U.S. v. Peyton

• Decision Date: 31 December 2003
• Docket Number: No. 02-50482.,02-50482.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fatima PEYTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

353 F.3d 1080

UNITED STATES of America, Plaintiff-Appellee, v. Fatima PEYTON, Defendant-Appellant.

No. 02-50482.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 8, 2003 — Pasadena, California.

Filed December 31, 2003.

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Angela M. Krueger, Federal Defenders of San Diego, San Diego, California, for the defendant-appellant.

Steve Miller, Assistant United States Attorney, San Diego, California, C. Lam, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Rudi M. Brewster, Senior District Judge, Presiding. D.C. No. CR-00-01478-TJW.

Before: John T. NOONAN, Richard C. TALLMAN, and Johnnie B. RAWLINSON, Circuit Judges.

OPINION

Opinion by Judge TALLMAN; Dissent by Judge NOONAN.

TALLMAN, Circuit Judge:

Fatima Peyton was tried and convicted of access device fraud in violation of 18 U.S.C. § 1029(a)(1) and (2) and sentenced to 15 months imprisonment for her role in an identity theft ring. Following a successful appeal, in which we reversed six of the eight counts of conviction, Peyton was resentenced to 30 months. She now appeals the resentencing, asserting that: (1) the district judge acted vindictively by doubling her sentence; (2) the district court applied an improper evidentiary standard to evidence proffered in support of sentencing factors; and (3) insufficient evidence existed to apply the sentencing enhancements for accountable loss, obstruction of justice, and abuse of a position of trust.

We hold that the sentencing record does not rebut the presumption that the district judge acted in a vindictive manner by applying the obstruction of justice enhancement on resentencing after considering, but rejecting, this enhancement at the original sentencing. Accordingly, we vacate that part of Peyton's sentence and remand again for resentencing without it. We affirm the district court's rulings on all other claims.

I. Factual and Procedural History

The grand jury charged Peyton with falsely procuring American Express credit cards in the names of her fellow postal workers in order "to obtain money, goods, services, or any other thing of value." 18 U.S.C. § 1029(e)(1). Counts one through three generally alleged that Peyton fraudulently used three credit cards to obtain goods. Count one alleged a loss of $9,006.17; count two alleged a loss of $3,325.72; and count three alleged a loss of $6,504.17. Counts four through nine alleged specific instances of fraudulent credit card use. Before trial, the government dismissed count seven.

Peyton was arrested by U.S. Postal Inspectors on May 19, 2000, and was tried by a jury. Michael Lucas, her boyfriend, was charged as a co-defendant.¹ The evidence established that in 1999 Peyton worked as a supervisor for the United States Postal Service in San Diego. Like other supervisors, Peyton had access to the names and social security numbers of fellow employees working at her facility. During this time, David Lucas, Michael's brother, served as an administrative assistant with the United States Navy. David's position gave him access to naval personnel information.

Between July 19, 1999, and September 21, 1999, the names and social security numbers of six naval officers were used to apply for American Express credit cards that were to be delivered to the residence shared by Peyton and Michael Lucas. Eleven other credit card applications were made over the phone, each specifying David Lucas' separate address as the applicant's residence, most of which used the names and social security numbers of the Postal Service employees who worked in Peyton's office. On September 21, 2000, a jury found Peyton guilty on all eight counts of access device fraud for an accountable loss that was greater than $12,000.²

A. The First Sentencing

The Presentence Report (PSR) recounted key facts connecting Peyton and Michael Lucas to the fraudulent credit card scheme. Peyton purchased tires at a San Diego Discount Tire store using one of the fraudulent postal employee cards. The salesman identified Peyton as the purchaser, the signature on the sales receipt matched Peyton's handwriting, and the tires were found on Peyton's car. A surveillance tape captured Peyton using the same card to purchase and install stereo equipment in her car at a Circuit City store. The installation order was placed by a person identified as "Fatima," and the equipment and receipt were found in Peyton's car. In addition, Peyton was with Michael Lucas when he used fraudulent cards to purchase gasoline for her car and bedding at Mattress Discounters.

