U.S. v. Melvin

• Decision Date: 07 September 1999
• Docket Number: No. 98-2660,98-2660
• Citation: 187 F.3d 1316
• Parties: (11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee, v. Kenneth MELVIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1316

187 F.3d 1316 (11th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth MELVIN, Defendant-Appellant.

No. 98-2660.

United States Court of Appeals Eleventh Circuit.

Sept. 7, 1999.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Middle District of Florida. (no. 97-490-CR-T-23B), Steven D. Merryday, Judge.

Before DUBINA and HULL, Circuit Judges, and HOWARD^*, Senior District Judge.

HOWARD, Senior District Judge:

Kenneth Melvin was charged by information and pleaded guilty to trafficking in fraudulently obtained credit card accounts, in violation of 18 U.S.C. 1029(A)(2), possession of fifteen or more unauthorized credit card accounts with the intent to defraud, in violation of 18 U.S.C. 1029(A)(3), and social security fraud, in violation of 42 U.S.C. 408(a)(7)(B). Melvin's charges arose from a scheme wherein Melvin obtained false credit cards, bank accounts and identification cards primarily in the names of hospitalized children. Melvin illegally obtained the personal information and social security numbers of these children through his employment at the hospital in which the children were receiving treatment.

After a sentencing hearing, the district court determined that Melvin had an adjusted offense level of fifteen and a criminal history category of II, resulting in a guidelines imprisonment range of 21 to 27 months. However, the district court departed upward by fifteen levels to reach an imprisonment range of 108 to 135 months. The district court found that Melvin's crimes were "morally reprehensible in the extreme" and departed upward because of the large number and vulnerable nature of the child victims. The court sentenced Melvin to 120 months imprisonment on counts one and two, and twenty-one months on count three, all to be served concurrently.

Melvin appeals his sentence arguing (1) that the district court improperly departed from the guidelines, and (2) that the extent and method of the district court's departure were unreasonable. We affirm.

I. BACKGROUND

Melvin was employed in the housekeeping department of All Children's Hospital in Tampa, Florida from May to September 1997. In June 1997 a private mailbox provider notified the Postal Inspector's Office that Melvin was receiving credit cards in various names at a rented mailbox. An initial investigation revealed that Melvin maintained two apartments, a post office box at the main post office in addition to the rented box, a rented storage unit and several bank accounts under different names. After continued surveillance, Melvin was arrested and Melvin's apartment and storage unit were searched pursuant to a valid warrant.

The search revealed that Melvin possessed the personal information of 135 individuals including birth dates and social security numbers. Of these individuals, 112 had been juvenile patients--ranging in age from six months to fifteen years old--at the All Children's Hospital. Using the information he obtained, Melvin procured thirty-six unauthorized credit card accounts. Thirty-five of these accounts were issued by First USA Bank, which incurred a loss of $17,307.08 because of Melvin's charges. Sears Roebuck & Co. issued a single account and incurred a loss of $1,066.34. Melvin also fraudulently obtained telephone service from GTE in the names of two individuals from which GTE suffered a loss of $1,587.73. In addition, Melvin used the stolen personal information to obtain identification cards in the names of other persons with Melvin's picture. Using the information, he obtained identification cards from Virginia, New York, New Jersey, Florida and London, England.

Melvin was charged by information and pleaded guilty pursuant to a plea agreement with the government. At sentencing, the district court determined that under the United States Sentencing Guidelines, Melvin's adjusted offense level was fifteen with a criminal history level of II, resulting in a Guidelines range of fifteen to twenty-one months. In arriving at its calculation, the court initially determined that Melvin's base offense level was six under U.S.S.G. 2F1.1, which governs offenses involving fraud and deceit. The court added three levels to the base offense level for losses greater than $10,000 but less than $20,000, pursuant to U.S.S.G. 2F1.1(b)(1)(D). The court added two levels for more than minimal planning and multiple victims under U.S.S.G. 2F1.1(b)(2)(A) and (B). The court then again adjusted Melvin's offense level upward by two levels for obstruction of justice pursuant to U.S.S.G. 3C1.1 because Melvin had provided a false name upon his arrest and to the Magistrate Judge in court proceedings. The court denied the government's request for an abuse-of-trust enhancement.

