UNITED STATE COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-11126
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRON BIRDWELL,
Defendant-Appellant.
______________________________________________________________________________
On Appeal from the United States District Court,
Northern District of Texas
USDC No. 4:01-CR-45-3-A
______________________________________________________________________________
April 22, 2002
Before REYNALDO G. GARZA, SMITH, and PARKER, Circuit Judges
REYNALDO G. GARZA, Circuit Judge:1
Larron Birdwell pleaded guilty pursuant to a plea agreement to conspiring to fraudulently
use identities. Birdwell and others fraudulently used another individual’s name to purchase
Circuit City gift cards, which were ultimately put towards the purchase of large screen televisions.
In addition, Birdwell opened a fictitious bank account using yet another person’s name and
cashing several thousand dollars’ worth of bogus checks.
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
The presentence report (PSR) detailed a scheme in which Birdwell and his associates
burglarized homes and automobiles in order to steal the victims’ identities, with which they then
opened bank accounts and obtained credit cards. Twenty-eight identified victims sustained
economic losses totaling $87,968.20.
Included in an addendum was a statement from one of the victims, Pam Brophy, detailing
how her terminally ill husband was barraged with phone calls at all hours of the day from credit
people. She mentioned that her credit had been ruined and that she had been forced to miss much
work.
The district court noted that an upward departure might be warranted and ordered the
Government to compile a report regarding information from other victims. This report included
statements from several victims detailing the magnitude of the harm suffered. One victim, a legal
alien, was afraid that if her identification were used in criminal activity she would be deported.
Other victims told of ruined credit ratings and the humiliation of not being able to obtain credit
cards. An 82-year-old widow, whose accounts were being “drained $4,000 almost daily,” had a
slight stroke after discovering the withdrawals while reading her bank statement. R. 1, 87.
The district court found that the offense “caused and risked reasonably foreseeable
nonsubstantial and nonmonetary harm in a very significant way,” and that Birdwell’s conduct had
caused reasonably foreseeable physical and psychological harm or severe emotional trauma to
several of the victims. R.5, 63-65. In addition, the district court found that the loss was
understated as some loss information could not be obtained from many of the victims.
Birdwell was sentenced to 27 months’ imprisonment, a three-year term of supervised
relief, $91,717.86 worth of restitution, and a $100 special assessment.
2
Birdwell argues that the district court abused its discretion in upwardly departing from the
sentencing guidelines because the factual finding that the victims suffered psychological harm or
severe emotional trauma was not supported by the record. A district court’s departure from the
sentencing guidelines is reviewed for an abuse of discretion. See Koon v. United States, 518 U.S.
81, 98 (1996); United States v. Nevels, 160 F.3d 226, 229 (5th Cir. 1998). The decision that the
departure factors were sufficient enough to remove the case from the “heartland” of the applicable
guidelines must be accorded “substantial deference” because of a trial court’s “special
competence” in determining what is ordinary and what is atypical. United States v. Threadgill,
172 F.3d 357, 376 (5th Cir. 1999).
A district court must impose a sentence within the applicable guideline range if it finds the
case typical of the sort envisioned by the guidelines, but if it 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,” it may depart from the applicable
guidelines. 18 U.S.C. § 3553(b). Specifically, in Koon, the Supreme Court noted the following
questions that a court should address when considering an upward departure from the guidelines:
1) what features of this case take it outside of the Guideline’s “heartland” and make it special or
unusual? 2) has the Sentencing Commission forbidden departures based on those features? 3) if
not, has the Sentencing Commission encouraged departures based on those features? 4) if not, has
the Sentencing Commission discouraged departures based on those features. See Koon, 518 U.S.
at 95.
3
Birdwell contends that there was no evidence of psychological harm like that detailed in
U.S.S.G. § 5K2.3 (extreme psychological injury), but this ignores the commentary following
§2F1.1, which allows an upward departure when the loss does not fully capture the harmfulness or
seriousness of the conduct. Relevant examples, as the district court noted, include fraud that
caused or risked reasonably foreseeable, substantial non-monetary harm or caused reasonably
foreseeable physical or psychological trauma. See § 2F1.1, comment.
In United States v. Wells, 101 F.3d 370 (5th Cir. 1996), a case involving credit card fraud,
we held that the district court could have reasonably found that victims’ harm and trauma, which
involved arrests, warrants, court appearances, forgery charges, and credit difficulties, to be
sufficiently unusual to remove the case from the heartland of the applicable guideline. See id. at
372-74.
Birdwell’s argument that the record does not support a finding that the victims suffered
psychological harm is premised on cases from other circuits. In light of Wells, however, the
district court could have reasonably concluded that the victims’ travails, including substantial
inconvenience, credit difficulties, and psychological harm, removed the case from the guideline’s
heartland, making the three-level upward departure appropriate.
AFFIRMED.
4