United States v. Sample, 99-3475

• Decision Date: 15 February 2000
• Docket Number: No. 99-3475,99-3475
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA,APPELLEE, v. JULIANNE K. SAMPLE,APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1029

213 F.3d 1029 (8th Cir. 2000)

UNITED STATES OF AMERICA,APPELLEE, v. JULIANNE K. SAMPLE,APPELLANT.

No. 99-3475

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 15, 2000

Filed: May 31, 2000

Appeal from the United States District Court for the Western District of Missouri.

Before Wollman, Chief Judge, Hansen, and Morris Sheppard Arnold, Circuit Judges.

Hansen, Circuit Judge.

Following her plea of guilty to one count of credit card fraud, the district court ¹ sentenced Julianne K. Sample to 30 months in prison. Sample appeals her sentence. We affirm.

I. Facts and Background

From 1995 to 1997, Sample engaged in an elaborate financial fraud and identity theft scheme in the greater Kansas City, Missouri, metropolitan area. Sample perpetrated her scheme by procuring personal information about her roommates, casual acquaintances, visitors, and individuals whom she met through other friends. Sample also worked in tandem with her boyfriend, Thomas Melton. Melton, a former employee of Builders Square in Kansas City, often forwarded personal information obtained from his customers to Sample. The information that Sample acquired, either on her own or in combination with Melton, included social security numbers, dates of birth, addresses, and physical descriptions. Once Sample purloined this information from her unsuspecting victims, she began the process of stealing their identities. Sample used the personal information to open various bank accounts, secure credit cards, and even establish false driver's licenses in the names of her victims. Sample then utilized the credit cards to make multiple purchases in her victims' names. She also wrote checks and withdrew money from her fraudulent bank accounts. In one instance, Sample, posing as Missouri resident Keri Shirk, visited a regional health center in Independence, Missouri. While at the health center, Sample altered Shirk's medical records and obtained a prescription in Shirk's name.

Law enforcement officers eventually discovered Sample's scheme and apprehended her. Sample pleaded guilty in a Kansas state court to one count of forgery and two counts of felony theft. A Kansas state court judge sentenced Sample to serve 18 months in prison. While incarcerated in Kansas, Sample admitted to an agent of the United States Secret Service that she orchestrated an extensive identity takeover scheme and stole thousands of dollars from various unsuspecting victims in western Missouri and Kansas. Sample "guesstimated" that she either caused or intended to cause her victims to lose a combined amount in excess of $70,000.

Following her interview with the Secret Service, a federal grand jury indicted Sample in the Western District of Missouri for one count of credit card fraud. See 18 U.S.C. 1029(a)(2). Sample entered into a plea agreement with the government. Pursuant to the agreement, Sample pledged to plead guilty to the charge contained in the indictment. The government agreed that the total amount of actual and intended loss to Sample's victims fell between $40,000 and $70,000. The parties acknowledged in the agreement, however, that the district court retained discretion with regard to all sentencing decisions.

Prior to Sample's sentencing hearing, the United States Probation Office prepared a presentence investigation report (PSIR). The PSIR concluded that contrary to Sample's plea agreement with the government, the total amount of actual and intended loss in this case was greater than $70,000 but less than $120,000. The PSIR also stated that an upward departure from the sentencing range prescribed in the United States Sentencing Guidelines might be warranted in this case based upon the factors delineated in United States Sentencing Guidelines Manual 2F1.1 (Application Notes 11 and 12.) The PSIR, however, did not affirmatively recommend an upward departure. (See PSIR at 24.) Sample objected to the inclusion of the upward departure information. She stated that no grounds existed to support such a departure. The probation officer declined to retract the information.

The district court sentenced Sample on September 10, 1999. During Sample's sentencing hearing, the district court held that an upward departure was warranted in this case. The district court based its departure decision on the degree of psychological harm that Sample inflicted upon her victims. The district court also rejected the amount of loss stated in the plea agreement and adopted an amount consistent with Sample's statement to the Secret Service. The district court then sentenced Sample to 30 months in prison. Sample appeals her sentence to this court.

