U.S. v. King

• Decision Date: 11 July 2006
• Docket Number: No. 05-1728.,05-1728.
• Citation: 454 F.3d 187
• Parties: UNITED STATES of America v. Donald James KING, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

454 F.3d 187

UNITED STATES of America v. Donald James KING, Appellant.

No. 05-1728.

United States Court of Appeals, Third Circuit.

Argued April 18, 2006.

Filed July 11, 2006.

David L. McColgin (Argued), Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.

Lesley B. Fitzgerald, Peter D. Hardy (Argued), Office of United States Attorney Philadelphia, PA.

Before SLOVITER, AMBRO and MICHEL,^* Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

If the procedural requirements for sentencing defendants that this court established are so inflexible that we cannot affirm any sentence when the district court fails to articulate its analysis in precisely the terms of those requirements, then we must vacate the sentence imposed in this case no matter how reasonable we believe it is. Under the circumstances of this case, we will not vacate the sentence imposed by the District Court. Instead, we affirm, but write to dispel any erroneous impression that we have relaxed those requirements. We proceed to explain our disposition.

I.

Defendant Donald James King appeals his sentence of seventy-two months imprisonment that was imposed by the District Court following his plea of guilty to one count of bank fraud in violation of 18 U.S.C. § 1344, and one count of use of a false social security number in violation of 42 U.S.C. § 408(a)(7)(B). King claims that the sentence is unreasonable and in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the District Court did not follow proper procedure for imposing a sentence in excess of the range recommended by the Sentencing Guidelines (30-37 months imprisonment).¹

The events giving rise to this criminal prosecution took place during the years 1998 and 1999. Appellant King is a sixty-seven year old male who engaged in what is commonly known as "identity theft"— unauthorized use of the personal information of another person for the purpose of securing loans, obtaining credit cards, and financing purchases. In carrying out this crime, King used the social security number and date of birth of another man with the same name (hereafter "Victim"). In his plea colloquy, King admitted to employing these means to engage in a laundry list of transactions, including a mortgage on his primary residence, several consumer lines of credit and credit cards resulting in defaults totaling over $14,000, and loans for the purchase of expensive consumer items, such as a home entertainment system and luxury cars.² Some of these vehicles, which included a Mercedes, a BMW, and a Lexus, were repossessed and resold, but some were never recovered. King admitted that his activities caused losses to financial institutions of $166,000.

On September 26, 2002, King pled guilty to bank fraud in violation of 18 U.S.C. § 1344, which carries a maximum sentence of thirty years imprisonment, and use of a false social security number in violation of 42 U.S.C. § 408(a), which carries a statutory maximum of five years. King failed to appear for his initial sentencing hearing on November 18, 2003. He was arrested on a bench warrant on March 16, 2004, after attempting to refinance one of the loans at issue in this prosecution.

King was sentenced on February 25, 2005. The Booker decision was announced approximately six weeks before King's sentencing hearing. The District Court started by calculating the applicable range under the Sentencing Guidelines.³ It adopted the Presentence Report ("PSR") and the stipulation of the parties that the amount of loss for sentencing purposes was $166,000, which corresponded to a base offense level of six. U.S.S.G. § 2F1.1. A seven-level increase was applied because the loss exceeded $120,000, and a two-level increase was applied because the offense involved more than minimal planning. See U.S.S.G. § 2F1.1(b)(2)(A). Another two-level increase was applied for obstruction of justice due to King's absconding before his sentencing hearing. U.S.S.G. § 3C1.1. King's offense level was accordingly seventeen, while his criminal history category was III, leading to an applicable Guidelines range of 30-37 months imprisonment.

The Government moved for a five-level upward departure in offense level based on severe non-economic harm to the Victim. U.S.S.G. § 2F1.1 cmt. 11. The District Court declined to consider this evidence strictly within the framework of the Guidelines, stating that it would instead take the Government's argument and evidence into account when determining the ultimate sentence under 18 U.S.C. § 3553(a). In response to the Government's motion for a five-level upward departure, the District Court stated:

I guess my feeling is I really hadn't thought much about this, anything about this issue until this morning when I received defendant's sentencing memorandum. And I'm not sure that motions for upward departure are relevant in the post Booker era.

