United States v. Jeffrey Heckel ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3514
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JEFFREY H ECKEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 CR 41—John C. Shabaz, Judge.
A RGUED JUNE 5, 2008—D ECIDED JUNE 22, 2009
Before P OSNER, K ANNE, and S YKES, Circuit Judges.
S YKES, Circuit Judge. After auctioning items on the
Internet that he had no intention of delivering, Jeffrey
Heckel was indicted on five counts of wire fraud. He
pleaded guilty to one of those counts and was sentenced
to 30 months in prison. Heckel appeals his sentence;
he contends that the district court erred in calculating
both his offense level and criminal-history score when
it applied a two-level enhancement for mass-marketing
and added three criminal-history points for a state-
court theft conviction.
2 No. 07-3514
We affirm. Application of the mass-marketing enhance-
ment was appropriate because Heckel used the Internet
to conduct large-scale advertising to attract bidders to
his fraudulent online auctions. Moreover, the district
court did not clearly err when it determined
that Heckel’s previous state conviction had resulted in a
19-month term in prison, which added three criminal-
history points to his total. Heckel’s recollection that
his sentence was shorter was insufficient to cast doubt on
the reliability and accuracy of the information in the
presentence investigation report (“PSR”), on which the
district court relied. Because the district court correctly
calculated Heckel’s offense level and criminal-history
score and imposed a sentence within the applicable
guidelines range, we presume that the sentence was
reasonsable—a presumption Heckel has failed to rebut.
I. Background
Beginning in March 2002, Jeffrey Heckel used two
Internet auction websites to defraud successful bidders
on items he had listed for sale. The scheme was simple:
He would list an item for auction, accept the highest
bid, cash the check sent to him by the winning bidder,
and ship a product far inferior to the one advertised
on the website. Heckel’s fraud netted him in excess of
$15,000.
Most of the winning bidders cheated by Heckel’s fraud
contacted law-enforcement authorities, and his operation
was shut down just over a year after it had begun. Heckel
was indicted on five counts of mail fraud in violation of
No. 07-3514 3
18 U.S.C. § 1341. He agreed to plead guilty to one count
and pay restitution to all five victims. In exchange the
government dismissed the remaining counts and recom-
mended that he receive a reduction in his offense level
for acceptance of responsibility. The district court
accepted Heckel’s plea.
The probation office calculated a total offense level of 11
under the sentencing guidelines, which included a base
offense level of 7 plus a 4-level increase because the
amount of loss was more than $10,000 but less than
$30,000. U.S.S.G. § 2B1.1(a)(1) & (b)(1)(C) (2006). The PSR
also applied the two-level reduction for acceptance of
responsibility, id. § 3E1.1(a), but then added two levels
because the offense was committed through “mass-market-
ing,” id. § 2B1.1(b)(2)(A)(ii). Heckel objected to the ap-
plication of the mass-marketing enhancement.
For Heckel’s criminal-history score, the PSR initially
assessed 12 points, placing him in criminal-history Cate-
gory V. Heckel made two objections to this total. The
probation office then agreed with one of these objections
and issued an addendum reducing Heckel’s score to 10,
the minimum for Category V. The probation office dis-
agreed with Heckel’s second objection—relating to his
state conviction for theft—and refused to reduce
Heckel’s total any further.
The district court accepted the reduction from 12 to 10
points, but did not specifically address Heckel’s
objection regarding the treatment of his theft conviction.
As a result, Heckel remained in criminal-history Category
V. The court also rejected Heckel’s challenge to the ap-
4 No. 07-3514
plication of the mass-marketing enhancement, so the
guidelines recommended a range of 24-30 months. Com-
menting on Heckel’s extensive criminal past and the
need to deter any future criminal behavior, the court
sentenced Heckel to 30 months in prison and 3 years of
supervised release. Heckel appealed.
II. Analysis
Our review of a district court’s application of the guide-
lines is de novo, but we review findings of fact for clear
error. United States v. Samuels, 521 F.3d 804, 815 (7th Cir.
2008). Sentencing factfinding is entitled to deference
“ ‘unless we have a definite and firm conviction that a
mistake has been made.’ ” Id. (quoting United States v.
Wilson, 502 F.3d 718, 721 (7th Cir. 2001)).
A. Mass-marketing
Heckel first argues that the district court incorrectly
calculated his offense level because the court added
two levels for use of “mass-marketing.” U.S.S.G.
