United States v. Robinson, Terrance O ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2763
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRANCE O. ROBINSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06-20077-01—Michael P. McCuskey, Chief Judge.
____________
ARGUED JUNE 10, 2008—DECIDED AUGUST 7, 2008
____________
Before POSNER, COFFEY, and FLAUM, Circuit Judges.
COFFEY, Circuit Judge. Terrance Robinson was charged
with seven counts of bank fraud for organizing a multi-
person scheme to create, pass, and cash counterfeit
checks, and he entered a guilty plea to each count. See 18
U.S.C. § 1344. He was sentenced to a total of 63 months’
imprisonment, within the guidelines range of 51 to 63
months. On appeal, he now challenges the sentence
imposed and contends that the district court erroneously
applied an upward adjustment for using “sophisticated
means,” although he mislabels the argument as a chal-
lenge to the “reasonableness” of the sentence. See
2 No. 07-2763
U.S.S.G. § 2B1.1(b)(9)(C). We agree with the sentence
imposed.
The following facts are drawn from the investigation, as
well as from Robinson’s plea agreement and presentence
report. At his apartment in California, Robinson used a
computer to manufacture counterfeit checks printed
with actual bank routing numbers and the names and
account numbers of legitimate business customers at those
banks. One of the victim banks was Illinois-based First
Midwest Bank. On the face of the checks Robinson in-
cluded the purported payor, a telephone number that, if
dialed, would direct the call to his cell phone. Robinson
also mailed the checks that he had created to himself in
Danville, Illinois.
Robinson proceeded to pass these bogus checks in the
states of Illinois, Indiana, Missouri, and Minnesota with
help from Cornelius Wilson and other accomplices that
Robinson and Wilson recruited in Danville, Illinois.
Robinson advised his accomplices of the risks involved in
the scheme. He bought a typewriter and stored it at
Wilson’s house to use in adding the name of the accom-
plice who would act as payee. Robinson or Wilson would
accompany the accomplice to a bank, currency exchange,
or business where he or she cashed the check. Robinson
later distributed the proceeds of the checks to the partici-
pants. On one occasion, an employee of a currency ex-
change in Danville dialed the telephone number printed
on one of the fraudulent checks purportedly drawn on the
bank account of Norbrek, LP, and spoke with Robinson,
who, after identifying himself as “Steve Jones,” advised
the employee that the check had been legitimately issued
to pay for an insurance settlement. Based upon that
representation the currency exchange cashed the check. At
No. 07-2763 3
the time the scheme was uncovered, Robinson’s accompli-
ces had cashed 21 counterfeit checks totaling $27,956 and
had created 36 others worth $63,213 that they had yet
to cash.
Using the 2006 edition of the sentencing guidelines, the
probation officer set Robinson’s base offense level at
seven, see U.S.S.G. § 2B1.1(a)(1), and added eight levels as
the actual and intended loss exceeded $70,000, see id.
§ 2B1.1(b)(1)(E). The probation officer also recommended
adding two levels for the use of sophisticated means, see id.
§ 2B1.1(b)(9)(C),1 and four more levels for Robinson’s
leadership role, see id. § 3B1.1(a). After a three-level de-
crease for acceptance of responsibility, see id. § 3E1.1, the
total offense level of 18, combined with Robinson’s crimi-
nal history category of V, yielded an imprisonment
range of 51 to 63 months. At sentencing, Robinson unsuc-
cessfully disputed three of the probation officer’s proposed
findings. The only one of those objections relevant to this
appeal is Robinson’s opposition to the two-level increase
under § 2B1.1(b)(9)(C) for using sophisticated means.
Without that increase, his imprisonment range would
have been 41 to 51 months’ imprisonment.
In overruling Robinson’s objection, the trial judge
observed that during his nine years on the trial bench
he had never seen a case where the counterfeiter printed
a telephone number on a bogus check and thereafter
proceeded to represent himself as the person who autho-
rized the check. The court concluded that the upward
1
Application Note 8(b) to § 2B1.1 defines “sophisticated means”
as “especially complex or especially intricate offense con-
duct pertaining to the execution or concealment of an offense.”
4 No. 07-2763
adjustment for using a sophisticated means of this
nature was appropriate because Robinson’s method of
concealing the fraud was unique and demonstrated that
he had carefully executed the scheme after extensive
planning. The court agreed with the probation officer’s
recommended imprisonment range and sentenced Robin-
son to concurrent terms of 63 months.
Robinson’s first argument on appeal, although convo-
luted by references to “reasonableness” and to the sepa-
rate increase for his leadership role, comes down to a
disagreement with the district court’s conclusion that he
employed sophisticated means. Robinson granted that his
scheme was “slightly unusual,” but contends that it was
not sophisticated because, he insists, his conduct was
no more complex than the typical federal fraud case. In
addition, Robinson posits that the court must have as-
sumed that the scheme was complex due to the number
of participants, and that the increase for sophisticated
means actually duplicated the four-level increase for
Robinson’s leadership role.
