Case: 08-10459 Document: 00511023655 Page: 1 Date Filed: 02/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 9, 2010
No. 08-10459 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
DIMETRIACE EVA-LAVON JOHN,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-177-3
Before SMITH, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Dimetriace Eva-Lavon John was found guilty by a jury on all counts of a
seven-count indictment arising out of her involvement in a scheme to incur
fraudulent charges on accounts held by various Citigroup customers. John
challenges her convictions and sentence in this appeal. We affirm the
convictions but vacate her sentence and remand for further proceedings.
I
Dimetriace Eva-Lavon John was employed as an account manager at
Citigroup for approximately three years. By virtue of her position, she had
access to Citigroup’s internal computer system and customer account
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information contained in it. In September 2005, John provided Leland Riley, her
half-brother, with customer account information enabling Riley and other
confederates to incur fraudulent charges.
John accessed and printed information pertaining to at least seventy-six
corporate customer accounts and provided it to Riley. The information was in
the form of either scanned images of checks written by the account holders or
printouts of computer screens containing detailed account information. Before
he was apprehended, Riley and cohorts used information John had provided to
incur fraudulent charges on four different accounts.
A grand jury returned a seven-count indictment against John. Count 1
charged John with conspiracy to commit access device fraud in violation of 18
U.S.C. § 371. Counts 2 through 5 charged John with fraud in connection with
an access device and aiding and abetting, in violation of 18 U.S.C. §§ 1029(a)(5)
and (2). Counts 6 and 7 charged John with exceeding authorized access to a
protected computer in violation of 18 U.S.C. §§ 1030(a)(2)(A) and (C). A jury
found John guilty on all seven counts.
A Presentence Report (PSR) concluded that the Sentencing Guideline
applicable to the conspiracy count was § 2X1.1(a),1 which provides that the base
offense level is that applicable to the substantive offense. The substantive
offense underlying the conspiracy count—a violation of 18 U.S.C. § 1029(a)(5)—
is governed by § 2B1.1 of the Guidelines, which provides for a base offense level
of six. However, in calculating the advisory Guidelines sentencing range, the
PSR recommended that the base offense level be increased by 16 levels because
the PSR concluded that John intended to cause a loss of approximately
$1,451,865. The PSR also determined that John intended to obtain account
holders’ personal information and accordingly added two levels pursuant to
1
U.S. SENTENCING GUIDELINES MANUAL § 2X1.1(a) (2007).
2
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§ 2B1.1(b)(14)(A)(i)(II). After other adjustments that are not at issue in this
appeal, the PSR arrived at a final base offense level of thirty. John had no
criminal history, and the resulting advisory Guidelines range of imprisonment
was 97-121 months. The district court ultimately sentenced John to 108 months’
imprisonment.
II
John has raised several issues regarding her convictions. Her first
contention is that the evidence was insufficient to support her convictions on
Counts 6 and 7 under 18 U.S.C. § 1030(a)(2) for exceeding authorized access to
Citigroup’s computers. She candidly acknowledges that at trial her counsel
failed to renew a motion for acquittal at the close of the evidence and that we
therefore may only reverse her convictions on these counts “if there was a
‘manifest miscarriage of justice,’ which would occur if there is no evidence of the
defendant’s guilt or ‘the evidence on a key element of the offense was so tenuous
that a conviction would be shocking.’”2
Whether John’s convictions on Counts 6 and 7 may be sustained depends
on the proper interpretation of “exceeds authorized access” as used in
§ 1030(a)(2) and defined in § 1030(e)(6).
John was convicted of violating § 1030(a)(2), which provides:
(a) Whoever–
...
(2) intentionally accesses a computer without
authorization or exceeds authorized access, and
thereby obtains--
(A) information contained in a financial
record of a financial institution, or of a card
issuer as defined in section 1602(n) of title
2
United States v. Villasenor, 236 F.3d 220, 222 (5th Cir. 2000) (quoting United States
v. McCarty, 36 F.3d 1349, 1358 (5th Cir. 1994) (internal quotations omitted)).
3
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15, or contained in a file of a consumer
reporting agency on a consumer, as such
terms are defined in the Fair Credit
Reporting Act (15 U.S.C. 1681 et seq.); . . .
shall be punished as provided in subsection (c) of this
section.3
The term “exceeds authorized access” is defined in § 1030(e)(6): “the term
‘exceeds authorized access’ means to access a computer with authorization and
to use such access to obtain or alter information in the computer that the
accesser is not entitled so to obtain or alter. . . .”
John argues that she was authorized to use Citigroup’s computers and to
view and print information regarding accounts in the course of her official
duties. The evidence, she contends, reflects only that she was not permitted to
use the information to which she had access to perpetrate a fraud, she could
make changes to account information only in compliance with a customer’s
request, and she was not permitted to take material she printed regarding
accounts from her office building. She asserts that her mental state or motive
at the time she accessed or printed account information cannot determine
whether she violated 18 U.S.C. § 1030(a)(2). Specifically, she argues that the
statute does not prohibit unlawful use of material that she was authorized to
access through authorized use of a computer. The statute only prohibits using
authorized access to obtain information that she is not entitled to obtain or alter
information that she is not entitled to alter, John contends.
We first note that John was not charged in Counts 6 or 7 with altering
information in Citigroup’s computer system. She was charged with “exceeding
authorized access” and obtaining confidential Citigroup and Home Depot
customer account information.
3
18 U.S.C. § 1030(a)(2)(A).
4
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The statute at issue prohibits both accessing a computer “without
authorization” and “exceed[ing] authorized access” to obtain specified
information.4 The statute does not define “authorized,” or “authorization,” which
is used in the definition of “exceeds authorized access.” 5 The question before us
is whether “authorized access” or “authorization” may encompass limits placed
on the use of information obtained by permitted access to a computer system and
data available on that system. We conclude that it may, at least when the user
knows or reasonably should know that he or she is not authorized to access a
computer and information obtainable from that access in furtherance of or to
perpetrate a crime.
To give but one example, an employer may “authorize” employees to utilize
computers for any lawful purpose but not for unlawful purposes and only in
furtherance of the employer’s business. An employee would “exceed[] authorized
access” if he or she used that access to obtain or steal information as part of a
criminal scheme.
In United States v. Phillips, this court analyzed whether a criminal
defendant had accessed university computers “without authorization” in
violation of § 1030(a)(5)(A)(ii), as distinguished from “exceed[ing] authorized
access,” and we recognized that “[c]ourts have . . . typically analyzed the scope
of a user’s authorization to access a protected computer on the basis of the
expected norms of intended use or the nature of the relationship established
between the computer owner and the user.” 6 We applied this “intended-use
analysis” to conclude that a student who used his privilege of access to a
4
Id. § 1030(a)(2).
5
Id. § 1030(e)(6); see also LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132 (9th Cir.
2009); United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007).
6
Phillips, 477 F.3d at 219.
5
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university’s computer was not authorized to access parts of the system to which
he had not been given a password.7 John’s situation differs from that of the
student in Phillips because John was authorized to view and print all of the
information that she accessed and that she provided to Riley. However, John’s
use of Citigroup’s computer system to perpetrate fraud was not an intended use
of that system.
John’s use of Citigroup’s computer system to perpetrate a fraud was also
contrary to Citigroup employee policies, of which she was aware. The First
Circuit has held that an employment agreement can establish the parameters
of “authorized” access. In EF Cultural Travel BV v. Explorica, Inc., the plaintiffs
brought a civil action under the Computer Fraud and Abuse Act (CFAA)8 seeking
injunctive relief against former employees who had become competitors.9 The
former employees used their knowledge of codes that they had obtained while in
their former employment to create a high-speed computer program to mine their
former employer’s public website for pricing information.10 The former
employees had entered into a broad confidentiality agreement with their former
employers protecting proprietary information.11 The First Circuit held “that
because of the broad confidentiality agreement [the former employees’] actions
‘exceed[ed] authorized access’” within the meaning of § 1030(a)(4).12 The court
reasoned, “[the former employees’] wholesale use of EF’s travel codes to facilitate
gathering EF’s prices from its website reeks of use—and, indeed, abuse—of
7
Id. at 220-21.
