U.S. v. Jones

• Decision Date: 17 December 2008
• Docket Number: No. 07-2052.,07-2052.
• Citation: 551 F.3d 19
• Parties: UNITED STATES of America, Appellee, v. Latanya JONES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

551 F.3d 19

UNITED STATES of America, Appellee, v. Latanya JONES, Defendant, Appellant.

No. 07-2052.

United States Court of Appeals, First Circuit.

Heard October 7, 2008.

Decided December 17, 2008.

Tina Schneider, by Appointment of the Court, for appellant.

Aixa Maldonado-Quiñones, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.

STAHL, Circuit Judge.

Defendant-Appellant Latanya Jones pled guilty to several charges stemming from her role in a bank fraud conspiracy. On appeal, she contests the sentence imposed on her by the district court, including a two-level increase under U.S.S.G. § 2B1.1(b)(10)(B). Finding no error, we affirm.

I. Background

a. The Scheme

Because Jones pled guilty, we recite the facts as delineated in the Government Version of Facts, which accompanied the plea agreement and to which Jones assented. Jones came to the attention of law enforcement when Tameka Lamos, a defendant awaiting sentencing on unrelated charges, informed the Massachusetts State Police and the United States Postal Inspection Service that she was being pressured by her cousin, Latanya Jones, to participate in a bank fraud scheme. Lamos told law enforcement that Jones had at least three co-conspirators, one Bryant Green, with whom she had collaborated for approximately fifteen years, and two New York-based co-conspirators who had the ability to access account records at Bank of America¹ ("the Bank") and to obtain counterfeit drivers' licenses and credit cards.

The Government Version of Facts described the scheme as working in the following manner. The New York co-conspirators would select an account with a high balance, collect the pertinent customer and account information, and send this information to Jones via express mail.² Also included in the package were a counterfeit driver's license and two credit cards, all bearing the account holder's name. Jones would then present herself at various bank branches in New Hampshire, Rhode Island, New York, and New Jersey, posing as the account holder, and make withdrawals from the depositor's account. Co-conspirator Green would accompany her to the branches, monitor her interactions with the tellers, and create a distraction if Jones appeared to be in trouble. Thereafter, the proceeds of the scheme were divided, with the New York conspirators receiving half and Jones and Green dividing the other half.

Lamos, the informant, told law enforcement that in late December 2006 she accompanied Jones to several Bank of America branches in New Hampshire and Rhode Island, and observed Jones make numerous large cash withdrawals from a targeted account—the Morrison Account. A later analysis by the Bank determined that the withdrawals made by Jones from the Morrison Account totaled $42,000, and the government alleges that the Morrison Account had $46,000 in it before Jones began the fraudulent withdrawals.

Jones recruited Lamos into the conspiracy, and trained her to perform the role that Jones had played—Lamos was to impersonate the targeted account holder, enter the Bank branches, and attempt to withdraw money from the account using false identification. In order to prepare Lamos for this task, Jones instructed her to have a passport-style photo taken and send it to an address in New York City. The photo would be used to create a driver's license with the information of the targeted account holder, but bearing Lamos' photograph. Lamos did as Jones instructed her. Later, a Postal Inspector intercepted a package from New York containing the forged documents (a driver's license bearing Lamos' photo and two credit cards), as well as information about the new account selected for targeting.

Lamos agreed to wear a wire to a subsequent meeting with Jones and Green, during which the three planned to withdraw large sums of money from the new targeted account — the Frank Account. A transcript of the meeting shows that Jones and Green spent four hours instructing Lamos on how to conduct the fraud, including how to behave when entering the bank, what cover stories to use to distract the tellers, how much money to request, and which types of tellers to target. The transcript also includes Jones' portion of a telephone call with one of the New York co-conspirators in which she discussed in great detail perceived problems with the counterfeit identifications. Specifically, Jones was agitated to learn that the targeted account holder had moved to a new address, but the fraudulent license sent from New York carried the account holder's old address. Jones eventually devised a cover story for Lamos to use in order to explain the discrepancy. At one point during the discussion of the problem she also suggested: "Uh, I can fuck around and change the address."