We review an upward adjustment under § 2B1.1(b)(9)(C)
for clear error. See United States v. Allan, 513 F.3d 712, 715
(7th Cir. Jan. 18, 2008); United States v. Rettenberger, 344 F.3d
702, 709 (7th Cir. 2003). Application Note 8(b) to § 2B1.1
defines “sophisticated means” as “especially complex or
especially intricate offense conduct pertaining to the
execution or concealment of an offense.” According to the
application note, standard examples of a sophisticated
fraudulent scheme includes transactions that utilize
fictitious entities, corporate shells, or offshore financial
accounts, U.S.S.G. § 2B1.1 cmt. n.8(b) (2006); Allan, 513
F.3d at 715, but a wide range of additional conduct also
can satisfy the requirements of § 2B1.1(b)(9)(C), see Allan,
No. 07-2763 5
513 F.3d at 715. We recently applied § 2B1.1(b)(9)(C) in
Allan, a case that neither party has cited. The defendant
in that case created fake entities that made fictitious
sales referrals to the customers of a computer company.
Allan, 513 F.3d at 713-14. He also doctored the headers
on facsimile transmissions to the computer company to
make them appear as if they had been created by the
customers and fabricated e-mail addresses and tele-
phone numbers on the forms he sent to the computer
company so that he could verify the referrals to anyone
who inquired about their authenticity. Id. We upheld
the district court’s finding that the defendant’s use of
fictitious entities, doctored fax headers, and phony con-
tact information satisfied the requirements for sophisti-
cated means under § 2B1.1(b)(9)(C). Id. at 715-16.
In this case before us, the checks were printed with actual
bank routing numbers, the names and bank account
numbers of legitimate entities, and a telephone number
that, if dialed, allowed him (Robinson) to confirm the
checks’ authenticity to the caller. On at least one occasion,
Robinson actually misrepresented the legitimacy of a
check in response to a caller who dialed the number
seeking verification. Robinson’s use of fictitious contact
information to help conceal the invalidity of his scheme
parallels the facts in Allan, and thus satisfies the require-
ments of § 2B1.1(b)(9)(C). See also United States v.
Harvey, 413 F.3d 850, 853 (8th Cir. 2005) (noting that
counterfeiter’s creation of checks with valid routing
numbers but fictitious account numbers alone con-
stituted “strong evidence” of a sophisticated scheme under
§ 2B1.1(b)(9)(C)). Moreover, the district court did not err
merely because more intricate schemes can be envisioned.
See Allan, 513 F.3d at 716. Robinson’s conduct satisfied
6 No. 07-2763
the sophisticated requirement as long as it displayed “a
greater level of planning or concealment” than the typical
case. See United States v. Fife, 471 F.3d 750, 754 (7th Cir.
2006); United States v. Kontny, 238 F.3d 815, 821 (7th Cir.
2001) (concluding that “sophisticated” as used in like
adjustment for tax frauds under U.S.S.G. § 2T1.1 refers to
efforts “that go beyond” but “not necessarily far beyond”
the typical case). The district judge’s observation that he
had not encountered conduct like Robinson’s during his
nine-year tenure strongly suggests that check counterfeiters
do not typically include phony contact information to
promote their schemes.
Robinson’s remaining argument also fails because the
number of people involved in the scheme was not of
import to the district court’s decision to increase Robin-
son’s guidelines range for using sophisticated means.
Instead, Robinson’s inclusion of a telephone number on
the checks that, if dialed, allowed him personally to
confirm the checks’ authenticity to the caller, was “the
detail” that compelled the district court to conclude that
the scheme was sophisticated under § 2B1.1(b)(9)(C). In
contrast, the district court concluded that Robinson de-
served an upward adjustment under § 3B1.1(a) for
leading, organizing, and directing the fraud scheme
since he mailed the checks from California to Danville,
recruited accomplices and warned them about the risks
involved in the scheme, arranged to receive the calls from
anyone scrutinizing the checks’ authenticity, and, most
importantly, controlled the money and distributed the
proceeds. Although Robinson’s inclusion of a telephone
number on the checks affected the justification for both
upward adjustments, a slight overlap between the facts
that justify an upward adjustment for “sophisticated
No. 07-2763 7
means” and an upward adjustment for a leadership role
does not prohibit the district court from applying both. See
United States v. Jackson, 346 F.3d 22, 25-26 (2d Cir. 2003).
Moreover, even if there is significant overlap, the same
facts can serve as a foundation for both upward adjust-
ments. See id.We AFFIRM the judgment of the district court.
8-7-08