8
18 U.S.C. § 1030.
9
274 F.3d 577, 578-79 (1st Cir. 2001).
10
Id. at 579.
11
Id. at 581, 583.
12
Id. at 581.
6
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proprietary information that goes beyond any authorized use of EF’s website.”13
The court continued, “[i]f EF’s allegations are proven, it will likely prove that
whatever authorization [former employees] had to navigate around EF’s site
(even in a competitive vein), [they] exceeded that authorization by providing
proprietary information and know-how to [a programmer] to create the
scraper.”14
While we do not necessarily agree that violating a confidentiality
agreement under circumstances such as those in EF Cultural Travel BV would
give rise to criminal culpability, we do agree with the First Circuit that the
concept of “exceeds authorized access” may include exceeding the purposes for
which access is “authorized.” Access to a computer and data that can be
obtained from that access may be exceeded if the purposes for which access has
been given are exceeded. In other words, John’s access to Citigroup’s data was
confined. She was not authorized to access that information for any and all
purposes but for limited purposes.
In the present case, the Government demonstrated at trial that Citigroup’s
official policy, which was reiterated in training programs that John attended,
prohibited misuse of the company’s internal computer systems and confidential
customer information. Despite being aware of these policies, John accessed
account information for individuals whose accounts she did not manage,
removed this highly sensitive and confidential information from Citigroup
premises, and ultimately used this information to perpetrate fraud on Citigroup
and its customers.
We recognize that the Ninth Circuit may have a different view of how
“exceeds authorized access” should be construed. In LVRC Holdings LLC v.
13
Id. at 583.
14
Id.
7
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Brekka, a civil proceeding, the Ninth Circuit construed 18 U.S.C. § 1030(a)(2) to
mean that “a person who ‘intentionally accesses a computer without
authorization,’ §§ 1030(a)(2) and (4), accesses a computer without any
permission at all, while a person who ‘exceeds authorized access,’ id., has
permission to access the computer, but accesses information on the computer
that the person is not entitled to access.” 15 That court stated that “[t]he
definition of the term ‘exceeds authorized access’ from § 1030(e)(6) implies that
an employee can violate employer-placed limits on accessing information stored
on the computer and still have authorization to access that computer.” 16 In
Brekka it was alleged that an employee e-mailed to his and his wife’s personal
computers proprietary documents to which his employer had given him access
with the intention of using the information to compete with his employer once
he resigned.17 The court rejected the argument that one who is authorized to
obtain information stored in a computer exceeds authorized access within the
meaning of 18 U.S.C. § 1030(a)(2) “if the defendant breaches a state law duty of
loyalty to an employer” in accessing and using that information 18 “to further his
own competing business.”19
The Ninth Circuit’s reasoning in Brekka was influenced by its recognition
that “[f]irst, and most important, § 1030 is primarily a criminal statute, and
§§ 1030(a)(2) and (4) create criminal liability for violators of the statute.” 20 The
court explained its view that, “[a]lthough this case arises in a civil context, our
15
581 F.3d 1127, 1133 (9th Cir. 2009).
16
Id. at 1135.
17
Id. at 1134.
18
Id. at 1135 n.7.
19
Id. at 1134.
20
Id.
8
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interpretation of [the statute] is equally applicable in the criminal context,” and
that “ambiguity concerning the ambit of criminal statutes should be resolved in
favor of lenity.” 21 The Ninth Circuit explained that “[i]f the employer has not
rescinded the defendant’s right to use the computer, the defendant would have
no reason to know that making personal use of the company computer in breach
of a state law fiduciary duty to an employer would constitute a criminal violation
of the CFAA. It would be improper to interpret a criminal statute in such an
unexpected manner.”22
There are no such concerns in the present case. An authorized computer
user “has reason to know” that he or she is not authorized to access data or
information in furtherance of a criminally fraudulent scheme. Moreover, the
Ninth Circuit’s reasoning at least implies that when an employee knows that the
purpose for which she is accessing information in a computer is both in violation
of an employer’s policies and is part of an illegal scheme, it would be “proper” to
conclude that such conduct “exceeds authorized access” within the meaning of
§ 1030(a)(2).
III
At trial, the Government presented testimony from an expert witness who
opined that John’s fingerprints were on Citigroup documents that were found in
Riley’s possession. John contends that the district court erred in admitting this
testimony because it was never established that the evidence was reliable. John
asserts that the error is not harmless because this evidence was necessary to
connect John to the fraudulent scheme.
21
Id.
22
Id. at 1135.
9
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The admission of expert evidence is reviewed for abuse of discretion;23
however, evidentiary rulings are subjected to heightened scrutiny in criminal
cases.24 Federal Rule of Evidence 702 provides that testimony by a qualified
expert is admissible if (1) it will assist the trier of fact; (2) it is based upon
sufficient facts or data; (3) the testimony is a product of reliable methods; and
(4) the witness has applied those principles reliably to the facts.25 It is the
gatekeeping responsibility of the trial judge to ensure that any admitted
scientific testimony or evidence is both relevant and reliable.26
The Supreme Court has articulated a non-exclusive list of factors that a
district court may consider in determining whether expert evidence is reliable:
(1) whether the expert’s technique can be tested; (2) whether the technique has
been subject to peer review; (3) known or potential rate of error associated with
the technique; (4) the existence of standards or controls; and (5) whether the
technique or theory has been generally accepted in the scientific community.27
This test is flexible, and the proponent of the expert testimony need not satisfy
each factor. 28 Further, a district court has broad latitude in deciding how to
determine reliability, as well as in its ultimate reliability determination.29
23
United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999)).
24
United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005).
25
F ED . R. EVID . 702.
26
Moore v. Ashland Chem. Inc., 151 F.3d 269, 275 (5th Cir. 1998) (en banc).
27
Hicks, 389 F.3d at 525 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
593-94 (1999)).
28
Id.
29
Id.; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-53 (1999).
10
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John’s threshold argument is that the district court “abdicated its
gatekeeping function” by failing to hold a Daubert hearing on the matter.
However, we agree with a number of our sister circuits that have expressly held
that in the context of fingerprint evidence, a Daubert hearing is not always
required.30 As the Seventh Circuit has noted: “Those [courts] discussing the
issue have not excluded fingerprint evidence; instead, they have declined to
conduct a pretrial Daubert hearing on the admissibility of fingerprint evidence
or have issued brief opinions asserting that the reliability of fingerprint
comparison cannot be questioned.”31
We agree that in most cases, absent novel challenges, fingerprint evidence
is sufficiently reliable to satisfy Rule 702 and Daubert.32 “Fingerprint
identification has been admissible as reliable evidence in criminal trials in this
country since at least 1911.” 33 In terms of specific Daubert factors, the reliability
of the technique has been tested in the adversarial system for over a century and
has been routinely subject to peer review.34 Moreover, as a number of courts
30
See, e.g., United States v. Mitchell, 365 F.3d 215, 246 (3d Cir. 2004) (holding that a
district court may dispense with a Daubert hearing entirely if no novel challenge is raised to
the admissibility of latent fingerprint identification evidence); United States v. Crisp, 324 F.3d
261, 268 (4th Cir. 2003) (stating, in the context of fingerprint evidence, that “[u]nder Daubert,
a trial judge need not expend scarce judicial resources reexamining a familiar form of expertise
every time opinion evidence is offered”).
31
United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001).
32
See United States v. Abreu, 406 F.3d 1304, 1307 (11th Cir. 2005) (holding that
fingerprint evidence satisfies Daubert); Crisp, 324 F.3d at 267-70 (same); United States v.
Collins, 340 F.3d 672, 682-83 (8th Cir. 2003) (same); Havvard, 260 F.3d at 601 (same); United
States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996) (same).
33
Crisp, 324 F.3d at 266.
34
Havvard, 260 F.3d at 601.
11
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have noted, the error rate is low.35 The district court did not err in dispensing
with a Daubert hearing.
John also asserts that the fingerprint evidence was inadmissible because
the Government’s expert did not explain how many matching points were
required to determine that the prints were hers. She asserts that because of the
expert’s silence on the quantitative standard, the Daubert factors cannot be
satisfied because the expert’s technique is by definition standardless, untestable,
and its error rate indeterminable.