During the planning meeting Jones also lamented that the false driver's license contained air bubbles on the face of the plastic laminate: "Oh, this got water bubbles in it too. We got to poke them out with a pin." Jones requested that Lamos retrieve a safety pin from a drawer in order to pop the air bubbles in the laminate. It is unclear from the transcript who actually popped the bubbles, Lamos or Jones, but it was clearly done at Jones' direction.

Finally, the transcript shows that during the meeting Jones called Bank of America to inquire as to the balance of the Frank Account and the most recent transactions. She determined that the account contained $112,623.96. When the informant, Lamos, asked Jones how much money she should withdraw from the Frank Account at each branch, Jones replied that, on the first day of the scam, Lamos should "stick on fives," meaning withdraw $5000 at each branch she visited. Then, when Lamos asked how many days she would be withdrawing money from the Frank Account, Jones replied, "The bitch got money. This is for us to get rich." Jones also assured Lamos that the large withdrawals of cash from the account would not raise alarm with the Bank given the recent large expenditures made from the account.

The co-conspirators agreed, according to the transcript, to meet the next morning, February 1, 2006, to begin the scam. Law enforcement arrested the group that day, before any money was withdrawn from the Frank Account.

b. The Sentence

Latanya Jones pled guilty to three of the four charges contained in the grand jury indictment: Count One — Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. §§ 1344 and 1349; Count Two — Aiding and Abetting Bank Fraud, in violation of 18 U.S.C. §§ 2, 1344 and 1349; and Count Four — Aiding and Abetting Aggravated Identity Theft, in violation of 18 U.S.C. §§ 2, 1028A(a)(1)(b) and (c), 1344, and 1349.

At sentencing, as to Counts One and Two, the court calculated a base level offense of seven. In addition, the court applied a ten-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(F), based on an intended loss of greater than $120,000 but less than $200,000. The court added a two-level increase pursuant to U.S.S.G. § 2B1.1(b)(10)(B), because the offense involved production and/or trafficking of a counterfeit access device. A three-level decrease was applied for acceptance of responsibility. This yielded a total offense level of sixteen. Given Jones' criminal history score of thirteen and criminal history category of VI, the court calculated the advisory guideline sentencing range, as to Counts One and Two, as forty-six to fifty-seven months. As to Count Four, pursuant to U.S.S.G. § 2B1.6, the guideline sentence for a conviction of aggravated identity theft under 18 U.S.C. § 1028A is the term of imprisonment required by statute — two years, which must run consecutively to any other sentence. Based on these calculations, the district court sentenced Jones to forty-six months imprisonment for Counts One and Two, and twenty-four months imprisonment for Count Four, to be served consecutively, yielding a total prison term of seventy months. The court also imposed a five-year term of supervised release.

c. On Appeal

On appeal, Jones challenges four aspects of her sentence, but does not contest her underlying conviction. First, she argues that a remand is warranted to consider the sentencing disparity between her and one of her co-conspirators. Second, she challenges the district court's imposition of a ten-level increase based on the amount of loss. Third, she argues that the two-level increase for production or trafficking of a counterfeit access device was not warranted because she was merely an "end user." Fourth, she argues that the district court erred in failing to grant a three-level reduction for inchoate offenses under U.S.S.G. § 2X1.1.

II. Discussion

a. Sentence Disparity

Jones argues that her case should be remanded to the district court for resentencing because her co-conspirator Bryant Green received a total sentence of fifty-one months, while she received a seventy-month term. Jones' claim of sentencing disparity faces two procedural obstacles. First, though Green was sentenced before Jones, she did not raise this objection at sentencing.³ Therefore, our review on appeal is simply for plain error. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Second, in her plea agreement, Jones waived her right to appeal "the imposition by the Court of a sentence which does not exceed the sentence recommended by the United States." However, we need not determine whether the plea agreement bars Jones from raising the sentencing disparity issue on appeal because it is clear that the district court did not commit plain error in failing to consider this issue in the first instance.⁴

18 U.S.C. § 3553(a) prompts sentencing courts to consider, among other factors, the "need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." However, we...