United States v. Looper

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS October 19, 2010
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 09-1408
v. (D.Ct. No. 1:08-CR-00504-REB-1)
(D. Colo.)
MATTHEW LOOPER,

Defendant-Appellant.
______________________________

ORDER AND JUDGMENT *

Before MURPHY, BALDOCK, and BRORBY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant Matthew Looper pled guilty to one count of fraud in connection

with the production of identification documents in violation of 18 U.S.C.

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 1028(a)(1) and one count of possession of implements to counterfeit documents

in violation of 18 U.S.C. § 1028(a)(5). The district court sentenced him to a term

of twelve months imprisonment on each count, to run consecutively. Mr. Looper

appeals the imposition of consecutive sentences, claiming they are procedurally

and substantively unreasonable. We exercise jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291 and affirm.

I. Factual and Procedural Background

Our factual summary pertinent to disposition of this appeal is primarily

based on Mr. Looper’s “Plea Agreement and Statement of Facts Relevant to

Sentencing,” as incorporated into his presentence report to which neither party

objected. Following a traffic violation on August 8, 2008, Mr. Looper was found

in possession of two counterfeit Colorado drivers’ licenses using his photo but in

the alias of “Matthew Gibbson Wagner.” Authorities subsequently interviewed

one of Mr. Looper’s landlords, Jan Baer, who informed them Mr. Looper and his

wife rented their home under the names “Matthew and Heather Wagner.”

Because they violated their rental agreement, Mrs. Baer changed the locks and

secured the property, where she found a stack of credit reports relating to

different individuals as well as a laminating machine and laminating materials.

Pursuant to a search warrant, authorities seized those items, finding credit

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reports pertaining to actual individuals who conducted business with a financial

mortgage company where Mr. Looper worked. They also discovered: (1) mail

showing Mr. Looper maintained a checking account as “Matthew Wagner” at a

local bank; and (2) computer hardware containing counterfeit drivers’ licenses for

different states with Mr. Looper’s photo but various other assumed names and

addresses. On September 23, 2008, United States Marshals arrested Mr. Looper

after he attempted to sell piracy computer software online.

Some of the counterfeit licenses at issue used names of identifiable

individuals, while others used names which authorities failed to identify as actual

individuals. Those containing the names of identifiable individuals included one

for Joshua William Adams and another for Daniel Charles Mattison, who obtained

a loan from the mortgage company for which Mr. Looper worked, where he had

dealings with Mr. Looper; the latter license also contained Mr. Mattison’s correct

date of birth. With regard to Mr. Looper’s wife, Heather, Mr. Looper had in his

possession a counterfeit driver’s license with her photo but the actual license

number of Rachel Vanscoy and the name “Jennifer Addison Hunter” – a

beneficiary of a loan negotiated with the mortgage company for which Mr.

Looper worked. An investigation also revealed six financial entities suffered

monetary losses due to Mr. Looper’s identification fraud. In at least two

instances, Mr. Looper used the names of Joshua Adams and Matthew Wagner to

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fraudulently obtain money for which a business suffered a monetary loss.

On May 6, 2009, Mr. Looper entered into a plea of guilty to one count of

fraud in connection with production of identification documents and one count of

possession of implements to counterfeit documents, in violation of 18 U.S.C.

§ 1028(a)(1) and (5). In exchange for Mr. Looper’s guilty plea, the government

expressly agreed to withdraw charges for four other counts of fraud in connection

with production of documents and forgo charging him with piracy computer

software violations and identity theft under 18 U.S.C. §§ 1028 and 1028A. After

the district court accepted Mr. Looper’s plea, a probation officer prepared a

presentence report calculating Mr. Looper’s United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) range at six to twelve months imprisonment for each

count. 1 After considering the 18 U.S.C. § 3553(a) sentencing factors, the

probation officer recommended sentencing Mr. Looper at the high end of the

Guidelines range, with the sentences to run concurrently. Neither the government

1
In the presentence report, the probation officer set Mr. Looper’s base
offense level at six under U.S.S.G. § 2B1.1(a)(2) for offenses involving
counterfeit instruments. He also increased Mr. Looper’s offense level by two
levels, pursuant to U.S.S.G. § 2B1.1(b)(10)(A)(i) and (ii) and (b)(10)(C)(ii),
because his offenses involved device-making equipment, an authentication
feature, and the possession of five or more means of unlawful identification
produced or obtained by the use of another means of identification. Based on his
acceptance of responsibility for the offenses charged, the probation officer also
included a two-level reduction, for a total offense level of six. A total offense
level of six, together with his criminal history category of IV, resulted in a
Guidelines range of six to twelve months imprisonment for each count.

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nor Mr. Looper filed written objections to the presentence report.

At the beginning of the sentencing hearing, the district court asked for

objections to the presentence report, to which Mr. Looper stated he had none.

