United States v. Calvin, Mitanette , 191 F. App'x 453 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 13, 2006
Decided August 3, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
No. 05-2146
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03-CR-501-1
MITANETTE CALVIN,
Defendant-Appellant. Amy J. St. Eve,
Judge
ORDER
Mitanette Calvin was sentenced to 63 months of imprisonment after she
pleaded guilty to mail fraud and wire fraud. On appeal she argues that the district
court should have reduced her offense level by three under an adjustment for
“partially completed” offenses because she collected only part of the money she
attempted to steal from her victims. But she is not entitled to receive the
adjustment because it does not apply to the facts of her case.
Beginning in October 2000, Calvin started offering for sale through internet
auctions items she did not possess. Using e-mail accounts opened under her own
name as well as several aliases and the names of unwitting employees, Calvin
advertised CDs, DVDs, clothing, department-store merchandise, and consumer
No. 05-2146 Page 2
electronics for sale on eBay.com, uBid.com, Yahoo.com, TradeOut.com, and
RetailExchange.com. Potential buyers bid on the goods, and after the close of the
auction, Calvin instructed the highest bidder to send payment to her via check,
money order, or Western Union wire transfer. Calvin also negotiated non-auction
sales directly with other victims by telephone and e-mail. After she received
payment, she shipped goods that did not match the description or were inferior in
quality to those she advertised for auction, or she shipped nothing at all.
Calvin’s boldest misrepresentation involved advertising nonexistent
television sets for sale and auction. Between December 2001 and April 2002, Calvin
posted 157 plasma television sets on eBay, which accounted for approximately one
half of the total value of goods she posted on that site. Although eBay terminated
the auctions shortly after Calvin posted them, occasionally a person would contact
Calvin directly to “buy it now”1 before eBay could intervene. On other occasions,
Calvin initiated contact with people who had bid on the auctions prior to eBay’s
intervention to ask whether they were still interested “in a good deal.” Although
Calvin “sold” only two of the television sets for a total of $13,500, she ultimately
quoted a price or agreed to sell television sets to 74 persons for more than $493,000.
In May 2003, a federal grand jury charged Calvin with four counts of mail
fraud, 18 U.S.C. § 1341, and four counts of wire fraud, 18 U.S.C. § 1343. Calvin
pleaded guilty to one count each of mail fraud and wire fraud. In her plea
agreement she admitted scheming to defraud buyers by misrepresenting the items
she had for sale and using the mail and wires to advance her scheme. But she
disagreed with the government over the amount of loss attributable to her and
reserved her right to present evidence on the amount of losses prior to sentencing in
the plea agreement.
The district court conducted a three-day sentencing hearing during which the
government presented largely uncontested evidence concerning the sums of money
victims sent to Calvin as well as Calvin’s communications with her victims. Eight
victims recounted sending Calvin money after winning an auction, sometimes
thousands of dollars, but received nothing in return. Four others stated they each
sent Calvin thousands of dollars and received, for example, a box of cassette tapes
or video pinball games in return. And one victim testified that, after he successfully
bid on an auction for what Calvin advertised as authentic T-Rex fossils, he never
sent payment because he could not verify the source of the fossils and thought it
“odd” that Calvin refused to accept payment by credit card. The government also
1
eBay’s “buy it now” option allows buyers to avoid the auction process by
purchasing items instantly from the seller at a fixed price.
http://pages.ebay.com/services/buyandsell/buyitnow.html.
No. 05-2146 Page 3
summarized three categories of losses attributable to Calvin. First, the government
confirmed actual funds sent to Calvin totaling $128,742. Second, the government
calculated intended losses of $232,000 based upon e-mails showing that Calvin
instructed individuals to send her money but where Calvin’s receipt of the funds
was unconfirmed. Third, the government calculated additional intended losses of
$493,000 based upon e-mails between Calvin and unsuspecting victims in which
Calvin quoted prices, negotiated terms, or agreed to sell non-existent plasma
television sets. In addition, although the government conceded that Calvin did not
succeed in collecting all of the funds she had set out to, it submitted evidence that
eBay terminated many of her auctions to protect bidders from Calvin’s fraud and
that some victims withheld payment because they suspected foul play. On
cross-examination Calvin tried to challenge the losses claimed by some witnesses,
but she presented no evidence contradicting the government’s calculations.
The district court concluded that Calvin was responsible for actual losses of
$128,742 and intended losses of $493,000. The court explained that it calculated
the intended-loss figure based upon Calvin’s correspondence with potential buyers
of plasma television sets because those transactions were “a perfect example of the
defendant’s intent to . . . take money from others.” The court then increased
Calvin’s base offense level of 6 by 14 levels to account for a total loss of $621,742.
See U.S.S.G. § 2B1.1(a), (b)(1)(H) (2001). After other adjustments that are not in
dispute, the court calculated a total offense level of 26 and a criminal history
category of I, resulting in a guidelines range of 63 to 78 months’ imprisonment.
Calvin objected, arguing that the scheme was only “partially completed”
insofar as it involved the plasma television sets and thus her offense level should be
lowered three levels under U.S.S.G. § 2X1.1(b)(1). That guideline, which is
referenced in Application Note 13 to the 2001 version of § 2B1.1, provides for a
three-level reduction for crimes that were attempted but not completed, and then
only if the defendant had not “completed all the acts the defendant believed
necessary for successful completion of the substantive offense or the circumstances
demonstrate that the defendant was about to complete all such acts but for
apprehension or interruption by some similar event beyond the defendant’s control.”
