U.S. v. Vigil

Decision Date12 May 2011
Docket NumberNo. 10–4114.,10–4114.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Neil Rick VIGIL, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Benjamin C. McMurray, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, with him on the briefs), Salt Lake City, UT, for DefendantAppellant.Karin M. Fojtik, Assistant United States Attorney (Carlie Christensen, United States Attorney, with her on the brief), Salt Lake City, UT, for PlaintiffAppellee.Before KELLY, TACHA, and EBEL, Circuit Judges.EBEL, Circuit Judge.

DefendantAppellant Neil Vigil was arrested after police pulled him over and found in his car a vast cache of counterfeit identifications and other materials indicative of identity theft. Mr. Vigil ultimately reached a plea deal with the government. At sentencing, the district court applied a two-level enhancement under Section 2B1.1(b)(4) of the Sentencing Guidelines, which provides for such an enhancement where “the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property” (the “ITB Enhancement”). The district court also imposed a $10,000 fine over Mr. Vigil's objection, despite the finding in the Presentence Report that Mr. Vigil did not appear able to pay a fine.

Mr. Vigil contends that the district court erred in both applying the enhancement and imposing the fine. First, Mr. Vigil argues that the ITB Enhancement only applies where a defendant actually has sold stolen property, and there is no evidence that he ever sold stolen property in this case. Second, Mr. Vigil argues that imposition of the fine was improper in light of his inability to pay a fine and his obligation to pay restitution. For the reasons discussed below, we reverse the district court's application of the enhancement and imposition of the fine, vacate Mr. Vigil's sentence, and remand for resentencing.

BACKGROUND

On July 18, 2009, Mr. Vigil was pulled over by an officer from the Cedar City, Utah, Police Department. During a search of the car, the officer found extensive evidence of identity theft, including hundreds of cashed and uncashed checks, several driver's licenses of other individuals, counterfeit identifications showing Mr. Vigil's picture, numerous counterfeit checks, a large volume of check-stock and photo paper, a knife, pearl pigment, spray glue, and a wallet belonging to one theft victim, “R.L.” The officer also found four laptop computers and electronic storage devices, which, as a subsequent search revealed, contained (1) over 200 jail booking photos and/or driver's license photos of other individuals; (2) over 500 scanned images of identification templates and identification features, stolen identifications, bank logos, checks, birth certificates, and counterfeit identifications bearing Mr. Vigil's photo; (3) over 600 logged check records regarding the production of counterfeit checks; (4) other files related to the production of checks; and (5) other files related to apparent victims of identity theft.

Subsequent investigation revealed that R.L.'s wallet had been stolen from a Gold's Gym locker, and that Mr. Vigil had used R.L.'s identity to obtain credit cards from Cabelas and Best Buy. Mr. Vigil then used those cards to make various purchases and obtain a $1,000 cash advance. The investigation also revealed that Mr. Vigil had used another victim's identification to negotiate a counterfeit check at Zions Bank in Logan, Utah, and to open an account and receive cash back at a Wells Fargo branch. During a police interview, Mr. Vigil admitted that in addition to stealing checks from mail boxes and wallets from gym lockers, he purchased information stolen by others.

On November 24, 2009, Mr. Vigil was indicted on seven counts of fraudulent conduct. He ultimately pled guilty to three counts: (1) access device fraud, in violation of 18 U.S.C. § 1029(a)(5); (2) aggravated identity theft, in violation of 18 U.S.C. § 1028(a); and (3) possession of stolen mail, in violation of 18 U.S.C. § 1708.

With respect to the access-device-fraud and possession-of-stolen-mail counts, the Presentence Investigation Report (“PSR”) calculated Mr. Vigil's offense level to be 17, which included, inter alia, a base-offense level of six (U.S.S.G. § 2B1.1(a)(2)); a six-level enhancement for an offense involving 250 or more victims (the “Victim Enhancement”) (U.S.S.G. § 2B1.1(b)(2)(C)); and a two-level enhancement under the ITB Enhancement. With respect to the aggravated-identity-theft count, the PSR noted that the Guideline sentence is the term of imprisonment required by 18 U.S.C. § 1028A—in this case, a two-year consecutive sentence.

