United States v. Romer, 120319 FED6, 18-2113

Docket Nº:18-2113, 18-2239
Opinion Judge:Helene N. White, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. XAVIER ROMER; JELCORBY T. KENT, Defendants-Appellants.
Judge Panel:BEFORE: BATCHELDER, WHITE, and THAPAR, Circuit Judges.
Case Date:December 03, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

XAVIER ROMER; JELCORBY T. KENT, Defendants-Appellants.

Nos. 18-2113, 18-2239

United States Court of Appeals, Sixth Circuit

December 3, 2019

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN.

BEFORE: BATCHELDER, WHITE, and THAPAR, Circuit Judges.

Helene N. White, Circuit Judge.

Defendants Xavier Romer and Jelcorby Kent pleaded guilty to one count of conspiracy to commit bank fraud; Romer also pleaded guilty to one count of aggravated identity theft. The district court sentenced Romer to a within-guidelines sentence of 60 months' imprisonment, and Kent to a within-guidelines sentence of 24 months' imprisonment. Romer and Kent appeal their sentences, and we affirm.

I.

Defendants' scheme consisted of breaking into vehicles to steal purses and using the bank and credit cards, checkbooks, and identifications from the stolen purses to obtain funds from financial institutions. Their female co-conspirators disguised themselves to look like the purse-theft victims and used the drive-through teller lanes farthest from the financial institutions to fraudulently request and obtain funds. Due to the use of a particular drive-through lane, law enforcement referred to the members of this conspiracy as the Felony Lane Group (FLG). The male co-conspirators stole license plates to affix to vehicles that were used in the scheme, served as lookouts, and provided instructions to their female accomplices before and during the transactions. Romer was active in the FLG as early as November 2016 and traveled to Oklahoma, Missouri, Georgia, Alabama, and Colorado to carry out the scheme. Kent was involved as early as June 2017 and traveled to Maryland, Virginia, and Illinois.

In January 2018, Kent and others traveled from Florida to Baltimore, where they carried out the scheme at 15 to 20 financial institutions. Co-defendant Kenneth Jones, who was leading the group at the time, then announced that they would be traveling to Detroit, where they met up with Romer and two others and carried out the scheme for a few more days. Jones then flew back to Florida and the FLG moved on to Grand Rapids, Michigan, with Romer leading the group in Jones's absence because Romer had procured the stolen identifications, bank cards, and checkbooks to be used in Grand Rapids. In Grand Rapids, Romer directed the female accomplices; Kent sat in the front seat of one of the vehicles, provided a female with the stolen identification and checks, served as a lookout, and participated in stealing a license plate. Officers eventually located and stopped two vehicles and arrested eight members of the FLG, including Romer and Kent. Officers recovered, among other things, driver's licenses and credit and debit cards belonging to women residing in Michigan, Illinois, Ohio, and Indiana.

Romer, Kent, and others were indicted on charges of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344 and 1349, bank fraud in violation of 18 U.S.C. § 1344, and aggravated identity theft in violation of 18 U.S.C. § 1028A. Romer and Kent both pleaded guilty to the conspiracy count; Romer also pleaded guilty to the aggravated-identity-theft count.

Romer did not object to any portion of the presentence investigation report (PSR), which recommended a three-level enhancement for being a manager or supervisor of the criminal activity, see U.S. Sentencing Guidelines Manual (USSG) § 3B1.1(b), and a two-level enhancement for relocating or participating in relocating a fraudulent scheme to evade law enforcement or utilizing sophisticated means to carry out the scheme and avoid detection, see USSG § 2B1.1(b)(10). Based on a total offense level of 19 and a criminal-history category of I, the guidelines range was 30 to 37 months on the conspiracy count; the aggravated-identity-theft count carried a mandatory 24-month consecutive sentence to be added to the sentence on the conspiracy count. The PSR included a proposed condition of supervised release that Romer "not be employed in any position which entails fiduciary responsibility or any employment that involves the acquisition of merchandise, funds, or services without the approval of the probation officer" due to "the nature and circumstances of [Romer's] conduct and to minimize third-party risks." R. 291, PID 1249.

