United States v. Hilliard
| Decision Date | 18 August 2020 |
| Docket Number | No. 19-1828,19-1828 |
| Parties | UNITED STATES OF AMERICA v. SHAWN HILLIARD, ALSO KNOWN AS BUGGZ, ALSO KNOWN AS RICK, ALSO KNOWN AS BELOVED, ALSO KNOWN AS BOOGZ, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court for the Eastern District of Pennsylvania
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on April 15, 2020
Before: CHAGARES, SCIRICA, and ROTH, Circuit Judges
Shawn Hilliard was involved in a scheme that defrauded several FDIC-insured banks. For his conduct in this scheme, Hilliard pleaded guilty to one count of bank fraud under 18 U.S.C. § 1344, one count of conspiracy under 18 U.S.C. § 371, and six counts of aggravated identity theft under 18 U.S.C. §§ 2, 1028A. Hilliard appeals his sentence for the second time. Hilliard presents three issues for our review: (1) whether the trial court erred in ordering restitution of $777,583.80; (2) whether his sentence was procedurally unreasonable because the trial court failed to meaningfully consider certain evidence and factors; and (3) whether his sentence was substantively unreasonable in comparison to his co-conspirators and to his previous sentence. We conclude the trial court did not err and we will affirm Hilliard's sentence.
Hilliard, along with multiple co-conspirators, conducted a nationwide bank fraud scheme that involved corrupting bank employees to appropriate confidential account information and directing impostors to use that information to withdraw funds from compromised accounts. The scheme caused losses at four banks: TD Bank, Citibank, Wells Fargo Bank, and Capital One Bank. Hilliard was charged in March 2015 (along with multiple co-conspirators) with one count of bank fraud, one count of conspiracy, and six counts of aggravated identity theft. While under pretrial supervision, Hilliard repeatedly failed to report and absconded to Maine under a false identity, only being apprehended months later.
As noted, Hilliard pleaded guilty to all charges and was sentenced to 126 months'imprisonment, a five-year term of supervised release, restitution of $1,375,125.12 and a special assessment of $800. Hilliard timely appealed his sentence.
This Court vacated Hilliard's sentence and remanded the case to the trial court for resentencing. United States v. Hilliard, 726 F. App'x 918 (3d Cir. 2018). We concluded the trial court erred in finding that Hilliard had "joined the conspiracy before his parole expired in October 2012." Id. at 920. Additionally, we stated we had "concerns" about the trial court's basis for its finding on the restitution amount and noted the trial court "will necessarily recalculate the loss amount per our holding on the restitution amount." Id. at 921. Finally, we stated the sentence was not substantively unreasonable solely on the basis that co-conspirators received more lenient sentences, noting the "downward variances [were] based on [the co-conspirators'] post-offense rehabilitation efforts." Id.
On remand, the trial court requested new briefing to address the issues noted in our opinion and conducted a loss amount hearing to determine loss for sentencing and restitution purposes. One witness, Special Agent Michael Johnson of the Department of Homeland Security, Homeland Security Investigations, testified as to the losses stemming from the identity theft and bank fraud conspiracy attributable to Hilliard. The trial court ordered the parties to submit supplemental briefing on multiple issues, including the proper restitution amount. Both parties submitted detailed charts listing the losses they contended were legally attributable to Hilliard.
After receiving the supplemental briefing, the trial court held a sentencing hearing and heard argument on the issues raised in the supplemental briefing, sentencing in general, and the introduction of post-offense rehabilitation evidence. The trial courtdeferred imposing a sentence so it could consider the parties' arguments and any evidence of post-offense rehabilitation.
On March 27, 2019, the trial court resentenced Hilliard to 126 months' imprisonment—the same term of imprisonment imposed at his first sentencing—as well as a five-year term of supervised release. It also ordered Hilliard to pay restitution of $777,583.80 and a special assessment of $800. J.A. 3-4, 6-7. Hilliard objected to two aspects of the sentence: (1) the weight assigned to mitigating factors Hilliard introduced "in favor of a [sentencing] variance" and (2) the trial court labeling Hilliard "a leader or organizer" for sentencing purposes. J.A. 782. Hilliard timely appealed.1
As noted, Hilliard presents three overall issues for our review: (1) whether the trial court erred in imposing a restitution amount of $777,583.80; (2) whether his sentence was procedurally unreasonable because the trial court failed to meaningfully consider certain evidence and factors; and (3) whether his sentence was substantively unreasonable.
