United States Court of Appeals
For the First Circuit
No. 07-2052
UNITED STATES OF AMERICA,
Appellee,
v.
LATANYA JONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
Tina Schneider, by Appointment of the Court, for appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney,
with whom Thomas P. Colantuono, United States Attorney, was on
brief for appellee.
December 17, 2008
STAHL, Circuit Judge. Defendant-Appellant Latanya Jones
pled guilty to several charges stemming from her role in a bank
fraud conspiracy. On appeal, she contests the sentence imposed on
her by the district court, including a two-level increase under
U.S.S.G. § 2B1.1(b)(10)(B). Finding no error, we affirm.
I. Background
a. The Scheme
Because Jones pled guilty, we recite the facts as
delineated in the Government Version of Facts, which accompanied
the plea agreement and to which Jones assented. Jones came to the
attention of law enforcement when Tameka Lamos, a defendant
awaiting sentencing on unrelated charges, informed the
Massachusetts State Police and the United States Postal Inspection
Service that she was being pressured by her cousin, Latanya Jones,
to participate in a bank fraud scheme. Lamos told law enforcement
that Jones had at least three co-conspirators, one Bryant Green,
with whom she had collaborated for approximately fifteen years, and
two New York-based co-conspirators who had the ability to access
account records at Bank of America1 ("the Bank") and to obtain
counterfeit drivers' licenses and credit cards.
The Government Version of Facts described the scheme as
working in the following manner. The New York co-conspirators
1
Lamos believed that at least one of the New York-based co-
conspirators was an employee of Bank of America.
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would select an account with a high balance, collect the pertinent
customer and account information, and send this information to
Jones via express mail.2 Also included in the package were a
counterfeit driver's license and two credit cards, all bearing the
account holder's name. Jones would then present herself at various
bank branches in New Hampshire, Rhode Island, New York, and New
Jersey, posing as the account holder, and make withdrawals from the
depositor's account. Co-conspirator Green would accompany her to
the branches, monitor her interactions with the tellers, and create
a distraction if Jones appeared to be in trouble. Thereafter, the
proceeds of the scheme were divided, with the New York conspirators
receiving half and Jones and Green dividing the other half.
Lamos, the informant, told law enforcement that in late
December 2006 she accompanied Jones to several Bank of America
branches in New Hampshire and Rhode Island, and observed Jones make
numerous large cash withdrawals from a targeted account -- the
Morrison Account. A later analysis by the Bank determined that the
withdrawals made by Jones from the Morrison Account totaled
$42,000, and the government alleges that the Morrison Account had
$46,000 in it before Jones began the fraudulent withdrawals.
Jones recruited Lamos into the conspiracy, and trained
her to perform the role that Jones had played -- Lamos was to
2
To avoid detection, Jones had the parcels mailed to the house
of a friend who was not involved in the scheme.
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impersonate the targeted account holder, enter the Bank branches,
and attempt to withdraw money from the account using false
identification. In order to prepare Lamos for this task, Jones
instructed her to have a passport-style photo taken and send it to
an address in New York City. The photo would be used to create a
driver's license with the information of the targeted account
holder, but bearing Lamos' photograph. Lamos did as Jones
instructed her. Later, a Postal Inspector intercepted a package
from New York containing the forged documents (a driver's license
bearing Lamos' photo and two credit cards), as well as information
about the new account selected for targeting.
Lamos agreed to wear a wire to a subsequent meeting with
Jones and Green, during which the three planned to withdraw large
sums of money from the new targeted account -- the Frank Account.
A transcript of the meeting shows that Jones and Green spent four
hours instructing Lamos on how to conduct the fraud, including how
to behave when entering the bank, what cover stories to use to
distract the tellers, how much money to request, and which types of
tellers to target. The transcript also includes Jones' portion of
a telephone call with one of the New York co-conspirators in which
she discussed in great detail perceived problems with the
counterfeit identifications. Specifically, Jones was agitated to
learn that the targeted account holder had moved to a new address,
but the fraudulent license sent from New York carried the account
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holder's old address. Jones eventually devised a cover story for
Lamos to use in order to explain the discrepancy. At one point
during the discussion of the problem she also suggested: "Uh, I can
fuck around and change the address."
During the planning meeting Jones also lamented that the
false driver's license contained air bubbles on the face of the
plastic laminate: "Oh, this got water bubbles in it too. We got to
poke them out with a pin." Jones requested that Lamos retrieve a
safety pin from a drawer in order to pop the air bubbles in the
laminate. It is unclear from the transcript who actually popped
the bubbles, Lamos or Jones, but it was clearly done at Jones'
direction.