However, his counsel did request a more lenient sentence, explaining Mr. Looper

produced the fake licenses only because of unresolved issues in Illinois resulting

in him being unable to obtain a valid driver’s license. Mr. Looper also addressed

the court, acknowledging “[t]here are some landlords that unfortunately got the

wrong end of the deal on what I did” and expressing his regret toward them and

others.

The government provided argument in support of the recommended

sentence and also presented the testimony of Mr. David Baer – the other landlord

of Mr. Looper’s rented property. Mr. Baer testified to the trauma and many

sleepless nights his family encountered after they discovered Mr. Looper’s false

identity and the fact Mr. Looper not only committed fraud against them, but

committed it “against the community by gathering all this business information

and making these false identities and drivers’ licenses.”

In determining the appropriate sentence, the district court adopted the

presentence report facts and calculations, to which neither party had objected. It

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also discussed the 18 U.S.C. § 3553(a) sentencing factors in considerable detail,

beginning with the “nature and circumstances of these respective offenses” and

stating identity theft and possession of counterfeit instruments are serious crimes

that wreak “both tangible and intangible havoc on [their] victims.” It noted such

offenses are “a scourge that is sweeping this country and this community” and

“quintessentially ... [an] assault on our system of finance and personal security in

this country ....” It further stated:

The victim that spoke today described it well. It is an assault on
your personal security. It changes your life and your lifestyle as a
victim. Never again do you enjoy the security that you had before.
It also causes you to become myopically and morbidly preoccupied
with your circumstances, until you have an answer, until you have a
resolution.

With regard to Mr. Looper’s “history and characteristics,” the district court

rejected his claim relating to his Illinois driver’s license problem, stating there

was “absolutely no excuse or explanation for the number of forged counterfeit

driver’s licenses” he possessed and determining the circumstances showed he was

“in the counterfeit identification document business.” It further noted that “at the

ripe ... old age of twenty-five or so,” Mr. Looper had a criminal history category

of IV, strongly indicating his lack of respect for the law. It also stated it had

considered all the § 3553(a) sentencing factors, including, but not limited to, the

need for Mr. Looper’s sentence to be sufficient but not greater than necessary to

achieve Congressional goals and purposes of sentencing; reflect the seriousness of

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the offense; promote respect for the law; provide just punishment for the offense;

afford adequate deterrence to criminal conduct; protect the public from future

crimes by Mr. Looper; and provide him with educational and vocational training

or other correctional treatment. It also explained it had considered the kinds of

sentences and sentencing ranges for his particular crimes, the pertinent policy

statements, and the need to avoid unwarranted sentencing disparities among

defendants.

Based on these sentencing factors, together with the provisions in 18 U.S.C.

§ 3584(a) and (b) and U.S.S.G. § 5G1.3 regarding concurrent and/or consecutive

sentences, the district court determined Mr. Looper should be sentenced to the

maximum advisory Guidelines-range sentence of twelve months imprisonment for

each count and the sentences should run consecutively, resulting in twenty-four

months total imprisonment. The district court then gave both parties’ counsel an

opportunity to raise any concerns or objections, to which none were raised

concerning the term of imprisonment.

II. Discussion

Mr. Looper now appeals his consecutive sentences, claiming they are

procedurally and substantively unreasonable, and requests a remand to the district

court for imposition of concurrent twelve-month sentences. In arguing his

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consecutive sentences are procedurally unreasonable, he claims the district court

abused its discretion by allowing a “non-victim,” Mr. Baer, to address the court

and using Mr. Baer’s testimony as rationale for his sentence. Mr. Looper states

that while he knew Mr. Baer was merely the landlord and not a victim, his

counsel was unaware of this fact until after the hearing, when he informed him.

He also asserts the district court committed further procedural error by

erroneously concluding Mr. Looper “harm[ed] people by stealing their identities”

and, instead, argues his fraudulent conduct did not harm or injure anyone other

than corporations or businesses.

In making these arguments, Mr. Looper contends plain error review should

not apply because he “was not afforded an opportunity to object to the sentencing

problems or the reliance on identity thievery until after the sentence was

pronounced” and the court assured itself Mr. Looper knew he was getting

consecutive sentences. He contends it was “[o]nly at the very end of the hearing,

when raising an objection would have been futile,” that the district court ended

with the question, “[F]urther business by the defense?”

As to the substantive reasonableness of his sentences, Mr. Looper suggests

that by giving him consecutive, rather than concurrent, sentences, as required by

U.S.S.G. § 5G1.2(d), he received “non-Guideline” sentences which punish him

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“not for the crimes he did commit, but for crimes he had the potential for

committing with his computer and business records.” He also reiterates his claim

the district court made a mistake when it sentenced him based on the false belief

he was an identity thief who harmed individuals by using their identities for his

own gain, when he only committed identity fraud, which did not harm real people

but only banking or check-cashing businesses. In support of this argument, Mr.

