U.S. v. Woods, 92-1016

• Decision Date: 06 October 1992
• Docket Number: No. 92-1016,92-1016
• Citation: 976 F.2d 1096
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor WOODS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1096

976 F.2d 1096

UNITED STATES of America, Plaintiff-Appellee, v. Victor WOODS, Defendant-Appellant.

No. 92-1016.

United States Court of Appeals Seventh Circuit.

Argued June 12, 1992.

Decided Oct. 6, 1992.

Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Joseph D. Heyd (argued), U.S. Court of Appeals, Seventh Circuit, Chicago, Ill., for plaintiff-appellee.

Thomas K. McQueen (argued), Jenner & Block, Chicago, Ill., for defendant-appellant.

Before CUMMINGS and MANION, Circuit Judges, and GORDON, Senior District Judge. ^*

CUMMINGS, Circuit Judge.

Defendant Victor Woods received a 78-month prison sentence after pleading guilty to one count of conspiracy in connection with the possession and use of stolen credit cards, 18 U.S.C. § 371, and one count of possessing counterfeit access device-making (credit card-making) equipment, 18 U.S.C. § 1029(a)(4). On appeal, he raises several objections to his sentence.

I.

In November 1989, approximately 4,000 unembossed Visa Gold credit cards were stolen from a freight platform in Chicago. Woods obtained possession of these stolen credit cards in January 1990, and conspired with a number of co-conspirators, including Woods' co-defendant and girlfriend Anne Hemesath, to possess, emboss, use, and sell the stolen cards. To facilitate the use of the cards, Woods and his co-conspirators in March 1990 stole a credit card embossing machine from a YMCA in Des Plaines, Illinois. Woods then fraudulently obtained credit card information from approximately 80 credit card accounts held by First Card, a division of First National Bank of Chicago.

Armed with this information and the embossing machine, Woods and his cohorts began in May 1990 to imprint the First Card accounts onto the unembossed stolen credit cards and then to use the cards for purchases. Over $170,000 in unauthorized purchases were made on the stolen credit cards. Woods also tried to sell some of the credit cards, individually and in bulk. On July 6, 1990, an undercover Secret Service officer arrested Woods and Hemesath when they asked for payment of $30,000 for the prior delivery of 700 unembossed stolen credit cards pursuant to a "sting" operation.

A superseding indictment returned on November 27, 1990, ultimately charged twelve defendants for criminal violations related to this scheme. Charges against Woods included conspiracy under 18 U.S.C. § 371, possession of goods stolen from interstate shipment under 18 U.S.C. § 659, and five counts of possessing, using, or trafficking in credit cards and equipment to make credit cards under 18 U.S.C. § 1029.

On February 27, 1991, Woods entered into a written plea agreement, and the district court accepted his plea on that date. Woods pleaded guilty to the conspiracy count and one count relating to the use of a credit card-making device. In the plea agreement, the government and Woods agreed that his adjusted offense level under the Sentencing Guidelines was 15, based upon a base offense level of 6 under Section 2F1.1(a), 7 points for financial loss under Section 2F1.1(b)(1)(H), and a 2-point enhancement for more than minimal planning under Section 2F1.1(b)(2)(A). It was also agreed that Woods should receive a 3-point enhancement for serving as a manager or supervisor of criminal activity involving five or more persons under Section 3B1.1(b). The plea agreement specified that Woods was entitled to a 2-point reduction for acceptance of responsibility and therefore calculated Woods' total offense level to be 16. The agreement acknowledged that the calculations were preliminary and subject to the probation officer's investigation and the district court's determination of the facts and the applicable law. The agreement also noted that the parties had reached no agreement on the proper criminal history category for Woods.

Woods was permitted to remain released on bond until sentencing. On April 26, 1991, however, Woods' bond was revoked after an emergency hearing where Judge Holderman found that Woods had threatened Hemesath because of her cooperation with government officials. On December 23, 1991, at the fifth hearing concerning Woods' sentence, Judge Holderman sentenced Woods to 78 months in prison.

In accordance with its earlier written opinion, United States v. Woods, 780 F.Supp. 1201 (N.D.Ill.1991), the district court stated that Woods' six prior state felony convictions were not related and therefore concluded that he merited 18 criminal history points, resulting in a Criminal History Category of VI. The district court also assessed a 2-level increase for obstruction of justice under Guidelines Section 3C1.1 and denied a 2-level reduction for acceptance of responsibility under Section 3E1.1(a). Woods appeals these three decisions of the district court.