Following the adjustments, the court announced that it was contemplating a Guidelines departure. After announcing its intent to depart, the court rescheduled the sentencing to the following week to give Melvin the opportunity to prepare objections to the anticipated departure. At the subsequent sentencing hearing, the government requested that the district court depart upward because the Guidelines did not take into consideration the extraordinarily large number of children whom Melvin had targeted as victims. The court heard testimony from the parents of two of the children--a four-month old infant and a ten-year old child--Melvin had victimized. One parent testified that because of Melvin's offense, his daughter had received a bad credit rating, and that the family had experienced difficulty with the credit bureaus in attempting to clear her credit history. This parent testified that he feared that his daughter's credit history may never be corrected and that the credit problems would affect her for the rest of her life.

After hearing the testimony, the district judge adjusted Melvin's sentence upward by two levels pursuant to U.S.S.G. 3A1.1 because the victims of the offense were vulnerable. The judge then announced that he was departing upward from the Guidelines by fifteen levels pursuant to U.S.S.G. 5K2.0. The court stated:

[T]his offense is morally reprehensible in the extreme. It appears to have systematically victimized in this instance approximately 135 people, infants each one, hospitalized and presumably ill or otherwise frail and tender, in addition to being of tender years, unable to act in the preservation of their own interest, and both the children and their parents unable to act effectively to preserve their interests until the damage is already done without their individual or collective knowledge and of course without their consent. These victims are in effect especially vulnerable because they are, by the nature of their hospitalization and their frailty, captive victims. So I will simply raise the offense level fifteen to offense level thirty.

Melvin argues that the district court's bases for departing were already taken into consideration in calculating his imprisonment range under the Guidelines. Melvin also argues that even if departure was appropriate, the extent and method of the departure were unreasonable.

II. DISCUSSION

We review a district court's decision to depart from the Guidelines for an abuse of discretion. See Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). A district court's findings of fact are afforded substantial deference. See id. at 98, 116 S.Ct. 2035. "The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Id. at 100, 116 S.Ct. 2035.

A district court must impose a sentence within the Sentencing Guidelines unless the court determines "that there exists an aggravating or mitigating circumstance of a kind or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. 3553(b).

The Guidelines Manual explains:

The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where the conduct significantly differs from the norm, the court may consider whether a departure is warranted.

U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b).

Before departing from the Guidelines, a district court must therefore determine that an aggravating factor exists that places the case outside of the Guidelines' heartland. See Koon, 518 U.S. at 98, 116 S.Ct. 2035. Whether a case is unusual enough to fall outside of the heartland is determined in large part by comparison with other Guidelines cases. See id. Because the district courts see so many Guidelines cases, district courts have an institutional advantage over appellate courts in determining whether a case is outside the heartland, and thus their decisions are entitled to substantial deference. See id.

The examination of whether a factor is an appropriate basis for departure is limited to (1) whether the Sentencing Commission has prohibited consideration of the factor in departing from the Guidelines, and (2) whether the factor as occurring in the particular instance takes the case outside of the heartland of the applicable guideline. See id. at 109, 116 S.Ct. 2035.

If a factor is forbidden, see e.g., U.S.S.G. 5H1.10 (race, sex, national origin, creed, religion, and socioeconomic status), a district court cannot use the factor to depart. See id. at 96-97, 116 S.Ct. 2035. If a factor is encouraged, see e.g., U.S.S.G. 5K2.1 (offense causes death), a court may depart on the basis of the factor unless the Guidelines already take the factor into account. See id. at 96, 116 S.Ct. 2035. If a factor is discouraged, see e.g., U.S.S.G. 5H1.2 (education and vocational skills), or is an encouraged factor already...