On December 18, 2000, the district court sentenced Peyton. Although the indictment alleged that Peyton had fraudulently charged a total of $18,836.06, the PSR recommended a five-level upward adjustment for an accountable loss of $67,355.57, which American Express reported as the total purchases credited to all of the counterfeit credit cards obtained by the ring. The government argued that the total loss of $67,355 was attributable to Peyton as relevant conduct because she was involved in the overall scheme to defraud, and the entire amount of the loss was directly foreseeable by her. Peyton objected that the government failed to prove her connection to the entire $67,355 loss.

The PSR also recommended three sentencing enhancements: a two-level increase for more than minimal planning under U.S.S.G. § 2F1.1(b)(2)(A) and (B); a two-level increase for abuse of a position of trust under § 3B1.3; and a two-level increase for obstruction of justice under § 3C1.1. Peyton objected to the enhancements and requested downward adjustments and departures, including a minor role reduction under § 3B1.2(b).

The district court held Peyton accountable for $17,800 based on the allegations contained in the indictment, and accordingly increased her base offense score by only three levels.³ At the first sentencing, the district court expressed reluctance to use the $67,355 figure due to its concern that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required the government to prove the accountable loss beyond a reasonable doubt.

The district court applied a two-level enhancement for more than minimal planning and a two-level enhancement for abuse of a position of trust, but declined to apply a two-level enhancement for obstruction of justice. During trial, Peyton had offered Michael Lucas' declaration, which falsely attempted to exculpate Peyton of all misconduct. The district court ruled that Peyton could not be held responsible for a third-party's false declaration. It also denied the downward departure requested by Peyton. Peyton was sentenced to 15 months in custody and three years of supervised release.

B. The First Appeal

On her first appeal, we vacated Peyton's convictions on six counts (counts one, two, four, five, six, and eight) due to a material variance in proof, but affirmed her convictions on counts three and nine. United States v. Peyton, 28 Fed.Appx. 655 (9th Cir.2002). The panel ordered a general remand for resentencing under United States v. Ponce, 51 F.3d 820 (9th Cir.1995). The panel did not address the other sentencing issues presented in the appeal or the government's cross-appeal.

C. The Second Sentencing

At the resentencing on September 9, 2002, the district court applied a two-level enhancement for more than minimal planning and a two-level enhancement for abuse of a position of trust, but denied Peyton's request for a minor role downward departure. No longer concerned with the application of Apprendi because of intervening circuit authority, the district court applied the preponderance of the evidence standard and determined that there was sufficient evidence to attribute the entire loss of $67,355 to Peyton.

But the district court changed its prior ruling and found that Peyton had obstructed justice by submitting Lucas' false exculpatory declaration and applied the two-level enhancement. Although the district court stated that the obstruction enhancement applied because Peyton had improperly sought to influence the proceedings against her, it failed to provide an explanation as to why the enhancement was appropriate now but had not been appropriate at the first sentencing hearing. The district court then resentenced Peyton to 30 months, double the original sentence, with credit for time served.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II. Vindictiveness

Peyton contends that the district court's imposition of a higher sentence at resentencing was vindictive, and therefore, a violation of her due process rights. We review de novo Peyton's constitutional challenges to her doubled sentence. United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir.2000).

Peyton has a Fifth Amendment due process right not to be subjected to vindictive resentencing after successfully attacking her conviction and sentence. See Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir.2003). To assure the absence of vindictiveness, the Supreme Court has concluded that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); see also United States v. Garcia-Guizar, 234 F.3d 483, 489 (9th Cir.2000) (holding that the Pearce presumption applies to resentencings as well as retrials).

If the district court does not explain the reasons for the increase, "a presumption arises that a greater sentence has been imposed for a vindictive purpose — a presumption that must be rebutted by objective information ... justifying the increased sentence." Garcia-Guizar, 234 F.3d at 489 (citing Alabama v. Smith, 490 U.S. 794, 798-99, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). However, the presumption of vindictiveness applies only in those...