U.S. v. Sykes

• Decision Date: 22 October 1993
• Docket Number: No. 92-2984,92-2984
• Citation: 7 F.3d 1331
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Linda J. SYKES, also known as Lynda J. Young, also known as Lynda J. Jefferson, also known as Lyndra J. Sykes, also known as Lyndra J. Young, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1331

7 F.3d 1331

UNITED STATES of America, Plaintiff-Appellee, v. Linda J. SYKES, also known as Lynda J. Young, also known as Lynda J. Jefferson, also known as Lyndra J. Sykes also known as Lyndra J. Young Defendant-Appellant.

No. 92-2984.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1993.

Decided Oct. 22, 1993.

John W. Vaudreuil, Asst. U.S. Atty., Timothy O'Shea (argued), Madison, WI, for plaintiff-appellee.

Bruce A. Kittle, Michael, Best & Friedrich, Madison, WI (argued), for defendant-appellant.

Before CUDAHY and ROVNER, Circuit Judges, and REAVLEY, Senior Circuit Judge. ^*

ILANA DIAMOND ROVNER, Circuit Judge.

Linda Sykes pled guilty to one count of a four-count indictment charging her with falsely representing a social security number with intent to deceive in violation of 42 U.S.C. § 408(a)(7)(B). The indictment charged that Sykes used false social security numbers four times during a thirty-two month period to obtain credit from various sources. The district court accepted Sykes' plea and dismissed the remaining three counts on the government's motion. In sentencing Sykes, however, the district court found that the acts charged in the dismissed counts were "relevant conduct" under section 1B1.3(a)(2) of the Sentencing Guidelines, and the court enhanced Sykes' offense level and criminal history category accordingly. The court then sentenced Sykes to the maximum period of incarceration under the enhanced Guidelines range. Sykes does not challenge on appeal the inclusion of the count II and count III acts as relevant conduct, but she argues that the acts charged in count IV do not so qualify. We agree and therefore vacate Sykes' sentence and remand for resentencing.

I. FACTS

The indictment charged four separate violations of section 408(a)(7)(B). Count I, to which Sykes pled guilty, involved the purchase of furniture from the A-1 Furniture Company in Madison, Wisconsin. On June 10, 1988, Sykes applied for and obtained credit from AVCO Financial Services ("AVCO") to finance this purchase. She applied under the name Lyndra J. Sykes and listed her social security number as 529-23-5423, when her social security number actually is 429-23-2453. AVCO provided financing to Sykes in the amount of $1,599.33, and it subsequently provided an additional $634.95 in credit based upon the June 10 application.

Count II charged that in February of the following year, Sykes applied to CUNA Credit Union ("CUNA") of Madison, Wisconsin, for a VISA credit card. On this application, she used the name Lyndra J. Young and provided the same false social security number. CUNA denied Sykes' application.

In December 1989, Sykes applied for and obtained a $1,885.73 loan from ITT Financial in Madison. She used the name Lynda Sykes Young and once again the same false social security number. This was charged in count III of the indictment.

Count IV relates to the conduct at issue on this appeal. On February 5, 1991, almost thirty-two months after the act charged in count I and fourteen months after that charged in count III, Sykes applied to Capitol Ford in Madison for a $9,995.00 automobile loan. She submitted the application in the name of Lynda J. Jefferson, claiming that she was married to a Mark Jefferson, and she used a new but still false social security number--429-23-1700. ¹ Sykes' mother agreed to cosign for the loan. CUNA initially denied the application, but the Ford Motor Credit Union ultimately approved the loan, enabling Sykes to purchase the automobile.

Two weeks later, on February 19, 1991, Sykes filed a bankruptcy petition in the Western District of Wisconsin using the name Lynda J. Sykes Young and her actual social security number.

The district court accepted Sykes' guilty plea on count I and ordered the probation officer to prepare a Presentence Report ("PSR"). In the PSR, the probation officer calculated Sykes' total offense level at seven and her criminal history category at two, resulting in a sentencing range of two to eight months' incarceration. ² The probation officer considered the conduct charged in counts II and III to be "relevant conduct" under U.S.S.G. § 1B1.3(a)(2) because it was part of the "same course of conduct or common scheme or plan as the offense of conviction." However, the probation officer recommended that the acts charged in count IV not be considered "relevant conduct":

It could be argued that the conduct embodied in Count 4 of the Indictment was also part of the same course of conduct or common scheme or plan as the offense of conviction because Ms. Sykes again used a name other than her own and a false social security number to obtain credit. While she had a similar modus operandi, we do note a significant period of time had elapsed since conduct in Count 3. We do not believe the conduct in Count 4 is relevant conduct as defined in § 1B1.3(a)(2) and therefore the loss to Ford Motor Credit Company is not included in the guideline computation.

