United States v. Mack
| Docket Number | 21-4100 |
| Decision Date | 01 May 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHANE LEE MACK, JR., Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
(D.C. No. 4:18-CR-00054-DN-1) (D. Utah)
Before HARTZ, KELLY, and MORITZ, Circuit Judges.
A jury convicted Shane Mack of possessing counterfeit obligations or securities, unlawfully transporting a debit card, and being a felon in possession of firearms and ammunition. The district court sentenced Mack to 84 months in prison, slightly below the advisory sentencing range of 87 to 108 months under the United States Sentencing Guidelines (U.S.S.G. or the Guidelines). Mack now appeals his sentence. He argues that the district court (1) plainly erred in failing to group his fraud-related offenses with his felon-in-possession offense under U.S.S.G. § 3D1.2(c) and (2) erred in applying a two-level enhancement under U.S.S.G. § 3A1.1(b)(1) for defrauding a vulnerable victim. But it is not clear or obvious that Mack's fraud and felon-in-possession offenses are sufficiently closely related to warrant grouping them, and the district court properly determined that one victim of Mack's fraudulent scheme was unusually vulnerable. We therefore affirm.
According to the evidence at Mack's trial, Mack ran a scam on Facebook. Posing as a woman named "Rue Lavish," Mack targeted young women with a get-rich-quick "business opportunity." R. vol. 3, 653. To lure victims, Mack flaunted a life of luxury and posted pictures of high-end cars, cash, checks, and bank statements showing high balances. "I can get you paid [$]9,000 today," he advertised. Id. at 485. The catch: When someone expressed interest, Mack would reveal that they could receive the money only if they gave him their debit card, bank account information, and online banking credentials.
When victims fell for this scam and handed over access to their bank accounts, Mack would deposit counterfeit checks and money orders into the bank accounts he now controlled and then promptly withdraw the funds before the banks could detect any fraud. Mack created the checks from whole cloth using blank check stock, checkwriting software, and a printer. As for the money orders, he bought them from the post office for a few dollars and then altered them by scratching off the purchase price with sandpaper and printing over the sanded-down number with a larger amount. When the banks later discovered that the checks and money orders were fraudulent, they would reverse the deposits. But by then Mack had made off with the money, leaving the account holders with negative balances.
Law enforcement in Utah caught wind of the fraudulent scheme when an officer pulled Mack over for a traffic stop and searched his car. Inside, the officer discovered checks, money orders a printer, sandpaper, and other items used in the scheme. The officer also found two firearms and some ammunition. Ultimately, the government charged Mack in an information with four counts: (1) possessing a counterfeit United States obligation or security, (2) possessing a counterfeit security of an organization, (3) unlawfully transporting a debit card, and (4) being a felon in possession of firearms and ammunition. At trial, various witnesses testified about these facts, including Leah Haraway, who was Mack's girlfriend and accomplice, and Cheyenne Hunt, one of the victims of the scam.[1]
The jury convicted Mack on all four counts. Before sentencing, the United States Probation Office prepared a presentence investigation report (PSR). To calculate Mack's Guidelines sentencing range, the PSR grouped the three fraud-related counts together, finding them closely related under U.S.S.G. § 3D1.2(d) because the offense level for each count was determined largely based on the total amount of loss. This meant there were two groups of offenses: the fraud counts and the felon-in-possession count. From there, the PSR calculated the adjusted offense level for each group. For the felon-in-possession count, the PSR calculated an adjusted offense level of 22 (from a base level of 20 plus a two-level enhancement for obstructing justice). For the fraud counts, the PSR calculated an adjusted offense level of 19, which included a two-level enhancement under U.S.S.G. § 3A1.1(b)(1) for defrauding a vulnerable victim.[2] Adjusting for multiple counts, the PSR then determined that the total offense level was 24. And with Mack's criminal-history category of III, that total offense level produced a Guidelines sentencing range of 63 to 78 months.