It seems to me at first blush that it's more likely to not consider motions for upward departure, but then consider evidence of this type when making a final determination as to what the sentence should be after taking the consideration and the sentencing guidelines.

So I'll hear what each of you have to say with reference to that.

App. at 71.

In support of its motion, the Government presented the testimony of the Victim. The Victim testified regarding the impact King's criminal activities had had on his life. He testified that he had first become aware someone was using his personal information in 1982, when he received a coupon book for a $3,000 loan that he had not taken out. He also started receiving numerous bills for credit cards at retail stores such as Sears and Bradlees, for items that he had never purchased. His employer (a large utility company) helped him investigate and he discovered that the defendant had been using his personal information. The Victim testified in state court regarding these events and King ultimately pled guilty to forgery in the Philadelphia Court of Common Pleas in 1983. The following year, the Victim's driver's license was suspended because King had been making unauthorized use of a copy of the Victim's license. King was convicted in Delaware state court for this offense. PSR 13. The Victim was forced to change the name on his license as a result of this event. Similar incidents began to occur again in 1998, when a block the Victim had installed on his credit expired.

The Victim estimated that since then he had spent over 500 hours calling loan agencies, banks, and department stores to protest charges he never made and to clear his credit. He had been forced to change the name on his driver's license because it was repeatedly suspended due to unpaid car loans and parking tickets on cars falsely registered to him.⁴ He testified that he had suffered enduring anxiety and had difficulty engaging in ordinary commercial transactions because of the damage to his credit. He also testified that he feared King's activities would affect his ability to collect social security benefits.

The District Court credited the Victim's testimony. It concluded that "these facts are such that under the old regimen would clearly merit an upward departure," but that instead of granting the Government's motion, it would "consider these facts . . . in determining what my sentence eventually will be when I consider the factors under [§] 3553." App. at 77. Defendant King also spoke at the sentencing hearing. The relevant part of King's statement was as follows:

First, I want to apologize to that Mr. King for all the problems that I may or may not have caused him from the fact of using his name. But it was never ever intended that I have, it was intended that I was going to enhance his credit, it was never intended that it was not going to pay for anything. If anything, I was going to make sure that his credit rating got enhanced far more better —

THE COURT: So you're trying to benefit him? Did you ever let him know that you want to help him out by enhancing his credit?

MR. KING: I never seen him. Never seen him. Maybe 20 years or so, 10 years or so, second time I've ever seen him. But like I said, and these times the credit was used for him, it was, I had gotten hopefully, so I could be, like I said enhance, to make it better, never to make it worse. And I always have tried to do something to make Mr. King's credit better, never to make it worse, never ever my intent —

App. at 90 (emphasis added).

Before announcing its sentence, the District Court proceeded to make a detailed analysis of King and the offenses. The Court stated at the beginning: "I must consider the sentencing guideline range which is 30 to 37 months . . .". App. at 93. The Court noted that there was not much "on the positive side of the ledger for the defendant, . . . [T]hat he has two children that he would like to take care of, but that is counterbalanced in my view by the fact that from December of [2003] when he absconded in this case, he voluntarily gave up custody of the children and they were placed in foster care" even though he was not incarcerated until March of 2004. App. at 93. "So obviously he wasn't thinking too much about caring for his children during that time." App. at 93. The Court noted that King suffered from prostate cancer, but that it was not acute, and that King's bladder cancer appeared to be in remission.

The Court then proceeded to consider the "very serious situations" on the negative side. App. at 94. For example,

the severe harm to the [Victim] which was outlined today and is contained in my findings of fact with reference to his testimony which has been ongoing for a period of now 23 years, from beginning in 1982 because of this defendant's conduct. And certainly there is nothing in the guideline computation that takes that into consideration.

App. at 94. The Court noted that the defendant had at least 17 convictions...