U.S. v. Manatau

• Decision Date: 01 August 2011
• Docket Number: No. 10–4101.,10–4101.
• Citation: 647 F.3d 1048
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Afuhia Masiu MANATAU, a/k/a Rocky Manatau, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

647 F.3d 1048

UNITED STATES of America, Plaintiff–Appellee,

v.Afuhia Masiu MANATAU, a/k/a Rocky Manatau, Defendant–Appellant.

No. 10–4101.

United States Court of Appeals, Tenth Circuit.

Aug. 1, 2011.

Bretta Pirie, Assistant Federal Defender (Steven B. Killpack, Utah Federal Defender, and Scott Keith Wilson, Assistant Federal Defender, with her on the briefs), Utah Federal Defender's Office, Salt Lake City, UT, for Defendant–Appellant.Michael P. Kennedy, Assistant United States Attorney (Carlie Christensen, United States Attorney, with him on the brief), District of Utah, Salt Lake City, UT, for Plaintiff–Appellee.Before BRISCOE, Chief Judge, TYMKOVICH, and GORSUCH, Circuit Judges.GORSUCH, Circuit Judge.

When calculating an advisory guidelines sentence for an economic crime a district court naturally must take account of the losses the defendant caused others. But the guidelines instruct that, when fashioning a sentence, a court should also account for the losses the defendant “intended” but was unable to realize. The question we face in this case is what counts as an “intended” loss? Unsurprisingly, we hold that the term means exactly what it says: to be included in an advisory guidelines calculation the intended loss must have been an object of the defendant's purpose.

Afuhia Masiu Manatau was in the business of stealing identities. But while he had the benefit of much practice, he was no more successful for it. Over the course of a year he stole buckets of social security numbers, credit cards, and checks. But he was also caught by police in the act no fewer than five times before the federal government finally indicted him. Two of these encounters illustrate the nature of Mr. Manatau's scheme. Once, the police stopped Mr. Manatau's car and found him with two stolen “convenience checks.” These convenience checks, issued by a credit card company, allow a credit card holder to write a check against his or her line of credit, with the amount of any check written charged to the cardholder's account. Mr. Manatau also had in his possession a credit card statement revealing that the credit limit on the stolen checks exceeded $30,000. On another occasion, the facts were similar but different. A victim reported two credit card convenience checks stolen in a car burglary. The credit limit on these checks exceeded $10,000, but there is no indication that Mr. Manatau ever saw a statement reflecting that fact or that he had any idea the checks were good for that much. We do know, however, that by the time the authorities caught up with him this time he had already cashed both checks on this account for just over $1,800 and had no other checks left.

Shortly after his indictment and recognizing the weight of the evidence against him, Mr. Manatau pleaded guilty to bank fraud and aggravated identity theft. See 18 U.S.C. § 1344; 18 U.S.C. § 1028A. The case then turned to the question of an appropriate sentence. Seeking to calculate the applicable advisory guidelines sentence, the district court focused on U.S.S.G. § 2B1.1(b)(1). Under that provision, a court must compare the economic loss the defendant “actual[ly]” inflicted on his victims with the loss he “intended to result from the offense” even if it was never realized. See U.S.S.G. § 2B1.1 cmt. n. 3(A)(i)-(ii). A court must identify the greater figure, the actual or intended loss, and then proceed to one of the guidelines' inevitable charts. Relevant for our purposes, the chart in § 2B1.1 indicates that if the greater of the actual or intended loss figure falls between $10,000 and $30,000 the defendant's offense level should be increased four levels. At the same time, the chart suggests that if the greater loss figure is more than $30,000 but less than $70,000, the defendant's offense level should be increased six levels. The difference between a four- and six-level offense ultimately translates into a different recommended prison sentence. In this case, a difference of approximately six to twelve months.

And it is this difference that is the focus of our dispute. There's no question that the actual loss Mr. Manatau inflicted on his victims was only about $1,840. But there's a very live question about what additional but unrealized loss he may have intended.

Before the district court, the government argued that Mr. Manatau's “intended loss” was more than $60,000 and so merited a six level offense increase. To reach this figure, the government argued (among other things) that the district court should simply tote up the credit limits of the stolen convenience checks. Whether or not Mr. Manatau ever intended to reach those credit limits, the government said, is neither here nor there. It is enough, the government represented, that a loss up to the credit limits was “both possible and potentially contemplated by the defendant's scheme.” Aplt.App. Vol. 1 at 72 (emphasis added); see also Aple. Br. at 23.