Looper points out he did not plead guilty to identity theft under 18 U.S.C. § 1028

or § 1028A, but only identity fraud under § 1028.

We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802, 805-06 (10 th Cir. 2008). “Our appellate review for reasonableness

includes both a procedural component, encompassing the method by which a

sentence was calculated, as well as a substantive component, which relates to the

length of the resulting sentence.” Id. at 803. While we look to see whether the

district court applied the applicable Guidelines in calculating a sentence to

ascertain its procedural reasonableness, “[i]n Gall, the Supreme Court identified

‘failing to consider the § 3553(a) factors’ and ‘failing to adequately explain the

chosen sentence’ as forms of procedural error” as well. Id. (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)).

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 In determining whether the district court properly applied the applicable

Guidelines in calculating the sentence, we generally review its legal conclusions

de novo and its factual findings for clear error. See United States v. Kristl, 437

F.3d 1050, 1054 (10 th Cir. 2006) (per curiam). However, if a defendant fails to

object to the procedural reasonableness of his sentence before the district court,

we review his claim of procedural unreasonableness only for plain error,

including the failure to raise a contemporaneous objection. See United States v.

Romero, 491 F.3d 1173, 1176-77 (10 th Cir. 2007).

In contrast, a challenge to the sufficiency of the district court’s § 3553(a)

justifications, which implicates the substantive reasonableness of the sentence,

does not require a prior objection to preserve it on appeal. See Smart, 518 F.3d at

804-06. In reviewing a district court’s sentence for substantive reasonableness

under the § 3553(a) factors, we employ an abuse of discretion standard. See id. at

805-06. We employ the same standard of review to the imposition of consecutive

or concurrent sentences. See United States v. Fay, 547 F.3d 1231, 1235 (10 th Cir.

2008). We consider “whether the length of the sentence is reasonable given all

the circumstances of the case in light of the factors set forth in 18 U.S.C.

§ 3553(a).” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10 th Cir.

2008) (internal quotation marks omitted). If a sentence is within the correctly-

calculated Guidelines range, we may apply a rebuttable presumption of

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reasonableness. See Kristl, 437 F.3d at 1054-55.

Turning to the legal principles involving concurrent and consecutive

sentences on which the district court relied, U.S.S.G. § 5G1.2(d) discusses

sentencing on multiple counts of conviction and states:

If the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively,
but only to the extent necessary to produce a combined sentence
equal to the total punishment. In all other respects, sentences on all
counts shall run concurrently, except to the extent otherwise required
by law.

U.S.S.G. § 5G1.2(d). In turn, 18 U.S.C. § 3584 provides: “[i]f multiple terms of

imprisonment are imposed on a defendant at the same time, ... the terms may run

concurrently or consecutively,” and “[t]he court, in determining whether the terms

imposed are to be ordered to run concurrently or consecutively, shall consider, as

to each offense for which a term of imprisonment is being imposed, the factors set

forth in section 3553(a).” 18 U.S.C. § 3584(a) and (b).

With these legal principles in mind, we turn to Mr. Looper’s appeal. In

challenging the procedural reasonableness of his two consecutive sentences, he is

claiming, for the first time on appeal, the district court improperly considered the

testimony of his landlord and any harm caused to others by his fraudulent acts.

However, Mr. Looper did not raise any such objections before the district court,

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nor has he shown any reason why he could not have raised them at the sentencing

hearing, especially when the district court expressly provided him an opportunity

at the end of the hearing to contemporaneously voice any concerns. To now

claim it would have been “futile” to do so is simply self-serving and

disingenuous, especially when nothing in the record demonstrates the district

court would have failed to consider and address such objections or concerns.

Even when we consider Mr. Looper’s contention the district court erred in

considering the effect or harm his fraud had on Mr. Baer or any victims, it is

evident it did so under the § 3553(a) factors as a means of determining the

appropriate length of his sentence – a substantive reasonableness issue we discuss

hereafter. In so doing, it carefully considered all the § 3553(a) factors and more

than adequately explained the chosen sentences. As a result, no form of

procedural error occurred. In addition, other than his contentions concerning

§ 5G1.2 in his substantive reasonableness argument, which we also address

hereafter, Mr. Looper has not shown the district court misapplied the applicable

advisory Guidelines in calculating his sentence. As a result, we discern no

procedural error, regardless of whether we apply a plain error or abuse of

discretion standard of review.

Having concluded Mr. Looper’s sentence is within the correctly-calculated

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Guidelines range, we apply a presumption of reasonableness which Mr. Looper

must rebut by demonstrating his sentence is substantively unreasonable in light of

the sentencing factors in § 3553(a). In attempting to meet his burden, Mr. Looper

asserts the district court imposed a “non-Guideline” sentence by giving him

consecutive, rather than concurrent, sentences, as required by U.S.S.G.