We are unpersuaded by this argument because there is no universally
accepted number of matching points that is required for proper identification, as
this varies depending on the quality of the print.36 A number of circuits have
determined that this “sliding-scale” procedure is testable, generally accepted,
and sufficiently reliable 37 and that its known error rate is essentially zero.38
Moreover, although the Government’s fingerprint expert did not testify to
a precise number of matching points, contrary to John’s assertion, he gave
extensive testimony regarding the uniqueness of fingerprints generally, as well
as the particular identification methodology used. In fact, the expert provided
35
See, e.g., id.; Mitchell, 365 F.3d at 240.
36
See Mitchell, 365 F.3d at 236 (describing the FBI “sliding scale” standard, which
considers both the quality and quantity of matching points); Crisp, 324 F.3d at 269 (noting
that “while different agencies may require different degrees of correlation before permitting
a positive identification, fingerprint analysts are held to a consistent ‘points and
characteristics’ approach to identification”); Havvard, 260 F.3d at 599 (stating that the expert
testified that the “unique nature of fingerprints is counterintuitive to the establishment of [a
numerical] standard and that through experience each examiner develops a comfort level for
deciding how much of a fragmentary print is necessary to permit a comparison”).
37
Mitchell, 365 F.3d at 237-38, 241, 244-46; see also United States v. Mahone, 453 F.3d
68, 72 (1st Cir. 2006) (holding that in light of the fact that the adversarial system is the proper
venue for testing shaky, but admissible, evidence, the argument that the lack of a set number
of clues required for a match invalidates fingerprint evidence must be rejected).
38
Crisp, 324 F.3d at 269; Havvard, 260 F.3d at 599.
12
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a detailed step-by-step description of the identification process focusing on one
specific print. As to this particular example, the expert also pointed out eight
specific matching points to the jury and noted that more were found.
John challenges the reliability of the Government’s fingerprint evidence
because it was not subject to “blind verification,” which requires a second expert
to match the prints without being told the results of the original test. However,
we have not located any case law supporting John’s assertion that blind
verification is required.
John has not demonstrated that the district court abused its discretion by
admitting the fingerprint expert’s testimony. Issues regarding the accuracy of
fingerprint evidence in a particular case generally go “to the weight and
credibility of the evidence” and are “best left to the finder of fact, not an
appellate court.” 39 John had the opportunity to analyze the fingerprint evidence
herself and question its validity,40 and she availed herself of this opportunity by
introducing her own expert at trial who testified regarding all the issues John
now raises on appeal.
Even if the district court erred in this respect, the error was harmless.
The Government demonstrated at trial that all the account information in
question was printed from John’s computer on days that John was at work.
Along with other evidence presented at trial, the jury could have reasonably
reached the same verdict.
IV
During trial, the defense sought to introduce evidence that allegedly would
have demonstrated that John’s half-brother Riley had other inside sources at
39
United States v. George, 363 F.3d 666, 673 (7th Cir. 2004) (noting that having found
fingerprint analysis in general to be reliable, any issues regarding the match in question are
best resolved by the fact finder).
40
See Havvard, 260 F.3d at 599.
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Citigroup. John contends that this evidence would have created reasonable
doubt as to whether John was the informant who provided Riley with customer
account information. To raise this doubt, the defense sought to have police
officers who interrogated Riley testify to statements he allegedly made. The
Government objected on the basis that this testimony would be hearsay, and
those objections were sustained.
John does not argue that this testimony would not have been hearsay or
that it would have fallen within a hearsay exception. More importantly, John
has not offered any proof as to what the officers’ testimony would have been and
accordingly cannot prevail on a direct challenge to the district court’s ruling.41
Nevertheless, John attempts to frame her evidentiary challenge as a
constitutional issue. She argues that adherence to the hearsay rule in this case
violated her right to “present a complete defense” under the Due Process Clause
and the Compulsory Process Clause of the Sixth Amendment.
The Supreme Court has stated that a defendant’s right to present a
complete defense “is abridged by evidence rules that infringe upon a weighty
interest of the accused and are arbitrary or disproportionate to the purposes they
are designed to serve.”42 However, “the accused . . . must comply with
41
See United States v. Wells, 525 F.2d 974, 976 (5th Cir. 1976) (“There was an exception
taken to the court’s ruling sustaining the Government’s [hearsay] objection, but no offer of
proof. Inasmuch as no suggestion was made at the time that the evidence sought would fall
within some exception to the hearsay rule, appellants cannot properly contend now that it was
error to sustain Government’s objections to the questions in issue.”); see also Elizarraras v.
Bank of El Paso, 631 F.2d 366, 374 n.24 (5th Cir. 1980) (noting that because there was no
proffer, the exclusion of testimony on hearsay grounds would be impossible to review).
42
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal quotation marks and
alteration omitted). Examples of rules that the Court has found “arbitrary or
disproportionate” include (1) a rule precluding a person who had been charged as a participant
in a crime from testifying for the defense—but not the prosecution—of another alleged
participant, unless the witness had been acquitted; (2) a “voucher rule” that barred parties
from impeaching their own witnesses where alternative avenues for impeachment were
foreclosed by the hearsay rule; and (3) a rule applying a per se prohibition on any hypnotically
refreshed testimony. Id. at 325-27.
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established rules of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.”43
John relies on Chambers v. Mississippi, in which the Supreme Court held
that, given the particular facts of that case, exclusion of trustworthy hearsay
evidence critical to the defense, coupled with an unrelated error, resulted in a
denial of due process.44 However, the facts of Chambers 45 are distinguishable.
In Chambers, the district court excluded testimony, on hearsay grounds, by three
different parties who would have testified that an individual other than the
defendant admitted to committing the murder in question.46 The Court found
that these particular statements, which were offered at trial, were made in
“circumstances that provided considerable assurance of their reliability.” 47 In
particular, the Court noted that (1) the confessions were made spontaneously to
close acquaintances shortly after the murder; (2) each statement was
corroborated by other evidence; (3) the same confession was made three times;
(4) the confessions were against interest; and (5) the person who allegedly made
the confession was available to testify.48 No such evidence is present in this case.
John offers only speculation as to what the witnesses in question would have
said had they been allowed to testify.
Moreover, the Court’s decision in Chambers did not rest solely on the
hearsay issue. In Chambers, the defendant called the individual who confessed
43
Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
44
Id.
45
See id. at 302-03 (stating that the decision did not announce any new principles of
constitutional law but that the holding was simply that “under the facts and circumstances
of this case the rulings of the trial court deprived Chambers of a fair trial”).
46
Id. at 300-01.
47
Id. at 300.
48
Id. at 300-01.
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to the murder as a witness, but when cross-examined by the State, the witness
repudiated his confession. The defendant, in turn, could not redirect because of
the state’s “voucher” rule, which barred parties from impeaching their own
witnesses. Thus, in combination with the hearsay rule, the voucher rule—which
the Court noted bore little relationship to the realities of the criminal
process—completely prevented the defendant from impeaching a highly
damaging witness.49 The Court’s ultimate holding that the defendant was
denied a fair trial rested on the combined effects of the hearsay and voucher
rules. John’s situation is not analogous to Chambers. The district court did not
err.
V
John contends her convictions must be reversed because the Vice
President of Citigroup for Risk and Commercial Operations, Mitch Raymond,
improperly speculated as to what John’s mental state must have been,
suggesting to the jury that she acted with fraudulent intent. John also argues
that Raymond’s testimony was unsupported lay opinion in violation of Federal
Rule of Evidence 701. John takes issue with the following exchange:
Prosecution: But assume [the account] had [an
administrative block code], that date of 8/1/2003, and
assume a call came in from somebody who was
unknown to your person answering the phone, was
really a criminal engaged in a fraud scheme and they
knew how they manipulate your system, would an
honest employee getting such a call who looked on the
screen and saw [the block code] and this GE acquisition
date of 8/1/03, would they just automatically go in and
change the block code from A to blank?
Raymond: No. They would know, and it was in our
procedures that they would have to have the customer
49
Id. at 296-98.
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reapply. So that call probably would have been
transferred to our credit group.
Prosecution: So an honest employee getting such a call
that came in on 11/1/2005, would they have taken the
action that [John] took [and removed the block from the
account]?
Raymond: That would not have been an appropriate
action.
