United States v. Beverly Edmondson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10271 ELEVENTH CIRCUIT
OCTOBER 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00352-CR-LSC-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BEVERLY EDMONDSON,
a.k.a. Beverly Edward,
a.k.a. Beverly Borner,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 21, 2009)
Before CARNES, WILSON and FAY, Circuit Judges.
PER CURIAM:
Beverly Edmondson appeals her 22-month sentence, the result of an upward
variance, after pleading guilty to credit card fraud and conspiracy to commit credit
card fraud. On appeal, she challenges the loss calculation forming the basis of the
district court’s eight-level enhancement under U.S.S.G. § 2B1.1(b)(1)(E), and she
argues that her sentence was unreasonable. For the reasons set forth below, we
affirm.
I.
A federal grand jury returned an indictment, charging Edmondson and
Winzell Bryant with conspiracy to commit credit card fraud from January 2005 to
April 2006, in violation of 18 U.S.C. §§ 1029(a)(1), (3)-(4), and 371; possession of
access device-making equipment with intent to defraud, in violation of 18 U.S.C.
§§ 1029(a)(4) and 2; and production or use of one or more counterfeit access
devices with intent to defraud, in violation of 18 U.S.C. §§ 1029(a)(1) and 2.
Edmondson pled guilty to the above charges.
The probation officer prepared a pre-sentence investigation report (“PSI”)
and set out the offense conduct as follows. On April 30, 2006, an Alabama patrol
officer pulled over a Chevrolet Tahoe driven by Bryant and occupied by
Edmondson and another man. The officers arrested Bryant at the scene after
determining that the vehicle was stolen from Nevada. Recovered from the vehicle
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was, inter alia, a laptop computer, an electronic credit card reader/skimmer, and
two compact discs, one of which was labeled “. . . Mag Stripe Reading Writing
Software.” The computer had been used only for storing and encoding access
device numbers and software, and it contained 14 credit card account numbers, all
of which appeared to have been skimmed. Also found in the vehicle was a receipt
from an Alabama Wal-Mart in the amount of $151.51. A video surveillance tape
from that store revealed that Edmondson had made this purchase on a credit card
earlier that day.
In calculating Edmondson’s guideline range, the probation officer applied,
inter alia, an 8-level enhancement under U.S.S.G. § 2B1.1(b)(1)(E) because the
intended loss was more than $70,000, but less than $120,000. Specifically, the
probation officer determined that the total intended loss was $119,740, because this
figure “represent[ed] the total of the credit limits of the skimmed credit cards
involved in the offense for those accounts the limits could be obtained and $500
for those accounts the limits could not be obtained.” See U.S.S.G. § 2B1.1,
comment. (n.3(F)(i)) (providing that, in cases involving stolen or counterfeit credit
cards, loss “shall not be less than $500 per access device”). Edmondson’s total
offense level was13, which, when combined with her criminal history category of
I, produced an applicable guideline range of 12 to 18 months’ imprisonment.
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Edmondson objected, inter alia, to the probation officer’s loss calculation.
The government responded that, according to this Court’s decision in United States
v. Nosrati-Shamloo, 255 F.3d 1290 (11th Cir. 2001), the district court was
permitted to base its loss calculation on the credit limits of the skimmed credit
cards. Edmondson replied that Nosrati-Shamloo was distinguishable because,
unlike the defendant in that case, she had not been convicted of similar offenses in
the past and therefore did not have a sophisticated knowledge of the credit card
industry.
At the sentencing hearing, the court began by stating that it was required to
impose a sentence that was sufficient but not greater than necessary to achieve the
statutory purposes of sentencing. In this respect, it stated that, although advisory, it
was also required to calculate and consider EDMONDSON’s applicable guideline
range.
Despite stipulating that $119,740 represented the total credit limit of the
skimmed credit cards, defense counsel reiterated his objection to the probation
officer’s loss calculation. In response, the government called Special Agent Alton
Story of the United States Secret Service. In accounting for Edmondson’s small
purchase at the Alabama Wal-Mart, Special Agent Story explained that “large
purchases will tend to raise more eyebrows and be scrutinized more so than a
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smaller purchase.” Story further pointed out that an individual will not likely
know the credit limit of the skimmed card, and using a credit card beyond its credit
limit will result in more scrutiny by the retailer. Special Agent Story also testified
that, during the course of his investigation, he received an incident report from the
Las Vegas Police Department providing that Edmondson had cashed two
counterfeit checks in December 2004. In addition, Special Agent Story obtained
an internal investigative report from Citigroup Financial Services providing that
Edmondson was a suspect in an ongoing credit card skimming case involving a Las
Vegas restaurant. Finally, Story testified that it was generally “very tough” to
uncover credit card skimming operations because they are covert, and that credit
card fraud results in estimated losses of over one billion dollars each year.
