U.S. v. Hacker, 05-2709.

• Decision Date: 16 June 2006
• Docket Number: No. 05-3450.,No. 05-2709.,05-2709.,05-3450.
• Citation: 450 F.3d 808
• Parties: UNITED STATES of America, Appellee, v. Kenneth HACKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

450 F.3d 808

UNITED STATES of America, Appellee, v. Kenneth HACKER, Appellant.

No. 05-2709.

No. 05-3450.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2006.

Filed: June 16, 2006.

Timothy Joseph Langley, argued, Federal Public Defender, Sioux Falls SD, for appellant.

Mark Edward Salter, argued, Asst. U.S. Attorney, Sioux Falls, SD, for appellee.

Before WOLLMAN, FAGG, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Kenneth Hacker (Hacker) brings this appeal following his guilty plea to bank fraud under 18 U.S.C. § 1344. Hacker committed bank fraud in South Dakota while on supervised release for several Massachusetts federal convictions. Following Hacker's guilty plea to bank fraud, the district court¹ sentenced Hacker to 180 months' imprisonment after departing upward under the Sentencing Guidelines (Guidelines). In a separate proceeding regarding Hacker's supervised release violation, the district court revoked Hacker's supervised release, sentenced Hacker to 24 months' imprisonment, and ordered the sentence be served concurrently with the 180-month sentence if the bank fraud sentence is affirmed on appeal.

Hacker appeals, arguing the district court (1) erred by departing upward under the Guidelines, (2) imposed an unreasonable sentence on Hacker's bank fraud conviction, (3) lacked jurisdiction to revoke Hacker's supervised release, and (4) imposed the revocation sentence for an improper purpose. Following our thorough review of the record, we affirm.

I. BACKGROUND

In June 2000, Hacker was indicted in the United States District Court for the District of Massachusetts for multiple counts of mail fraud, wire fraud, and uttering and possessing counterfeit securities. Hacker pled guilty to the federal charges and was sentenced to 18 months' imprisonment and 3 years' supervised release. On September 25, 2001, Hacker was released from prison and began serving his supervised release term, which would expire on September 24, 2004. In June 2003, Hacker visited South Dakota to attend his brother's funeral. Because Hacker had been living in various Massachusetts homeless shelters, authorities allowed Hacker to relocate to South Dakota and reside with his mother, Marlene M. Iron Shell (Iron Shell), while under the supervision of South Dakota probation authorities.

In July 2003, Iron Shell received $125,264.59 from her deceased son's life insurance policy. She deposited the money in her Bank One account. On October 6, 2003, following Hacker's urging, Iron Shell added Hacker's name to all of her bank accounts, giving Hacker authority to withdraw funds from the joint accounts. Over the next few months, Hacker transferred approximately $90,000 to his mother's Wells Fargo Bank account without her knowledge. Hacker also withdrew money from the Bank One account using online cash services. The Bank One account eventually was closed with a zero balance on January 23, 2004.

In February 2004, Hacker opened savings and checking accounts with BankWest, Inc. (BankWest). During the next month, Hacker used Iron Shell's personal checks and forged her signature, writing eight checks totaling $204,486.78 to himself on the closed Bank One account and depositing the checks into his own BankWest accounts. Using several methods, including cash withdrawals, wire transfers, cashiers' checks, automatic clearinghouses, and electronic transfers over the Internet, Hacker withdrew funds from his Bank West account before the checks were returned for nonsufficient funds. BankWest froze Hacker's accounts before posting some of the deposited checks, yet the bank still incurred an actual loss of $87,228.79. Even after BankWest closed Hacker's account on March 29, 2004, Hacker attempted to withdraw funds from the account, including a failed $29,999.99 electronic transfer to an Ameritrade brokerage account as well as nonsufficient funds to NetBank and TD Waterhouse totaling over $15,000.

On July 21, 2004, a grand jury indicted Hacker for bank fraud, in violation of 18 U.S.C. § 1344,² and for embezzlement and theft from an Indian tribal organization, in violation of 18 U.S.C. § 1163. Hacker pled guilty to bank fraud, which carries a maximum statutory penalty of 30 years' imprisonment and a fine of one million dollars. See 18 U.S.C. § 1344. At sentencing, the district court assigned Hacker a base offense level of 7, see U.S.S.G. § 2B1.1(a)(1), and increased it by 12 levels because the intended loss exceeded more than $200,000, see U.S.S.G. § 2B1.1(b)(1)(G). Two levels were added for the use of sophisticated means to commit the offense, with no objection from Hacker. See U.S.S.G. § 2B1.1(b)(9)(C). The district court also imposed a 2-level enhancement for obstruction of justice based on Hacker's failure to disclose a felony conviction in Oklahoma for obtaining money and merchandise by means of a false and bogus check. Hacker's adjusted offense level of 23, together with his criminal history category of VI, resulted in a Guideline sentencing range of 92 to 115 months. Finding Hacker failed to demonstrate he had clearly accepted responsibility for his offense, the district court refused to reduce the offense level from 23.

