U.S. v. Petersen

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Appeals from the United States District Court for the Central District of California, Stephen V. Wilson; FLETCHER
• Citation: U.S. v. Petersen, 98 F.3d 502 (9th Cir. 1996)
• Decision Date: 22 October 1996
• Docket Number: Nos. 96-50037,96-50040,96-50038 and 96-50039,s. 96-50037
• Parties: , 96 Cal. Daily Op. Serv. 7770, 96 Daily Journal D.A.R. 12,819 UNITED STATES of America, Plaintiff-Appellee, v. Justin Tanner PETERSEN, Defendant-Appellant.

Page 502

98 F.3d 502

65 USLW 2367, 96 Cal. Daily Op. Serv. 7770,

96 Daily Journal D.A.R. 12,819

UNITED STATES of America, Plaintiff-Appellee, v. Justin Tanner PETERSEN, Defendant-Appellant.

Nos. 96-50037, 96-50040, 96-50038 and 96-50039.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 4, 1996.

Decided Oct. 22, 1996.

Jay L. Lichtman, Los Angeles, CA, for defendant-appellant.

David J. Schindler, George S. Cardona, Assistant United States Attorneys, Los Angeles, CA, for plaintiff-appellee.

Appeals from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding D.C. Nos. CR-91-00956-SVW, CR-91-00995-SVW, CR-92-00575-SVW and CR-95-00214-SVW.

Before: FLETCHER, BEEZER, and KLEINFELD, Circuit Judges.

FLETCHER, Circuit Judge:

Defendant Justin Tanner Petersen appeals from the sentence imposed after his plea of guilty to charges of computer fraud, possession of a stolen vehicle transported across state lines, conspiracy to commit computer fraud and wire fraud, and interception of wire and electronic communications in four separate cases consolidated for sentencing. Petersen challenges the district court's (1) two-level upward adjustment for use of a special skill based upon his computer skills; (2) two-level upward adjustment for obstruction of justice; (3) failure to reduce the offense level on the grounds that one of the frauds was merely an attempt; and (4) ordering of restitution in the amount of $40,000. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I

On July 20, 1992, Petersen pled guilty in three criminal cases. In CR 91-00995-SVW, he pled guilty to count one of an eight count indictment for computer fraud in violation of 18 U.S.C. § 1030(a)(2). The indictment charged that between February 11, 1991 and April 21, 1991, he gained unauthorized access to computers of TRW Information Services, a consumer credit reporting agency. The evidence at sentencing showed that Petersen, then in Texas, engaged in credit card fraud by selecting names from the telephone book and "hacking" ¹ into credit reporting services to obtain information which he used to order fraudulent credit cards. He then made charges on the fraudulent credit cards.

In CR-91-00956-SVW, Petersen pled guilty to count one of a single count indictment for possession of a stolen vehicle which crossed state lines in violation of 18 U.S.C. § 2313. The evidence at sentencing showed that on or about January 12, 1991, Petersen, then in California, responded to an advertisement in a local newspaper offering a 1986 Porsche for sale. Petersen took the car for a test drive and drove off with the car. He transferred license plates from a car registered to him to the stolen Porsche and moved to Texas.

In CR 92-00575-SVW, Petersen pled guilty to all counts of a four-count information. Count one charged Petersen with conspiracy to gain unauthorized access to a federal interest computer system to carry out a scheme to defraud and to intercept wire and electronic communications in violation of 18 U.S.C. §§ 371, 1030(a)(4) and 2511. Count two charged Petersen with interception of wire, oral and electronic communications in violation of 18 U.S.C. § 2511. Counts three and four charged Petersen with unauthorized access to a federal interest computer system in violation of 18 U.S.C. § 1030(a)(4). With respect to the last count, the evidence at sentencing showed that on September 28, 1989, Petersen gained unauthorized access to the computers of Pacific Bell to facilitate intercepting and seizing the telephone lines of radio station KPWR FM. Petersen's confederates Kevin Lee Poulsen and Ronald Mark Austin had discovered a computer program which could be manipulated to "rig" radio station promotional contests by seizing control of the telephone lines leading to the radio station to ensure that they were the correct caller to win various prizes. They advised Petersen of this scheme, and Petersen used the information to call the radio station and "win" a $10,000 cash prize. Poulsen and Austin "won" at least two Porsche automobiles, a $20,000 cash prize, a $10,000 cash prize, and two trips to Hawaii.