We review the district court’s evidentiary rulings for abuse of discretion,
subject to the harmless-error rule.50 Pursuant to Rule 701, “a lay opinion must
be based on personal perception, must be one that a normal person would form
from those perceptions, and must be helpful to the [fact finder].” 51 A lay opinion
of a corporate officer may be based on knowledge acquired as a result of an
individual’s employment position.52
Although Raymond’s testimony was based on his experience in a
supervisory position, he did express an opinion regarding what an employee
acting properly within the scope of employment would have done in a particular
situation. To the extent John argues that this opinion testimony was speculative
because it involved the probable actions of an unidentified “honest” employee,
her argument may be well taken.53 However, we need not decide this issue
because any error was harmless. Raymond testified that Citigroup’s procedures
50
United States v. Saldana, 427 F.3d 298, 306 (5th Cir. 2005).
51
Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 403 (5th Cir.
2003) (alteration in original) (internal quotation marks omitted).
52
See id.; see also DIJO, Inc. v. Hilton Hotels Corp., 351 F.3d 679, 685 (5th Cir. 2003)
(stating that business owners or officers may testify as to their opinion based on
“particularized knowledge derived from their position” (emphasis omitted)).
53
See Washington v. Shop-Vac Corp., 8 F.3d 296, 300 (5th Cir. 1993) (holding that the
district court did not abuse its discretion by excluding a witness’s testimony regarding “what
he would have done” in a particular situation because that opinion was speculative and not
based on personal knowledge).
17
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and training programs clearly stated that accounts that had been dormant for
a certain period of time could not be altered until the account holder renewed its
application with the credit department because such accounts were not
considered active. From this testimony, the jury could reasonably infer that an
employee acting within the scope of his or her duties would have followed this
procedure. Additionally, given other evidence presented at trial, including the
fact that John altered these accounts shortly after receiving calls from Riley and
that she never returned to work after Riley’s first arrest, the jury could
reasonably infer that John was acting with fraudulent intent.
VI
John raises a number of issues with regard to her sentence. She contends
that the district court erred in determining that the intended loss was
$1,451,865. This intended loss amount resulted in a sixteen-level increase to her
base offense level under § 2B1.1(b)(1) of the Guidelines.54 The actual amount of
loss was $78,750, which would have resulted in an eight-level increase.55 The
district court adopted the PSR, which arrived at the intended loss by aggregating
the credit limits on all seventy-six accounts for which John printed and
disseminated information and then added the amount by which the credit limit
was exceeded on one account. Charges totaling $78,750 were actually incurred
on only four of these accounts. John suggests several different loss amounts that
the district court could alternatively have calculated, all resulting in less than
a sixteen-level increase in her base offense level.
The Sentencing Guidelines applicable to fraud offenses are contained in
§ 2B1.1. The Guidelines’ commentary explains that under § 2B1.1, “loss serves
as a measure of the seriousness of the offense and the defendant’s relative
54
U.S.S.G. § 2B1.1(b)(1) (2007).
55
Id.
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culpability and is a principal factor in determining the offense level under this
guideline.” 56 Accordingly, § 2B1.1(b)(1) creates a sliding scale that increases the
defendant’s base offense level by zero to thirty points depending on the amount
of loss. The Guidelines commentary explains that for purposes of that section,
“loss is the greater of actual or intended loss.”57
In ascertaining the intended loss, the district court must determine the
defendant’s actual intent.58 A determination of the loss amount is a factual
finding reviewed for clear error.59 Under this standard, “as long as the
determination is plausible in light of the record as a whole, clear error does not
exist.” 60 Moreover, the Guidelines provide that in determining the amount of
loss, “[t]he court need only make a reasonable estimate.” 61 Accordingly, we give
district courts “wide latitude” in this regard.62 “The method used to calculate the
amount of loss, however, must bear some reasonable relation to the actual or
intended harm of the offense.”63
We have held that in estimating intended loss in fraud cases, the district
court may look beyond the monetary amount the defendant actually obtained or
56
§ 2B1.1 cmt. background (2007).
57
§ 2B1.1 cmt. n.3(A).
58
United States v. Henderson, 19 F.3d 917, 928 (5th Cir. 1994); see also United States
v. Sanders, 343 F.3d 511, 527 (5th Cir. 2003) (stating that the Government must “prove by a
preponderance of the evidence that the defendant had the subjective intent to cause the loss
that is used to calculate his offense level”).
59
United States v. Brown, 7 F.3d 1155, 1159 (5th Cir. 1993).
60
United States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1996).
61
§ 2B1.1 cmt. n.3(C).
62
United States v. Sowels, 998 F.2d 249, 251 (5th Cir. 1993).
63
United States v. Krenning, 93 F.3d 1257, 1269 (5th Cir. 1996).
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clearly attempted to obtain prior to being apprehended.64 For example, in United
States v. Chappell, the defendant, who was convicted for cashing a number of
counterfeit checks, was also found with fifty-one counterfeit blank checks in his
possession.65 In calculating the intended loss, the district court accounted for the
blank checks by assigning to each the average value of the checks that were
actually forged and cashed.66 We held that the district court’s assessment
“manifestly was not clearly erroneous” in light of the fact that the defendants
had already attempted to negotiate at least 25 counterfeit checks and evidence
indicated that they had planned to negotiate over 150 more.67
Similarly, in United States v. Sowels, we held that a district court’s
determination that intended loss was the combined credit limit of all credit cards
stolen by the defendants was not clearly erroneous, even though the defendants
were apprehended before they could use any of the cards. 68 We noted the
district court’s “difficult task of projecting into the future Sowels’s intent as to
the extent to which he would use the cards” 69 and stated that because Sowels
had not completed or withdrawn from the offense before apprehension, the
64
See, e.g., Ismoila, 100 F.3d at 396 (“Available credit is . . . one way of determining
intended loss.”).
65
6 F.3d 1095, 1101 (5th Cir. 1993).
66
Id.
67
Id.
68
Sowels, 998 F.2d at 250-51; see id. (noting in particular that “Sowels’s method of
operation, which included selling or giving away some of the credit cards to others, ‘increased
the likelihood that the credit cards could have been charged to the maximum credit limit’” and
that Sowels previously charged high balances on stolen credit cards in a short period).
69
Id. at 252.
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district court did not clearly err in concluding that he intended to charge the
cards to their limit.70
More generally, in this context we have often emphasized that the
defendant’s actions placed the victim at risk of loss for the full amount71 and
relatedly, we have considered the defendant’s ability to access the entirety of the
funds in question.72 John argues that merely obtaining information regarding
a credit account does not create a risk of loss as to the entire account limit or
establish sufficient access to infer intended loss up to the account limit as a
matter of law. Specifically, she argues that obtaining information is far more
preparatory in nature than the actual possession of credit cards or checks, which
allows for immediate access to the account. However, immediate access and risk
of loss are not dispositive in all circumstances; rather, the critical determination
is the intent of the defendant.73 We have expressly rejected the argument that
a defendant could not be held accountable for attempted credit-card charges
declined for exceeding the credit limit because the defendant never had actual
access nor created any risk of loss.74
70
Id. at 251.
71
See, e.g., id. (approving the inclusion of aggregate credit limits for yet-to-be-used
cards, noting that in such a case the defendant “put[s] his victims at risk for the aggregate
amount of the unused balances”); see also United States v. Wimbish, 980 F.2d 312, 316 (5th
Cir. 1992) (concluding that the court could consider the face amount of forged checks in
calculating intended loss, even though the defendant’s plan was to receive only a portion of the
check value because “[h]is actions and his conscious indifference put his victims at risk for the
entire loss, regardless of how much he actually obtained”), abrogated on other grounds by
Stinson v. United States, 508 U.S. 36 (1993).
72
See United States v. Oates, 122 F.3d 222, 226 (5th Cir. 1997) (holding that the full
amount of a not-yet-presented fraudulent check was the intended loss because the defendant
gained immediate access to the funds by indorsing the instrument).
73
See United States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1997).
74
Id.
