U.S. v. Williams, 03-5107.

• Citation: 355 F.3d 893
• Decision Date: 23 December 2003
• Docket Number: No. 03-5107.,No. 03-5189.,No. 03-5192.,03-5107.,03-5189.,03-5192.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michelle WILLIAMS (03-5107); Tanisha Jones Ward (03-5189); Robert Kelly, III (03-5192), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

355 F.3d 893

UNITED STATES of America, Plaintiff-Appellee, v. Michelle WILLIAMS (03-5107); Tanisha Jones Ward (03-5189); Robert Kelly, III (03-5192), Defendants-Appellants.

No. 03-5107.

No. 03-5189.

No. 03-5192.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted October 21, 2003.

Decided and Filed December 23, 2003.

COPYRIGHT MATERIAL OMITTED

Tracy L. Berry, Assistant United States Attorney (argued and briefed), Memphis, TN, for Appellee.

Bruce I. Griffey (argued and briefed), Office of Bruce Irwin Griffey, Memphis, TN, for Robert Kelly.

Mary C. Jermann (briefed), Office of the Federal Public Defender for the Western District of Tennessee, Memphis, TN, for Michelle Williams.

Jerry Stokes (briefed), Memphis, TN, for Tanisha Ward.

Before KEITH, DAUGHTREY, and GILMAN, Circuit Judges.

OPINION

KEITH, Circuit Judge.

Defendants-Appellants Michelle Williams ("Williams") and Robert Kelly, III ("Kelly") appeal their sentences following the entry of guilty pleas to identity theft, 18 U.S.C. § 1028(a)(7). Defendant-Appellant Tanisha Jones Ward ("Ward") appeals her sentence following the entry of a guilty plea to identity theft, 18 U.S.C. § 1028(a)(7), and making a false statement, 18 U.S.C. § 1001(a)(2). Williams, Kelly, and Ward were involved in a scheme that involved the use of false identifying information to obtain home loans. The district court found that the enhancement in § 2B1.1(b)(9)(C)(i) of the 2002 Sentencing Guidelines for "the unauthorized transfer or use of a means of identification unlawfully to produce or obtain any other means of identification" applied to Williams's and Kelly's conduct. UNITED STATES SENTENCING GUIDELINES MANUAL § 2B1.1(b)(9)(C)(i) (2002). Due to ex post facto concerns, the district court sentenced Kelly and Ward using the 1998 Sentencing Guidelines (in effect at the time of the crime) rather than the 2002 Sentencing Guidelines (in effect at the time of sentencing). Williams appeals the application of the & sect; 2B1.1(b)(9)(C)(i) enhancement. Kelly appeals the use of the 1998 Sentencing Guidelines, contending that the 2002 Sentencing Guidelines should be applied without the § 2B1.1(b)(9)(C)(i) enhancement. Ward appeals the district court's refusal to depart downward due to her family circumstances, aberrant behavior, and her relative culpability compared to the other defendants. For the reasons set forth below, we AFFIRM the sentences of Williams, Kelly, and Ward.

I. FACTUAL BACKGROUND

From on or about September 25, 1998, and continuing to on or about June 21, 2000, Terrell Green, Marcus Martin, and Thomas Anthony Taylor provided false identifying information to persons who wanted to buy a house under a loan program administered by the Federal Housing Administration ("FHA"). The data included a social security number, employment information, and salary information. Purchasers such as Kelly and Williams signed loan documents containing the false information and submitted them to Community Mortgage Corporation ("CMC") for the federally guaranteed loans and the City of Memphis, Tennessee Division of Housing and Community Development for down payment assistance loans. On or about May 16, 2000, Williams received loans from CMC and the City of Memphis valued in excess of $59,000. On or about May 19, 2000, Kelly received over $90,000 in loans. Ward acted as the realtor in each of the loans. In addition, on or about June 21, 2000, Ward used a false social security number, which she received from Terrell Green, in order to apply for a FHA loan.

Williams entered a plea of guilty to violating 18 U.S.C. § 1028(a)(7), through her use of Larmont F. White's social security number, in order to commit the federal felony violations of social security fraud and making a false statement within the jurisdiction of an agency of the United States. On December 2, 2002, Williams filed objections to the presentence report. At the sentencing hearing, Williams argued that the two-point enhancement pursuant to § 2B1.1(b)(9)(C)(i) of the 2002 Sentencing Guidelines did not apply to her conduct. The government supported the imposition of the enhancement because of Williams's purchase and use of someone else's social security number in order to obtain two separate loans. According to the government, the bank loan number is equivalent to false identification. Williams argued that the enhancement did not apply because she engaged in a single act — the signing of the loan documents containing the false information. Williams maintained that she purchased a loan package from Mr. Green and that she did not use the social security number in those documents to obtain additional false identification.

