UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-11044
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WENDY LOIS WELLS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
November 27, 1996
Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Wendy Lois Wells (“Wells”) appeals the district court’s upward
departure from the Sentencing Guidelines for her conviction for
mail fraud pursuant to 18 U.S.C. § 1341.
FACTS and PROCEDURAL HISTORY
A five-count indictment charged Wells with mail fraud, use of
an unauthorized access device with intent to defraud, and use of an
unauthorized social security account number for the purpose of
fraud, in violation of 18 U.S.C. §§ 1341, 1029(a)(2), and 42 U.S.C.
§ 408(a)(8). Pursuant to a plea agreement, Wells pleaded guilty to
one count of mail fraud.
Wells, while employed as a substitute teacher, searched
through the desks of at least two teachers for whom she was
substituting, obtained personal information and social security
numbers, and had credit cards sent to her using their names and
social security numbers. Wells then made purchases with the
fraudulently obtained credit cards. The credit cards, account
statements, and merchandise were sent to a fictitious address Wells
set up in Irving, Texas.
Wells’ base offense level for a violation of 18 U.S.C. § 1341
was 6 pursuant to U.S.S.G. § 2F1.1(a). Her offense level was
increased four levels because the loss exceeded $20,000 and another
two levels because the scheme involved more than minimal planning
or more than one victim. Wells received a two-level reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. With a
total offense level of 10 and a criminal history category of V,
Wells’ Guideline range of imprisonment was 21 to 27 months.
The district court filed sua sponte two letters it received
from victims of Wells’ scheme. The government filed a motion for
upward departure after the first letter was filed. At sentencing,
the district court granted the government’s motion for upward
departure. Wells was sentenced to a term of imprisonment of 30
months, three years of supervised release, and restitution in the
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amount of $4,000.
DISCUSSION
Wells argues that the district court’s upward departure was
“unlawful” because it was based on factors “already considered by
the [Sentencing Commission] in setting the base offense level under
a particular guideline section or the specific offense
characteristics under that guideline section.” Wells’ Brief at 6.
Wells argues further that the Sentencing Commission has determined
that “mere aggravation, no matter how real, would not support a
departure.” Wells’ Reply Brief at 3.
At oral argument in September 1996, the parties argued the
applicability of Koon v. United States, --- U.S. ---, 116 S.Ct.
2035 (1996), which was filed in June 1996, after the briefs in this
case had been filed.1 In Koon, police officers were charged with
violating Rodney King’s constitutional rights by using unreasonable
force incident to arrest pursuant to 18 U.S.C. § 242. In its
analysis of the Ninth Circuit’s appellate review of the sentencing
court’s downward departure, the Supreme Court determined the
appropriate standard of review and factors to be considered by a
district court judge in departing from the Guidelines.
1
The government briefed Koon in its Supplemental Letter Brief
dated August 9, 1996; Wells responded on August 15, 1996.
3
As an initial matter, the Court noted, “[a] district court
must impose a sentence within the applicable Guideline range, if it
finds the case to be a typical one.” Id., 116 S.Ct. at 2040
(citing 18 U.S.C. § 3553(a)). A departure from the Guideline range
is appropriate in “certain circumstances” Id.
The district court’s departure is not reviewed de novo, but
rather for an abuse of discretion. Id., 116 S.Ct. at 2043. The
parties here do not dispute that Koon clarified that a district
court judge’s decision to depart is reviewed for an abuse of
discretion. Because the “sentencing court’s departure decisions
are based on the facts of the case,” the appellate court needs to
detail the facts that were before the district court. Id., 116
S.Ct. at 2040.
In this case, the presentence report lists the merchants
defrauded and itemizes the loss amounts attributed to each. The
total accountable loss was over $20,000. The presentence report
also details Wells’ identity fraud as to victims Jennifer Sutton
(“Sutton”), Mildred Robinson and Margaret Sells. The court also
considered two letters submitted by victims of this fraud scheme,
Sutton and Sue B. Cain (“Cain”), teachers for whom Wells had
substituted.
Cain described her experiences resulting from Wells’ fraud
scheme as follows:
It has been extremely difficult for me to begin the new
school year with the emotional strain of dealing with all
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aspects of this situation. It has cost me in terms of
multiple times off work to appeal in J.P. Courts to explain
and defend my position, to research our credit reports and to
make literally hundreds of phone calls to explain my situation
to the merchants and collection agencies who accepted the
fraudulent checks given by Wendy Wells using my name and
Social Security number. Each week I have faced the
possibility of additional unjust arrest warrants in my name
stemming from Wendy Well’s [sic] fraudulent use of my name.
For my own protection, I am being forced to carry a forgery
affidavit with me at all times to prevent an unfair arrest.