(PSR p 26.) Neither the government nor Sykes challenged the probation officer's relevant conduct recommendations. In fact, the government made no objections to the PSR.

The district court nonetheless rejected the probation officer's recommendation and held that the count IV acts were relevant conduct under section 1B1.3(a)(2). The court discounted the probation officer's observation that a "significant period of time had elapsed," noting that eighteen months separated the acts charged in counts I and III, whereas only fourteen months separated those charged in counts III and IV. (Aug. 11, 1992 Tr. at 27-28.) The district court also found that count IV was clearly part of the same plan or scheme as the earlier acts--"a plan of fraud and deceit, a plan which was entered into two weeks before a bankruptcy petition was filed." (Id. at 29.) ³ The inclusion of count IV as relevant conduct added one point to Sykes' total offense level and two points to her criminal history category, ⁴ raising the sentencing range to between six and twelve months. The government recommended a sentence at the low end of this range, but the district court sentenced Sykes to the maximum term of twelve months, to be followed by three years of supervised release. The district court also ordered Sykes to pay monthly restitution to AVCO, ITT Financial, and Ford.

Sykes filed a notice of appeal as well as a motion for release pending appeal with the district court. Her appointed counsel also moved to withdraw, and in connection with that motion, Sykes submitted an affidavit indicating her belief that the district court was prejudiced against her based on comments the court made at the change of plea hearing. The district court permitted counsel to withdraw and construed Sykes' affidavit as a motion for recusal pursuant to 28 U.S.C. § 144, which the court denied. The court also denied Sykes' motion for release pending appeal, but when Sykes renewed her request here, we ordered her released during the pendency of this appeal. Regrettably, Sykes then violated the terms of her conditional release when on June 5, 1993, she was arrested after allegedly stabbing her fifteen-year-old nephew in the shoulder during an argument. When advised of her subsequent arrest, the district court revoked her conditional release and ordered that she be detained pending appeal.

II. DISCUSSION

A. "Relevant Conduct"

Our review of a district court's sentencing decision is deferential. We will uphold a Guidelines sentence "so long as the district court correctly applied the Guidelines to findings of fact that were not clearly erroneous." United States v. Duarte, 950 F.2d 1255, 1262 (7th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992); see also United States v. Rivera, 6 F.3d 431, 444 (7th Cir.1993). The determination that uncharged activity constitutes "relevant conduct" under section 1B1.3(a)(2) is a finding of fact, which we will not disturb unless it is clearly erroneous. United States v. Nunez, 958 F.2d 196, 198 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 168, 121 L.Ed.2d 115 (1992); see also United States v. Chatman, 982 F.2d 292, 294 (8th Cir.1992); United States v. Hahn, 960 F.2d 903, 907 (9th Cir.1992); United States v. Kappes, 936 F.2d 227, 229 (6th Cir.1991). A factual finding is clearly erroneous " 'when although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.' " United States v. D'Antoni, 856 F.2d 975, 978 (7th Cir.1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

Guidelines section 1B1.3(a)(2) directs that for "offenses of a character for which § 3D1.2(d) would require grouping of multiple counts," a defendant's base offense level and specific offense characteristics should take account of "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." In United States v. White, 888 F.2d 490, 497 (7th Cir.1989), we explained that where

the Guidelines provide tables that cumulate the amount sold or stolen, any acts that "were part of the same course of conduct or common scheme or plan as the offense of conviction" should be included in the computation of the amount on which the offense level depends, whether or not the defendant was convicted of selling or stealing these additional amounts.

See also United States v. Dawson, 1 F.3d 457, 464 (7th Cir.1993). Section 1B1.3(a)(2) thus "is designed to take account of 'a pattern of misconduct that cannot readily be broken into discrete, identifiable units that are meaningful for purposes of sentencing.' " United States v. Mullins, 971 F.2d 1138, 1143 (4th Cir.1992) (quoting U.S.S.G. § 1B1.3 Background Comment); see also Hahn, 960 F.2d at 909; ⁵ United States v. Jones, 948 F.2d 732, 737 (D.C.Cir.1991); United States v. Wood, 924 F.2d 399, 403 (1st Cir.1991...