U.S. v. Morris

Decision Date13 November 2003
Docket NumberDocket No. 02-1657.
Citation350 F.3d 32
PartiesUNITED STATES of America, Appellee, v. Patricia MORRIS, Defendant-Appellant,
CourtU.S. Court of Appeals — Second Circuit

J. Scott Porter, Seneca Falls, NY, for Appellant.

Krishna R. Patel, Assistant United States Attorney (Jeffrey R. Meyer, Assistant United States Attorney, of counsel; Kevin J. O'Connor, United States Attorney, on the brief), Office of the United States Attorney for the District of Connecticut, New Haven, CT, for Appellee.

Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

Defendant-appellant Patricia Morris ("defendant") appeals from a judgment of conviction entered on October 18, 2002 by the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge), following her guilty plea to one count of access device fraud, in violation of 18 U.S.C. § 1029(a)(2), and one count of identity theft, in violation of 18 U.S.C. § 1028(a)(7). Between 1997 and 1999, defendant obtained personal information from three women while caring for them as a home health aide, and used the information to open unauthorized credit card accounts, on which she made purchases. The three women were in their eighties and nineties, and two of them suffered from Alzheimer's disease or dementia. Defendant also opened an unauthorized credit card account using the personal information of a fourth woman, who had hired defendant to assist her in opening a nursing home. Defendant had a prior conviction: In 1992, she pleaded guilty in Florida to two counts of grand theft, resulting from an incident in which she and an accomplice used threats and force in an attempt to misappropriate $20,000 in savings bonds from two elderly and mentally disabled women, a mother and a daughter.

Defendant appeals her sentence of 46 months' imprisonment, arguing that (1) the District Court improperly "double counted" the 1992 grand theft conviction by making upward departures pursuant to both U.S.S.G. §§ 3A1.11 and 4A1.3;2 (2) the Court failed to make "individualized findings" supporting its upward departure under section 3A1.1; (3) defendant's 1992 conviction was an insufficient basis for an upward departure under section 4A1.3; (4) the District Court incorrectly imposed an abuse-of-trust enhancement pursuant to section 3B1.3;3 and (5) defendant did not receive effective assistance of counsel at sentencing.

I. Background

The District Court determined that the applicable guidelines range was imprisonment for 37 to 46 months, based on an offense level of 20 and a criminal history of Category II. The 20-point offense level included a 2-point enhancement pursuant to section 3B1.3 for abuse of a position of trust, as well as a 2-point upward departure to account for defendant's past exploitation of vulnerable victims, as authorized under Application Note 4 to section 3A1.1. The District Court placed defendant within Criminal History Category II based on defendant's 1992 conviction, which resulted in a sentence of two years' probation. While this conviction standing alone would place defendant within Criminal History Category I, the District Court made an upward criminal history category departure, as authorized by section 4A1.3, on the ground that Criminal History Category I underrepresented the seriousness of the offense and defendant's risk of recidivism. The District Court sentenced defendant principally to imprisonment for 46 months, at the upper limit of the applicable range.

II. Discussion

Because defendant did not raise her claims of error before the District Court, we review for plain error. Under plain error review, "this Court must determine whether there was: 1) an error; 2) that was plain; 3) that affected [defendant's] `substantial rights;' and 4) that `seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.'" United States v. Henry, 325 F.3d 93, 100 (2d Cir.), cert. denied sub nom. Panek v. United States, ___ U.S. ___, 124 S.Ct. 203, 157 L.Ed.2d 194 (2003) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). It follows, of course, that if no error is committed in the first place, a court need not undertake an analysis of the other factors constituting plain error. See United States v. Quintieri, 306 F.3d 1217, 1234 (2d Cir.2002), cert. denied sub nom. Donato v. United States, 531 U.S. 899, 121 S.Ct. 233, 148 L.Ed.2d 167 (2000).

A. Double Counting

Defendant first argues that the District Court erred in making upward departures pursuant to both section 4A1.3 and Application Note 4 to section 3A1.1, impermissibly double counting her 1992 conviction for grand theft.