U.S.S.G. § 2X1.1(b)(1) (2001); see id. § 2B1.1 cmt. n.13. The district court rejected
this argument, reasoning that 2X1.1(b)(1) did not apply because the mail and wire
frauds were completed even though Calvin failed to collect all the money she
intended. The court proceeded to sentence Calvin to 32 months’ imprisonment on
the mail fraud count and a consecutive 31 months’ imprisonment on the wire fraud
count.
On appeal Calvin challenges the district court’s finding that her crimes were
complete, not partially complete. Because the district court calculated an intended
loss of $493,000 for negotiations that never resulted in payment and were not
No. 05-2146 Page 4
interrupted by law enforcement, Calvin argues, the plasma-television scam was
only “partially completed.” Thus, she says, the court should have applied
§ 2X1.1(b)(1) and decreased her overall offense level by three levels. Calvin does not
contest the district court’s computation of actual or intended losses.
We review the district court’s findings of fact for clear error, and its
application of the guidelines to the facts de novo. United States v. McCaffrey, 437
F.3d 684, 688 (7th Cir. 2006). Application Note 4 of § 2X1.1 instructs that the
sentencing court must decrease a defendant’s offense level by three levels where the
defendant has completed part, but not all, of the acts necessary for the successful
completion of the intended offense. U.S.S.G. § 2X1.1, cmt. n.4 (2001); United States
v. Torres, 209 F.3d 308, 312 (3d Cir. 2000). But the reduction does not apply when
the defendant did not complete all the elements of the offense because of
“apprehension or interruption by some similar event beyond the defendant’s
control.” U.S.S.G. § 2X1.1(b)(1) (2001); see Torres, 209 F.3d at 312. Thus the
relevant inquiry is whether Calvin completed all the acts necessary to commit the
substantive offenses of mail fraud as well as wire fraud. See United States v.
DeSantis, 237 F.3d 607, 611-12 (6th Cir. 2001).
Calvin is not entitled to the three-level reduction because she completed
every act necessary to commit the substantive offenses of mail fraud and wire fraud.
A defendant commits mail or wire fraud when she (1) participates in a scheme to
defraud (2) with intent to defraud and (3) uses the mail or wires in furtherance of
that scheme. See United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006). By
the very nature of these offenses, the mere existence of a scheme plus the use of the
mail or an interstate wire to further the fraudulent enterprise completes the
offense. United States v. Blitz, 151 F.3d 1002, 1011 (9th Cir. 1998); see United
States v. Carrington, 96 F.3d 1, 7-8 (1st Cir. 1996). Here Calvin devised a scheme to
swindle unwitting victims out of their money and used the mail, internet,
telephones, and e-mail to further her scheme. Moreover, Calvin pleaded guilty to
one count each of mail fraud and wire fraud, and a “defendant’s plea of guilty to the
substantive, completed offense of fraud is powerful evidence that [she] merited no
reduction for the allegedly uncompleted nature of [her] scheme.” United States v.
Strozier, 981 F.2d 281, 285 (7th Cir. 1992); see Torres, 209 F.3d at 312.
The fact that Calvin did not succeed in achieving the full amount of loss she
intended does not transform her scheme into a “partially completed” offense for
purposes of § 2X1.1. See Strozier, 981 F.3d at 285 (explaining that a fraud is not
incomplete merely because circumstances prevented the defendant from inflicting
greater loss upon the victim); United States v. Lorefice, 192 F.3d 647, 655-56 (7th
Cir. 1999); United States v. Coffman, 94 F.3d 330, 337 (7th Cir. 1996) (explaining
that even if the fraud inflicted no actual loss it is nevertheless a completed offense);
see also DeSantis, 237 F.3d at 612-13 (explaining that “the relevant substantive
No. 05-2146 Page 5
offense for purposes of evaluating § 2X1.1(b)(1) attempts is the fraud itself, not the
fraudulent deprivation of a particular sum”); Blitz, 151 F.3d at 1011 (explaining
that for mail fraud and wire fraud “with or without the money, the offense was
complete”); Carrington, 96 F.3d at 7. Although Calvin cites several cases in support
of her contention that an offense is partially complete for purposes of § 2X1.1 when
a defendant has collected only a portion of the proceeds anticipated by the criminal
conduct, those cases more accurately demonstrate instances where a defendant has
successfully completed only a portion of the intended substantive offense. See, e.g.,
United States v. Lamb, 207 F.3d 1006 (7th Cir. 2000) (explaining that § 2X1.1
applied where inept bank burglar intended to steal entire $215,000 in bank’s vault
but brought no tools that would allow him to breach vault); United States v. Sung,
51 F.3d 92 (7th Cir. 1995) (holding that § 2X1.1 applied where the defendant
obtained some but not all materials necessary to manufacture and package
intended quantity of counterfeit goods). But mail fraud and wire fraud are far
different than burglary and counterfeiting. On the occasions that this court has
considered the application of § 2X1.1 to mail fraud and wire fraud, we have
determined that § 2X1.1 is inapplicable because of the unique nature of the
substantive offense: the crime is complete the instant the mail or wires are used to
advance a fraudulent scheme. See Strozier, 981 F.2d at 285-86; Lorefice, 192 F.3d
at 655-56; Coffman, 94 F.3d at 333-34.2
AFFIRMED.
2
Other circuits concur. See, e.g., Blitz, 151 F.3d at 1011 (explaining that mail
fraud and wire fraud are “unique” because “the mere existence of the scheme plus
the use of the mail, or an interstate wire, to further the scheme” completes the
crime); Carrington, 96 F.3d at 7-8 (explaining that, unlike crimes that are complete
only after a defendant’s object has been attained, wire fraud is complete once a
defendant “devise[s] a scheme to defraud and then transmit[s] a wire
communication for the purposes of executing the scheme”).