U.S. v. Finck

• Decision Date: 11 May 2005
• Docket Number: No. 03-3876.,03-3876.
• Citation: 407 F.3d 908
• Parties: UNITED STATES of America, Appellee, v. Glenn Benton FINCK, also known as Beau Lee DuBois, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

407 F.3d 908

UNITED STATES of America, Appellee, v. Glenn Benton FINCK, also known as Beau Lee DuBois, Appellant.

No. 03-3876.

United States Court of Appeals, Eighth Circuit.

Submitted: September 14, 2004.

Filed: May 11, 2005.

COPYRIGHT MATERIAL OMITTED

David R. Mercer, argued, Federal Public Defender, Springfield, MO, for appellant.

Richard E. Monroe, argued, Asst. U.S. Atty., Springfield, MO, for appellee.

Before BYE, BOWMAN, and MELLOY, Circuit Judges.

BYE, Circuit Judge.

Defendant-Appellant Glenn Benton Finck appeals his 63-month sentence for crimes arising from a scheme to fraudulently acquire motor vehicles. Finck argues that the district court¹ improperly enhanced his sentence for obstruction of justice and use of sophisticated means, and he challenges his sentence under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), for plain error. He also argues that the district court's use of the name "Glenn Benton Finck" in the judgment rather than "Beau Lee DuBois," which he contends is his true name, amounts to a due process violation.

The district court had jurisdiction to hear this case under 18 U.S.C. § 3231. This court has jurisdiction over the appeal under 28 U.S.C. § 1291. We affirm in all respects.

I.

On April 4, 2003, Finck was charged in a seven-count indictment with crimes arising from a scheme to fraudulently acquire motor vehicles. Count 1 alleged violation of 18 U.S.C. § 2312 (interstate transportation of stolen vehicles); counts 2, 4, and 6 alleged violation of 18 U.S.C. § 2314 (causing an individual to travel in interstate commerce in furtherance of a scheme to defraud); count 3 alleged violation of 18 U.S.C. § 1343 (wire fraud); count 4 alleged violation of 18 U.S.C. § 1341 (mail fraud); and count 7 alleged violation of 18 U.S.C. § 2314 (causing a forged counter-feit security to travel in interstate commerce). He pled guilty to all counts of the indictment.

At sentencing, the district court found, over Finck's objections, that sentence enhancements for obstruction of justice, U.S.S.G. § 3C1.1, and use of sophisticated means, U.S.S.G. § 2B1.1(b)(1)(8) ©, were warranted.

The relevant facts are as follows.² Finck obtained several vehicles from Reliable Imports and RV ("Reliable") in Springfield, Missouri. He told the Reliable salesperson that he owned stock in a California wine company and would pay for the vehicles by arranging for wire transfers to Reliable's Bank of America account. Before each purchase, Reliable received a fax showing that money had been wired to its Bank of America account. Sometimes, Reliable also received a phone call from someone claiming to be from Bank of America confirming that the wire transfer funds had been deposited. Of course, no money was ever wired to Reliable's account.

In all, Finck obtained seven vehicles from Reliable: a Rage'n trailer, a Coachmen RV, a Mazda 6, a Mazda Miata, a Hyundai Tiburon, a Mercedez Benz C230, and a Ford Thunderbird.³ Some vehicles were picked up from Reliable, and some were delivered to him at an address in Round Rock, Texas. After fraudulently obtaining these vehicles, he sold two of them. He sold the Coachmen RV to North Bay Ford/Lincoln/Mercury car dealership ("North Bay") in Santa Cruz, California for $100,000, and he sold the Mazda Miata to Roger Beasley Mazda ("Beasley") in Austin, Texas for $16,500. He used the proceeds from the sale of these fraudulently obtained vehicles to purchase a Ford Harley Davidson truck, a motorcycle trailer, and a Lexus SUV.

After Reliable received a fax indicating that payment had been received for the transaction involving the Hyundai Tiburon, the Mercedez Benz C230, and the Ford Thunderbird, a Reliable employee contacted Bank of America to confirm that the funds had been received and learned that they had not. When Reliable expressed concern, Finck arranged to pay for the vehicles with a cashier's check. He presented Reliable with a COMCHECK from DuBois Winery in Lodi, California. After Reliable determined that the COMCHECK was fraudulent, it contacted Bank of America and learned that all of Finck's previous wire transfers were also fraudulent. Law enforcement arranged to have the titles to the Mercedez Benz and the Ford Thunderbird mailed to him at a prearranged location in Texas. Texas law enforcement officers set up surveillance at this location, but Finck changed the delivery destination while the package was in transit.

