United States v. John Doe

Case: 12-14817 Date Filed: 09/06/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14817
Non-Argument Calendar
________________________
D.C. Docket No. 3:11-cr-00262-RBD-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DOE,
a.k.a. Leroy Mayers,
a.k.a. Leroy Meyers,
a.k.a. L.T.H.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 6, 2013)
Before CARNES, Chief Judge, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Case: 12-14817 Date Filed: 09/06/2013 Page: 2 of 7
John Doe appeals his sentence of 120 months’ imprisonment after a jury
found him guilty of six counts of using a false social security number, in violation
of 42 U.S.C. § 408(a)(7)(B); seven counts of aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1); and one count of making a false statement on a
passport application, in violation of 18 U.S.C. § 1542. Doe assumed Lanail
Hudson’s identity for over 20 years, obtained multiple identification documents in
Hudson’s name in 2 different states, and gained unescorted access to naval ships
using Hudson’s name.
We review the reasonableness of a sentence using a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591
(2007). The party challenging the sentence has the burden of demonstrating that
the sentence is unreasonable in light of the record and factors outlined in § 3553(a).
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
I.
Doe first argues that the district court clearly erred in applying a
sophisticated means enhancement. We review the district court’s finding that the
defendant used sophisticated means for clear error. United States v. Ghertler, 605
F.3d 1256, 1267 (11th Cir. 2010). Offenses that involved sophisticated means are
subject to a 2-level enhancement or an increase to level 12, whichever results in the
2
Case: 12-14817 Date Filed: 09/06/2013 Page: 3 of 7
higher level. U.S.S.G. § 2B1.1(b)(10)(C). 1 “Sophisticated means” is defined as
“especially complex or especially intricate offense conduct.” U.S.S.G. § 2B1.1
cmt. n.8(B). Each of a defendant’s actions need not be sophisticated for the
enhancement to be warranted as long as the totality of the scheme is sophisticated.
Ghertler, 605 F.3d at 1267. Conduct that is repetitive and coordinated may be
sophisticated. United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir. 2011).
Although each of Doe’s individual activities may not have been
sophisticated, the totality of his scheme was. He repeatedly used identifying
documents that he had wrongfully gotten from one agency to get identification
documents another agency, including a naval identification card that allowed him
to go unescorted on U.S. navy ships. He was able to maintain this fraud for over
two decades and in two different states. The district court did not clearly err in
finding that Doe’s offenses involved sophisticated means.
II.
Doe next argues that the district court procedurally erred in imposing four
consecutive sentences for his aggravated identity theft convictions under 18 U.S.C.
§ 1028A because it failed to consider the factors enumerated in U.S.S.G. § 5G1.2.
1
Because Doe’s base offense level was 6, he received a 6-level enhancement to put him
at a level of 12.
3
Case: 12-14817 Date Filed: 09/06/2013 Page: 4 of 7
A defendant convicted under 18 U.S.C. § 1028A is required to serve a term
of two years’ imprisonment, which must run consecutively to any term of
imprisonment imposed for any other offense. 18 U.S.C. § 1028A(a)(1), (b)(2).
Where a defendant has multiple convictions under § 1028A, the district court has
the discretion to decide whether the terms of imprisonment for the convictions
should run concurrently to each other, but such discretion must be exercised in
accordance with the applicable guidelines and policy statements of the Sentencing
Commission. 18 U.S.C. § 1028A(b)(4). The court should consult U.S.S.G. §
5G1.2 for guidance in determining whether to impose concurrent or consecutive
sentences. U.S.S.G. § 2B1.6 cmt. n.1(B). The commentary to § 5G1.2 states that
the court should consider (i) the nature and seriousness of the underlying offenses,
(ii) whether the offenses are groupable, and (iii) whether the purposes of
sentencing set forth in 18 U.S.C. § 3553(a)(2) are better achieved by imposing a
concurrent or consecutive sentence. U.S.S.G. § 5G1.2 cmt. n.2(B).
Doe’s argument that the district court did not consider the factors outlined in
§ 5G1.2 is unpersuasive. Although the district court did not explicitly refer to
§ 5G1.2 before imposing the consecutive sentences at Doe’s sentencing hearing, it
considered § 5G1.2 factors, discussing the nature and seriousness of Doe’s offense
and considering the factors listed in 18 U.S.C. 3553(a)(2). The court also noted in
its written sentencing order that it had considered the § 5G1.2 factors. The district
4
Case: 12-14817 Date Filed: 09/06/2013 Page: 5 of 7
court did not abuse its discretion by imposing four consecutive sentences for Doe’s
aggravated identity theft convictions. See United States v. Bonilla, 579 F.3d 1233,
1244–45 (11th Cir. 2009) (affirming imposition of consecutive sentences for
§ 1028A convictions when the court “went through all of the 5G1.2 factors” and
“repeatedly expressed its concern over the seriousness of the offenses and
discussed and evaluated the 3553(a) factors.”).
III.
Finally, Doe argues that his 120-month total sentence is substantively
unreasonable because the district court improperly weighed the 18 U.S.C.
§ 3553(a) factors by overemphasizing his ability to gain access to a secure port
facility and naval base using his victim’s identity.
In reviewing a sentence for substantive reasonableness, we examine the
totality of the circumstances and ask “whether the statutory factors in § 3553(a)
support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008). The § 3553(a) factors are: the nature and circumstances of the
offense and history and characteristics of the defendant; the need for the sentence
to reflect the seriousness of the offense; the need to promote respect for the law
and afford adequate deterrence; the need to protect the public; the need to provide
the defendant with training, education and medical care; the kinds of sentences
available; the Sentencing Guidelines range for the offense; the Sentencing
5
Case: 12-14817 Date Filed: 09/06/2013 Page: 6 of 7
Commission policy statements; the need to avoid unwarranted sentencing
disparities; and the need to provide victims with restitution. 18 U.S.C. § 3553(a).
“The weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743
(11th Cir. 2007); see also United States v. Kapordelis, 569 F.3d 1291, 1316-17
(11th Cir. 2009) (“Attaching ‘great weight’ to a single § 3553(a) factor does not
automatically make a sentence unreasonable, but, when viewed under the totality
of the circumstances, an unjustified reliance on a single factor may result in an
unreasonable sentence if the court relied on impermissible factors or ignored other
relevant § 3553(a) factors.”). We will vacate a sentence only if we have the
“definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010).
As the district court noted, Doe’s offense was quite serious. He used
Hudson’s identity for over 20 years and used it to obtain driver’s licenses,
passports, social security cards, and an identification card for a U.S. naval base.
The district court also emphasized the need to promote respect for the law and for
deterrence. It noted the damage suffered by the true Lanail Hudson and the high
likelihood of Doe to recidivate, particularly since Doe refused to tell the court his
6
Case: 12-14817 Date Filed: 09/06/2013 Page: 7 of 7
true identity. Although the guidelines range for Doe’s use of a false security
number and false passport application was 27–33 months, the court was required to
add 24 months for each count of identity theft. The court, exercising its discretion,
required that four of those sentences run consecutively. As discussed above, that
was not an abuse of discretion. Doe’s sentence is substantively reasonable in light
of record and § 3553(a) factors.
AFFIRMED.
7