedes, Jones’s convictions for identity theft and aggravated identity
theft fail the Blockburger test. The first three elements of each crime use the same language:
(1) “knowingly transfers, possesses, or uses,” (2) “without lawful authority,” (3) “a means of
identification of another person.” Compare 18 U.S.C. § 1028(a)(7), with 18 U.S.C. § 1028A(a)(1).
That leaves the fourth element. Identity theft requires that the first three elements occur “in
connection with[] any unlawful activity that constitutes a violation of Federal law” or a state
felony, id. § 1028(a)(7), while aggravated identity theft lists specific predicate federal crimes that
trigger this section. Id. § 1028A(a)(1), (c). Because any of the federal law predicates is “a
violation of Federal law,” anyone who commits aggravated identity theft necessarily commits
identity theft. The only two circuits to consider the question have taken this straightforward path.
See United States v. Bonilla, 579 F.3d 1233, 1242–44 (11th Cir. 2009); United States v. Allen, 781
F. App’x 513, 515–16 (7th Cir. 2019). The government concedes as much.
The question is what to do next. Jones does not argue he is entitled to a full-blown re-
sentencing hearing. The debate is whether we should vacate the lesser included identity-theft
conviction (as the government asks) or give the district court discretion to decide which of the two
offenses to vacate (as Jones asks).
There is no room for discretion. It would be an unjust windfall “to give the defendant a
shorter sentence than he would have received had the government not also charged him with the
less serious offense.” United States v. Peel, 595 F.3d 763, 768 (7th Cir. 2010). That is even clearer
when the less serious offense is also the lesser included one: “[I]magine convicting a person of
attempted murder and of murder and punishing him only for the attempt.” Id. Unpublished
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decisions in our circuit have followed this approach. United States v. Gerick, 568 F. App’x 405,
408 (6th Cir. 2014); United States v. Hutchinson, 448 F. App’x 599, 603–04 (6th Cir. 2012). And
the two out-of-circuit appellate decisions dealing with the same double jeopardy problem as in the
case before us—overlapping convictions for identity theft and aggravated identity theft—vacated
the identity-theft conviction. See Bonilla, 579 F.3d at 1243–44, 1246; Allen, 781 F. App’x at 516.
Jones does not attempt to distinguish these cases. He instead cites others where the court
remanded for the district court to select which conviction to vacate. See, e.g., Rutledge v. United
States, 517 U.S. 292, 307 (1996); Ball v. United States, 470 U.S. 856, 864 (1985); United States
v. Ehle, 640 F.3d 689, 699 (6th Cir. 2011). But these cases did not consider the question at hand.
United States v. Chambers, it is true, did face the issue and remanded to the district court.
944 F.2d 1253, 1269 (6th Cir. 1991). But in that case, due to a quirk in the (then-mandatory)
sentencing guidelines, the lesser-included offense carried the greater sentence. Id. at 1268–69.
Given that anomaly, the court took what it recognized as an anomalous approach. Id. at 1269.
Consecutive sentences. Jones argues that his aggravated-identity-theft sentence may run
consecutively only to his mail-fraud sentence, apparently suggesting that it must run concurrently
with his other sentences. But the aggravated-identity-theft statute says, with one exception not
relevant here, “no term of imprisonment imposed on a person [for aggravated identity theft] shall
run concurrently with any other term of imprisonment imposed on the person under any other
provision of law.” 18 U.S.C. § 1028A(b)(2). That statute leaves no room to maneuver. Jones
never explains how “any other” could be interpreted any other way.
Loss calculation. That leaves Jones’s final challenge. Recall that the district court imposed
a 16-level sentencing enhancement because Jones caused or intended over $1.5 million in total
losses. U.S.S.G. § 2B1.1(b)(1)(I); see also United States v. Mickens, 453 F.3d 668, 672 (6th Cir.
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2006). Jones offers several different numbers for what that loss should have been, all of them
between $550,000 and $1.5 million, meaning all of them would yield a 14-level, not a 16-level,
enhancement. U.S.S.G. § 2B1.1(b)(1)(H).
What matters is whether the court made a “reasonable estimate.” U.S.S.G. § 2B1.1
cmt. n.3(C); United States v. Vance, 956 F.3d 846, 860 (6th Cir. 2020). The district court had
exact numbers. Postal Inspector Susan Link calculated the loss by adding the amounts Jones spent
to amounts he intended to spend: that is, the credit limits of cards Jones applied for but failed to
obtain and loan amounts he sought but failed to get. See, e.g., Vance, 956 F.3d at 861; Mickens,
453 F.3d at 672–73; United States v. Hardison, 365 F. App’x 661, 663 (6th Cir. 2010). Inspector
Link obtained those numbers directly from the financial institutions. They also submitted loss
confirmations, all incorporated into the pre-sentence report, and many of them had already sent
representatives to testify at trial to the same effect. The court examined this evidence during a
daylong hearing, much of it focused on the amount of loss. The court cut several hundred thousand
dollars off the government’s estimate, finding insufficient proof for several items. After thorough
consideration, it landed on $1.98 million. We see no error, let alone a clear one.
The district court’s thorough treatment of loss calculation separates this case from those
Jones relies on. Unlike United States v. Roberts, the government witness explained her
methodology and the judge independently considered the issue rather than simply adopting
whatever number the government put forward. 919 F.3d 980, 988 (6th Cir. 2019). And United
States v. White provides Jones no comfort for a similar reason. 492 F.3d 380 (6th Cir. 2007). We
reversed a district court that had “blindly embraced the figures set forth in” the pre-sentence report.
Id. at 416. That’s not what happened here.
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Jones suggests that the government could rely only on the portion of losses provided by
trial testimony from representatives of the financial institutions. But he cites no cases imposing
such a burden. “[T]he rules of evidence—including the general prohibition on hearsay—do not
apply at sentencing.” United States v. McCarty, 628 F.3d 284, 289 (6th Cir. 2010); see Vance, 956
F.3d at 862–63. Consistent with that long-established principle, loss amounts are commonly
determined by testimony from a government agent who interviewed the victims. See, e.g.,
McCarty, 628 F.3d at 291; United States v. Katzopoulos, 437 F.3d 569, 572–73, 576 (6th Cir.
2006).
Jones also takes issue with one line item: $71,500 in potential losses from Capital One.
He claims he was never tied to this loss, and that it stems from a fraudulent credit card opened by
Daughtery. But none of this moves the needle anyway. Jones’s $1.98 million in losses easily
clears the $1.5 million bar for the sentencing enhancement.
We vacate Jones’s conviction for identity theft and remand with instructions to modify the
judgment accordingly. We affirm in all other respects. We also deny as moot Jones’s motion for
release pending appeal and his motion to withdraw counsel.
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