U.S. v. Scrivener

• Decision Date: 10 November 1999
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,No. 98-50513,98-50513
• Citation: 189 F.3d 944
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA,, v. JOHN WESLEY SCRIVENER,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 944

189 F.3d 944 (9th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JOHN WESLEY SCRIVENER, DEFENDANT-APPELLANT.

No. 98-50513

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted May 6, 1999

August 30, 1999

As amended Nov. 10, 1999.

Jay L. Lichtman, Los Angeles, California, for the defendant-appellant.

Daniel Saunders, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CR-98-00137-R-1 Pasadena, California

Before: Melvin Brunetti, Kim McLane Wardlaw, and William A. Fletcher, Circuit Judges.

Wardlaw, Circuit Judge

John Wesley Scrivener pleaded guilty to nine counts of wire fraud and aiding and abetting in violation of 18 U.S.C. S 1343 and 18 U.S.C. S 2(a). After enhancing Scrivener's sentence and denying a downward adjustment for acceptance of responsibility under the United States Sentencing Guidelines, the district court sentenced Scrivener to forty-two months of imprisonment, a three-year term of supervised release, and payment of a $9,000 fine. Scrivener appeals his sentence. We exercise jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742, and we affirm.

I.

On October 29, 1998, law enforcement officers approached John Scrivener and his son, Jade, at a car wash in Costa Mesa, California. When one of the officers identified himself, Jade Scrivener ran. After a brief foot chase, the police apprehended and arrested the fleeing suspect. Retracing the path of flight, the police retrieved a package sent by a woman named Shirley Coakley. The package contained three money orders totaling $1,450.

As police officers chased his son, John Scrivener was observed removing a black leather day planner from his pickup truck and placing it in a trash can. Before he was arrested, he attempted to conceal the planner in the trash can by setting other items on top of it. Inside the planner the police found Jade Scrivener's identification, numerous prepaid telephone calling cards, business cards for mailbox rental locations, and a "lead sheet" containing names, telephone numbers, and corresponding cash amounts obtained from the persons so identified.

The arrests of John and Jade Scrivener ended their fraudulent, two-month telemarketing scheme. Under this scheme, the Scriveners would telephone senior citizens and "inform" them that they had won large sums of money. The Scriveners instructed the victims to send a certain amount of money to a rented mailbox, falsely representing that this money served as advance payment for taxes, processing fees, and attorney's fees associated with the cash prize. After they had induced the elderly victims to send the money, the Scriveners never sent the promised reward.

The Scriveners devised a simple strategy to avoid detection. They would place the fraudulent telephone calls from various motel rooms in the Costa Mesa area, always using pre-paid telephone calling cards. They directed that payments be sent to private mailboxes rented under various false names. These false names included monikers such as "Peter C. Holston" or "PCH," which are also the initials for "Publisher's Clearing House." In this fashion, the Scriveners duped their elderly victims into believing that they were sending payments to Publisher's Clearing House when, in actuality, they were sending money to the Scriveners.

A phone call placed to seventy-five-year-old Rose Packer precipitated a series of events that culminated in the Scriveners' arrests. One of the Scriveners called Ms. Packer and instructed her to send $12,000 to an address in Costa Mesa. The address was actually a mailbox drop location rented by Jade Scrivener. Working with law enforcement authorities, Ms. Packer sent an empty "dummy package" to the stated address. On the morning of October 29, 1997, police observed Jade Scrivener pick up the dummy package from the mailbox drop. Later that day, Jade Scrivener returned to the mailbox drop to pick up the package containing Shirley Coakley's three money orders. After picking up the package, Jade Scrivener got into a pickup truck driven by his father and drove to the car wash where the two were eventually arrested.

On April 10, 1998, a federal grand jury in the Central District of California returned a nine-count first superseding indictment against defendant John Scrivener and his son. Three days later, John Scrivener pleaded guilty to all counts of the first superseding indictment.

At the sentencing hearing on August 10, 1998, the district court found that the base offense level for a violation of 18 U.S.C. S 1343 and 18 U.S.C. S 2(a) is six. See U.S.S.G. S 2F.1.1(a). The district court also determined that several specific offense characteristic adjustments applied. First, the court imposed a nine-level increase under U.S.S.G. S 2F1.1(b)(1)(J), finding that the amount of loss was between $350,000 and $500,000. Second, the court imposed a twolevel enhancement under U.S.S.G. S 3A1.1(b) because Scrivener knowingly defrauded vulnerable victims and a two-level enhancement under U.S.S.G. S 2F1.1(b)(2) because the offense involved more than minimal planning and/or a scheme to defraud multiple victims.

