United States v. Potts
| Decision Date | 08 January 2020 |
| Docket Number | No. 18-1961,18-1961 |
| Citation | 947 F.3d 357 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kahwahnas Nucumbhi POTTS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Blake P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for Appellant. Ronald M. Stella, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Blake P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for Appellant. Ronald M. Stella, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
Before: BATCHELDER, DONALD, and READLER, Circuit Judges.
Kahwahnas Potts had a habit of breaking into homes. But rather than stealing jewelry or money, Potts had a more intangible target: stealing identities. One of Potts’s many identify-theft schemes was so intricate it required him to break into a victim’s home not once or twice, but three times.
These brazen measures resulted in Potts’s arrest and an ensuing plea of guilty to one count of unauthorized-access-device fraud and two counts of aggravated identity theft. Although Potts had a long history of similar offenses, he had never received a sentence of more than two years’ imprisonment. This time would be different.
After reviewing Potts’s criminal history, engaging with the parties’ respective arguments at sentencing, and weighing the § 3553(a) factors, the district court sentenced Potts to nine years’ imprisonment. Potts claims that his sentence was both procedurally and substantively unreasonable. We disagree and AFFIRM the judgment of the district court.
Like many living in the upper Midwest, A.W. and S.W., a married couple from Grand Rapids, Michigan, spent parts of the fall and winter in Florida. That meant that their home in Michigan sat empty for some time. That was the case when, two days before Christmas, the couple’s nephew discovered that A.W. and S.W.’s home had been burglarized. Yet when the police arrived to investigate the break-in, the scene looked more like a Christmas miracle. Despite evidence of a break-in, nothing in the home had been stolen. Or so they thought.
In truth, the break-in was the third in a series of illegal entries by Kahwahnas Potts, all in pursuit of stealing the identities of A.W. and S.W. Potts’s first break-in took place a few days earlier, on December 19. After breaking both a glass door and window to enter the home, Potts made his way to A.W.’s home office. There, he found an Option1 Visa credit card not yet activated. Using the home’s phone, Potts called Option1 and activated the card.
Potts soon began to use the card to withdraw large sums of money. That sudden activity, however, triggered a fraud alert on the card. Representatives of Option1 left A.W. a message on his home phone attempting to alert him to the fraud. Option1 also sent an email to an online profile believed to have been created by A.W. But Potts, not A.W., had created that profile when the card was activated. Pretending to be A.W., Potts responded to the email, questioned why the card was put on hold, and requested that the hold be removed. To reactivate the card, however, Option1 required the cardholder—believed to be A.W.—to call Option1’s customer service center to confirm there were no fraudulent charges on the account.
Potts would not be deterred. Returning to the scene of the crime, Potts broke into A.W.’s home once again, this time to listen to A.W.’s answering machine and to call customer service to impersonate A.W. and successfully "verify" aspects of the account. But two break-ins would not prove to be enough for Potts. So he broke into the house yet again. From this series of criminal acts, Potts had collected A.W.’s address, social security number, personal identification number, and other forms of identification. In his communications with Option1, Potts provided enough information to the company to persuade it that he was in fact A.W., and the company accordingly lifted the block on the Visa credit card.
By the time A.W. realized he was the victim of identity theft, Potts had already used the card to withdraw over $16,500.00. And in addition to the Option1 Visa, Potts had attempted to open and utilize twenty-six other credit card accounts as well as at least one Bank of America checking account, all under A.W.’s name. A.W.’s spouse, S.W., was also a victim. Using S.W.’s personal information, Potts attempted to open a CapitalOne Visa credit card and a bank account in S.W.’s name. And A.W. and S.W. were not the only victims of Potts’s efforts to steal identities. Reflecting that fact, A.W. began receiving mail containing credit card statements in the names of several other victims.
Not knowing the identity of the culprit, the police began to investigate. To find the culprit, investigators first reviewed video recordings from the ATMs where Potts had withdrawn funds. These recordings proved inconclusive, however, as Potts wore a mask and drove a vehicle with a stolen license plate. So, the investigators turned to another digital medium, attempting to track the IP address used to open the credit cards. But once again, Potts had covered his tracks. In opening those cards, Potts utilized a phone issued in another’s name and accessed wi-fi from services provided by local businesses.
