U.S. v. Blake

Decision Date18 April 1996
Docket NumberNo. 95-5273,95-5273
Citation81 F.3d 498
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Willie James BLAKE, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Sr., District Judge. (CR-94-154).

ARGUED: Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Paul Alexander Weinman, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: William E. Martin, Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Greensboro, North Carolina, for Appellee.

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded with instructions by published opinion. Judge WILKINS wrote the opinion, in which Judge LUTTIG and Judge MOTZ joined.

OPINION

WILKINS, Circuit Judge:

Willie James Blake, Jr. pled guilty to using unauthorized access devices (stolen credit cards) in violation of 18 U.S.C.A. § 1029(a)(2) (West Supp.1995). Blake now challenges his sentence, arguing that the district court erred by enhancing his offense level based on the vulnerability of his victims, see United States Sentencing Commission, Guidelines Manual, § 3A1.1 (Nov.1994), and in departing upward from the applicable guideline range. He also challenges the restitution order imposed by the district court on numerous grounds. We affirm the sentence of imprisonment and term of supervised release, but vacate the restitution order and remand with instructions.

I.

Blake pled guilty to a one-count indictment charging that he had knowingly and with intent to defraud used ten unauthorized credit cards to obtain items of value. The indictment listed the card numbers and issuing banks, as well as the names of the individuals to whom the cards were issued. The presentence report prepared after Blake entered his plea recommended that pursuant to U.S.S.G. § 2F1.1 Blake's base offense level should be six. It also noted that two specific offense characteristics made him eligible for a three-level enhancement for loss in excess of $10,000 and a two-level enhancement for more than minimal planning. See U.S.S.G. § 2F1.1(b)(1)(2)(A). And, the report recommended that Blake receive a two-level enhancement for targeting unusually vulnerable victims because he had obtained the credit cards by stealing pocketbooks and wallets from elderly women while they were shopping. See U.S.S.G. § 3A1.1. In addition, the report suggested that because Blake had committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, his offense level should not be less than 13. See U.S.S.G. § 4B1.3. It concluded the offense level calculation by recommending that Blake receive a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1.

Blake's criminal history calculation resulted in the attribution of a total of 35 criminal history points, placing him in Criminal History Category VI. See U.S.S.G. Ch. 5, Pt. A. The report further advised, however, that the court should consider whether his Criminal History Category adequately reflected the seriousness of his past criminal conduct or the likelihood that he would commit other crimes and, if not, whether an upward departure would be appropriate. See U.S.S.G. § 4A1.3. The report recommended restitution to the banks that issued the cards for losses sustained as a result of the unauthorized charges and to the individuals from whom the cards were stolen as payment for expenditures they incurred as a result of the thefts, i.e., expenses related to lost property and document replacement. See 18 U.S.C.A. § 3663 (West 1985 & Supp.1995); U.S.S.G. § 5E1.1.

Blake raised several objections to the presentence report. 1 First, he challenged the vulnerable victim enhancement, arguing that the individuals from whom he stole the credit cards were not victims of his offense of conviction and that even if these people were victims, they were not unusually vulnerable within the meaning of § 3A1.1. The district court concluded that the individuals were victims under this guideline and that Blake specifically targeted elderly persons because they were less able to defend themselves. 2 Accordingly, it applied the two-level vulnerable victim enhancement in calculating Blake's adjusted offense level. See U.S.S.G. § 3A1.1.

Blake also objected to the application of § 4B1.3 (Criminal Livelihood). The district court adopted the proposed finding in the presentence report that Blake's conduct in the 12 months preceding his arrest made him eligible for application of this section, which mandated that his offense level not be less than 13. Further, it adopted the recommendation that independent of this provision Blake's offense level with enhancements was also 13. Finally, the court adopted the recommendation that Blake receive a two-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. As a result, Blake's adjusted offense level was 11. See U.S.S.G. § 4B1.3.