Petersen was arrested in Dallas, Texas in or about June 1991 and agreed to be debriefed regarding his criminal activities. He entered into a plea agreement requiring his cooperation and assistance to law enforcement and was transported to the Central District of California. There he was released on bail in order to assist the FBI. After Petersen pled guilty to the above charges, sentencing was continued by stipulation several times in order to permit Petersen's cooperation.

Petersen engaged in extensive assistance for the government while on bail. The FBI rented him an apartment with computers, phone lines, and pagers. Among other things, Petersen helped seize Poulsen's computer, resulting in evidence used to convict Poulsen, and helped gather evidence against Austin, who was ultimately prosecuted and convicted.

In October 1993, the FBI received information suggesting that Petersen had engaged in additional criminal activity while on bail. The United States met with Petersen and his counsel to confront them with the allegations. Petersen admitted committing additional acts of credit card fraud while on bail. During a recess, Petersen fled. A bench warrant was issued for his arrest.

On January 24, 1994, counsel appeared before the district court. Petersen remained a fugitive. The court took the sentencing date off calendar pending Petersen's capture or self-surrender.

While a fugitive, Petersen hacked into the computers of Heller Financial and obtained the codes necessary to effectuate a wire transfer from Heller to another bank account. On August 17, 1994, Petersen called in two bomb threats to Heller as a distraction. While the building was evacuated, he executed a $150,000 wire transfer from Heller through Mellon Bank into an account at Union Bank. The next day Heller discovered the transfer and managed to seize the $150,000 before it was removed from Union Bank.

On August 29, 1994, Petersen was captured. On March 27, 1995 he pled guilty to both counts of a two count information based on the crimes he committed while on bail. CR 95-00214-SVW. Count one charged conspiracy to commit computer fraud and wire fraud in violation of 18 U.S.C. §§ 371, 1030(a)(4) and 1343. Count two charged Petersen with knowingly possessing fifteen or more unauthorized access devices (i.e., computer passwords) that were stolen and obtained with the intent to defraud in violation of 18 U.S.C. § 1029(a).

The four cases were consolidated for sentencing. On November 27, 1995, the district court sentenced Petersen to a total period of incarceration of 41 months, a three year term of supervised release, and restitution in the amount of approximately $40,000. ² The sentence was based on an adjusted offense level of 18 and a criminal history category of III resulting in a guidelines range of 33-41 months. The adjusted offense level was calculated as follows: Base offense level under U.S.S.G. § 2F1.1 ³ (Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments) [6 points]; loss of more than $200,000 under § 2F1.1(b)(1) [8 points]; more than minimal planning under § 2F1.1(b)(2) [2 points]; use of a special skill under § 3B1.3 [2 points]; obstruction of justice under § 3C1.1 [2 points]; committing offense while on bail under § 2J1.7 [3 points]; acceptance of responsibility under § 3E1.1(a) [minus 3 points]; and substantial assistance downward departure under § 5K1.1 [minus 2 points].

II

The district court's factual findings at sentencing are reviewed for clear error. United States v. Fuentes-Mendoza, 56 F.3d 1113, 1116 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 326, 133 L.Ed.2d 227 (1995); 18 U.S.C. § 3742(e).

The district court's application of the Sentencing Guidelines to the facts is reviewed for an abuse of discretion. The district court's interpretation of the Guidelines, as a question of law, ... is not entitled to deference, though "[l]ittle turns on whether we label review of this particular question abuse of discretion or de novo, for ... [a] district court by definition abuses its discretion when it makes an error of law."

United States v. Willett, 90 F.3d 404, 406 (9th Cir.1996) (internal citation omitted) (alteration in original) (quoting Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996) (holding that a district court's departure from the Guidelines is reviewed for an abuse of discretion)); see also 18 U.S.C. § 3742(e) ("court of appeals shall give ... due deference to the district court's application of the guidelines to the facts").

III

A. Special Skill Adjustment

The district court imposed a two-level upward adjustment under U.S.S.G. § 3B1.3 for "use[ ] [of] a special skill." Although Petersen has not had formal training in computers, the district court reasoned that he "obviously has an extraordinary knowledge of how computers work and how information is stored, how information is retrieved, and how the security of those systems can be preserved or invaded" and that "even if he can't create programs, he could certainly work in the security end of the computer business." On the basis of these findings, the district court determined that Petersen's computer abilities constituted a special skill within the meaning of § 3B1.3. ⁴

Section 3B1.3 provides that the district court may enhance the defendant's offense level if he "abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. The phrase "special skill" is defined as "a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors,...