The PSR calculated Mr. Vigil's criminal-history category to be VI, based on 19 criminal-history points. Accordingly, the PSR calculated Mr. Vigil's Guideline range to be 51–63 months for the access-device-fraud and possession-of-stolen-mail counts, and 24 months for the aggravated-identity-theft count, for a total range of 75–87 months.

The PSR also recommended ordering restitution in the amount of $15,642.91 (including $2,717.19 to Cabelas; $3,918.62 to Best Buy; $7,455.10 to Zions Bank; and $1,552 to Wells Fargo). Although the PSR described several jobs held by Mr. Vigil in the past, with pay ranging from $6.50 to $17 per hour, the PSR concluded that he did not appear to have the ability to pay a fine due to his apparent lack of income or assets.

In his sentencing memorandum, Mr. Vigil objected to the PSR's application of the Victim and ITB Enhancements. Mr. Vigil also contended that the restitution amount was limited to Cabelas's loss of $2,717.19, because the other losses described in the PSR stemmed from conduct underlying counts that were dismissed pursuant to the plea agreement and thus not subject to restitution.

At sentencing, Mr. Vigil and the government agreed that the number of “victims” that could be taken into account for the purposes of the Victim Enhancement was actually ten, and thus that the Victim Enhancement provided for a two-level increase instead of a six-level increase. The parties also agreed that under the plea agreement, restitution was limited to $2,717.19. However, the parties disagreed about the applicability of the ITB Enhancement. Mr. Vigil argued that while he received stolen identity information and checks, there was no evidence that he sold such material, and thus he could not be deemed to be in the business of receiving and selling stolen property. The government, in turn, argued that while it did not have evidence that Mr. Vigil specifically sold stolen property, Mr. Vigil's lifestyle, coupled with his apparent unemployment, permitted the inference that he was in the business of receiving and selling stolen property.

The court rejected Mr. Vigil's argument and applied the ITB Enhancement, concluding that the totality of the circumstances indicated that the enhancement applied:

Here I find from the totality of the circumstances that this guideline provision fits this case. It says if the offense involved receiving stolen property and the defendant was the person in the business of receiving and selling stolen property, increase by two levels. Let me say it this way, that if this case does not fit the purpose behind that guideline provision, then I don't know one that does. Given all of the factual record that I have before me on what the defendant was about, what he had in his possession and what he admitted to doing with this property that he would steal and make use of, and if we're going to quibble about what the word selling means, we are not going to do it before me. If this does not fit here, then it is difficult for me to think of a case where it would fit any better, especially given the volume of materials here that were involved with Mr. Vigil. I respectfully disagree with the defense's position on that point.

(Record on Appeal (“ROA”), vol. ii at 13.)

Accordingly, the court found that with respect to the access-device-fraud and possession-of-stolen-mail counts, Mr. Vigil's offense level was 13 (reflecting the four-point reduction in the Victim Enhancement). Coupled with a criminal-history category of VI, this yielded a Guideline range of 33–41 months. Although Mr. Vigil argued for a sentence of 33 months on all counts, the court rejected Mr. Vigil's request and applied the two-year sentence on the aggravated-identity-theft count consecutively to the high end of the Guideline range on the other counts, for a total of 65 months.

The court then ordered restitution of $15,642.91, the amount set forth in the PSR. However, Mr. Vigil again objected that only Cabelas's loss of $2,717.19 could be subject to restitution, as the other losses stemmed from conduct underlying counts that were dismissed pursuant to the plea agreement. The government conceded this point, but the court asked for confirmation that the plea agreement “tie[d the court's] hands,” and commented that [p]eople should pay back money they steal.” (Id. at 33.) Ultimately, however, the court imposed the lower restitution amount. The court then stated that it was not imposing a fine, but in the very next sentence stated, “No, wait, I am. A fine of $10,000.” (Id. at 34.) Mr. Vigil objected to the fine on the grounds that he was indigent, but the court made no further findings or comments on this issue.

DISCUSSION
I. The ITB Enhancement

“In reviewing a district court's application of the Guidelines, we review its legal conclusions de novo and its factual findings for clear error.” United States v. De La Cruz–Garcia, 590 F.3d 1157, 1158 (10th Cir.2010). [T]o the extent [a] defendant asks us to interpret the Guidelines or hold that the facts found by the district court are insufficient as a matter of law to warrant an enhancement, we must conduct a de novo review.” United States v. Martinez, 602...

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