In his sentencing memorandum, Romer conceded that he was a manager of the criminal activity, but characterized himself as a limited and inexperienced manager. At sentencing, Romer confirmed that he agreed with the advisory guidelines range and had no objections to the PSR, but argued that in determining an appropriate sentence the district court should consider that his stint as a manager was brief. The district court adopted the PSR without change and sentenced Romer to a within-guidelines sentence of 36 months' imprisonment on the conspiracy count, plus a mandatory consecutive sentence of 24 months' imprisonment on the aggravated-identify-theft count. The district court included the recommended supervised-release condition.

Kent objected to the PSR's recommendation to apply a two-level enhancement for relocation or sophisticated means under USSG § 2B1.1(b)(10). The government argued in part that the enhancement should apply because of "the travel aspect of this scheme, movement is life to this scheme, that's why they don't stay in Florida, that's why they don't operate in one single area, and they have to keep swimming or this scheme sinks." R. 335, PID 1761. The district court overruled the objection: The nature of the conspiracy and the movement of the parties as well as the means by which these frauds were perpetrated is outlined well in the presentence investigation report. As [defense counsel] points out, it involves interstate travel, among other things. But [the government] appropriately points out that the nature of this scheme is dependant [sic] on moving around quickly, coaching of participants, sophisticated schemes on how to handle the tellers, limited amount of time in front of the tellers, and if it goes beyond that amount of time, you pull out, confusion -- deliberate confusion of the tellers, or attempted confusion of the tellers. This is well planned, and in the Court's judgment, as I've ruled on many of the other co-defendant cases, for the reasons the government states as well as others supported by the caselaw, the Court finds that the objection should be overruled.

Id. at PID 1762. With an offense level of 16 and a criminal-history category of II, Kent's advisory guidelines range was 24 to 30 months. The district court imposed a bottom-of-the-guidelines sentence of 24 months' imprisonment. In his sentencing memorandum Kent requested that the district court exercise its discretion to apportion restitution in recognition of Kent's lesser culpability as compared to his co-defendants. Kent did not raise the restitution issue at sentencing, however, and the district court imposed the full sum of restitution recommended in the PSR jointly and severally with Kent's co-defendants.

Romer and Kent timely appealed their sentences.

II.

Generally, we review for abuse of discretion whether the district court's sentence was procedurally and substantively reasonable. United States v. Albaadani, 863 F.3d 496, 504 (6th Cir. 2017) (quoting United States v. Solano-Rosales, 781 F.3d 345, 351 (6th Cir. 2015)). However, "[w]here a party has failed to object to a procedural defect, we review claims of procedural unreasonableness for plain error." United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010) (citing United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc)). Plain error entails "(1) an error, (2) that was obvious or clear, (3) that affected [the defendant's] substantial rights, and (4) that 'seriously affected the fairness, integrity, or public reputation of the judicial proceedings.'" United States v. Price, 901 F.3d 746, 749-50 (6th Cir. 2018) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). A sentence is procedurally reasonable if "the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." United States v. Young, 847 F.3d 328, 370 (6th Cir. 2017) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

A.

Romer and Kent both challenge their two-level enhancements under USSG § 2B1.1(10), which provides: (10) If (A) the defendant relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials; (B) a substantial part of a fraudulent scheme was committed from outside the United States; or (C) the offense otherwise involved sophisticated means and the defendant intentionally engaged in or caused the conduct constituting sophisticated means, increase by 2 levels.

The district court adopted the PSRs' conclusion that the enhancement applies under subsections (A) and (C). Because we agree that the enhancement applies under subsection (A), we need not address Defendants' arguments regarding "sophisticated means" under subsection (C).

We review Romer's challenge for plain error because he raised no objection before the district court. Kent did object, but he focused primarily on whether his conduct constitutes "sophisticated means," while making only one conclusory statement regarding whether the relocation enhancement under subsection (A) applies.

Defendants argue that they did not relocate...

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