Alfano v. U.S., No. CV-08-252-B-W.
| Decision Date | 12 December 2008 |
| Docket Number | No. CV-08-252-B-W. |
| Citation | 592 F.Supp.2d 149 |
| Parties | Robert ALFANO, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Maine |
Michael Whipple, Portland, ME, for Petitioner.
Margaret D. McGaughey, U.S. Attorney's Office, District of Maine, Portland, ME, for Respondent.
ORDER ON RECOMMENDED DECISION
Following a plot from the television series, CSI, Robert and Abigail Alfano attempted to perpetrate a scheme involving counterfeit checks. What so confounded the CSI actors, however, did not deter the United States Secret Service, and both the Alfanos were found out, prosecuted, convicted, and sentenced for bank fraud. Mr. Alfano now complains that his guideline sentence range was inaccurately calculated and blames his attorney for failing to catch and raise the issues leading to the inaccuracy. Because the Court finds that but for his counsel's failure to object to application of the sentencing enhancement under United States Sentencing Guideline § 2B1.1(b)(10)(C)(i) it would have assigned Robert Alfano a different sentence from that imposed, the Court grants Mr. Alfano's motion for appointment of counsel and orders a hearing to determine if the conduct of counsel in failing to raise objection to application of the sentencing enhancement to Mr. Alfano was objectively unreasonable under Strickland, and whether a rehearing on sentencing is required.
On November 9, 2005, Robert Alfano and his then wife, Abigail Alfano, were indicted on one count of bank fraud under 18 U.S.C. § 1344. Indictment, United States v. Alfano, No. 05-cr-91-JAW (Docket # 1). The prosecution version of Mr. Alfano's offense alleged that on August 25, 2003 a person identifying himself as Steven Chapman cashed a check at a Shop'n Save in Pittsfield, Maine. Prosecution Version at 1, Alfano, No. 05-cr-91-JAW (Docket # 78). The check purported to be drawn on an account at Bank of New York in the name of Atlantic Coast Contractors (ACC). Id. The person claiming to be "Mr. Chapman" presented a state of Maine ID and the manager of the store authorized the transaction. Id. After "Mr. Chapman" left the store, the cashier told the manager that he looked like an "Alfano" from Palmyra, Maine. Id. The check was subsequently returned by Shop `n Save's bank as counterfeit, the police were notified, and it was discovered that Maine had no record of a Steven Chapman. Id.
Between September 4 and September 8, 2003, Ms. Alfano deposited four checks drawn on the same ACC account at Bank of New York as the check presented by "Mr. Chapman." Id. at 1-2. On September 9, 2003, a person identifying himself as David Taylor entered a Shaw's Supermarket in Saco, Maine, and cashed a check drawn on the ACC account at the Bank of New York and made payable to David R. Taylor. Id. at 2. As with the Shop `n Save check, this check was returned as counterfeit. Id.
In reality, the six checks were not issued by ACC and did not include the actual company account. Id. Bank of New York records confirmed that the account number was valid, but that it was assigned to Toys "R" Us, where Mr. Alfano was an employee. Id. After police unraveled the charade, the Alfanos conceded that they had gotten their idea from the popular television drama CSI. Id. at 3. In total, the loss from the six checks amounted to approximately $3,000. Id. On October 17, 2006, Mr. Alfano entered a guilty plea. Minute Entry, Alfano, No. 05-cr-91-JAW (Docket # 79).
On March 27, 2007, Mr. Alfano appeared for sentencing on his single count of bank fraud in violation of 18 U.S.C. § 1344. In preparation, the United States Probation Office prepared a Presentence Investigation Report (PSR). Revised Presentence Investigation Report Dated 3/1/07 (PSR). The PSR assigned Mr. Alfano a base offense level of seven under United States Sentencing Guideline (U.S.S.G.) § 2B1.1(a)(1), and identified a single specific offense characteristic, stating that "[p]ursuant to U.S.S.G. § 2B1.1(b)(10)(C)(i), there is an increase to [offense] level 12 since means were used to obtain and use false identification."1 Id. ¶¶ 12, 14. After adjusting for acceptance of responsibility, the total offense level was ten. Id. ¶ 22. Mr. Alfano's record of criminal conduct placed him within criminal history category VI. Id. ¶ 33. Based on a total offense level of ten and a criminal history category of VI, the guideline range for imprisonment was calculated as twenty-four to thirty months. Id. ¶ 42.