§ 2B1.1(b)(2)(A)(ii). The commentary to this guideline
explains that “mass-marketing” includes “a plan,
program, promotion, or campaign that is conducted
through solicitation by telephone, mail, the Internet, or
other means to induce a large number of persons to . . .
purchase goods or services.” Id. § 2B1.1 cmt. n.4(A).
Because the auction websites Heckel used were
accessible to the general public and Heckel attempted to
No. 07-3514 5
increase the price of the items posted by soliciting a
large number of bids over the Internet, the district court
applied the enhancement.
According to Heckel, the district court erred because
Internet auctions are different in kind from mass-market-
ing frauds that use telemarketing or other forms of large-
scale solicitation. An auction, Heckel argues, can only
have one victim: the winning bidder. The guideline
requires that the scheme “induce a large number of
persons to . . . purchase goods or services.” Heckel main-
tains that the limited pool of actual victims defeats the
application of the enhancement.
Caselaw is sparse on this line of argument, but the few
cases that have taken up the issue have been decided in
favor of applying the enhancement. In United States v.
Pirello, the defendant used Internet classifieds to
advertise computers for sale. 255 F.3d 728, 730 (9th Cir.
2001). Three unsuspecting consumers sent Pirello more
than $4,000 for computers that he did not have and could
not provide. Pirello argued that the mass-marketing
enhancement should not apply because only three
people responded to his fraudulent Internet solicitation.
The Ninth Circuit rejected this argument, holding
instead that the limited number of victims “was the
product of chance” that was “in no way indicative of the
breadth of Pirello’s solicitation.” Id. at 732. The court
reasoned that any other consumers who responded also
“would have fallen victim to his plan.” Id.; see also
United States v. Magnuson, 307 F.3d 333, 335 (5th Cir.
2002) (agreeing with Pirello that the mass-marketing
6 No. 07-3514
enhancement “merely requires advertising that reaches
a large number of persons”) (internal quotation marks
omitted).
The guideline itself suggests that the mass-marketing
enhancement applies to solicitation schemes reaching a
large number of potential victims regardless of the
number of actual victims. Contained within § 2B1.1(b)(2)
are three other enhancements for frauds involving
more than 10, 50, or 250 victims respectively. U.S.S.G.
§ 2B1.1(b)(2)(A)-(C). Increasing a sentence under the mass-
marketing enhancement only when the victim count is
large would render these other provisions superfluous.
Instead of focusing on the actual number of victims, the
mass-marketing enhancement focuses on defendants
who have used a particular solicitation method to
increase the number of potential victims. Indeed, the
Application Notes explain that the enhancement applies
to “cases in which mass-marketing has been used to
target a large number of persons, regardless of the
number of persons who have sustained an actual loss or
injury.” U.S.S.G. app. C, vol. II, amend. 617 (2003); see also
United States v. Olshan, 371 F.3d 1296, 1301 (11th Cir.
2004) (finding that the mass-marketing “enhancement
focuses on the method of inflicting the harm”);
United States v. Fredette, 315 F.3d 1235, 1244 n.4 (10th
Cir. 2003) (“[T]he enhancement for multiple victims goes
to the ultimate harm caused by the defendant’s
conduct, while the enhancement for mass-marketing
concerns the scope and sophistication of the defendant’s
fraud.”).
No. 07-3514 7
Here, Heckel’s scheme netted only a small number of
victims, but the loss that those few suffered was exacer-
bated by Heckel’s chosen method of solicitation. The
competitive bidding process of an Internet auction often
increases the price that a bidder might otherwise have
to pay. Use of the Internet to advertise and conduct an
auction—like use of telephones in a “telemarketing cam-
paign that solicits a large number of individuals to pur-
chase” goods or services—exposes more consumers to
the fraud than otherwise would have been possible, and
potentially increases the price (and therefore the loss) by
expanding the number of bidders. U.S.S.G. § 2B1.1
cmt. n.4(A).
Even though an Internet auction results in just one
winning bidder and thus only one victim, the sheer
scope of the possible bidding drives the price of the
item on the virtual auction block. Posting a rare coin
for sale on the Internet, as Heckel did in the count to
which he pled guilty, invited the vast online public to
bid, and those who did so were trying to purchase the
item by suggesting a price that they believed no
competing online bidder would exceed. That only one
such bidder eventually won the online auction does not
negate the harm of this method of fraudulent solicitation.
