U.S. v. Prochner, 04-1309.

• Decision Date: 22 July 2005
• Docket Number: No. 04-1309.,04-1309.
• Citation: 417 F.3d 54
• Parties: UNITED STATES, Appellee, v. Kenneth PROCHNER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

417 F.3d 54

UNITED STATES, Appellee, v. Kenneth PROCHNER, Defendant, Appellant.

No. 04-1309.

United States Court of Appeals, First Circuit.

Heard January 3, 2005.

Decided July 22, 2005.

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Jeanne M. Kempthorne, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Kenneth Prochner appeals from his sentence on a conviction of access device (credit card) fraud. Prochner pled guilty to knowingly possessing fifteen or more unauthorized credit card numbers with the intent to defraud in violation of 18 U.S.C. § 1029(a)(3). The district court sentenced him to 25 months in prison and three years of supervised release, and ordered restitution in the amount of $2,610.19. The sentence was based in part on enhancements for the amount of loss, number of victims, special skill, and obstruction of justice.¹ The district court also imposed special conditions of supervised release, including conditions that Prochner undergo evaluation for sex offender treatment; that he not engage in an occupation, business or profession that would require direct supervision of minors; and that he have no unsupervised contact with minors.

Prochner argues for the first time on appeal that his sentence should be vacated and the case remanded for resentencing under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He also challenges the enhancement for use of a special skill, the special conditions that he undergo evaluation for sex offender treatment and refrain from certain contact with minors, and the loss calculation for purposes of awarding restitution.²

I.

A. The Arrest

On August 20, 2002, Prochner was trying to enter Canada from New York when Canadian law enforcement officers conducting border inspections discovered that he was carrying papers and a notebook containing numerous credit card numbers. Further investigation revealed that the credit card numbers had been reported as stolen or lost and that fraudulent activity had been reported on the accounts. Prochner did not have the permission of the credit card accounts' owners to use or possess the credit card numbers. After being advised of his rights, Prochner admitted that he had obtained the credit card numbers on the Internet. In a written statement to law enforcement, he explained that he accessed website order logs to obtain the credit card numbers and then accessed channels where he determined that the numbers were still valid.

In addition to the credit card numbers, Prochner had in his possession a handwritten journal that included references to adolescent males.

B. The Plea and Sentencing

On July 24, 2003, Prochner pled guilty in the United States District Court for the District of Massachusetts to the one-count indictment, which charged him with possessing 15 or more unauthorized credit card numbers with the intent to defraud. See 18 U.S.C. § 1029(a)(3). According to the government, Prochner possessed 34 unauthorized credit card numbers and had used at least one to purchase airline tickets and to stay at a hotel. Prochner agreed with most of the facts but argued that the list of unauthorized credit card numbers he had in his possession at the time of his arrest had only 16 numbers written twice, not the 34 numbers the government alleged.

The presentence report (PSR) determined that Prochner's base offense level was 6. U.S.S.G. § 2B1.1(a).³ The PSR added 4 levels for the loss of $17,000 ($500 multiplied by 34 credit card numbers), id. §§ 2B1.1(b)(1)(C), 2B1.1, cmt. n. 2(F)(i); 2 levels for the number of victims (between 10 and 50), id. § 2B1.1(b)(2)(A); 2 levels for the use of a special skill, id. § 3B1.3; and 2 levels for obstruction of justice, id. § 3C1.1. The resulting offense level totaled 16. Because Prochner had no prior convictions and zero criminal history points, he was assigned to Criminal History Category I. The resulting guideline sentencing range was 21 to 27 months. The Probation Office calculated that Prochner owed $2,610.19 in restitution.

Prior to sentencing, Prochner objected to the enhancements for the amount of loss, special skill, and obstruction of justice, as well as the restitution figure. He argued that he should have been granted a reduction for acceptance of responsibility, and sought downward departures because of his mental and emotional condition, see U.S.S.G. § 5H1.3, and family and community ties, id. § 5H1.6

After a hearing, the district court sentenced Prochner or. January 21, 2004. The court rejected the objections to the -PSR and denied Prochner's requests for downward departure. The court sentenced Prochner to 25 months in prison and three years of supervised release, and ordered him to pay restitution in the amount of $2,610.19. The court recommended that Prochner be designated to a facility where he could undergo sex offender evaluation. It also imposed special conditions of supervised release, including: (1) that Prochner "participate, if directed to do so by the Probation Office and the Court, in a sex-offender-specific treatment program," (2) that he be "prohibited from engaging in any occupation, business or profession that would require direct supervision of children under the age of 18," and (3). that he be prohibited from "hav[ing] any unsupervised contact with anyone under the age of 18."

II.

A. Booker Challenge

Prochner argues that we should remand his case for resentencing in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).⁴ At the invitation of this court, both parties submitted supplemental briefing after the Supreme Court's decision in Booker. As Prochner concedes, he did not raise any question in the district court concerning the constitutionality of the Guidelines nor of their application to his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Accordingly, we review his Booker contentions for plain error. United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005).

Prochner must satisfy the four-prong test in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993): that there is (1) an error (2) that is plain, and that the error (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings. Id. at 732, 113 S.Ct. 1770. The first two prongs are met because the defendant's sentence was imposed under mandatory Guidelines. Antonakopoulos, 399 F.3d at 77. To meet the third prong, Prochner must show there is a "reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new `advisory Guidelines' Booker regime." Id. at 75; see also United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.2005) (describing the Booker plain error inquiry as whether "there is reasonable indication that the district judge might well have reached a different result under advisory guidelines").

In support of a remand for resentencing, Prochner argues that the district court made the following findings enhancing his sentence (beyond that authorized by facts admitted by him)'in violation of the Sixth Amendment: (1) the amount of loss, (2) number of victims, (3) special skill, and (4) obstruction of justice. We said in Antonakopoulos, however, "that the judge found additional facts which raised the sentence authorized solely by the jury verdict or guilty plea—in our view is insufficient to meet the third and fourth Olano prongs on plain-error review." 399 F.3d at 79.⁵

More to the point, he also argues there is a reasonable probability that the district judge, in an advisory Guidelines system, would have reached a different result. See Heldeman, 402 F.3d at 224. At sentencing, the district judge considered and rejected Prochner's requests for downward departures based on mental and emotional condition and family and community ties. After reviewing the report prepared by Prochner's mental health expert, the judge noted that "'[the expert] doesn't conclude `that he's mentally unbalanced in the real sense, She thinks that he's depressed, which, of course, I am sometimes, too." The judge also stated that the expert "concludes the defendant, obviously, has troubles, but they are troubles that manifest themselves more in a state of depression than they do really in terms of the kind of mental fragility or disturbance that might, under the guidelines—it's not a terribly encouraged factor—but might under the guidelines qualify for a downward departure." These comments indicate that the judge denied Prochner's request for a downward departure because of skepticism that he suffered from a mental condition serious enough to warrant a downward departure. The judge went on to say, "Beyond that, I frankly don't see any basis for a downward departure that otherwise applies in the case." He then sentenced Prochner to the middle of the 21 to 27 month range.

While the district court made these comments in the context of considering whether to grant a downward departure on grounds "not ... terribly encouraged" under the guidelines, rather than pursuant to its greater discretion to consider such mitigating factors in an advisory guidelines regime, nothing suggests that the mandatory nature of the guidelines prevented imposition of a lesser sentence in this case. Indeed, without even departing downward, the court could have imposed a four-months lesser sentence under the existing guidelines range. See, e.g., United States v. Ayala-Pizarro, 407 F.3d 25, 29-30 (1st Cir.2005). On this record, we see no reasonable probability that a more lenient...