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Nevertheless, John maintains that the district court’s determination of
intended loss was clearly erroneous in light of the record because the
Government did not carry its burden of proving John’s intent to utilize all
seventy-six accounts that she accessed and about which she disseminated
information. She points out that her confederates actually obtained funds from
only four accounts and that out of these accounts only one was used to its
maximum credit limit. John urges that the Government at most demonstrated
that each of the seventy-six accounts was a potential candidate for fraud, not
that the defendants ever intended to utilize all of the accounts. She asserts that
additional action would have been required to allow the co-conspirators to incur
any charges on the accounts and that because such action had not yet been
taken, the district court was clearly erroneous in its determination of intended
loss.
John has not demonstrated that the district court clearly erred. For forty-
four of the seventy-six relevant accounts, she obtained printouts of account
computer screens, which contained account numbers, names of account holders
and their telephone numbers, account holder titles, billing addresses, credit
lines, last payment dates, the existence of any administrative blocks on the
account and other information that could be used in the fraudulent scheme.
These printouts contained the same type of information from which John’s
confederates were able to have other accounts altered, obtain access, and incur
charges. The district court’s conclusion that John’s co-conspirators simply did
not have time to take the requisite actions before they were discovered is
plausible in light of the record, and John “should not be rewarded simply
because law enforcement officials thwarted [her] plans.”75
75
United States v. Brown, 7 F.3d 1155, 1159 (5th Cir. 1993).
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John argues somewhat more persuasively with respect to the thirty-two
accounts about which the information disseminated involved only images of
checks written in payment of the account balances. John asserts that these
check images provide limited account information and that several additional
steps would have to be taken before charges could be incurred upon these
accounts. John also points out that the check images were printed well before
most of the account screens were printed and that the check images were
retained for over three months without use, and that when only check images
regarding an account were obtained, the account was not accessed, evidencing
a lack of intent to ever do so.
John’s arguments, however, offer no explanation of why the check images
were printed in the first place if they were indeed useless in furthering the
fraudulent scheme. John’s intentions in providing this information to her
partner in crime were not benign. John has not rebutted the evidence that she
intended to maximize charges on these accounts as well.76 In light of the record,
it is plausible that the co-conspirators simply had not yet mined these accounts.
Accordingly, we cannot conclude that the district court clearly erred in making
its intended loss determination.
VII
John contends that even if the district court did not clearly err in finding
the amount of the intended loss, the district court should have applied a three-
level reduction for a “partially completed offense” based on note 17 in the
Commentary to § 2B1.1 of the Guidelines.77 John asserts that she was convicted
of discrete credit card transactions, not of a broad scheme to defraud such as
mail fraud or wire fraud, and that only eight Citigroup accounts were either
76
See Sowels, 998 F.2d at 251.
77
U.S.S.G. § 2B1.1 cmt. 17.
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altered or accessed by her or her confederates. With regard to the sixty-eight
other accounts, the district court found only an intent to access the credit limits.
She asserts that as to these sixty-eight accounts, the offenses were not
completed. The Government’s briefing does not address John’s contentions.
Note 17 in the Commentary accompanying § 2B1.1 provides:
Partially Completed Offenses. – In the case of a
partially completed offense (e.g. an offense involving a
completed theft or fraud that is part of a larger,
attempted theft or fraud), the offense level is to be
determined in accordance with the provisions of § 2X1.1
(Attempt, Solicitation, or Conspiracy) whether the
conviction is for the substantive offense, the inchoate
offense (attempt, solicitation or conspiracy), or both.
See Application Note 4 of the Commentary to § 2X1.1.78
Application Note 4 of the Commentary to § 2X1.1 provides in pertinent
part:
In certain cases, the participants may have completed
(or have been about to complete but for apprehension or
interruption) all of the acts necessary for the successful
completion of part, but not all, of the intended offense.
In such cases, the offense level for the count (or group
of closely related multiple counts) is whichever of the
following is greater: the offense level for the intended
offense minus 3 levels (under § 2X1.1(b)(1), (b)(2), or
(b)(3)(A)), or the offense level for the part of the offense
for which the necessary acts were completed (or about
to be completed but for apprehension or interruption).
For example, where the intended offense was the theft
of $800,000 but the participants completed (or were
about to complete) only the acts necessary to steal
$30,000, the offense level is the offense level for the
theft of $800,000 minus 3 levels, or the offense level for
the theft of $30,000, whichever is greater.79
78
Id.
79
Id. § 2X1.1 cmt. 4.
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Additionally, the Commentary provides:
Background: 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. Sometimes, however,
the arrest occurs well before the defendant or any
conspirator has completed the acts necessary for the
substantive offense. Under such circumstances, a
reduction of 3 levels is provided under § 2X1.1(b)(1) or
(2).80
The PSR prepared prior to John’s sentencing, which the district court
adopted, concluded, “[t]he defendant and codefendants completed all acts
necessary for the successful completion of the substantive offense, therefore a 3-
level decrease is not applicable under USSG § 2X1.1(b)(2).” John made no
objection in the district court to this conclusion or the failure to apply a three-
level decrease, and we accordingly review for plain error.81 As part of that
review, the district court’s interpretation and application of the Guidelines is
considered de novo.82
In determining whether an offense was completed when a conspiracy has
been alleged, “we consider the degree of completion of the underlying offense,
and not of the conspiracy itself.” 83 The underlying offense of fraud and related
activity in connection with access devices requires an actual loss, and it requires
use of an access device.84 There were actual losses with regard to only four
80
Id. cmt. Background.
81
See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005).
82
United States v. Price, 516 F.3d 285, 287 (5th Cir. 2008).
83
United States v. Rothman, 914 F.2d 708, 709 (5th Cir. 1990).
84
18 U.S.C. § 1029(a)(5).
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Citigroup accounts, and access devices were used only with regard to those
accounts. The conspiracy indictment included as overt acts John’s actions in
providing information regarding not only those accounts but other accounts that
were not accessed. The question is whether the offense with respect to the
seventy-two accounts that were not accessed was “partially completed” within
the meaning of note 17 under § 2B1.1(b)(2) or “completed” within the meaning
of note 4 and other Commentary to § 2X1.1.
We observed in United States v. Waskom that there are several
considerations in determining whether a reduction under § 2X1.1(b)(2) is
appropriate.85 This Guidelines section has been amended since our decision in
Waskom, and the conspirators’ subjective belief as to what was “necessary on
their part for the successful completion of the substantive offense” is no longer
part of the equation. However, four of the considerations set forth in Waskom
remain pertinent. They are (1) a focus “on the substantive offense and the
defendant’s conduct in relation to that specific offense,” (2) “§ 2X1.1(b)(2) does
not require the reduction for a conspirator who has made substantial progress
in his criminal endeavor simply because a significant step remains before the
commission of the substantive offense becomes inevitable,” (3) “the
circumstances must demonstrate that the balance of the significant acts
completed and those remaining tips toward completion of the substantive
offense,” which “requires that the district court consider the quality of the
completed and remaining acts, not simply the relative quantities of each,” and
(4) “a sentencing court should consider the temporal frame of the scheme and the
amount of time the defendant would have needed to finish his plan, had he not
been interrupted.”86 In Waskom, we concluded that the district court had clearly
85
179 F.3d 303, 308-09 (5th Cir. 1999).
86
Id. at 308.
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erred in concluding that the defendants were “about to” obtain the materials
they needed to carry out the robbery of an armored car or were “on the verge” of
completing the acts they believed were necessary to carry out the offense.87
In the present case, John was convicted in Count 1 of conspiracy to violate
18 U.S.C. § 1029(a)(5).88 The advisory Guidelines sentencing range was
calculated based on this offense. With regard to this count, the indictment
alleged and the evidence reflected that about six weeks after John had provided
Riley with printed images of checks and printed images of the “best customer”
account computer screen contents, Riley called Citigroup and asked that the
mailing address on the account of Carolyn Baker Real Estate be changed.
Approximately a month after that, he called and asked that the name of a
confederate be added to the list of authorized users, and Citigroup complied.
The following day, the confederate who had been added as an authorized user
purchased gift cards having a value of $5,000 at Home Depot. With regard to
the other three accounts that were actually accessed, the process was similar.
Accordingly, in order to complete the scheme with regard to the accounts for
which Riley had the detailed “best customer” account computer information,
someone would have had to have requested a change of address, Citigroup would
have had to have complied, and a confederate would have to have been added as
an authorized user by Citigroup before the account could have been accessed.
