United States v. Sedrick Bagby , 550 F. App'x 364 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50465
Plaintiff - Appellee, D.C. No. 2:11-cr-01067-DSF-2
v.
MEMORANDUM*
SEDRICK BAGBY, AKA Charles Warrol,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted December 4, 2013**
Pasadena, California
Before: WATFORD and HURWITZ, Circuit Judges, and SMITH, Chief District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
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Appellant Sedrick Bagby appeals the 90-month sentence imposed by the
district court following his guilty plea to conspiracy to commit bank fraud.
Appellant contends that the district court erred by: (1) applying a two-level
sentencing enhancement under § 2B1.1(b)(11)(C) of the United States Sentencing
Guidelines Manual (“USSG”) for use of “means of identification” and (2) applying
a two-level sentencing enhancement under USSG § 2B1.1(b)(10)(C) for use of
sophisticated means, or, in the alternative, under § 2B1.1(b)(10)(B) for a finding
that a substantial part of Appellant’s fraudulent scheme was committed outside of
the United States. Appellant also contends that the district court erred by failing to
give adequate consideration to all of the factors set forth in 18 U.S.C. § 3553(a).
We affirm.
We review the district court’s interpretation of the sentencing guidelines de
novo, the district court’s application of the guidelines to the facts of the case for
abuse of discretion, and the district court’s factual findings for clear error. United
States v. Lambert, 498 F.3d 963, 966 (9th Cir. 2007).
1. Means of Identification
“If the offense involved . . . the unauthorized transfer or use of any means of
identification unlawfully to produce or obtain any other means of identification . . .
increase by 2 levels.” USSG § 2B1.1(b)(11) (2013). Application Note 10(C)
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provides the following example of conduct to which this enhancement would
apply:
“A defendant obtains an individual’s name and address from a source
(e.g., from a driver’s license in a stolen wallet) and applies for,
obtains, and subsequently uses a credit card in that individual’s name.
In this example, the credit card is the other means of identification
that has been obtained unlawfully.”
Id. § 2B1.1 cmt. n.10(C)(ii)(II). We find that the district court properly applied the
enhancement, and note that the circumstances presented in this case nearly mirror
those set forth in the above-cited example. In these circumstances, the district
court properly applied a two-level enhancement under § 2B1.1(b)(11)(C). See
United States v. Melendrez, 389 F.3d 829 (9th Cir. 2004) (finding the enhancement
applicable where the defendant had used stolen social security numbers to create
false forms of identification).
2. Sophisticated Means or Substantial Part Committed Outside the United States
“If . . . (B) a substantial part of a fraudulent scheme was committed from
outside the United States; or (C) the offense otherwise involved sophisticated
means, increase by 2 levels.” USSG § 2B1.1(b)(10). Appellant argues that the
enhancement is not applicable under either provision. We find that the district
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court properly applied the enhancement under the “substantial part” provision, and
therefore decline to consider whether the enhancement would have applied on
“sophisticated means” grounds.
The district court reasonably concluded that “substantial” has numerous
meanings, including “important, material, of considerable importance, and ample.”
The district court properly found that a substantial part of the scheme was
committed from outside the United States based on the fact that Appellant and his
co-conspirators relayed personal identifying information of their victims to an
individual in the United Kingdom, who then phoned Chase Bank in order to
request the replacement cards. The district court was also presented with evidence
of a wire transfer between the United States and the UK.
3. Assessment of § 3553(a) Factors
We review the sentence imposed by the district court for reasonableness.
United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006). District courts are to
provide specific reasons for their sentencing decisions, such that the record on
appeal demonstrates explicit or implicit consideration of the sentencing factors set
forth in 18 U.S.C. § 3553(a). United States v. Mohamed, 459 F.3d 979, 985 (9th
Cir. 2006).
Page 5 of 5
The record indicates that the district court thoughtfully assessed the various
§ 3553(a) factors and was cognizant of the circumstances particular to this offender
and this offense, including Appellant’s difficult childhood upbringing, and his
multiple prior identity theft convictions. We likewise cannot credit Appellant’s
argument that his sentence failed to consider the sentence imposed on his co-
defendant, Doren Harold Ward, as Mr. Ward was sentenced a full month after
Appellant.
AFFIRMED.