It is overwhelming that someone can take over one’s identity
so quickly.
District Court Record at 69 (Letter filed November 3, 1995). In
addition, Cain filed a three-page attachment to the letter
detailing meetings with attorneys and bank officials, warrants
issued against her, and court appearances.
Sutton details her experiences as follows:
Correcting this [situation] has become a full time job.
Having written and mailed over 50 letters, made an unknown
number of phone calls, had to take time off from school and
leave my classes with yet another substitute teacher, be
interupted [sic] during class regularly to speak with police
officers, detectives, postal inspectors, lawyers, and school
district personell [sic] has been overwhelming. I have had to
go to stores and financial instituions [sic] where Ms. Wells
used my identity and accued [sic] bad debts . . . . My husband
and I have both been turned down for credit due to this
fraudulant [sic] activity. When I use my credit cards in
stores, I am often asked to produce identification, asked to
wait while the clerk calls a manager, asked to pay in cash,
and even denied the ability to make purchases.
District Court Record at 75 (Letter filed November 3, 1996).
The sentencing judge found that this case involved “extreme
circumstances, as described in these two letters . . .” Sentencing
Transcript at 11. The sentencing judge also detailed his reasons
for concluding that these circumstances went “beyond what’s
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normally involved in a case like this:”
The thing that impresses me is not just the misuse of the
credit cards, but the description by each one of the victims
about the tremendous amount of time and energy that they had
to devote to getting their credit cleared up, the
embarrassment which they suffered from stores, collection
agencies, being turned down for credit, having to produce
identification, having to carry a perjury -- affidavit, having
to carry -- having to pay cash.
Id.
The parties agree that Koon clarifies that a sentencing court
contemplating departure should ask four questions:
1) What features of this case, potentially, take it outside
the Guidelines’ “heartland”2 and make of it a special, or
unusual, case?
2) Has the Commission forbidden departures based on those
features?3
3) If not, has the Commission encouraged departures based on
those features?
2
The Court in Koon defines “heartland” cases:
Turning our attention, as instructed, to the Guidelines manual,
we learn that the Commission did not adequately take into
account cases that are, for one reason or another, “unusual.”
1995 U.S.S.G. ch. 1, pt. A, intro. comment. 4(b). The
Introduction to the Guidelines explains:
“The Commission intends the sentencing court to treat each
guideline as carving out a ‘heartland,’ a set of typical cases
embodying the conduct that each guideline describes. When a
court finds an atypical case, one to which a particular
guideline linguistically applies but where conduct
significantly differs from the norm, the court may consider
whether a departure is warranted.” Ibid.
Id., 116 S.Ct. at 2044.
3
Wells does not dispute that the Sentencing Commission has not
forbidden departures in fraud cases based on harm.
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4) If not, has the Commission discouraged departures based on
those features?
Id., 116 S.Ct. at 2045 (quoting United States v. Rivera, 994 F.2d
942, 949 (1st Cir. 1993)).
The district court identified the features it considered took
this case out of the “heartland.” Wells argues that the analysis
ends with the first question, since this case involves harm
sufficiently considered by § 2F1.1. Specifically, Wells claims
that “identity fraud” inherently involves the type of harm suffered
by these victims.
The Court in Koon also defines the scope of inquiry available
to the sentencing court answering the above questions:
Acknowledging the wisdom, even the necessity, of sentencing
procedures that take into account individual circumstances,
see 28 U.S.C. § 991(b)(1)(B), Congress allows district courts
to depart from the applicable Guideline range if “the court
finds that 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 that should result in a sentence different from
that described.” 18 U.S.C. § 3443(b). To determine whether
a circumstance was adequately taken into consideration by the
Commission, Congress instructed courts to “consider only the
sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission.” Ibid.
Id., 116 S.Ct. at 2044.
Wells does not argue that the district court impermissibly
considered evidence beyond the guidelines, policy statements and
commentary. Instead, Wells contends that the court should have
concluded that the psychological harm to the victims did not rise
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to the level considered in § 5K2.3,4 the guideline generally
addressing upward departure. The appellant argues that, since the
victims failed to demonstrate a “substantial impairment of the
intellectual, psychological, emotional, or behavioral functioning,”
the court impermissibly departed upward. The Koon Court requires,
however, that the sentencing court’s analysis must conclude that,
“as occurring in the particular circumstances,” this case is
“outside the heartland of the applicable Guideline.” Id., 116
S.Ct. at 2051.
Wells’ argument ignores that the application notes to § 2F1.1,
the guideline under which she was sentenced, specifically address
4
U.S.S.G. § 5K2.3 provides:
Extreme Psychological Injury (Policy Statement)
If a victim or victims suffered psychological injury much more
serious than that normally resulting from commission of the
offense, the court may increase the sentence above the
authorized guideline range. The extent of the increase
ordinarily should depend on the severity of the psychological
injury and the extent to which the injury was intended or
knowingly risked.