Finally, the transcript shows that during the meeting
Jones called Bank of America to inquire as to the balance of the
Frank Account and the most recent transactions. She determined
that the account contained $112,623.96. When the informant, Lamos,
asked Jones how much money she should withdraw from the Frank
Account at each branch, Jones replied that, on the first day of the
scam, Lamos should "stick on fives," meaning withdraw $5000 at each
branch she visited. Then, when Lamos asked how many days she would
be withdrawing money from the Frank Account, Jones replied, "The
bitch got money. This is for us to get rich." Jones also assured
Lamos that the large withdrawals of cash from the account would not
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raise alarm with the Bank given the recent large expenditures made
from the account.
The co-conspirators agreed, according to the transcript,
to meet the next morning, February 1, 2006, to begin the scam. Law
enforcement arrested the group that day, before any money was
withdrawn from the Frank Account.
b. The Sentence
Latanya Jones pled guilty to three of the four charges
contained in the grand jury indictment: Count One -- Conspiracy to
Commit Bank Fraud, in violation of 18 U.S.C. §§ 1344 and 1349;
Count Two -- Aiding and Abetting Bank Fraud, in violation of 18
U.S.C. §§ 2, 1344 and 1349; and Count Four -- Aiding and Abetting
Aggravated Identity Theft, in violation of 18 U.S.C. §§ 2,
1028A(a)(1)(b) and (c), 1344, and 1349.
At sentencing, as to Counts One and Two, the court
calculated a base level offense of seven. In addition, the court
applied a ten-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(F),
based on an intended loss of greater than $120,000 but less than
$200,000. The court added a two-level increase pursuant to
U.S.S.G. § 2B1.1(b)(10)(B), because the offense involved production
and/or trafficking of a counterfeit access device. A three-level
decrease was applied for acceptance of responsibility. This
yielded a total offense level of sixteen. Given Jones' criminal
history score of thirteen and criminal history category of VI, the
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court calculated the advisory guideline sentencing range, as to
Counts One and Two, as forty-six to fifty-seven months. As to
Count Four, pursuant to U.S.S.G. § 2B1.6, the guideline sentence
for a conviction of aggravated identity theft under 18 U.S.C. §
1028A is the term of imprisonment required by statute -- two years,
which must run consecutively to any other sentence. Based on these
calculations, the district court sentenced Jones to forty-six
months imprisonment for Counts One and Two, and twenty-four months
imprisonment for Count Four, to be served consecutively, yielding
a total prison term of seventy months. The court also imposed a
five-year term of supervised release.
c. On Appeal
On appeal, Jones challenges four aspects of her sentence,
but does not contest her underlying conviction. First, she argues
that a remand is warranted to consider the sentencing disparity
between her and one of her co-conspirators. Second, she challenges
the district court's imposition of a ten-level increase based on
the amount of loss. Third, she argues that the two-level increase
for production or trafficking of a counterfeit access device was
not warranted because she was merely an "end user." Fourth, she
argues that the district court erred in failing to grant a three-
level reduction for inchoate offenses under U.S.S.G. § 2X1.1.
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II. Discussion
a. Sentence Disparity
Jones argues that her case should be remanded to the
district court for resentencing because her co-conspirator Bryant
Green received a total sentence of fifty-one months, while she
received a seventy-month term. Jones' claim of sentencing
disparity faces two procedural obstacles. First, though Green was
sentenced before Jones, she did not raise this objection at
sentencing.3 Therefore, our review on appeal is simply for plain
error. United States v. Olano, 507 U.S. 725, 732 (1993). Second,
in her plea agreement, Jones waived her right to appeal "the
imposition by the Court of a sentence which does not exceed the
sentence recommended by the United States." However, we need not
determine whether the plea agreement bars Jones from raising the
sentencing disparity issue on appeal because it is clear that the
3
Jones suggests that her disparity challenge was preserved
below when she made the general argument at sentencing that the
sentencing factors set forth in 18 U.S.C. § 3553 warranted a total
sentence of no more than fifty-one months. However, as Jones
herself admits, at no time in her argument below did she make
reference to the specific issue of sentencing disparity. Plainly,
then, she has forfeited the argument, and our review can only be
for plain error. See United States v. Carrillo-Figueroa, 34 F.3d
33, 39 (1st Cir. 1994) ("Unless the basis for objection is apparent
from the context, the grounds for objection must be specific so
that the trial court may have an opportunity to address the claim
later sought to be presented on appeal.").