On cross examination, Special Agent Story acknowledged that, over the last
ten years, Bryant had been investigated for credit card fraud in several different
states, that he was a “career accomplished credit card skimmer,” and that his
nickname, “Diamond,” was the password to the laptop computer found in the
Tahoe. In this regard, both the government and the court acknowledged that
Bryant was the “master mind” of the operation and had been implicated in several
other credit card fraud cases as well. Special Agent Story also clarified that,
although Edmondson used fraudulent credit cards in both the instant case and the
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Las Vegas case, there was no evidence that she skimmed credit cards. On this
point, however, Story emphasized that Edmondson was present in a stolen vehicle
that was “a mobile credit card skimming plant,” and he clarified on redirect
examination that it was the use of a skimmed credit card, rather than the act of
skimming, that caused the financial harm.
In overruling Edmondson’s loss objection, the court quoted from a portion
of Nosrati-Shamloo permitting loss calculations based on credit limits. The court
further explained:
. . . [T]he defendant could have, has offered no evidence that they
backed out, they were caught with the credit card access information,
credit card numbers, devices, et cetera, gained access to the credit line
and the theory is that they will continue to use it until they couldn’t
use it any more, thus reaching the credit limit. And that it’s not very
persuasive for a defendant to come in here and say I should only be
charged with what I actually used when I really didn’t even know
what the credit limit was. It doesn’t really make sense because it is
apparent to me that but for being caught, this conspiracy of
individuals, this group of individuals who had an operation going on
where they were skimming credit card numbers, utilizing them, it has
many sources that make the conspiracy happen. It has the people that
skim, the people that input, the people that encode it onto credit cards,
the people that take those credit cards and get money off them, et
cetera, all being together to make the conspiracy work. . . .
. . . [T]he circumstantial evidence is clear that she was a fully active
participant in the conspiracy, that she was, because she was riding
around in the plant, if you will, that had access to the computer[,] that
she was more than just somebody who would be given a credit card
and said go in and cash, do this and then we’ll give you 20 dollars
back. She actually was transported from Las Vegas apparently down
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here with this other guy, Diamond . . . It’s not just like they came
down here and hired somebody on the street to go use a credit card to
get 20 dollars back . . . . Circumstantial evidence makes it clear that
she was far more important to the conspiracy, involved in the
conspiracy, an integral part of it.
After dispensing with Edmondson’s remaining objections, the court adopted the
guideline calculations in the PSI.
The court then invited the parties to address the appropriate sentence to be
imposed. Defense counsel called Edmondson’s brother, who stated that
Edmondson had obtained a job since the time of her arrest, and he speculated that
the absence of any family structure or support contributed to her criminal activity.
Defense counsel then requested the court to vary downward to a sentence of
probation, emphasizing that: Bryant preyed on Edmondson when she was at her
most vulnerable, specifically, following her separation from her husband, upon
whom she had been entirely dependent; Edmondson lacked a criminal history; and,
since being arrested two years earlier, Edmondson had obtained a legitimate job
and was living independently for the first time. After Edmondson briefly
apologized to the court, the government responded by requesting the court to
impose an upward variance to 24 months’ imprisonment, emphasizing that,
although Edmondson was less culpable than Bryant, she was involved in cashing
counterfeit checks and credit card skimming in Las Vegas, thus demonstrating a
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pattern of activity, and that there was a strong need for general deterrence, as credit
card skimmers are rational actors, remain difficult to detect, and cause massive
financial harm.