Normally, psychological injury would be sufficiently severe to
warrant application of this adjustment only when there is a
substantial impairment of the intellectual, psychological,
emotional, or behavioral functioning of a victim, when the
impairment is likely to be of an extended or continuous
duration, and when the impairment manifests itself by physical
or psychological symptoms or by changes in behavior patterns.
The court should consider the extent to which such harm was
likely, given the nature of the defendant’s conduct.
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an upward departure for non-monetary harm and psychological harm.
We agree with the government’s argument that the harm to the
victims considered by the district court is precisely the type for
which § 2F1.1 encourages an upward departure. Specifically, the
application notes to § 2F1.15 provide:
In cases in which the loss determined under subsection (b)(1)
does not fully capture the harmfulness and seriousness of the
conduct, an upward departure may be warranted. Examples may
include the following:
(a) a primary objective of the fraud was non-monetary; or the
fraud caused or risked reasonably foreseeable,
substantial non-monetary harm;
(c) the offense caused reasonably foreseeable, physical or
psychological harm or severe emotional trauma;
U.S.S.G. § 2F1.1 app.nn.10(a) and (c) (1995). The government
argues that the loss table in § 2F1.1 addresses the losses of
merchants and insurers in this fraud scheme, not the losses of the
victims trying to put their lives back together. We agree that the
loss table accounts for the dollar amount at issue in this case,
but these victims did not suffer monetary harm to any measurable
degree. Instead, the substitute teachers whose identity Wells
assumed lost days from work, feared arrest, were forced to appear
5
We also find it significant that the Sentencing Commission
amended the application notes to broaden the grounds for departure.
Prior to these amendments, which became effective 1993, the same
application notes provided for departure if:
(a) the primary objective was non-monetary;
(c) the offense caused physical or psychological harm;
U.S.S.G. § 2F1.1 app.nn.19(a) and (c) (1992).
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in court, struggled to repair their credit rating, were not able to
use the credit cards in their possession, and still face problems
connected with this offense. The loss table has not taken this
extreme personal victimization, which certainly can be viewed as
going beyond “aggravation,” into account. This departure decision
is the type encouraged by the Sentencing Commission, since the
sentencing court is in a unique position to make the necessary
factual determinations:
A district court’s decision to depart from the Guidelines, by
contrast, will in most cases be due substantial deference, for
it embodies the traditional exercise of discretion by a
sentencing court. See Mistretta, 488 U.S. at 367, 109 S.Ct.
at 652 . . . . Before a departure is permitted, certain
aspects of the case must be found unusual enough for it to
fall outside the heartland of cases in the Guideline. To
resolve this question, the district court must make a refined
assessment of the many facts bearing on the outcome, informed
by its vantage point and day-to-day experience in criminal
sentencing. Whether a given factor is present to a degree not
adequately considered by the Commission, or whether a
discouraged factor nonetheless justifies departure because it
is present in some unusual or exceptional way, are matters
determined in large part by comparison with the facts of other
Guidelines cases. District courts have an institutional
advantage over appellate courts in making these sorts of
determinations, especially as they see so many more Guidelines
cases than appellate courts do. In 1994, for example, 93.9%
of Guidelines cases were not appealed. Letter from Pamela G.
Montgomery, Deputy General Counsel, United States Sentencing
Commission (Mar. 29, 1996). “To ignore the district court’s
special competence--about the ‘ordinariness’ or ‘unusualness’
of a particular case--would risk depriving the Sentencing
Commission of an important source of information, namely, the
reactions of the trial judge to the fact-specific
circumstances of the case . . . .” Rivera, 994 F.2d at 951.
Koon, 116 S.Ct. at 2046-47.
We find that the district court properly considered the
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particular circumstances of this case in making its determination
to depart upward. The district court reasonably could have
concluded, in its sound discretion, that the victims’ travails
involving arrest, warrants, court appearances, forgery charges and
continuing credit difficulties made their harm “unusual,” taking
the case out of the “heartland.” A three-month upward departure,
resulting in a 30-month, rather than a 27-month, term of
imprisonment, is not an abuse of discretion in this case.6
CONCLUSION
We find that the district court did not abuse its discretion
in departing upward for the harm suffered by the victims whose
identities were appropriated by Wells. Accordingly, Wells’
sentence is AFFIRMED.
6
Since we affirm the district court’s upward departure under
U.S.S.G. § 2F1.1, we do not decide here whether Wells’ sentence
could have been adjusted upward for an abuse of a position of
trust, argued alternatively by the government at sentencing.
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