The district court further concluded that Blake's Criminal History Category VI inadequately represented the seriousness of his past criminal conduct. Rejecting Blake's argument that a departure based on criminal history would constitute impermissible double counting of his past criminal conduct because it had already relied on this conduct in applying § 4B1.3, the district court departed upward to offense level 15 and imposed a sentence of 51 months imprisonment. The district court reached level 15 after making specific findings that offense levels 11, 12, 13, and 14, when combined with Criminal History Category VI, were insufficient to represent the seriousness of Blake's past criminal conduct. See U.S.S.G. § 4A1.3; United States v. Cash, 983 F.2d 558, 561 & nn. 6-7 (4th Cir.1992), cert. denied, 508 U.S. 924, 113 S.Ct. 2380, 124 L.Ed.2d 284 (1993).

Blake raised further objections to the restitution recommendations contained in the presentence report. First, he maintained that he lacked the ability to pay restitution, arguing that a potentially life-threatening physical condition prevented him from working. In addition, he asserted that he had no real ability to earn a living due to a lifetime of drug abuse.

Although acknowledging that Blake might have a condition that affected his present ability to work, the district court made no finding as to the permanency of this condition. It then adopted the recommendation of the presentence report that even though Blake lacked the present ability to pay restitution, he should have the earning capacity sufficient to pay restitution in the future while in prison or on supervised release because he was able-bodied. The district court made no further findings regarding his ability to pay restitution.

Blake also objected to the suggested amount of restitution because it included amounts attributable to the persons from whom he stole the credit cards. He asserted that he could not be ordered to pay restitution to these individuals under 18 U.S.C.A. § 3663 because they were not victims of his offense of conviction. Rejecting this argument, the district court ordered restitution in the amount of $1,922.00 to the robbery victims in addition to $13,824.83 to the card issuers. The subsequently entered restitution order stated that Blake would pay the restitution "at such times and in such amounts as directed by the Bureau of Prisons or the U.S. Probation Officer." J.A. 102.

Blake now challenges his sentence on several grounds, essentially asserting that the district court erred in rejecting his objections to the presentence report. We address these arguments in turn.

II.

Blake first challenges the manner in which the district court applied the sentencing guidelines. We begin by noting that in reviewing the application of the guidelines by a district court, we examine factual determinations for clear error; legal questions, however, are subject to a de novo standard of review. United States v. Singh, 54 F.3d 1182, 1190 (4th Cir.1995).

A.

Blake first contends that the district court improperly enhanced his offense level by two levels based on a finding that he targeted unusually vulnerable victims. See U.S.S.G. § 3A1.1. He argues that the persons from whom he stole the credit cards were not victims of his offense of conviction--fraudulent use of unauthorized access devices--and therefore were not properly considered vulnerable victims for the purposes of § 3A1.1. Alternatively, he maintains that even if these individuals are considered victims, they do not meet the standard of vulnerability required for proper application of this enhancement. We disagree.

Section 3A1.1 provides for a two-level enhancement "[i]f the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct." The term "offense" is defined as "the offense of conviction and all relevant conduct under § 1B1.3." U.S.S.G. § 1B1.1, comment. (n.1(l )). And, § 1B1.3(a)(1) includes as relevant conduct, inter alia, all acts committed by the defendant in preparation for the offense of conviction. We therefore reject Blake's argument that, for the purpose of § 3A1.1, "a victim of the offense" is only an individual considered a victim of the specific offense of conviction. See United States v. Lee, 973 F.2d 832, 834 & n. 2 (10th Cir.1992); United States v. Yount, 960 F.2d 955, 958 (11th Cir.1992); United States v. Roberson, 872 F.2d 597, 608-09 (5th Cir.), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989). But see United States v. Bondurant, 39 F.3d 665, 667-668 (6th Cir.1994). As the record clearly indicates, Blake stole pocketbooks and wallets in...

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