After the court reviewed the guideline calculations and noted that Bryant had
previously been sentenced to 36 months’ imprisonment, the court stated that it had
considered all of the factors in 18 U.S.C. § 3553(a), specifically mentioning the
need for its sentence to “afford adequate deterrence to criminal conduct, protect the
public from further crimes of this defendant, to reflect the seriousness of the
offense, and to promote respect for the law and provide just punishment for the
offense.” The court then pronounced its sentence as follows:
The defendant – and, ma’am, I understand that you are standing
before me telling me how you’ve changed and et cetera and how you
are sorry for what you did, and I trust that you’re absolutely correct. I
trust that you are really sorry and that you are not going to do it again.
I hope you don’t. But I am also bothered by the fact this [went] on for
a while, that you chose stealing, you chose traveling long distances to
steal, not just stealing in a grocery store or shoplifting to get food.
You sat out in a conspiracy to actively go cross country stealing. And
that is not the kind of thing I think that somebody that they got
divorced and they’re either down on their luck all that kind of stuff,
there is a lot of folks that happens to and they don’t go and start
stealing. It’s not an excuse. I think that you were more involved. It
shows the kind of conduct is just not, in my opinion, an 18 month
sentence. I don’t think it’s a 24 month sentence, but I do think it’s a
22 month sentence. . . .
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The sentence, I think, is appropriate; it is not more than necessary to
accomplish the sentencing goals when I consider the factors that I
have delineated.
This appeal followed.
II.
“[A] sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006). “[T]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in light of both th[e] record and the factors in
section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The
factors in 18 U.S.C. § 3553(a) are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. at 786 (citing 18 U.S.C. § 3553(a))
A district court commits procedural error if it, inter alia, improperly
calculates the defendant’s applicable guideline range or “fail[s] to adequately
explain the chosen sentence – including an explanation for any deviation from the
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Guidelines range.” Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 586, 597, 169
L. Ed. 2d 445 (2007). On the latter point, the district court “must adequately explain
the chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.” Id.
“Assuming that the district court’s sentencing decision is procedurally
sound, the appellate court should then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.” Id. In conducing
this review, we “take into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Id. However, we “must give
due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Id. Accordingly, “we will only reverse a
procedurally proper sentence if we are left with the definite and firm conviction
that the district court committed a clear error of judgment in weighing the
§ 3553(a) factors . . . .” United States v. McBride, 511 F.3d 1293, 1297-98 (11th
Cir. 2007) (quotation omitted).
A. Loss Calculation
“A district court’s determination regarding the amount of loss for sentencing
purposes is reviewed for clear error.” Nosrati-Shamloo, 255 F.3d at 1291. Under
the Guidelines, “loss is the greater of actual loss or intended loss.” U.S.S.G.
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§ 2B1.1, comment. (n.3(A)). “‘Intended loss’ (I) means the pecuniary harm that
was intended to result from the offense; and (II) includes intended pecuniary harm
that would have been impossible or unlikely to occur . . . .” Id.,
comment. (n.3(A)(ii)). “The court need only make a reasonable estimate of the
loss. The sentencing judge is in a unique position to assess the evidence and
estimate the loss based upon that evidence. For this reason, the court’s loss
determination is entitled to appropriate deference.” Id., comment. (n.3(C)).
In Nosrati-Shamloo, the defendant was convicted of stealing mail after
opening credit card accounts in other peoples’ names and removing the
corresponding, incoming credit cards from their mailboxes. See 255 F.3d
at 1290-91. On appeal, we addressed whether the district court clearly erred in
calculating intended loss based on the total credit limits of the credit cards “when
the actual charges made against the cards were less, the evidence was
circumstantial and unclear about whether defendant knew the actual credit limits
on the cards, and when no evidence shows that Defendant’s intent was something
other than to make use of the full line of credit.” Id. at 1291. We answered that
question in the negative, stating:
Today, we decide that once a defendant has gained access to a certain
credit line by fraudulently applying for credit cards, a district court
does not err in determining the amount of the intended loss as the
total line of credit to which Defendant could have access, especially
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when Defendant presents no evidence that he did not intend to utilize
all of the credit available on the cards.
Id. Because the defendant in that case “presented no evidence that tended to show
that he did not intend to use all of the credit available on the cards,” we concluded
that the district court did not clearly err in its intended loss calculation. Id. at 1292.