II. Discussion

A. Upward Departure: Adequacy of Notice

Sample challenges the district court's decision to impose an upward departure in this case. Sample contends that the district court failed to afford her proper notice that it was considering a departure from the applicable sentencing range. Sample failed to raise her lack of notice argument during the sentencing hearing. Hence, we must review the adequacy of notice issue for plain error. See United States v. McCarthy, 97 F.3d 1562, 1580 (8th Cir. 1996), cert. denied, 519 U.S. 1139 and 520 U.S. 1133 (1997).

Rule 32 of the Federal Rules of Criminal Procedure requires a district court to provide a defendant notice if it intends to depart upward from a defendant's prescribed sentencing range. See Burns v. United States, 501 U.S. 129, 138-39 (1991). Inclusion in a PSIR of the specific grounds that may form the basis for an upward departure satisfies Rule 32's notice requirement. See id. In this case, the PSIR indicated that a departure may be warranted pursuant to USSG 2F1.1. Sample contends that the PSIR failed to state the specific departure grounds later relied upon by the district court.

Sample argues that the district court departed on the basis of extreme psychological injury as stated in USSG 5K2.3. Section 5K2.3 authorizes an upward departure "[i]f a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense." USSG 5K2.3. Sample contends that the district court based its departure decision on the factors delineated in 5K2.3 rather than the factors listed in 2F1.1. Hence, argues Sample, she received insufficient notice of the departure. We disagree.

Application Notes 11 and 12 to USSG 2F1.1 both authorize a district court to depart upward if the court finds that the loss does not reflect the seriousness of the defendant's conduct. Note 11(c) specifically permits a departure if "the offense caused reasonably foreseeable, physical or psychological harm or severe emotional trauma." At Sample's sentencing hearing, the district court stated that it was "departing upward in this matter because of the extreme complications and emotional distress that you have placed on your victims . . . [W]hile you may not have understood all of the details of how you were going to affect their lives, I think you had a substantial understanding of the confusion that you would create." (Sent. Tr. at 61.)

After reviewing the record, we conclude that the district court based its departure decision on the factors outlined in Application Notes 11 and 12 to USSG 2F1.1. The district court identified emotional harm as the reason for the departure and stated that such harm was reasonably foreseeable. Such a departure basis is consonant with the factors outlined in Application Note 11. The PSIR plainly stated that the Application Note 11 factors may serve as a possible basis for a departure, and the probation officer provided a copy of the PSIR to Sample. As the district court's departure decision directly correlates with the PSIR's plain language, we must reject Sample's lack of notice argument.

B. Upward Departure: Sufficiency of the Basis/Reasonableness of the Extent

Sample next argues that the district court erred when it decided to upwardly depart in this case. Sample challenges the district court's decision to impose an upward departure as well as the reasonableness of the extent of the departure. We review a district court's departure decisions under a unitary abuse of discretion standard. See United States v. Goings, 200 F.3d 539, 542 (8th Cir. 2000). We note that departure is appropriate only in extraordinary cases where there exists an "aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. 3553(b); see also United States v. Sharma, 85 F.3d 363, 364 (8th Cir. 1996). We first determine whether the district court is basing its departure decision on a factor that is specifically encouraged, discouraged, or forbidden by the Sentencing Guidelines. See United States v. O'Hagan, 139 F.3d 641, 657 (8th Cir. 1998). If the factor is encouraged as a basis for departure by the Sentencing Commission, the district court may depart, provided that the applicable Guideline does not already take the factor into account. See Koon v. United States, 518 U.S. 81, 96 (1996); United States v. Washington, 109 F.3d 459, 462 (8th Cir. 1997). In conducting our review, we "defer to the [district] court on the critical issue of whether a given factor is present to a degree not adequately considered by the [United States Sentencing] Commission." United States v. Coon, 187 F.3d 888, 899-900 (8th Cir. 1999)(internal citations and quotations omitted), cert. denied, 120 S. Ct. 1417 (2000).

Section 2F1.1(b)(1) of the Sentencing Guidelines specifically encourages an upward departure whenever the amount of loss fails to capture the harmfulness and seriousness of the conduct. See USSG 2F1.1, comment (n.11(c), 12). The amount of loss fails to capture the harmfulness and seriousness of the defendant's conduct when the conduct causes reasonably foreseeable physical or psychological harm, or severe emotional distress, to the...