§ 5G1.2(d). 2 However, U.S.S.G. § 5G1.2(d), which recommends consecutive

sentences for certain multiple-count convictions and concurrent sentences for

others, is merely advisory, establishing a sentencing structure for multiple-count

convictions from which the district court may deviate under 18 U.S.C. § 3584

after applying the § 3553(a) sentencing factors. Thus, while the probation officer

recommended concurrent sentences based on his assessment of the § 3553(a)

factors, the district court used its discretion under 18 U.S.C. § 3584 to impose

consecutive sentences based on its own consideration and assessment of those

factors. In so doing, it provided a thorough and individualized analysis of those

factors and why it believed they warranted consecutive sentences. As a result, we

reject Mr. Looper’s contention that imposition of consecutive sentences somehow

resulted in a “non-Guideline” sentence.

2
Even though a challenge to the district court’s consideration of a
Guideline is a challenge to the procedural reasonableness of a sentence, Mr.
Looper raises his argument regarding § 5G1.2(d) as a challenge to the substantive
reasonableness of his sentence.

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 Mr. Looper also argues the district court impermissibly imposed

consecutive sentences to punish him “not for the crimes he did commit, but for

crimes he had the potential for committing with his computer and business

records.” However, in this case, the district court performed an exhaustive

analysis of the § 3553(a) sentencing factors, including the need for the sentence

imposed to afford adequate deterrence and protect the public. To the extent the

district court considered any potential crimes Mr. Looper might commit, it did so

for the purpose of deterring such crimes and protecting the public, as

contemplated by § 3553(a), and therefore, no abuse of discretion occurred.

Like his procedural reasonableness claim, Mr. Looper also asserts

substantive error on grounds the district court sentenced him based on the false

belief he was an identity thief who harmed individuals by using their identities for

his own gain, when in fact the only victims who experienced losses were

corporations or businesses. However, Mr. Looper fails to provide any authority,

nor are we aware of any, establishing it is an abuse of discretion to consider the

intangible or tangible harm caused to direct or indirect victims under a § 3553(a)

analysis when assessing the seriousness of an offense. Moreover, when the

district court discussed the tangible and intangible harm caused victims, it

expressly mentioned the instant crime of possession of counterfeit instruments,

regardless of whether it also mentioned “identity theft,” for which Mr. Looper

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was not formally charged. When the hearing transcript is read in its entirety and

context, it is clear the district court was discussing the serious nature and

circumstances of the instant offense in which Mr. Looper possessed multiple

credit reports of actual individuals and possessed and produced counterfeit

drivers’ licenses using their or other individuals’ names and, in at least one

instance, used a real person’s name, Joshua William Adams, to fraudulently

obtain money. While nothing in the record suggests these individuals experienced

actual financial losses or direct harm, Mr. Looper nevertheless impermissibly

used their names, and even one person’s birth date, to produce and possess

counterfeit drivers’ licenses or fraudulently obtain money. Moreover, the fact

that only corporations or businesses lost money through Mr. Looper’s fraudulent

acts does not mean the district court was required to discount their losses in

assessing the serious nature of Mr. Looper’s offenses.

Finally, with regard to the district court’s consideration and discussion of

Mr. Baer’s testimony, the record is unclear as to the total extent of fraud or

victimization he experienced, but Mr. Looper explicitly expressed his regret for

such victimization at the sentencing hearing. At the very least, the record on

appeal establishes Mr. Looper used a false identity to obtain rental property from

Mr. Baer and his wife, where he stored other individuals’ credit reports and

fraudulently produced counterfeit drivers’ licenses. Thus, regardless whether Mr.

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Baer is considered a direct or an indirect victim of the instant offenses, we

perceive no abuse of discretion by the district court in considering Mr. Baer’s

testimony, including his feeling of being victimized or traumatized by Mr.

Looper’s fraudulent conduct, when it performed its analysis of all the § 3553(a)

factors to determine the length of Mr. Looper’s sentences, including its decision

to impose consecutive sentences. We further note that victim testimony is

explicitly authorized by the Federal Rules of Criminal Procedure, which state that

“[b]efore imposing sentence, the court must address any victim of the crime who

is present at sentencing and must permit the victim to be reasonably heard.” See

Fed. R. Crim. P. 32(i)(4)(B). 3

III. Conclusion

For these reasons, we AFFIRM Mr. Looper’s consecutive sentences.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

3
We also note that under the Crime Victims’ Rights Act “[a] crime victim
has ... [t]he right to be reasonably heard at any public proceeding in the district
court involving ... sentencing,” and the government has an obligation to ensure
any witnesses’ views pertinent to the sentencing process are presented at hearing.
18 U.S.C. § 3771(a), (a)(4), (c)(1).

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