Application Note 4 to section 3A1.1 permits a court to make an upward departure where the defendant "knew or should have known that a victim of the offense was a vulnerable victim," and where, additionally, "the defendant's criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim." The District Court added two points to defendant's offense level, based in part on a finding that the offense for which she was convicted in Florida in 1992 involved the selection of a vulnerable victim.

Section 4A1.3 provides in relevant part that, "[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range." The District Court made an upward departure to Criminal History Category II, upon finding that Category I did not adequately reflect the seriousness of the offense or the risk of recidivism.

Defendant does not argue that it is impermissible to count the same conduct — the facts underlying her 1992 conviction — twice in computing her sentence. Rather, she argues that the District Court's use of both section 3A1.1 and section 4A1.3 was impermissible because departure under each section depended not just on the same act but also on the same rationale — punishment for targeting vulnerable victims. On this basis, defendant attempts to distinguish her case from United States v. Campbell, 967 F.2d 20 (2d Cir.1992), in which we stated that "double counting is legitimate where a single act is relevant to two dimensions of the Guidelines analysis." Id. at 25; see also id. at 24 ("[I]t may be appropriate to count a single factor both in assessing the defendant's criminal history category and in calculating the applicable offense level since the two measure different things.").

We have recently stated that, "[a]s long as the court does not augment a sentence `in contravention of the applicable statute or Sentencing Guideline,' no forbidden double counting occurs." United States v. Meskini, 319 F.3d 88, 91 (2d Cir.), cert. denied sub nom. Haouari v. United States, ___ U.S. ___, 123 S.Ct. 2240, 155 L.Ed.2d 1125 (2003) (quoting United States v. Pedragh, 225 F.3d 240, 243 (2d Cir.2000)). Defendant has offered nothing in the Sentencing Guidelines or relevant statutes reflecting an intent to preclude the double counting the District Court employed, and has therefore not shown any impermissible double counting. See United States v. Aska, 314 F.3d 75, 78-79 (2d Cir.2002) (endorsing the view held by other circuits that "the failure of the Sentencing Commission to express an exception — where it has explicitly done so in other contexts — indicates that no exception should be implied" to prohibit double counting).

Moreover, the District Court's upward departures pursuant to sections 3A1.1 and 4A1.3 focused on distinct aspects of defendant's prior criminal conduct, and, contrary to defendant's assertion, were based on different rationales for sentencing. In upwardly departing under section 3A1.1, the District Court focused on defendant's past abuse of vulnerable victims. See Campbell, 967 F.2d at 24 ("The offense level represents a judgment as to the wrongfulness of the particular act."). In departing under section 4A1.3, the Court stated not only that the 1992 conviction was based on "an offense of both actual and threatened violence" — an element of seriousness not taken into account by the vulnerable victim departure — but also found that, in light of defendant's pattern of exploitation, Criminal History Category I "understate[d] the likelihood that the defendant would be a recidivist." See id. ("The criminal history category principally estimates the likelihood of recidivism."). We therefore cannot say that the District Court erred in making upward departures pursuant to both section 3A1.1 and section 4A1.3.

B. Sufficiency of Basis for Upward Departure Under Section 3A1.1

Defendant further argues that the District Court committed plain error by failing to make "individualized findings" in support of its vulnerable victim departure under section 3A1.1. Defendant quotes United States v. McCall, 174 F.3d 47, 50 (2d Cir.1998), where we stated that "broad generalizations about victims based upon their membership in a class are disfavored where a very substantial portion of the class is not in fact particularly vulnerable to the crime in question." Here, the District Court's determination that defendant's Florida victims were vulnerable was not based merely on their age. The complaint affidavit reveals that both victims were "not fully competent," that one of the victims "had no idea what was happening," and that defendant and her accomplice had been to the victims' residence on a separate occasion to have them sign over checks. The District Court did not err, much less plainly err, in finding that defendant had selected vulnerable victims in her 1992 offense.

C. Sufficiency of Basis for Upward Departure Under Section 4A1.3

Defendant also...

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