Hilliard contends the trial court erred in imposing a restitution amount of $777,583.80. It appears Hilliard asserts two arguments here: (1) failure to use the right test in reaching the restitution amount and (2) employing the correct test, actual loss, but imposing a restitution amount that was too high. Because we conclude the restitutionamount imposed reflects only actual loss, we need not address Hilliard's first argument and we conclude the trial court did not err.2
We "review a restitution order under a bifurcated standard: plenary review as to whether restitution is permitted by law, and abuse of discretion as to the appropriateness of the particular award." United States v. Fallon, 470 F.3d 542, 548 (3d Cir. 2006) (quoting United States v. Quillen, 335 F.3d 219, 221 (3d Cir. 2003)). The trial court's fact-finding is reviewed for clear error; in other words, whether it is "completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data." United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007) (quoting United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997)).3 The parties agree that the Mandatory Victims Restitution Act requires the imposition of restitution in this case. 18 U.S.C. § 3663A(c)(1); 18 U.S.C. § 3664(f)(1)(A) (). What remains is a challenge to the amount of the award.
Restitution is limited to the victims' actual losses. Feldman, 338 F.3d at 216. Although relying on different bases, the parties agree that actual loss standard includes losses which were reasonably foreseeable to Hilliard, even if the losses were caused by the conduct of his co-conspirators. This appears to be the proper test for actual loss in cases of conspiracy and we will apply it here. Cf. United States v. Robinson, 167 F.3d 824, 830-32 (3d Cir. 1999) ().4 Accordingly, we must determine whether the restitution amount reflects losses that Hilliard directly caused, knew about, or were reasonably foreseeable to occur.
As noted, the trial court imposed $777,583.80 in restitution. J.A. 6-7, 774-75. At his second sentencing, Hilliard contended only $639,440 in loss was attributable to him. J.A. 728, 736. According to Hilliard, his proposed restitution amount reflected all losses that he was directly involved in or had direct knowledge of. The government asserted $1,161,568.80 of the approximately $1.3 million total loss was attributable to Hilliard. J.A. 700, 732. In reaching a restitution amount, the trial court explained that Hilliard was directly responsible for or had direct knowledge of the following percentages of lossescaused by the conspiracy: 33% from TD Bank, 75% from Citibank, 90% from Wells Fargo, and approximately 1% from Capital One. J.A. 775. Based on the charts received from the parties and the testimony of Special Agent Johnson, the trial court imposed restitution for Hilliard's "self-admitted" losses at institutions—TD Bank and Capital One—where Hilliard was responsible for less than 50% of the loss. J.A. 774-75. Where Hilliard was responsible for more than 50% of the loss—namely, the losses incurred by Citibank and Wells Fargo—the trial court imposed restitution in the amount the government requested. Because Hilliard admitted the full restitution amount for TD Bank and Capital One and most of the restitution amount for Citibank and Wells Fargo, we need only examine the excess loss amounts, that is, the amounts exceeding those admitted by Hilliard, at Citibank and Wells Fargo.
Comparing the portions of the parties' charts on Citibank, the excess loss amounts attributed to Hilliard by the government stem from account information provided by Yolanda Gorham, a Citibank employee. Special Agent Johnson's testimony shows that Hilliard knew Gorham was providing confidential account information to his co-conspirators and had provided him with account information through an intermediary, Wayne Collins. Losses involving account information received from Gorham, even if Hilliard was not directly involved and did not have direct knowledge, were reasonably foreseeable to him. The trial court did not abuse its discretion in attributing these losses to Hilliard.
Comparing the portions of the parties' charts on Wells Fargo, the excess loss amounts attributed to Hilliard by the government stem from one impostor, ChristinaBevilacqua. Special Agent Johnson's testimony reveals that Dramian Combs, whom Hilliard recruited as a driver and an impostor, stated Hilliard managed Bevilacqua. Because Hilliard had managed and worked with her in the past, it was reasonably foreseeable to him that she would continue her role in the...
To continue reading
Request your trial