II.

The first issue regards the calculation of Woods' criminal history points and revolves around Guidelines Section 4A1.2(a)(2). In the district court, Woods and the government agreed upon the background facts surrounding Woods' six prior felony convictions. See Woods, 780 F.Supp. at 1202 n. 1. The summary of these convictions that follows is gleaned from the reported opinion cited above, which may be consulted for more detail.

Woods was involved in four robberies or attempted robberies in May and June 1983. On May 21, 1983, Woods and three accomplices attempted to rob a Jewel grocery store located in Arlington Heights, Illinois. They used plastic, unloaded pellet guns and a replica of a World War II machine gun in the course of the unsuccessful robbery. One person remained in the get-away vehicle, and another monitored a police radio scanner. On May 23, 1983, Woods and two of the three accomplices from the May 21 attempted robbery successfully robbed a McDonald's restaurant in Schaumburg, Illinois, again using a plastic pellet gun. One person also monitored a police radio scanner in the vehicle. On May 29, 1983, Woods and four accomplices (the three May 21 accomplices plus a new one) robbed a Wendy's restaurant in Palatine, Illinois. On June 13, 1983, Woods and two of his confederates robbed a Show Biz Pizza restaurant in Arlington Heights, Illinois.

Woods pleaded guilty to the attempted robbery of May 21, 1983, and was found guilty of the other three robberies in separate bench trials. The May 21 and the June 13 convictions were consolidated for the purpose of sentencing. On June 18, 1984, Judge Fiala of the Cook County Circuit Court sentenced Woods to four years' imprisonment for these two convictions. In addition, the May 23 and May 29 convictions were consolidated for the purpose of sentencing before Judge Crandell of the Cook County Circuit Court, who sentenced Woods to four years' imprisonment for those two crimes.

On March 11, 1984, Woods and four other persons (not his 1983 confederates) robbed an Eagle Food Store in Buffalo Grove, Illinois. On March 18, 1984, Woods and some of his allies from the March 11 robbery attempted to rob a Jewel-Osco grocery store also in Buffalo Grove. This time Woods' luck ran out and he was arrested. Woods pleaded guilty to two counts of robbery and two counts of unlawful restraint in connection with the March 11 incident, and on December 11, 1984, Judge Pomaro of the Cook County Circuit Court sentenced Woods to four years' imprisonment for the robbery convictions, and three years' concurrent imprisonment for the unlawful restraint convictions. Woods pleaded guilty to attempted robbery in connection with the March 18 arrest, and on June 28, 1984, Judge Block of the Lake County Circuit Court ¹ sentenced Woods to four years' imprisonment for the March 18 attempted robbery.

The question regarding Woods' criminal history is whether certain of Woods' prior convictions were "related" as that term is used in Guidelines Section 4A1.2(a)(2). ² Application note 3 to that Section states that:

[P]rior offenses are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.

The district court held that none of Woods' six prior convictions for robbery or attempted robbery were related. The court relied upon our recent decision in United States v. Elmendorf, 945 F.2d 989 (7th Cir.1991), certiorari denied, --- U.S. ----, 112 S.Ct. 990, 117 L.Ed.2d 151 (1992), to conclude that the fact that certain of the convictions were consolidated for sentencing was not determinative, despite the apparent meaning of the application note. Woods, 780 F.Supp. at 1204-1205. The court also held that none of the offenses could be considered part of a common scheme or plan or otherwise related. Id. at 1206.

Woods argues that the court's finding that his prior offenses were not part of a common scheme or plan was erroneous. A preliminary question is the proper standard of review. This case involves the application of a Sentencing Guideline provision to stipulated facts. As has been noted on several occasions, this Circuit has not yet determined the proper standard of review in this situation. United States v. Brown, 962 F.2d 560, 565 (7th Cir.1992); United States v. Ali, 951 F.2d 827 (7th Cir.1992). Once again we defer that decision for another day, because here Woods states that the clearly erroneous standard is proper.

Woods argues that the district court should have found a common scheme or plan tying together his 1983 offenses, and that it should have found a separate scheme or plan tying together his 1984 offenses. We conclude, however, that the district court did not clearly err when it decided that there was no common scheme or plan underlying either group of convictions. The court noted:

[T]here is absolutely no evidence that Woods and his accomplices developed a common scheme or plan for any of the various crimes. There is no indication that Woods and his accomplices sat down prior to May 21, 1983 and decided to rob various fast food...