After hearing the arguments of the parties, the district court rejected Williams's position. According to the district court, § 2B1.1(b)(9) applied directly to the type of situation Williams presented. The district court stated:

To elaborate further, with respect to the application of the guideline we've just been talking about, the court refers to the guideline itself. The commentary application note nine, which refers to the definition of means of identification, which is a very broad one, and encompasses a bank loan which we might not ordinarily think of as being included by that language, would note also the Application Notes 7(C)(i) and 7(C)(ii) and then the commentary background which discusses subsection (B)(9)(C) in some detail. It appears to me that that enhancement does apply.

J.A. at 159-160.

Kelly entered a guilty plea to the use of the social security number of Samuel Robert DeMoya. In objecting to the presentence investigation report, Kelly argued that the two-point enhancement for more than minimal planning was not appropriate. On December 6, 2002, Kelly supplemented his objections contending that the probation office erred in using the 1998 Sentencing Guidelines. Kelly contended that the 2002 Sentencing Guidelines should be used, but that the use of the 2002 Sentencing Guidelines should exclude the enhancement pursuant to § 2B1.1(b)(9)(C)(i).

At the sentencing hearing, Kelly conceded that the use of another's social security number created a potential for harm to that individual. Nonetheless, Kelly argued that the § 2B1.1(b)(9)(C)(i) enhancement applied only if the loan was in the name of the individual whose social security number was stolen. Kelly stressed the fact that he was trying to get a home loan for himself, not run a scam and split with the money. In the alternative, Kelly argued that, under the 1998 Sentencing Guidelines, the enhancement for more than minimal planning was not appropriate because the facts presented a simple case. The government supported the use of the 1998 Sentencing Guidelines due to ex post facto concerns. Specifically, the government contended that the use of the 2002 Sentencing Guidelines would require the enhancement proscribed in § 2B1.1(b)(9)(C)(i) as a result of the commentary background to § 2B1.1 and application notes 7(C)(i), 7(C)(ii), and 9 for that guideline section. The § 2B1.1(b)(9)(C)(i) enhancement would have put Kelly in a higher guideline range than would be applicable under the 1998 Sentencing Guidelines, even with the enhancement for more than minimal planning.

In finding that the 1998 Sentencing Guidelines applied, the district court rejected Kelly's attempt to prevent the application of § 2B1.1(b)(9)(C)(i) on the basis that Kelly used his own name rather than the name of the individual whose social security number he appropriated. According to the district court, the commentary application notes and the commentary background made clear that the enhancement would apply under the facts of the case at bar. The district court explained that even if the name was not used, there would still be harm to the credit of the person whose social security number was used. The district court found that the minimum offense level of 12 would apply in Williams's case.

On or about July 3, 2002, Ward entered a plea admitting to the use of the social security number of Allison Campbell and to making a false statement to a department of the United States. Unlike Williams and Kelly, Ward urged the district court to depart downward from the applicable guideline range by contending that her family circumstances were extraordinary, her criminal conduct was aberrant behavior, and she was less culpable than some of the other co-defendants. The government responded by asking the district court to recognize that the four-level enhancement received by the organizer of the activity provided adequate consideration for the difference between their roles in the criminal conduct. The government also noted that the conduct occurred over a two-year period and that Ward's lack of criminal history was already taken into account in determining the guideline range.

The district court found that the facts of Ward's case did not support a downward departure. In reaching its decision, the district court found that: Ward's family responsibilities were not so extraordinary as to suggest the need for a downward departure; the importance of payment of restitution did not override the need to serve a term of imprisonment; Ward was more culpable than the individual defendants who applied for loans themselves due to her integral role in the transactions; and the conduct was too repeated and extensive in terms of the period of time in order to constitute aberrant behavior. Further, the district court found that the aggregation of circumstances and factors was not sufficient to take the case "out of the heartland" and thereby justify a downward departure.

II. DISCUSSION

In reviewing a district court's application of the Sentencing Guidelines, we "accept the findings of fact of the district court unless they are clearly erroneous and ... give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). In light of Buford v. United...