With regard to the accounts for which Riley had only copies of checks, it is
unclear whether Citigroup customer accounts could have been accessed with just
this information, and if so how.
87
Id. at 312.
88
18 U.S.C. § 1029(a)(5) (“Whoever – knowingly and with intent to defraud effects
transactions with 1 or more access devices issued to another person or persons, to receive
payment or any other thing of value during any 1-year period the aggregate of which is equal
to or greater than $1,000. . . .”).
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These facts lead us to conclude that the three-level reduction under
§ 2X1.1(b)(2) applies. The district court found that John and her co-conspirators
intended to obtain through their fraudulent scheme goods or cash equivalents
worth $1,451,865. The scheme resulted in an actual loss amount of $78,750.
The acts necessary to complete the intended offense had not been completed at
the time John and others were apprehended. These circumstances are
indistinguishable from the example in note 4 of the Commentary to § 2X1.1,
which explains:
For example, where the intended offense was the theft
of $800,000 but the participants completed (or were
about to complete) only the acts necessary to steal
$30,000, the offense level is the offense level for the
theft of $800,000 minus 3 levels, or the offense level for
the theft of $30,000, whichever is greater.89
The district court clearly erred in failing to apply the three-level reduction.90
This clear error satisfies the first two prongs of the plain-error standard of
review.91
89
U.S.S.G. § 2X1.1 cmt. 4.
90
See also United States v. Khawaja, 118 F.3d 1454, 1459 (4th Cir. 1996); United States
v. Mancuso, 42 F.3d 836, 849-50 (4th Cir. 1994); United States v. Sprecher, 988 F.2d 318, 321
(2d Cir. 1993); but see United States v. Knox, 112 F.3d 802, 813 (5th Cir. 1997), vacated in part
on other grounds by United States v. Knox, 120 F.3d 42 (5th Cir. 1997); United States v.
Mullen, 986 F.2d 503 (8th Cir. 1993) (unpublished table decision).
91
See Puckett v. United States, __ U.S. __, 129 S. Ct. 1423, 1429 (2009) (explaining that
plain error has four prongs: (1) there was an error or defect, a “deviation from a legal
rule—that has not been intentionally relinquished or abandoned”; (2) “the legal error must be
clear or obvious, rather than subject to reasonable dispute”; (3) the error affected the
defendant’s substantial rights, “which in the ordinary case means he must demonstrate that
it ‘affected the outcome of the district court proceedings’”; and (4) when these three elements
are present, a court may exercise its discretion to correct the error, although this discretion
“ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings’” (quoting United States v. Olano, 507 U.S. 725, 732-36
(1993)).
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To satisfy the third prong of plain-error review, the error must have
affected the defendant’s substantial rights, which ordinarily requires the
defendant to show that the error “affected the outcome of the district court
proceedings.” 92 “When the rights acquired by the defendant relate to sentencing,
the ‘outcome’ he must show to have been affected is his sentence.”93 A
sentencing error affects a defendant’s substantial rights if he “can show a
reasonable probability that, but for the district court’s misapplication of the
Guidelines, [he] would have received a lesser sentence.” 94
A three-level reduction in John’s offense level would reduce the advisory
sentencing Guidelines range from 97-121 months of imprisonment to 70-87
months of imprisonment.95 These two sentencing ranges do not overlap. The
difference between a potential minimum sentence under these ranges is 27
months of imprisonment, and the difference between a potential maximum
sentence under each is 34 months of imprisonment. John’s sentence of 108
months of imprisonment exceeds the high end of the 70-87-month range by 21
months and exceeds the low end by 38 months. Our court has held in similar
circumstances that such a disparity affects substantial rights.96 Furthermore,
92
Id.
93
Id. at 1433 n.4.
94
United States v. Price, 516 F.3d 285, 289 (5th Cir. 2008) (quoting United States v.
Gonzales, 484 F.3d 712, 716 (5th Cir. 2007) (internal quotation marks omitted)).
95
The offense level for John based on a loss amount of $78,750 would be 22, which is
less than 27, the offense level based on the loss amount of $1,451,865 less the 3-level
reduction. Accordingly, the offense level of 27 would apply under the Guidelines, assuming
no other error in the calculation of the advisory Guidelines range.
96
See, e.g., United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (concluding
that Villegas’s substantial rights were affected when the proper application of the Guidelines
resulted in an advisory sentencing range of 10-16 months, as compared to a 21-27-month range
calculated by the district court); United States v. Insaulgarat, 378 F.3d 456, 468 n.17 (5th Cir.
2004); United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002); United States v.
Waskom, 179 F.3d 303, 312 (5th Cir. 1999); see also Price, 516 F.3d at 289 (determining that
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it is not apparent from the record that John would have received an above-
Guidelines sentence of 108 months if the district court had applied the three-
level reduction in the offense level.97 Accordingly, as there is a reasonable
probability that, but for the district court’s misapplication of the Guidelines,
John would have received a lesser sentence, we conclude that the district court’s
error affected John’s substantial rights.
As we have determined that the first three elements of plain error are
present, we may exercise our discretion to correct the error if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”98 We
are also cognizant that “[m]eeting all four prongs” of plain-error review “is
difficult, ‘as it should be.’” 99 Our court has concluded in prior decisions that
when a district court’s error clearly affects a defendant’s sentence, that error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings, particularly when the disparity between the Guidelines’ range
applied by the district court and the correctly calculated range is significant.100
a sentencing error affected Price’s substantial rights even though the Guidelines sentencing
range calculated by the district court and the correct sentencing range overlapped because the
low end of the correct sentencing range, 92 months of imprisonment, was substantially (18
months) lower than Price’s actual sentence of 110 months of imprisonment).
97
See Puckett, 129 S. Ct. at 1432-33 (“The defendant whose plea agreement has been
broken by the Government will not always be able to show prejudice, either because he
obtained the benefits contemplated by the deal anyway . . . or because he likely would not have
obtained those benefits in any event . . . .”).
98
Id. at 1429.
99
Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)).
100
See, e.g., Villegas, 404 F.3d at 365 (concluding that “because the district court’s error
clearly affected Villegas’s sentence, we also find that the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings”); see also United States v. Ellis, 564 F.3d
370, 378 (5th Cir. 2009) (recognizing that this court’s sentencing precedent “has been generous
with remand, often finding that errors leading to substantial increases in sentences, even
those errors not raised until appeal and thus subject to plain error review, merited remand,
although we are not convinced that the case law on this point is settled or as categorical as
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We have not explained our reasoning in any detail.101 We do not attempt today
to extrapolate a “test” or “factors” that should be applied in every application of
the fourth prong of plain-error review when sentencing error is present because
we are mindful of the Supreme Court’s admonition in Puckett that “[t]he fourth
prong is meant to be applied on a case-specific and fact-intensive basis. We have
emphasized that a ‘per se approach to plain-error review is flawed.’”102
In the present case, our analysis of whether the sentencing error seriously
affects the fairness, integrity, or public reputation of judicial proceedings is
influenced by the fact that the sentence imposed is significantly (21 months)
outside the advisory Guidelines range after applying the three-level deduction.
We also bear in mind that before reaching the fourth prong of plain-error review,
we determined with respect to the third prong that there is a reasonable
probability that, but for the district court’s misapplication of the Guidelines,
John would have received a lesser sentence. Under these circumstances, the
perception of fairness in sentencing is marred by at least two considerations.
The first is that a sentence has been imposed without the district court’s
understanding that the chosen sentence was, in reality, an above-Guidelines
sentence and without the district court’s consideration of the correct advisory
Guidelines sentencing range. The sentence of 108 months of imprisonment was
in the middle of the 97-121 months range that the district court erroneously
applied. Absent remand, the defendant’s sentence will be imposed without the
district court’s consideration of a lower Guidelines range, even though the
language in some cases might make it seem”), cert. denied, 130 S. Ct. 371 (2009); id. at 378
n.44 (collecting cases “indicat[ing] some variation in treatment of plain error review, but with
a generally permissive approach to the third and fourth prongs, and especially where a
significantly different Guidelines range was erroneously advised”); Price, 516 F.3d at 290.
101
See, e.g., Price, 516 F.3d at 290.