Both parties objected to the PSR. The government challenged the PSR's failure to apply a four-level enhancement to the felon-in-possession count under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm "in connection with another felony offense"-namely, the fraud counts. In support, the government asserted that Mack was a "fraudster with a gun," noting that he posted pictures of guns to the Rue Lavish Facebook page and stated that he was a "'plug' (i.e., source)" for guns and "stay[ed] strapped," meaning he regularly carried a gun. R. vol. 1, 434. Mack opposed the government's position but asserted that if the district court decided to apply the enhancement, then it needed to group the felon-in-possession count with the fraud counts under § 3D1.2(c) because the former would encompass conduct "treated as a specific offense characteristic in . . . the guideline applicable to" the latter. R. vol. 3, 883. Further, Mack objected to the PSR's application of the vulnerable-victim enhancement under § 3A1.1(b)(1), arguing primarily that it should not apply because Hunt was not "unusually vulnerable," as required by the guideline's commentary. § 3A1.1 cmt. n.2.
The district court sustained the government's objection, overruled Mack's objection, and rejected Mack's grouping argument. That meant the district court accepted the PSR's sentencing recommendations with one exception-it added four levels to the felon-in-possession count's offense level under § 2K2.1(b)(6)(B). The adjusted offense level for that count therefore rose from 22 to 26, and the adjusted offense level for the grouped fraud counts remained 19. To determine the combined offense level, the district court took the higher offense level-26 for the felon-inpossession count-and added one level as directed by U.S.S.G. § 3D1.4. See § 3D1.4(a)-(b) (directing court to (1) assign one unit for group with highest offense level, (2) assign one-half unit for group that is "[five] to [eight] levels less serious," and then, (3) when the total number of units is one and one-half, add one level to highest offense level). With a total offense level of 27, Mack's Guidelines sentencing range was 87 to 108 months. In the end, the district court imposed a slightly below-range, 84-month prison sentence because it was "troubled" by the § 2K2.1(b)(6) enhancement, given that Mack's firearm possession was "relatively incidental" to his Facebook scam. R. vol. 3, 901, 919.
Mack appeals.
Mack challenges (1) the district court's failure to group his felon-in-possession and fraud counts together and (2) its decision to impose the vulnerable-victim enhancement. We take these two issues in turn.
Mack first contends that the district court erred in not grouping his felon-inpossession count with his fraud counts under § 3D1.2(c).[3] Grouping under the Guidelines aims "to limit the significance of the formal charging decision and to prevent multiple punishment for substantially identical offense conduct" in multiplecount cases. U.S.S.G. ch. 3, pt. D, introductory cmt. To that end, § 3D1.2 generally requires grouping "[a]ll counts involving substantially the same harm . . . into a single [g]roup." As relevant here, subsection (c) states that counts involve substantially similar harm "[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts." § 3D1.2(c).
Mack's overall grouping argument presents what he calls "two intertwined procedural errors," and he concedes that he raised neither of them below.[4] Aplt. Br. 13. We therefore review for plain error. See United States v. Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016). To prevail, Mack must show "(1) an error occurred; (2) the error was plain; (3) the error affected [his] substantial rights; and (4) the error 'seriously affected the fairness, integrity, or public reputation of a judicial proceeding.'" Id. (quoting United States v. Makkar, 810 F.3d 1139, 1144 (10th Cir. 2015)). For an error to be "plain," it must be "clear or obvious under current law." United States v. Silva, 981 F.3d 794, 797 (10th Cir. 2020) (quoting United States v. Poe, 556 F.3d 1113, 1129 (10th Cir. 2009)). Such clarity or obviousness may come either from on-point Supreme Court or Tenth Circuit decisions or from the plain language of the Guidelines. Id.
The first step of Mack's argument concerns firearms enhancements. Recall that the district court applied an enhancement to the felon-in-possession count based on a finding that Mack possessed the firearm "in connection with another felony offense"-that is, the fraud counts-under § 2K2.1(b)(6)(B). Although Mack objected to this enhancement below, he does not renew such challenge here. Instead, he shifts gears and contends that once the district court found his firearm possession satisfied the "in connection with" requirement under § 2K2.1(b)(6)(B), it should have then turned to the fraud counts and applied what he contends is a similarly worded enhancement in § 2B1.1(b)(16)(B) based on that finding. See § 2B1.1(b)(16)(B) (...
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