The district court then denied Scrivener a downward adjustment for acceptance of responsibility under U.S.S.G.S 3E1.1. The court found:

"I find that the defendant John Wesley Scrivener has not accepted full responsibility for his actions in this case. He tries to put it off on his son, and I think there may be some reason because somehow or other they think that if it's a younger man who's going to take the blame, that there probably would be a lesser sentence involved with that person. And I think this investigation has just bared the tip of the iceberg of this scheme."

The district court also determined that a two-level upward departure was appropriate under U.S.S.G. S 5K2.0, reasoning:

"I think old people, and particularly old people, most of whom, at least in what I have had, over 70 are much more prone to a situation in which they are going to get a prize now of money as opposed to some kind of investment that is usually the schemes in which people in telemarketing are involved, or in other matters in which they're going to get some kind of goods rather than money, because I think they are particularly prone to that kind of thing, and I think the law has indicated that and is trying to make provision for that problem of gullibility."

The district court explicitly based the upward departure "on the rationale set forth in the government's sentencing papers."

Based upon an offense level of twenty-one, the applicable Sentencing Guidelines range for Scrivener's sentence was thirty-seven to forty-six months. The district court imposed a forty-two-month sentence of imprisonment and a three-year term of supervised release. The court also ordered Scrivener to pay a $9,000 fine and $16,350 in restitution to the victims of the fraudulent telemarketing scheme. Scrivener did not object to the imposition of the $9,000 fine.

John Scrivener now appeals the district court's sentencing decisions.¹

II.

Scrivener first contends that the district court erred in failing to apply a downward adjustment for acceptance of responsibility under U.S.S.G. S 3E1.1. Second, he claims error in the loss amount calculation under U.S.S.G. S 2F1.1. Third, he contends that the district court erred in imposing a vulnerable victim enhancement under U.S.S.G. S 3A1.1(b). Fourth, he argues that the district court abused its discretion in imposing an upward departure pursuant to U.S.S.G. S 5K2.0. Finally, Scrivener asserts error in the imposition of the $9,000 fine. Each of these contentions lacks merit, and will be addressed below in turn.

A.

A district court's decision to adjust a defendant's sentence based on acceptance of responsibility is a factual determination reviewed for clear error. See United States v. Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir. 1997). "In reviewing a district court's determination as to a defendant's acceptance of responsibility, we must afford the district court `great deference' because of its `unique position to evaluate a defendant's acceptance of responsibility.' " United States v. Fellows, 157 F.3d 1197, 1202 (9th Cir. 1998) (quoting United States v. Casterline, 103 F.3d 76, 79 (9th Cir. 1996)).

Under the Sentencing Guidelines in effect at the time of sentencing, a reduction for acceptance of responsibility was warranted if Scrivener "clearly demonstrate[d ] acceptance of responsibility for his offense." U.S.S.G. S 3E1.1(a); see also United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993) (holding that defendant bears burden of showing entitlement to credit for acceptance of responsibility). The application notes for U.S.S.G. S 3E1.1(a) allow defendants to proffer the following three pieces of "significant evidence" to establish acceptance of responsibility: (1) plea of guilty before trial; (2) truthful admission of the elements of the offense; or (3) truthful admission, or at least no false denial, of "relevant conduct." U.S.S.G. S 3E1.1, App. Note 3."A defendant who enters a guilty plea, however, is not entitled to[ ] an adjustment [for acceptance of responsibility] as a`matter of right.' " Fellows, 157 F.3d at 1202 (quoting U.S.S.G.S 3E1.1, comment. (n.3)). "Although pleading guilty and truthfully admitting the elements of the offense and other relevant conduct are `significant evidence of acceptance of responsibility,' this evidence may be outweighed by conduct `inconsistent with such acceptance of responsibility.' " Fellows, 157 F.3d at 1202 (quoting U.S.S.G. S 3E1.1, App. Note 3) (additional citation omitted). One example of inconsistent conduct that weighs against a finding of acceptance of responsibility is a defendant's attempt to minimize his own involvement in the offense. See United...