The district court then departed upward 6 levels on the grounds Hacker's criminal history category failed to encompass his past criminal conduct and did not adequately represent the likelihood Hacker would commit further crimes. Noting Hacker had been released from a 60-day jail sentence in Massachusetts to return to South Dakota for his brother's funeral, the district court also noted Hacker used this opportunity to steal his deceased brother's life insurance proceeds from his own mother. The court concluded such conduct "was unusually heinous, cruel, and degrading" to Hacker's mother. The adjustment resulted in a total offense level of 29 and a Guideline range of 151 to 188 months. The district court sentenced Hacker to 180 months' imprisonment and 5 years' supervised release.

On July 12, 2005, the district court held Hacker's revocation hearing, during which Hacker admitted violating the conditions of his supervised release by committing bank fraud. Although the recommended sentencing range was 12 to 18 months' imprisonment, see U.S.S.G. § 7B1.4(a), the district court sentenced Hacker to 24 months' imprisonment, the statutory maximum under 18 U.S.C. § 3583(e)(3). The district court further ordered the sentence to run concurrently with Hacker's bank fraud sentence if that 180-month sentence is upheld on appeal. If, however, the bank fraud sentence is reduced on appeal, the revocation sentence should run consecutive to the extent necessary to achieve a total sentence of 180 months. This appeal followed.

II. DISCUSSION

A. Bank Fraud Conviction Sentence

Hacker first contends the district court erred when determining the appropriate sentence for his bank fraud conviction by departing upward under U.S.S.G. § 4A1.3. We review de novo whether the district court imposed Hacker's sentence in violation of law or as the result of an incorrect application of the Guidelines. See United States v. Fogg, 409 F.3d 1022, 1026 (8th Cir.2005). We review for abuse of discretion the district court's decision to depart upward from the Guidelines, and we review the extent of the departure and final sentence for reasonableness. Id. (citations omitted).

1. Upward Departure

Section 4A1.3 of the Guidelines suggests an upward departure may be warranted when "reliable information indicates that the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes." U.S.S.G. § 4A1.3(a)(1). When contemplating and structuring such a departure, the district court should consider both the nature and extent of a defendant's criminal history. United States v. Gonzales-Ortega, 346 F.3d 800, 802 (8th Cir.2003). "In deciding the likelihood that a defendant may commit other crimes, a court may take into account any evidence of obvious incorrigibility and conclude that leniency has not been effective." United States v. Herr, 202 F.3d 1014, 1016 (8th Cir.2000) (internal quotations and alteration omitted). Although the sentencing court cannot consider a defendant's prior arrest record itself as the basis for an upward departure, it may consider prior similar adult criminal conduct not resulting in conviction, prior similar civilly-adjudicated misconduct, and prior sentences. U.S.S.G. § 4A1.3(a)(2), (3); United States v. Hawk Wing, 433 F.3d 622, 628 (8th Cir.2006).

Our review of the record convinces us the district court did not abuse its discretion by departing upward under section 4A1.3. The district court documented its basis for an upward departure, stating Hacker "was a career criminal, that his occupation throughout his adult lifetime has been stealing money, that his criminal history category (VI) was not adequate, [and] that his criminal history category does not adequately represent the likelihood that he will commit further crimes or encompass adequately his past criminal conduct." In departing upward for inadequacy of criminal history, the district court relied on Hacker's Presentence Investigation Report (PSR), and pointed to Hacker's numerous convictions for which he received no criminal history points, including convictions for petty theft, injury to property, larceny by check, larceny over $250, and larceny and embezzlement. Furthermore, the district court considered several uncontested pending charges against Hacker, including charges for grand larceny, passing a check against a nonexistent account, and nonsufficient funds checks.

In addition, Hacker's other misconduct, which he objected to as not relevant conduct and as not admitted as a part of the guilty plea, included: causing Great Western Bank to incur a loss of over $24,000 by writing nonsufficient funds checks and writing checks on a closed Great...