406 F.3d 1149 (9th Cir. 2005), 04-10193, United States v. Kimbrew

Docket Nº:04-10193.
Citation:406 F.3d 1149
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rodney Robert KIMBREW, a.k.a. Carlton Cochran, Defendant-Appellant.
Case Date:May 11, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1149

406 F.3d 1149 (9th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rodney Robert KIMBREW, a.k.a. Carlton Cochran, Defendant-Appellant.

No. 04-10193.

United States Court of Appeals, Ninth Circuit

May 11, 2005

        Argued and Submitted April 12, 2005.

Page 1150

        Michael V. Severo, Los Angeles, CA, for the defendant-appellant.

        Amber S. Rosen (argued) and Jeffrey D. Nedrow (briefed), Assistant United States Attorneys, San Jose, CA, for the plaintiff-appellee.

        Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CR-99-20196-JW.

        Before: LAY, [*] B. FLETCHER, and HAWKINS, Circuit Judges.

        MICHAEL DALY HAWKINS, Circuit Judge.

        Rodney Kimbrew, a.k.a. Carlton Cochran, appeals his conviction and sentence for conspiracy to commit money laundering. In an issue of first impression, we must decide whether the sentencing enhancement for being in the business of receiving and selling stolen property can apply to a defendant who sells only property that he himself has obtained by fraud. We agree with the overwhelming majority of circuits that it cannot. We affirm Kimbrew's conviction, but vacate his sentence and remand for resentencing.

        FACTS AND PROCEDURAL HISTORY

        Beginning in 1996, Kimbrew and several co-conspirators, including Dayne Williams and Damien Springs, began a scheme to defraud computer suppliers: they set up fake corporations and then established lines of credit with wholesale computer supply companies using phony references and falsified credit information.

        The fraudulent companies used telephone answering services in San Jose, California, which would forward calls to the companies' shell offices elsewhere. The co-conspirators would then return the calls, posing as the phony trade and bank references. After establishing credit, the companies would place orders for computers,

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and then resell the computers through co-defendant Nicholas Krallis, but they would never pay the original suppliers.

        Kimbrew obtained a driver's license in the false name of Carlton Cochran and used that identity to set up a bank account into which proceeds from the computer sales were deposited. The Cochran account was used to hold a portion of the funds and to distribute proceeds to Williams and Springs.

        In July 1997, investigators arranged for a controlled delivery and arrested Williams and Springs. A grand jury thereafter returned an indictment against Kimbrew, Williams, Springs, Krallis, and one other co-defendant, Herbert Powell. The indictment charged Kimbrew with one count of conspiracy to commit mail fraud and wire fraud, in violation of 18 U.S.C. § 371 ("Count One"), one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) ("Count Two"), and one count of wire fraud, in violation of 18 U.S.C. § 1343 ("Count Three").

        Williams and Springs pled guilty and testified against Kimbrew at trial. The jury convicted Kimbrew of Count Two, but acquitted him of Counts One and Three.

        The district court sentenced Kimbrew in March 2004. Although the government urged the district court to find the amount of loss to be $678,000 (the total loss from the scheme), the district court, at Kimbrew's urging, found a loss amount of approximately $140,000, based on amounts deposited into the Cochran account. The district court also applied three two-level enhancements to Kimbrew's sentence for (1) receiving and selling stolen property (U.S.S.G. § 2B1.1(b)(4)); (2) use of sophisticated means (U.S.S.G. § 2B1.1(b)(8)(A) & (C)); and (3) role in the offense (U.S.S.G. § 3B1.1(c)). This yielded a guideline range of 51-63 months, and the district court sentenced Kimbrew to the statutory maximum of 60 months. Kimbrew appeals his conviction and sentence.

        STANDARD OF REVIEW

         Whether a defendant's double jeopardy rights have been violated is a question of law reviewed de novo. United States v. McClain, 133 F.3d 1191, 1193 (9th Cir.1998). This court reviews the district court's interpretation of the Sentencing Guidelines de novo, the district court's application of the Sentencing Guidelines to the facts of this case for abuse of discretion, and the district court's factual findings for clear error. United States v. Barnes, 125 F.3d 1287, 1290 (9th Cir.1997).

        DISCUSSION

        I. Double Jeopardy

        Kimbrew first argues that his conviction violates the Double Jeopardy Clause because the government improperly subdivided a single criminal conspiracy into multiple counts. "The Double Jeopardy Clause prohibits the imposition of multiple trials, convictions and punishments for the same offense." United States v. Arlt, 252 F.3d 1032, 1035 (9th Cir.2001) (en banc). In determining what constitutes the "same offense" in cases like this, involving the general conspiracy statute, 18 U.S.C. § 371, we must first consider the elements of the specific offense that...

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