102
Puckett, 129 S. Ct. at 1433 (quoting United States v. Young, 470 U.S. 1, 16 n.14
(1985)).
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Supreme Court has said that district courts should consider the properly
calculated Guidelines range as “the starting point and the initial benchmark.”103
The second consideration is that if we were to affirm John’s sentence, it
would not be subjected to the process otherwise applicable to above-Guidelines
sentences, which is that if a judge “decides that an outside-Guidelines sentence
is warranted, he must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.”104
“[A] major departure should be supported by a more significant justification than
a minor one. After settling on the appropriate sentence, he must adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” 105 John’s significantly above-
Guidelines sentence has been imposed without the accompanying justification
from the district court that the Supreme Court has recognized is necessary “to
promote the perception of fair sentencing.” 106 If we vacate and remand, and the
district court determines on remand that 108 months of imprisonment or
another sentence above the advisory Guidelines range is an appropriate
sentence, the reasons for such a sentence will be part of the public record and
subject to review on appeal.
In the present case, we also take into account the fact that John’s base
offense level was substantially increased due to the intended-loss amount. As
103
Gall v. United States, 552 U.S. 38, 49 (2007).
104
Id. at 50.
105
Id.; see also Rita v. United States, 551 U.S. 338, 357 (2007).
106
See Rita, 551 U.S. at 357-58 (“By articulating reasons, even if brief, the sentencing
judge not only assures reviewing courts (and the public) that the sentencing process is a
reasoned process but also helps that process evolve. . . . [A] reasoned sentencing judgment,
resting upon an effort to filter the Guidelines’ general advice through § 3553(a)’s list of factors,
can provide relevant information to both the court of appeals and ultimately the Sentencing
Commission.”).
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discussed earlier, John received a sixteen-level increase based on the intended-
loss amount, whereas the actual-loss amount would have only subjected her to
an eight-level increase. The integrity and public reputation of judicial
proceedings requires that in this case, the district court consider the appropriate
sentence, apprised of the applicability of the three-level reduction.
In conducting our plain-error review of John’s sentence, we recognize that
our sentencing precedent “has been generous with remand, often finding that
errors leading to substantial increases in sentences, even those errors not raised
until appeal and thus subject to plain error review, merited remand.”107
However, as was the case in United States v. Ellis, “we are not convinced that
the case law on this point is settled or as categorical as language in some cases
might make it seem.” 108
We note that other circuits have generally concluded that sentencing error
that was likely to have been caused by selection of an incorrect sentencing range
seriously affects the fairness, integrity, or public reputation of judicial
proceedings when the sentence imposed is significantly above the correctly
calculated Guidelines range.109 At least one court, the Seventh Circuit, has
107
United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009), cert. denied, 130 S. Ct. 371
(2009); see, e.g., United States v. Villegas, 404 F.3d 355, 365 (5th Cir. 2005) (concluding that
“because the district court’s error clearly affected Villegas’s sentence” by increasing Villegas’s
sentencing range from 10-16 months to 21-27 months, “the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings”); see also Ellis, 564 F.3d at 378
n.44 (collecting cases “indicat[ing] some variation in treatment of plain error review, but with
a generally permissive approach to the third and fourth prongs, and especially where a
significantly different Guidelines range was erroneously advised”).
108
Ellis, 564 F.3d at 378.
109
See United States v. Meacham, 567 F.3d 1184, 1190 (10th Cir. 2009) (“A review of
federal appellate decisions considering whether to correct unobjected-to sentencing errors
reveals that the key concern has been whether correct application of the sentencing laws
would likely significantly reduce the length of the sentence. When circuit courts have
concluded that it would, they have not hesitated to exercise their discretion to correct the
error.”); see also In re Sealed Case, 573 F.3d 844, 853 (D.C. Cir. 2009) (“We have repeatedly
opted to correct plain sentencing errors, that, if left uncorrected, would result in a defendant
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concluded that “even if a sentence imposed is within the correct as well as the
incorrect Guideline range, the case must still be remanded for resentencing.”110
Our court has not adopted this latter approach in every case in which there is
an overlap between the sentencing range found applicable by the district court
and the correctly calculated range. In United States v. Jasso, the district court
found the applicable sentencing range to be 46 to 57 months and sentenced the
defendant to 46 months of imprisonment.111 On appeal, this court concluded that
the correct sentencing range was 41 to 51 months, but that the sentence of 46
months did not affect substantial rights.112 However, in United States v. Price,
this court held that plain error had been demonstrated, even though the
correctly calculated sentencing range overlapped with the range erroneously
applied by the district court, because the sentence of 110 months of
imprisonment was substantially (18 months) higher than the lowest end of the
properly calculated Guidelines range, which was 92 to 115 months of
imprisonment.113
serving a longer sentence.”); id. (“We cannot say that keeping defendant in prison longer for
improper reasons would leave the fairness, integrity, and public reputation of judicial
proceedings unscathed.”); United States v. Avila, 557 F.3d 809, 822 n.23 (7th Cir. 2009)
(vacating 396-month sentence that was above a range of 262-327 months after correction of
at least one of the sentencing errors committed by the district court).
110
See United States v. Garrett, 528 F.3d 525, 530 (7th Cir. 2008) (alterations omitted)
(concluding that sentencing error seriously affects the integrity of judicial proceedings
whenever the miscalculation leads to a higher Guidelines range); see also Avila, 557 F.3d at
822 (“A sentence based on an incorrect Guideline range constitutes an error affecting
substantial rights and can thus constitute plain error, which requires us to remand unless we
have reason to believe that the error did not affect the district court’s selection of a particular
sentence.”).
111
587 F.3d 706, 713 (5th Cir. 2009).
112
Id. at 713-14.
113
516 F.3d 285, 289-90 (5th Cir. 2008).
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We conclude that ultimately, whether a sentencing error seriously affects
the fairness, integrity, or public reputation of judicial proceedings is dependent
upon the degree of the error and the particular facts of the case. In this case, the
facts warrant remand.
The dissent disagrees with our assessment of John’s sentence. While we
share the dissent’s concern that district courts should not be “sandbagged” when
issues are raised for the first time on appeal, that cannot be the basis for
declining to vacate John’s sentence. In virtually every case in which plain error
is found, a district court has been “sandbagged.” The plain-error standard
nevertheless remains a part of our jurisprudence,114 and we are bound to apply
it.
We likewise part company with the dissent’s suggestion that the nature
of the underlying crime gives an appellate panel carte blanche to decline to
vacate and remand due to sentencing error irrespective of the disparity between
the sentence imposed and the applicable Guidelines range and irrespective of the
probability that a lower sentence might be imposed if the district court were
apprised of its error. The discretion inherent in the plain-error standard is not
tantamount to caprice, nor is it to be exercised because of sympathy or lack
thereof for a particular individual or the public’s or a judge’s opinion as to the
seriousness or heinous nature of a particular crime. An appellate court’s
discretion is cabined by at least some guiding principles. We glean from our
precedent and that of other circuits that when there is no indication that the
district court would have selected the sentence regardless of the applicable
Guidelines range, and the sentence imposed is based on an erroneously
calculated Guidelines range, it is appropriate to exercise our discretion to vacate
the sentence and remand the proceeding, at least when the sentence is
114
See FED . R. CRIM . P. 52(b); Puckett v. United States, __ U.S. __, 129 S. Ct. 1423, 1429
(2009); United States v. Olano, 507 U.S. 725, 732-37 (1993).
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materially or substantially above the properly calculated range. We do not
attempt to define today the lower limits of what is “material” or “substantial,”
but we conclude that the disparity in the present case is both material and
substantial, to the extent those terms might not be coextensive in this context,
and that the fourth prong of plain-error review supports the exercise of
discretion under these circumstances.
VIII
John contends that the district court erred in increasing her offense level
under Guidelines § 2B1.1(b)(14)(A)(i), which provides for a two-level increase for
a defendant convicted of an offense under 18 U.S.C. § 1030 that involved “an
intent to obtain personal information.” 115 John asserts that the term “personal
information” as used in § 2B1.1(b)(14)(A)(i) “does not include information held
only by businesses rather than individuals, and pertaining exclusively to
matters of commerce,” and therefore that the enhancement does not apply
because she only accessed credit information of corporate account holders.