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district court did not commit plain error in failing to consider
this issue in the first instance.4
18 U.S.C. § 3553(a) prompts sentencing courts to
consider, among other factors, the "need to avoid unwarranted
sentence disparities among defendants with similar records who have
been found guilty of similar conduct." However, we have noted that
a "well-founded claim of disparity . . . assumes that apples are
being compared to apples," United States v. Mateo-Espejo, 426 F.3d
508, 514 (1st Cir. 2005), and that the defendants being compared
should be "similarly situated," United States v. Rivera-Maldonado,
194 F.3d 224, 236 (1st Cir. 1999). Here, the court did not plainly
err in sentencing Jones to a longer term than Green received
because the evidence shows that Jones took the lead relative to
Green in many aspects of the scheme: she recruited her cousin
Lamos into the scheme, she received the targeted account
information and false identifications from the New York co-
conspirators via express mail, and she was the face of the fraud as
she impersonated the account holders and withdrew money at the Bank
branches.
b. Amount of Loss
The sentencing court imposed a ten-level increase under
U.S.S.G. § 2B1.1(b)(1)(F), based on a finding that the amount of
4
Because we do not consider whether the plea agreement waiver
bars appeal of this particular issue, we do not reach Jones'
argument concerning Gall v. United States, 128 S.Ct. 586 (2007).
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loss was greater than $120,000 but less than $200,000. We review
the district court's factual finding as to amount of loss for clear
error.5 United States v. Flores-Seda, 423 F.3d 17, 20 (1st Cir.
2005).
An application note to the relevant guideline clarifies
that the term "loss" should be read to mean the "greater of actual
loss or intended loss." § 2B1.1, cmt. n.3(A). As this court has
previously stated, we will uphold an intended loss determination
"where there is good evidence of actual intent and some prospect of
success." United States v. Robbio, 186 F.3d 37, 44 (1st Cir.),
cert. denied, 528 U.S. 1056 (1999) (quoting United States v.
Egemonye, 62 F.3d 425, 428 (1st Cir. 1995)).
The district court reached the loss amount by adding the
actual amount withdrawn by Jones from the Morrison Account
($42,000) to the total amount contained in the Frank Account
($112,623.96). In other words, the district court determined that
it was reasonable to conclude that Jones intended for Lamos to
entirely drain the Frank Account. Jones argues that the record is
devoid of "good evidence" supporting her intention that Lamos
withdraw the total amount of the funds from the account. We
disagree.
5
We note that the parties agree that Jones' plea agreement
waiver of appeal does not bar her appeal of the district court's
calculation of the guideline range. See United States v. McCoy,
508 F.3d 74, 77-78 (1st Cir. 2007).
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On clear error review, we find that there was indeed
ample evidence that Jones intended for Lamos to withdraw all of the
money contained in the Frank Account and that she had some prospect
of success. First, just one month earlier, Jones almost completely
drained all funds from the Morrison Account, using the same methods
and without detection. Second, Jones showed great interest in the
Frank Account's total balance and told Lamos to begin by
withdrawing $5000 at each Bank branch she visited. Third, when
Lamos asked how many days she would be withdrawing money from the
Frank Account, Jones blithely replied, "The bitch got money. This
is for us to get rich." There is good evidence that Jones intended
for Lamos to drain the Frank Account; Jones' challenge on this
ground is without merit.
c. Production or Trafficking of Counterfeit Access Device
The sentencing court adopted the Presentence Report
recommendation to increase the base offense level by two levels,
under U.S.S.G. § 2B1.1(b)(10)(B), which provides, "If the offense
involved . . . production or trafficking of any (i) unauthorized
access device or counterfeit access device, or (ii) authentication
feature; . . . increase by 2 levels." Jones objected to this
increase below, arguing that she was merely an "end user" of the
counterfeit identifications, and had no role in producing or
trafficking the items. She renews this argument on appeal.
Because Jones is raising the legal question of whether the evidence
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was sufficient to support this two-level increase, we review the
challenge de novo. United States v. Ramos-Paulino, 488 F.3d 459,
463 (1st Cir. 2007). We review any factual conclusions reached by
the district court for clear error. Id.
As a preliminary matter, the sentencing guideline in
question provides a two-level increase for "production" or
"trafficking." However, it seems clear that the increase could not
have been applied to Jones for "trafficking," but only for
"production." This is because Jones also pled guilty to Count Four
(Aiding and Abetting Aggravated Identity Theft), which carried a
statutorily required two-year consecutive sentence, under 18 U.S.C.