Cf. United States v. Blanchett, 41 F. App’x 181, 183 (10th
Cir. 2002) (“[The defendant] never intended to provide
computers to prospective buyers, and thus did not feel
bound to accept only the highest offer, leaving
every Internet user who bid on the computers
potentially vulnerable.”). Heckel’s was exactly the type
of “plan, program, promotion, or campaign” that the mass-
8 No. 07-3514
marketing enhancement is designed to address. U.S.S.G.
§ 2B1.1 cmt. n.4(A).1
B. Criminal-history Score
Heckel also contends that the district court erred by
assessing three criminal-history points for his 1992 state
conviction for theft. Under U.S.S.G. § 4A1.1(a), a criminal
defendant is assigned three points for each “prior
sentence of imprisonment exceeding one year and one
month.” Two points are added if the sentence was
between 60 days and 13 months. Id. § 4A1.1(b). The PSR
reported that Heckel was sentenced to 19 months for this
offense; Heckel only recalled spending 6 months in a
community-based behavioral modification program
with short stints in prison for probation violations.
Heckel claims that the government had the burden of
proving that the information in the PSR was reliable and
that it failed to do so. He argues that he should have
received only the two-point increase instead of three,
placing him in criminal-history Category IV; the ap-
plicable guidelines range would then have dropped from
24-30 months to 18-24 months. Id. Ch. 5, Pt. A. Heckel
preserved his objection at sentencing, so we review the
1
Because we conclude that use of an Internet auction is a means
of “solicitation . . . to induce a large number of persons to . . .
purchase goods or services,” we need not address the gov-
ernment’s alternative argument that such an auction also
qualifies as a “contest or sweepstakes.” U.S.S.G. § 2B1.1 cmt.
n.4(A)(i)-(ii).
No. 07-3514 9
court’s decision for clear error. United States v. Newman,
148 F.3d 871, 877 (7th Cir. 1998).
The district court may rely on the information contained
in the PSR so long as it is well supported and appears
reliable. United States v. Salinas, 365 F.3d 582, 587 (7th Cir.
2004). “When the court relies on such information in
sentencing a defendant, the defendant bears the burden
of showing that the presentence report is inaccurate or
unreliable.” Id. The defendant cannot attack the informa-
tion in the PSR by making a “bare denial” of its accuracy.
United States v. Mustread, 42 F.3d 1097, 1101-02 (7th Cir.
1994). Only when the defendent’s objection creates real
doubt as to the reliability of the information in the
PSR does the government have the burden of independ-
ently demonstrating the accuracy of the information. Id.
at 1102.
Heckel presented no documentary evidence to
challenge the information in the PSR about his 19-month
theft sentence, and his recollection was far from unam-
biguous. His initial claim, made in his objections to the
PSR, was that he served six months’ incarceration and
attended a treatment program for an additional six months
after he violated probation. At sentencing, however, his
counsel simply argued that Heckel “does not recall ever
being told by a judge that he was being sentenced to a
prison sentence.” Heckel’s counsel also said he had
checked the records on which the probation officer had
relied, but the objection remained highly ambiguous:
“I went over there and looked, and I just don’t feel that
the record is clear enough to give him three criminal
history points on this particular conviction.”
10 No. 07-3514
Heckel’s tentative and conflicting recollection of his
theft sentence of 15 years earlier was not enough to cast
doubt on the accuracy or reliability of the PSR. At sen-
tencing Heckel’s counsel suggested only that the docu-
ments used by the probation office to support the infor-
mation in the PSR were not completely clear. This amounts
to a “bare denial” of the information in the PSR—not
enough to call the accuracy of the PSR into question. The
PSR reported that Heckel was sentenced to 19 months in
the custody of the Minnesota Department of Corrections,
but that this sentence was stayed and he was placed on
probation for 5 years. The stay was lifted, however, and
the 19-month sentence was reinstated after Heckel com-
mitted a third violation of his probation. Absent any
hard evidence demonstrating that this information was
inaccurate, we cannot say that the district court clearly
erred by relying on the PSR to calculate Heckel’s criminal-
history category.2
Heckel also asserts that the district court failed to make
a specific ruling on his objection to the three-point assess-
2
In his reply brief, Heckel argues that the district court improp-
erly allowed the government to supplement the record after
he had filed his brief with this court. The supplementary
document had been relied upon by the probation office when
making its recommendation but was not submitted to the
district court for consideration at sentencing. There is no need
to address Heckel’s objection to the supplementation, how-
ever; we conclude that the district court did not clearly err
in adopting the PSR’s recommendation even though it never
considered the supporting evidence later submitted by the
probation office.