Although Mr. Alfano raised a number of objections to the PSR, he did not object to the offense level enhancement under U.S.S.G. § 2B1.1(b)(10)(C)(i). Id. at 14. The Government raised no objections to the PSR. Id. At the sentencing hearing, Mr. Alfano confirmed that he had read the PSR, reviewed it with his court-appointed counsel, Wayne R. Foote, understood its contents, and, other than an issue disregarded by the Court in sentencing, believed it to be accurate and correct. Tr. of Proceedings at 4:4-12, 5:17-19, Alfano, No. 05-cr-91-JAW (Docket # 110) (Sentencing Tr.). The Government recommended a sentence in the middle of the guideline range. Id. at 9:15-17. Mr. Alfano's counsel noted that without the U.S.S.G. § 2B1.1(b)(10)(C)(i) enhancement, the guideline range would be nine to fifteen months, and urged that a reasonable sentence would be at "the the lower end of the [guideline] range or even below that." Id. at 15:13-17, 24-25; 16:1-8.
Prior to making its guideline calculations, the Court noted that there were no disputed matters. Id. at 21:13-14. It applied the five-level increase under U.S.S.G. § 2B1.1(b)(10)(C)(i), and calculated the applicable guideline range for imprisonment as twenty-four to thirty months. Id. at 21:17-19, 24-25. Taking into account the fact that Mr. Alfano was already serving a state sentence, the Court imposed a sentence of twenty-four months, the bottom of the guideline range; the federal sentence, however, was wholly consecutive to the state sentence.2 Id. at 28:12-17; Judgment, Alfano, No. 05-cr-91-JAW (Docket # 96). The Court also imposed supervised release of five years, a fine, restitution, and a mandatory special assessment. Id.
On April 18, 2007, Mr. Alfano appealed to Court of Appeals for the First Circuit. Notice of Appeal, Alfano, No. 05-cr-91-JAW (Docket # 98). Mr. Alfano raised a single issue that was not raised at the sentencing hearing: "whether the district court plainly erred in concluding that, in committing bank fraud, defendant `used a[] means of identification unlawfully to produce or obtain any other means of identification' within the meaning of U.S.S.G. § 2B1.1(b)(10)(C)(i), and therefore increasing his offense level and resulting guideline sentence range." United States v. Alfano, 271 Fed.Appx. 1, 1 (1st Cir.2008).
The United States Sentencing Commission Guideline for violation of 18 U.S.C. § 1344 is found in U.S.S.G. § 2B1.1. Under U.S.S.G. § 2B1.1(a)(1), if the offense of conviction has a statutory maximum term of imprisonment of twenty years or more the base offense level is seven. U.S.S.G. § 2B1.1(a)(1). This level is enhanced under U.S.S.G. § 2B1.1(b)(10) "if the offense involved . . . (C)(i) the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification...." U.S.S.G. § 2B1.1(b)(10). When applicable, the enhancement raises the offense level to a minimum of twelve. Id.
The commentary to U.S.S.G. § 2B1.1(b)(10) defines "means of identification":
`Means of identification' has the meaning given that term in 18 U.S.C. § 1028(d)(7) except that such means of identification shall be of an actual (i.e., not fictitious) individual, other than the defendant or a person for whose conduct the defendant is accountable under § 1B1.3 (Relevant Conduct).
U.S.S.G. § 2B1.1(b)(10) cmt. n. 9(A) (emphasis in original). Under 18 U.S.C. § 1028(d)(7), means of identification is defined as
any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—
(A) name, social security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer identification number;
(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or
(D) telecommunication identifying information or access device (as defined in section 1029(e) [18 USCS § 1029(e)]);
18 U.S.C. § 1028(d)(7).
In his opening appellate brief, Mr. Alfano made a "three-pronged attack on the enhancement," however, "[o]nly the first prong [was] developed in any depth." Alfano, 271 Fed.Appx. at 1. This first prong argued that because Mr. Alfano used the name of a fictitious person, Steven Chapman, to cash a check that was the subject of the indictment, U.S.S.G. § 2B1.1(b)(10)(C)(i) did not apply. Id. at 1-3. The First Circuit opined:
It is true that the phrase `means of identification' as used in section 2B1.1(b)(10)(C)(i) includes only means of identification of `an actual (i.e., not fictitious) individual.' However, the means used here included not only the fictitious name of one of the payees, but also the account number of Toys R Us and the payor name of Atlantic Coast Contractors, both actual entities.
Id. at 2 (footnotes and citation omitted). The First Circuit footnoted that it did not consider an argument raised by Mr. Alfano for the first time in his reply brief: that Toys "R" Us and ACC were not "individuals." Id. at...
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