Finally, a lead surfaced. Potts had also used the phone in question to call his ex-girlfriend. Investigators contacted Potts’s ex-girlfriend and had her listen to recordings of Potts’s calls to Option1. She confirmed that it was Potts’s voice on the recordings.
In searching Potts’s name in a law enforcement database, investigators learned that Potts previously used the address 2032 S. Division, Apartment 4, to submit fraudulent online credit card applications. While Potts no longer lived there, investigators still decided to visit the complex. During their visit, the investigators noticed the complex had only three units, but four mailboxes. In that fourth mailbox, investigators discovered numerous credit card applications and associated mail, including a credit card for S.W.
Investigators obtained a search warrant for Potts’s current residence. Upon executing the search warrant, investigators identified the vehicles at Potts’s home as those in the ATM video recordings. Officers also found several masks and gloves similar to those pictured in the videos. And they discovered information linking Potts to A.W. and S.W. as well as documents and credit cards in the names of several other individuals. Reflecting the elaborate nature of Potts’s schemes, officers found a notebook containing the names, social security numbers, associated credit cards, and other personal identification information for eighty individuals, including A.W. and S.W.
Potts was charged in a nine-count criminal indictment for one count each of possession of stolen mail, unauthorized-access-device fraud and possession of fifteen or more unauthorized-access devices; and three counts each of unlawful uses of social security numbers and aggravated identity theft. He pleaded guilty to three counts: one count of unauthorized-access-device fraud and two counts of aggravated identity theft.
The probation office compiled Potts’s presentence report, or "PSR," to which neither party objected. The PSR’s calculation included a wrinkle of sorts, given the counts of conviction at issue. That is, unlike for most offenses, the length of the sentence to be imposed for aggravated identity theft is not subject to a Guidelines calculation. Instead, it carries a mandatory two-year sentence imposed by statute. See 18 U.S.C. § 1028A ; U.S.S.G. § 2B1.6. When calculating the Guidelines range for multiple-count convictions that include aggravated identity theft, a district court must remove all counts of aggravated identity theft from the Guidelines calculation, calculate the range for any remaining convictions, and then, later, impose a combined sentence for all counts, including aggravated identity theft. U.S.S.G. § 3D1.1. With respect to the remaining convictions, in Potts’s case, that left only one additional crime, the underlying offense of unauthorized-access-device fraud. For that crime, Potts had a total offense level of 12.
After summarizing the charges in Potts’s plea agreement and his related offense conduct, accepting Potts’s plea agreement, and discussing the PSR with the parties, the district court took up calculating the sentencing range for the unauthorized-access-device-fraud offense. Given Potts’s extensive criminal history, his criminal history category was VI, the highest category recognized by the Guidelines. In the fifteen years preceding his latest offenses, Potts had amassed five prior convictions with underlying conduct involving some manner of burglarizing homes, stealing personal information and documents, and/or committing aggravated identity theft. In one instance, Potts was sentenced by U.S. District Judge Janet T. Neff, the district judge in this case as well, to two years in prison for aggravated identity theft.
With an offense level of 12 and a criminal history category of VI, Potts’s Guidelines range for unauthorized-access-device fraud was 30 to 37 months. The probation office, however, noted that the district court could depart upward from that range, on the basis that Potts’s criminal-history category under-represented his criminal history. See U.S.S.G. § 4A1.3.
Based upon the PSR, the district court, prior to sentencing, issued a notice to the parties of its intent to exceed the Guidelines. At sentencing, the district court heard argument regarding the appropriate Guidelines range for Potts’s unauthorized-access-device-fraud conviction. Following argument, the district court decided to depart upward four levels under U.S.S.G. § 4A1.3 on the basis that Potts’s criminal-history category under-represented the seriousness of his criminal history and/or the likelihood that he would commit another crime....
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