To this, Mr. Manatau objected. He conceded that his intended loss was significantly higher than the $1,800 actual loss he caused. But he argued that the government's intended loss analysis rested on a legal error. He said an inquiry into a defendant's mens rea is required when determining his “intended loss.” And that such an inquiry in his case would show that he didn't intend to reach the available credit limits on at least some of the convenience checks. For example, with respect to the second incident discussed above, Mr. Manatau argued that he could not possibly have intended a loss up to the full credit limit of $10,000. He couldn't have, he said, because he never saw a statement indicating that the credit limit was so high; he had no other way to know the limit would be so high; he stole only two convenience checks; by the time the police caught him he had already negotiated both of them for approximately $1,800; and he had no means to write any further checks on the account. Given these facts, he said, his intended loss for this transaction should be calculated at about $1,800, not $10,000. And a comprehensive analysis of all five transactions would show that his intended loss was somewhere between $10,000 and $30,000 and so justify only a four level offense increase, not the six level increase proposed by the government.

Ultimately, the district court overruled Mr. Manatau's objections. It employed the six level increase proposed by the government and imposed a within-guidelines sentence of 42 months, followed by 60 months of supervised release. Now on appeal, Mr. Manatau renews his argument that the district court failed as a matter of law to apply the proper mens rea standard when calculating his “intended loss.”

We agree. We hold that “intended loss” means a loss the defendant purposely sought to inflict. “Intended loss” does not mean a loss that the defendant merely knew would result from his scheme or a loss he might have possibly and potentially contemplated. Several factors compel our conclusion.

First, the plain language. The guidelines define the term “intended loss” as the “pecuniary harm that was intended to result from the offense,” including “ intended pecuniary harm that would have been impossible or unlikely to occur.” U.S.S.G. § 2B1.1 cmt. n. 3(A)(ii) (emphasis added). This definition is, of course, seriously circular, using the term “intended” to define itself not just once but twice. At the same time, the sentencing commission's definition offers us no reason to think it wished us to apply anything other than the word's ordinary meaning. If anything, the commission's (repeated) use of the word “intended” to define itself suggests that the commission thought the word's meaning was pretty plain. And in contemporary usage, it is. Something is intended if it is done on purpose—not merely known, foreseen, or just possible or potentially contemplated. 7 Oxford English Dictionary 1074 (2d ed. 1989); Webster's Ninth New Collegiate Dictionary 629 (1985) (defining “intend” as “to have in mind as a purpose or goal”). “That knowledge [alone] is sufficient to show intent is emphatically not the modern view.” Giles v. California, 554 U.S. 353, 368, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); see also Wayne R. LaFave, Substantive Criminal Law § 5.2(b) at 343 (2d ed. 2003).

The Model Penal Code reflects this contemporary understanding. Taking pains to distinguish intent from knowledge, the Code states that a person acts “intentionally” if he acts “purposely” or had as a “conscious object” to cause a particular result. Model Penal Code (“MPC”) § 1.13 (1985); MPC § 2.02(2)(a)(i). By contrast, a person acts “knowingly” if “he is aware that it is practically certain” his conduct will cause a result. MPC § 2.02(2)(b)(ii); see also United States v. Lopez–DeLeon, 513 F.3d 472, 474 (5th Cir.2008) (reviewing the Model Penal Code to discern the “ordinary, contemporary, [and] common meaning” of a term used in the guidelines); United States v. Borer, 412 F.3d 987, 992 (8th Cir.2005) (same); United States v. Honeycutt, 8 F.3d 785, 787 (11th Cir.1993) (same).

The difference between these two mental states—between intent and knowledge —is, put simply, the difference “between a man who wills that a particular act or result take place [intent] and another who is merely willing that it should take place [knowledge].” MPC § 2.02 cmt. 2 at 233 n. 6 (quoting 1 Brown Comm'n Working Papers 124). It is the difference between a utility that provides telephone service to a customer “knowing it is used for bookmaking” and someone else who strings a telephone wire in order to set up the bookmaking operation; the difference between a “farm boy [who] clears the ground for setting up a still, knowing that the venture is illicit” but just looking for a paying day's work, and someone who clears the ground in order to work a still. MPC § 2.06 cmt. 6(c) at 316. Of course, lawmakers are free and sometimes do choose to mete out the same punishment for criminal wrongs whether...