No. 07-3514 11
ment for his theft conviction in violation of the Federal
Rules of Criminal Procedure. The rules require the sen-
tencing court to rule on “any disputed portion of the
presentence report or other controverted matter . . . or
determine that a ruling is unnecessary.” F ED. R. C RIM . P.
32(i)(3)(B). In announcing its sentence, the district court
referred to the PSR’s criminal-history calculation and
noted that the point total was 10 rather than 12 as stated
in the original report. But the court did not directly
address Heckel’s objection to the 19-month theft sen-
tence and instead placed him in Category V without
further elucidation.
We have characterized Rule 32’s requirement as a
“minimal burden.” United States v. Sykes, 357 F.3d 672, 674
(7th Cir. 2004). The sentencing court must make findings
to resolve a dispute between the defendant and the gov-
ernment, but a general reference by the court to the
PSR “constitutes sufficient findings even as to contro-
verted facts when we are assured that the district court
made a decision of design, rather than of convenience, to
adopt the PSR.” United States v. Burke, 148 F.3d 832, 836
(7th Cir. 1998); see also United States v. Cureton, 89 F.3d 469,
473 (7th Cir. 1996) (“[S]o long as it actually resolves the
disputed issue on the record, a sentencing court fulfills
the purposes of Rule 32.”).
Although the district court did not explicitly address
Heckel’s objection to the PSR’s treatment of his theft
conviction, the court referenced the information in the
PSR and specifically adopted the PSR’s findings. After
Heckel objected to the additional criminal-history point
12 No. 07-3514
for the theft conviction, the probation office filed an
addendum to the PSR along with its sentencing recom-
mendation. The addendum detailed the sequence of events
leading to Heckel’s term of imprisonment, including the
three dates upon which his probation was revoked and the
date that the previously stayed 19-month sentence was
reinstated. The court acknowledged and accepted the
addendum when it noted that Heckel’s correct criminal-
history score was 10, instead of 12 as initially stated in
the PSR, and that he remained in Category V. Rule 32
requires nothing more. See United States v. Cunningham, 429
F.3d 673, 679 (7th Cir. 2005) (“We hesitate to read [Rule 32]
so broadly that the judge is obliged to address
every argument that a defendant makes at the sen-
tencing hearing.”).
C. Reasonableness of the Sentence
Heckel’s challenge to the reasonableness of his sentence
requires only brief attention. Heckel first contends that the
sentence is unreasonable because it is based on a proce-
dural error—that is, an incorrect guidelines range. Our
review is for abuse of discretion, Gall v. United States,
128 S. Ct. 586, 597 (2007), and there was no abuse of
discretion here. Heckel’s argument is merely a reiteration
of his two challenges to the guidelines calculation,
which we have rejected above.
Because Heckel’s guidelines range was correctly calcu-
lated and the district court sentenced him within that
range, the sentence is presumed reasonable on appeal.
Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007).
No. 07-3514 13
Heckel nonetheless maintains that his sentence is unrea-
sonable because the district court referenced a May 2007
probation violation for purchasing and selling firearms,
despite being on notice that these charges had been
dropped. But a wide range of conduct is relevant at
sentencing—including uncharged conduct and charges
of which the defendant was acquitted—so long as that
conduct is established by a preponderance of the evi-
dence. United States v. Watts, 519 U.S. 148 (1997);3 see also
18 U.S.C. § 3661; U.S.S.G. § 1B1.4. Heckel doesn’t argue
that the conduct underlying the probation violation
did not occur—only that the formal charges were dis-
missed. Absent evidence to the contrary, the district
court was entitled to rely on this information in the PSR
even though the charges were dropped. Heckel makes
no other challenge to the reasonableness of his sentence,
and as such, has failed to rebut the presumption of rea-
sonableness.
A FFIRMED
3
We have held that Watts survived United States v. Booker,
543 U.S. 220 (2005), and remains good law. E.g., United States
v. Hurn, 496 F.3d 784, 788 (7th Cir. 2007).
6-22-09