U.S. v. Loudon
| Decision Date | 08 October 2004 |
| Docket Number | No. 04-0876-CR.,04-0876-CR. |
| Citation | 385 F.3d 795 |
| Parties | UNITED STATES of America, Appellee, v. Charles Everett LOUDON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the United States District Court for the District of Vermont, William K. Sessions III, Jr., Chief Judge.
Paul S. Volk (Jason J. Sawyer, Blodgett, Watts & Volk, P.C., on the brief), Burlington, VT, for defendant-appellant.
Paul J. Van De Graaf, Chief, Criminal Division (Peter W. Hall, United States Attorney for the District of Vermont, David
V. Kirby, First Assistant United States Attorney, on the brief), Burlington, VT, for appellee.
Before: WALKER, Chief Judge, LEVAL and KATZMANN, Circuit Judges.
Plaintiff-appellant Charles Loudon appeals from a sixty-three-month sentence he received following his conviction in the United States District Court for the District of Vermont (William K. Sessions III, Chief Judge) for contempt of court, false statement, and wire fraud. Loudon argues that the district court erred by (1) imposing an eight-level sentence enhancement pursuant to § 2J1.2(b) of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") and (2) granting the Government's motion for an upward departure in Criminal History Category pursuant to U.S.S.G. § 4A1.3. Reviewing the district court's factual findings for clear error and its application of the Guidelines to the facts de novo, see United States v. Kostakis, 364 F.3d 45, 51 (2d Cir.2004), we affirm.
The information presented to the district court, construed in the light most favorable to the Government, shows the following. Charles Loudon has lived a double life since the late 1960s, when he procured a birth certificate and social security number under the alias Lannell Reed Emmerson. During the 1990s, Loudon used his own name to obtain credit, file for bankruptcy in Massachusetts, receive social security benefits, secure an Irish passport, apply for a Vermont driver's license, and register vehicles. Over much of the same period, Loudon used the Emmerson alias to procure credit, file for bankruptcy in Vermont, receive supplemental social security benefits, apply for a Vermont driver's license, and buy houses in Arizona and Ireland.
In 1999, law enforcement discovered Loudon's two identities. In December of that year, the United States Attorney charged Loudon with one count of social security fraud, relating to his receipt of social security benefits under the Emmerson alias, and one count of bankruptcy fraud, relating to his bankruptcy filings under the Emmerson alias. The indictment was superseded by a two-count information alleging the same conduct, to which Loudon pled guilty in March 2000.
In August 2000, the district court sentenced Loudon to time served (which amounted to approximately eight months' imprisonment), three years of supervised release, and $150,867 in restitution. The court conditioned Loudon's supervised release on the sale of both his house in Ireland and his travel trailer, with the proceeds to be applied toward his restitution obligations. Loudon's appeal of this condition proved unsuccessful, see United States v. Loudon, No. 00-1581, 2 Fed. Appx. 131 (2d Cir. Jan.23, 2001) (unpublished disposition), and his petition for certiorari to the United States Supreme Court fared no better, see Loudon v. United States, 536 U.S. 910, 122 S.Ct. 2370, 153 L.Ed.2d 190 (2002).
Loudon's period of supervised release began immediately following his August 2000 sentencing, under the watch of Probation Officer Daniel Mangan. Approximately seven months later, Officer Mangan petitioned to revoke Loudon's supervised release on the basis that Loudon had failed to apply the proceeds from the sale of his travel trailer to his restitution debt and had refused to sell his house in Ireland. On March 27, 2001, Officer Mangan filed an amended petition in which he asserted that Loudon had applied for credit cards without the probation office's approval. Loudon met with his attorney and the probation office in May 2001 to discuss these charges. Then, on July 10, 2001, Officer Mangan filed a third amended petition charging that Loudon had submitted false information to the probation office about his income and was trying to obtain an Irish passport.
On July 11, 2001, Officer Mangan attempted to visit Loudon at his home, but no one answered the door. That same day, Loudon left the following message on Officer Mangan's answering machine:
You knocked very lightly on my door three times. By the time I got there, you were pulling wheelies out of my fucking driveway. Probably a good idea that you did
After he left the message, Loudon appeared at the emergency room of a local hospital and told the staff there that he was thinking about killing people involved in his criminal case, including his probation officer and the district judge. The hospital kept Loudon overnight but discharged him the next day. The following day, on July 13, 2001, Loudon was arrested on the petition for violation of supervised release and detained. In light of his statements expressing a desire to kill the district judge, his case was reassigned to a different judge.
On September 17, 2001, Loudon admitted to four violations of the conditions of his supervised release and stated that he would not comply with the condition that he sell his house in Ireland. The district court revoked the term of supervised release and sentenced Loudon to nine months in prison.
After the revocation of supervised release the probation office learned that, from at least the spring of 2001, Loudon had been (1) applying for credit cards using the Emmerson alias, and (2) secretly withdrawing equity from his house in Ireland by securing a mortgage in his own name and "buying" the property from its putative owner, Emmerson. The real estate transaction, the probation office discovered, had netted Loudon approximately $36,000 — a sum that Loudon had arranged to have wired, on April 5, 2001, to an account he had secretly opened in Vermont in December 2000. Loudon had withdrawn all of the money on the following day, in the form of six cashier's checks payable to himself. These funds were never disclosed to the probation office. Nor were they disclosed in Loudon's September 2001 application to proceed in forma pauperis before the United States Supreme Court on his petition for certiorari. Loudon also lied to the probation office about the provenance of $6,074 he had spent in May 2001; he said the money had come from "accounting/taxation contributions received, gifts and other miscellaneous sources," when in fact it had come from the mortgage and "sale" of the house in Ireland.
On June 20, 2002, six months after having returned an initial indictment, a federal grand jury in the District of Vermont returned a six-count superseding indictment charging Loudon with criminal contempt of court, in violation of 18 U.S.C. § 401, making false statements to the probation office, in violation of 18 U.S.C. § 1001(a), and wire fraud (relating to the credit card applications in the Emmerson name), in violation of 18 U.S.C. § 1343. Loudon pled guilty to the contempt charge, two of the four false statement charges, and the wire fraud charge.
The district court sentenced Loudon to sixty-three months' imprisonment. In calculating the sentence, the court: (1) applied an eight-level enhancement for "threatening to cause physical injury in order to obstruct the administration of justice," U.S.S.G. § 2J1.2(b)(1), based on, inter alia, the phone message Loudon had left with Officer Mangan; and (2) granted the Government's motion to increase Loudon's Criminal History Category from Category III to Category IV because Category III "substantially under-represent[ed]" the seriousness of his criminal history and his likelihood of recidivism, under U.S.S.G. § 4A1.3. Loudon appeals his sentence, arguing that both the application of the threat enhancement and the increase in criminal history category were unwarranted.
We find no error in the district court's determinations. First, the threat enhancement under U.S.S.G. § 2J1.2(b)(1) was amply...
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