§ 1028A. The guideline commentary associated with that offense,
found at U.S.S.G. § 2B1.6, states that "if a sentence under this
guideline is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense
characteristic for the transfer, possession, or use of a means of
identification when determining the sentence for the underlying
offense." U.S.S.G. § 2B1.6, cmt. n.2 (emphasis added). In other
words, if a defendant receives the two-year consecutive sentence on
the identity theft count, her sentence for any underlying offense
is not eligible for a 2-level increase for "transfer, possession,
or use" of false identification. Considering the plain meaning of
the words, we conclude that Jones' trafficking of a means of
identification involved a transfer (though the reverse is not
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necessarily true). Therefore, because of Jones' guilty plea on
Count Four, her base offense level can only be increased by two
levels under § 2B1.1(b)(10)(B) for "production," but not for
"trafficking."
The only question before us, then, is whether the
evidence was sufficient to support the conclusion that Jones played
a role in the production of the counterfeit identifications. The
meaning of "production" in this context is a question of first
impression for this circuit; indeed, we believe it is a question
that no circuit has had occasion to address directly.
The pertinent guideline offers a useful start by defining
"production" to include "manufacture, design, alteration,
authentication, duplication, or assembly." U.S.S.G. § 2B1.1, cmt.
n.9. Given the facts of this case, the term "alteration" is the
only one that may apply to Jones' conduct. The Webster's Third New
International Dictionary (1986) defines "alter" as: "to cause to
become different in some particular characteristic (as measure,
dimension, course, arrangement, or inclination) without changing
into something else."
The government points to two pieces of evidence that it
argues support the conclusion that Jones engaged in production of
the identifications. First, the transcript from the planning
session shows that Jones took note of the air bubbles on the face
of the fraudulent driver's license and told Green and Lamos that
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the bubbles should be poked out with a pin. Later, she told Lamos
where to look for a straight pin. Finally, though it is not clear
from the transcript who actually popped the bubbles, it is evident
that Jones identified the need and the means, and instructed Lamos
as to how to remove the bubbles.
The second piece of evidence highlighted by the
government is Jones' statement that she could "change the address."
It is not clear from the transcript whether she meant that she
could send the license back to the New York co-conspirators to have
it changed to correspond to the targeted account holder's new
address; change the address on the face of the license herself; or
change the address on file with the Bank so that it corresponded to
the address on the face of the license. What is clear, however, is
that she did not take any of those actions; instead, she devised a
cover story for Lamos to use to account for the address
discrepancy.
Keeping in mind the definition of "alter" -- to cause to
become different in some particular characteristic, without
changing into something else -- we believe that the second piece of
evidence (Jones' statement that she could change the address) does
not constitute alteration. This is for the simple reason that the
guideline refers to alteration and not to the mere capacity to
alter. Here, Jones simply proposed that she could change the
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address in some way. Therefore, her statement is not evidence that
she produced the license by alteration.
In contrast, we believe that Jones did alter the license
by popping, or instructing Lamos to pop, the bubbles on the face of
the laminate. Jones recognized that the bubbles could undermine
the group's effort to pass the identification off as legitimate;
she decided to remove the bubbles in order to bolster the
authenticity of the license and the likelihood of success of the
conspiracy. Therefore, there is sufficient evidence that, by
altering the license, Jones engaged in production of a counterfeit
access device. The district court was thus correct to increase her
base offense level by two levels, as per § 2B1.1(b)(10)(B). We
also note that this two-level increase, which increased Jones'
guideline sentence range by about ten months, is not simply a rote
or technical application of the guidelines. While the physical act
of popping small air bubbles with a straight pin might not seem
particularly monumental, it was this act of alteration that
transformed the flawed driver's license into a usable counterfeit
access device. Such an act is precisely the type of behavior that
the guideline attempts to capture under the rubric of "production."
d. Inchoate Offenses
Jones' final argument is not presented in great detail in
her brief; nor is it persuasive. She suggests that the district
court erred by failing to grant a three-level reduction under §
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2X1.1 because Jones was arrested before she completed the
withdrawal of any funds from the Frank Account. Because Jones
raises this issue for the first time on appeal, we review only for
plain error. Olano, 507 U.S. at 732. There is no error here, as
the Background to the guideline makes clear:
In most prosecutions for conspiracies or attempts, the
substantive offense was substantially completed or was
interrupted or prevented on the verge of completion by
the intercession of law enforcement authorities or the
victim. In such cases, no reduction of the offense level
is warranted.
U.S.S.G. § 2X1.1 (background). Such was precisely the case here.
At the planning session, the co-conspirators agreed to meet the
very next morning to carry out their scheme. The only reason they
did not complete the withdrawal of funds from the Frank Account was
that law enforcement arrested them before they could. As such,
Jones was not entitled to a reduction under U.S.S.G. § 2X1.1.
III. Conclusion
For the foregoing reasons we affirm the sentence imposed
by the district court.
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