Finck was arrested in Austin, Texas while he was attempting to trade in the Mercedez Benz. During an interview with a Secret Service agent, he provided a written statement outlining his fraudulent activity. When questioned about the Coachmen RV, he denied selling the vehicle and told the agent that he drove the Coachmen RV to Lodi, California in December 2002 and left it at an address on Kettleman Lane. As a result of his statement, the Secret Service contacted California authorities to request that they locate the vehicle. After eight days of investigation involving California and Arizona authorities, the Secret Service learned that Finck actually sold the Coachmen RV to North Bay and that North Bay then sold the vehicle to RV Trailer Land in Reno, Nevada.

Also during the interview, Finck stated that he purchased two of his non-Reliable vehicles — the Ford Harley Davidson truck and the motorcycle trailer — with cash that he had saved. A review of documents obtained during a consensual search of his residence revealed, however, Finck did not pay for the Harley Davidson truck and the motorcycle trailer with his savings. Rather, he paid for them (as well as the Lexus SUV) with proceeds from the sale of the fraudulently obtained Coachmen RV.

Authorities then attempted to seize these vehicles. In the meantime, however, Finck sold the Harley Davidson truck to Thomas Bonding for $21,000 to post bond on local Missouri fraud charges.⁴ Because bond was set at $10,000, the bondsman secured a bank loan with the Harley Davidson truck, and he remitted the remaining $11,000 to Finck's former attorney. As a result, the bondsman no longer had title to the truck, which made it complicated for law enforcement to seize.

After adjustments for obstruction of justice and use of sophisticated means, Finck was sentenced at offense level 19 and criminal history category VI. The sentencing range was 63 to 78 months for counts 1, 2, 5, 6, and 7, and 60 months for counts 3 and 4. The district court sentenced him to 63 months custody on counts 1, 2, 5, 6, and 7, and 60 months custody for counts 3 and 4, to be served concurrently for a total of 63 months. The district court also imposed a 3-year term of supervised release and ordered him to pay $148,572.40 in restitution.⁵ He appeals his sentence and the form of the judgment.

II.

The district court's factual findings at sentencing are reviewed for clear error, and the district court's application of the sentencing guidelines to the facts is reviewed de novo. United States v. Hart, 324 F.3d 575, 579 (8th Cir.2003). Finck does not challenge any of the facts underlying the obstruction of justice enhancement. As a result, our review is limited to the district court's application of sentencing guideline section 3C1.1 to undisputed facts. United States v. Thompson, 367 F.3d 1045, 1047 (8th Cir.2004). He also does not challenge any of the facts underlying the sophisticated means enhancement. We therefore review de novo "whether the district court correctly applied the guidelines when it determined those facts constituted sophisticated means."⁶ Hart, 324 F.3d at 579.

A. Obstruction of Justice

Sentencing guideline section 3C1.1 provides for a two-level sentence enhancement if the defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation . . . of the instant offense." Application note 4(g) states that a defendant obstructs justice if he provides "a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense."

During the investigation, Finck made two materially false statements to law enforcement officials: (1) he stated that he left the Coachmen RV in Lodi, California when he actually sold the vehicle to North Bay, and (2) he stated that he paid for a Harley Davidson truck and a motorcycle trailer with his savings when he actually paid for them with proceeds from the sale of the Coachmen RV. These statements led law enforcement astray and allowed him to further his fraudulent scheme during the investigation.

Finck believes that the eight-day delay and resources expended in multiple jurisdictions to locate the Coachmen RV were not a result of his false statement, but of law enforcement's inability to quickly determine that his statement was false. Because he confessed to stealing the Coachmen RV and law enforcement officials almost simultaneously discovered a receipt for a wire transfer from North Bay to Finck for $99,000 during a consensual search of his house, he believes that law enforcement officials should have been able to deduce that he sold the Coachmen RV to North Bay despite his statement to the contrary. Regardless of what law enforcement may have been capable of deducing, however, they did not find the physical evidence to immediately contradict his statement, and they expended significant time and resources to locate the Coachmen RV.

We have previously found error in obstruction of justice enhancements where the government failed to provide evidence that the false statement actually impeded the investigation. United States v. Banks, 347 F.3d 1266, 1271 (11th Cir.2003); United States v. Williams, 288 F.3d 1079, 1081 (8th Cir.2002). Here, however, the government provided testimony during sentencing to establish how Finck's false statement regarding the location of the Coachmen RV caused law enforcement to...