U.S. v. Ogbeide, 89-3090

• Decision Date: 24 August 1990
• Docket Number: No. 89-3090,89-3090
• Citation: 911 F.2d 793
• Parties: UNITED STATES of America v. Tennyson OGBEIDE, a/k/a Eddy Feisel, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 793

911 F.2d 793

286 U.S.App.D.C. 51

UNITED STATES of America v. Tennyson OGBEIDE, a/k/a Eddy Feisel, Appellant.

No. 89-3090.

United States Court of Appeals District of Columbia Circuit.

Argued April 2, 1990.

Decided Aug. 24, 1990.

Appeal from the United States District Court for the District of Columbia (Crim. No. 89-00066-01).

Joseph J. McCarthy (appointed by this court), for appellant.

Mary Ellen Abrecht, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Helen M. Bollwerk, and Judith E. Retchin, Asst. U.S. Attys., were on the brief, for appellee.

Before EDWARDS, RUTH B. GINSBURG, and BUCKLEY, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Tennyson Ogbeide appeals the district court's decision to sentence him to a longer prison term than that specified by the applicable Sentencing Commission Guidelines range for possession of fifteen or more unauthorized credit cards with intent to defraud. In enhancing the guideline sentence, the court stated, first, that the dollar amount of the loss to victims did not fully capture the harmfulness and seriousness of Ogbeide's conduct, and second, that Ogbeide possessed the credit cards in order to facilitate or conceal the commission of another offense. As the court failed to identify the other offense, and as it did not state why it believed the monetary loss did not reflect the seriousness of the crime, we remand for resentencing.

I. BACKGROUND

In February 1989, Tennyson Ogbeide was arrested in Washington, D.C., for possessing fifteen credit cards issued in other people's names. His unauthorized use of the cards had resulted in a total loss of approximately $5,165. At the time of his arrest, Ogbeide was on probation for a previous credit card offense.

On March 21, Ogbeide pled guilty to one count of possession of fifteen or more unauthorized credit cards with intent to defraud, in violation of 18 U.S.C. Sec. 1029(a)(3) (1988). At the sentencing hearing on May 19, the parties agreed that the punishment specified by the applicable guidelines ranged from four to ten months' imprisonment. This range was based on the guideline for fraud, section 2F1.1, as adjusted for the amount of loss, the fact that the offense involved more than minimal planning, Ogbeide's acceptance of responsibility in pleading guilty, and his criminal history, which included his probation status. See United States Sentencing Commission, Guidelines Manual, Secs. 2F1.1, 3E1.1, 4A1.1 (Nov.1989) ("Guidelines").

At the sentencing proceeding, the government suggested that an upward departure from the guidelines range was appropriate in this case. The government explained that Ogbeide had been on probation at the time of his offense, that the crime was detected early and thus "the loss was nipped in the bud," and that Ogbeide was under indictment in another state for fraudulently applying for a bank account using a false social security number. Transcript of Sentencing Proceeding, May 19, 1989, at 6-7 ("Transcript").

The court then imposed its sentence, explaining as follows:

I am troubled about the fact that [Ogbeide] was on probation at the time that this offense was committed. He is not a first offender.

All right. The court will impose a sentence, as follows:

It is the judgment of the court that the defendant, Tennyson Ogbeide, be, and he is hereby, committed to the custody of the Bureau of Prisons, to be imprisoned for a term of three years.

The court bases this upward departure from the guidelines in assessing this on the fact that the available figure as representing the dollar amount of the loss to victims does not fully capture the harmfulness and the seriousness of the conduct.

Further, the defendant possessed credit cards in order to facilitate or conceal the commission of another offense.

Id. at 8-9.

Ogbeide then brought this appeal.

II. DISCUSSION

A trial court may depart from the sentencing range prescribed by the guidelines if it

finds 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....

18 U.S.C. Sec. 3553(b) (1988). When he departs from the guidelines, the trial judge must state in open court at the time of sentencing "the specific reason for the imposition of a sentence different from that" derived from the guidelines. 18 U.S.C. Sec. 3553(c)(2).

In reviewing a departure, we first determine whether the factor relied on by the district court for the departure had been adequately considered by the Sentencing Commission in formulating the guidelines. This is a question of statutory interpretation that is subject to plenary review. See United States v. Burns, 893 F.2d 1343, 1345 (D.C.Cir.), cert. granted, --- U.S. ----, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990); accord United States v. Hawkins, 901 F.2d 863, 864 (10th Cir.1990); United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). Once we establish that a factor provides a legally permissible basis for departure, we will uphold the trial court's sentence so long as it is reasonable. See Burns, 893 F.2d at 1345; Diaz-Villafane, 874 F.2d at 49-50. Factual findings made by the court in its departure decision will be set aside only for clear error. See 18 U.S.C. Sec. 3742(e); see also Burns, 893 F.2d at 1345-46; Diaz-Villafane, 874 F.2d at 49. In deciding whether a departure is unreasonable, we are to consider "the reasons for the imposition of the particular sentence, as stated by the district court" at the time of sentencing. 18 U.S.C. Sec. 3742(e)(3)(B).

When the court sentenced Ogbeide, it cited, without any elaboration, two factors listed in the guidelines as possible justifications for departing from the guideline range: first, that the dollar loss did not fully reflect the harmfulness and seriousness of his crime; and second, that Ogbeide possessed the credit cards in order to facilitate or conceal the commission of another offense.

To begin with the first factor, in enhancing Ogbeide's sentence, the court pointed to "the fact that the available figure as representing the dollar amount of the loss to victims does not fully capture the harmfulness and the seriousness of the conduct." Transcript at 8. These words are taken almost verbatim from Application Note 9 to the fraud guidelines, section 2F1.1. Note 9, however, does not stop with the assertion that an upward departure may be warranted where the monetary loss fails to reflect the seriousness of the offense. Rather, it proceeds to list a wide range of examples of such circumstances, e.g., "the offense caused physical or psychological harm," the "completion of the offense was prevented, or the offense was interrupted before it caused serious harm," and "the offense endangered national security or military readiness." Guidelines Sec. 2F1.1, Application Notes 9(c), (f), (d). These examples suggest the need for greater specificity than the court has given us.

Here, the trial court did not explain the particular circumstances justifying departure, relying instead on...