In this case, the district court relied on Nosrati-Shamloo and calculated
Edmondson’s intended loss based on the total credit limits of the skimmed credit
cards. On appeal, Edmondson does not explicitly attempt to distinguish
Nosrati-Shamloo,1 but rather emphasizes that neither she nor Bryant likely knew
what the credit limits were. While Special Agent Story’s testimony at sentencing
supports this fact, the evidence in Nosrati-Shamloo was similarly unclear as to
whether the defendant knew the applicable credit limits. 255 F.3d at 1291 (noting
that “the evidence was circumstantial and unclear about whether defendant knew
the actual credit limit on the cards”). Edmondson also emphasizes the fact that she
charged only $151.51 on one skimmed credit card, but that fact also does not
distinguish Nosrati-Shamloo, as “the actual charges made against the cards were
less” than the credit limits in that case well. Id.
1
In this respect, Edmondson has abandoned her argument, raised below, that
Nosrati-Shamloo is distinguishable on the ground that, unlike the defendant in that case, she was a
mere “courier” or “runner.” See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.
1998) (stating that arguments not raised on appeal are abandoned).
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Under Nosrati-Shamloo, it was Edmondson’s burden to present some other
type of evidence “that tended to show that [s]he did not intend to use all of the
credit available on the cards.” Id. at 1292; see, e.g., United States v. Sowels, 998
F.2d 249, 251 (5th Cir. 1993) (“Had Sowels completed or withdrawn from his
offense before being apprehended, he might have been able to rebut the evidence
that he intended to charge the cards to their limit. Given that authorities cut short
his plans, however, the district court did not clearly err.”). Because she failed to
present any such evidence, the district court did not clearly err in its intended loss
calculation.
B. Miscellaneous Reasonableness Arguments
Edmondson argues that the district court’s sentence was unreasonable for
several additional reasons. First, she argues that the district court did not
adequately explain the reasons for its upward variance, but the sentencing
transcript indicates that the district court imposed an upward variance based on the
nature of the conspiracy and Edmondson’s participation therein. Specifically, the
court emphasized that Edmondson was a “fully active” and “integral” part of the
conspiracy, as she traveled with Bryant from Nevada to Alabama in a “mobile
[credit card skimming] plant” on a “cross country stealing” operation.
Furthermore, and despite crediting the sincerity of Edmondson’s apology, the
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district court found that her primary argument in mitigation – namely, that she was
in a vulnerable position after separating from her husband – did not excuse such
behavior. Thus, the district court adequately explained the reasons for its variance,
and its explanation, based on the particulars of Edmondson’s case, belies her
contention that the court generalized the sentencing process.
Edmondson next challenges the court’s reliance on general deterrence on the
ground that the best way to deter credit card fraud is by changing the way the
system is regulated. However, the district court was not charged with overhauling
the regulation of the credit card industry, but was rather required to consider the
§ 3553(a) factors, including general deterrence, and fashion a sentence that was
appropriate under the current state of affairs. See 18 U.S.C. § 3553(a)(2)(B)
(instructing the court to consider “the need for the sentence imposed to afford
adequate deterrence to criminal conduct”).
Edmondson next emphasizes that Bryant was the “master mind” of the
conspiracy and a “career accomplished credit card skimmer,” yet only received a
36-month sentence. However, Edmondson fails to recognize that Bryant’s
36-month sentence was substantially higher than her own 22-month sentence, thus
reflecting his greater degree of culpability and criminal history.
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Finally, Edmondson cites four cases in an attempt to show an unwarranted
sentencing disparity. See 18 U.S.C. § 3553(a)(6) (instructing the district court to
consider “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct”). The only
binding case that she cites is our decision in United States v. Paz, 405 F.3d 946
(11th Cir. 2005), in which we vacated the district court’s ten-month sentence and
remanded for re-sentencing in light of Booker.2 Id. at 947-49. However,
Edmondson’s reliance on Paz is unavailing because the defendant in that case,
unlike Edmondson, pled guilty only to a single violation of § 1029(a)(1), was
responsible for no more than $70,000 in losses, and had no apparent, prior
involvement in fraudulent activity. 405 F.3d at 947-48. The three other decisions
that Edmondson cites are all similarly distinguishable.
III.
In light of the foregoing, Edmondson has not met her burden to show that
the district court’s sentence was unreasonable in light of the record and the
§ 3553(a) factors. Accordingly, we affirm her sentence.
AFFIRMED.
2
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
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