The Guidelines commentary defines “personal information” as:
sensitive or private information (including such
information in the possession of a third party),
including (i) medical records; (ii) wills; (iii) diaries;
(iv) private correspondence, including e-mail;
(v) financial records; (vi) photographs of a sensitive or
private nature; or (vii) similar information.116
John did not raise her present objection to the application of this enhancement
with the district court. Our review would be for plain error.
However, we are vacating John’s sentence, as noted above, on other
grounds and are remanding for further proceedings. On remand, John is likely
to assert an objection if this enhancement is again applied in calculating the
115
U.S.S.G. § 2B1.1(b)(14)(A)(i) (2007).
116
§ 2B1.1 cmt. n.13(A).
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advisory Guidelines sentencing range. We do not know what sentence the
district court may impose or whether it will be a sentence within or without the
advisory Guidelines. We accordingly express no opinion at this time as to
whether the facts of this case permit application of an enhancement because the
defendant intended to obtain “personal information.”
* * *
We AFFIRM John’s convictions. For the reasons considered above, we
VACATE John’s sentence and REMAND for further proceedings.
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JERRY E. SMITH, Circuit Judge, dissenting:
Burdened in part by errant and inconsistent caselaw and in part by its
misunderstanding of plain error review, the majority seriously errs in vacating
this sentence. I respectfully dissent.
I.
This circuit in general, and the instant panel majority in particular, have
mostly eviscerated the plain error test in cases raising forfeited sentencing error.
The result is that instead of being narrow, rare, and exceptional, the granting
of plain-error relief in sentencing appeals has become commonplace. At the sec-
ond prong of the plain-error test, error that this panel majority needs several
pages of detailed analysis to explain is deemed “plain” or “obvious.” At the third
prong, any increase in a sentence is considered to affect “substantial rights.”
And finally at the fourth prong, any error that affects substantial rights is con-
strued not only to affect, but “seriously” to affect, the fairness, integrity, or public
reputation of judicial proceedings. By such reasoning, the fourth prong is col-
lapsed into the third, further weakening the test.
II.
This defendant did not bother to object to the failure of the district court
to apply a three-level reduction for a “partially completed offense,” despite being
put on notice by the district court’s finding that the defendants had completed
all acts needed to commit the offense. The panel majority declares this forfeited
error to be “plain,” although it takes five manuscript pages to explain why it was
error at all.
Even assuming that it is error and is plainSSthus satisfying the first two
prongsSSthere is the question that this circuit has not definitively resolved,
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which is the extent of the deviation from the proper guideline range that is nec-
essary for an error to “affect substantial rights.” This sentence of 108 months
is only 21 months above the maximum of 87 months in the proper guideline
range. Although the majority accurately cites decisions declaring lesser increas-
es to affect substantial rights, it should not be a foregone conclusion that every
erroneous increase in a sentence satisfies the third prong.
III.
Even conceding, however, that there is much in this circuit’s caselaw that
arguably supports the panel majority’s conclusion that the first three prongs are
met, there is nothing in this guideline calculationSSeven if it is erroneousSSthat,
under the fourth prong, seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings. Very much to the contrary, “[r]eversal for error, re-
gardless of its effect on the judgment, encourages litigants to abuse the judicial
process and bestirs the public to ridicule it.” Johnson v. United States, 520 U.S.
461, 479 (1996).
The panel majority declares that the resulting sentence mars the “percep-
tion of fairness.” That notion is bizarre, its reasoning flawed.
The majority posits that the failure to correct the unnoticed error is unfair
because, absent remand for resentencing, the district court has been deprived
of the opportunity to consider the applicable sentencing guideline range. But
that ignores the very point of rejecting plain-error correction except in the most
extreme situations. “This limitation on appellate-court authority serves to in-
duce the timely raising of claims and objections, which gives the district court
the opportunity to consider and resolve them.” Puckett v. United States, 129 S.
Ct. 1423, 1428 (2009).
Under the panel majority’s theory, every forfeited sentencing error with
substantial effect must be repaired on appeal, because the defendant’s failure to
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claim error at sentencing deprived the district court of the opportunity to fix the
mistake and to factor the correction into an evaluation of a just and fair sen-
tence. The majority’s scheme essentially does away with the requirement that
unnoticed sentencing error be subject to the heightened plain-error standard,
because, in the majority’s view, the integrity of the sentencing regime is always
undermined if the district court has no chance to correct the error.
In setting such a low bar to a finding of unfairness and damage to reputa-
tion and integrity, the majority effectively reads the fourth prong out of the test.
It does so, in part, by counting the third prong twice. The majority notes that in
satisfying the third prong, it found the probability that, but for the error, the
defendant would have received a substantially lesser sentence. By reapplying
the third-prong test at step four, the majority effectively dispenses with the
fourth prong and our discretion.
Moreover, we must keep in mind that granting relief under the fourth
prong is wholly discretionary and, as the majority admits, must be done on a
case-by-case basis. That means that we are not tethered to what other panels
of this court have done in deciding whether to exercise their discretion in other
cases, similar or not. As for Ms. John, there isSSfor certainSSno unfairness in the
sentence that is being appealed. She engaged in a scheme to defraud innocent
victims of almost $1.5 million in property. The sentencing issue at hand likely
determines whether she serves 9 years in prison instead of 7 years and
3 months.
In deciding whether to exercise our discretion at the fourth prong, we
should keep in mind that this defendant is not due much sympathy. The district
judge presumably would have corrected any error in sentencing had Ms. John
bothered to call it to the court’s attention. Not only did she forfeit that error; as
the majority recounts, she also failed to renew a motion for judgment of acquittal
at the close of the evidence. And finally, she failed to object at sentencing to the
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two-level increase for an offense involving “an attempt to obtain personal infor-
mation,” thereby requiring plain-error review on that issue as well.
Accordingly, it is difficult to understand why our wide discretion under the
fourth prong should be exercised in favor of Ms. John. Surely no member of the
public, knowing all the facts and circumstances, could possibly conclude that
there is anything that happened to Ms. John in the district court that not only
affects, but “seriously affects,” the fairness, integrity, or public reputation of this
proceeding or of judicial proceedings in general. Indeed, it is the result reached
by the panel majority that more predictably “bestirs the public to ridicule it.”
Johnson, 520 U.S. at 479. Indeed,
[n]ot every error that increases a sentence need be corrected by a
call upon plain error doctrine. It bears emphasis that all defen-
dants’ appeals challenging a sentence rest on the practical premise
that the sentence should be less. The doctrine of plain error serves
powerful institutional interests, including securing the role of the
United States District Court as the court of first instance, as op-
posed to a body charged to make recommendations to appellate
courts. And even if an increase in a sentence be seen as inevitably
“substantial” in one sense it does not inevitably affect the fairness,
integrity, or public reputation of judicial process and proceedings.
To conclude that not correcting the error claimed here casts doubt
upon the fairness, integrity, or public reputation of the proceeding
drains all content from the doctrine of plain error.
United States v. Ellis, 564 F.3d 370, 378-79 (5th Cir.), cert. denied, 130 S. Ct. 371
(2009).
The only real unfairness is not to Ms. John but to this district judge and
the other district judges in our circuit. “[T]he contemporaneous-objection rule
prevents a litigant from ‘sandbagging’ the courtSSremaining silent about his ob-
jection and belatedly raising the error only if the case does not conclude in his
favor.” Puckett, 129 S. Ct. at 1429 (citations and internal quotation marks omit-
ted). Today’s ruling, to the contrary, is an encouragement to criminal defen-
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dants to refrain from noticing sentencing error in the district court, secure in the
knowledge that any forfeited error that arguably lengthens a sentence will be
corrected on appeal, resulting in resentencing and a second bite at the apple.
“‘Judges are not like pigs, hunting for truffles . . . .’” De la O v. Hous.
Auth., 417 F.3d 495, 501 (5th Cir. 2005) (quoting United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991)). A criminal “defendant has the opportunity to
seek vindication of [his] rights in district court; if he fails to do so, [Federal Rule
of Criminal Procedure] 52(b) . . . clearly sets forth the consequences for that for-
feiture . . . .” Puckett, 129 S. Ct. at 1429. Faced with hundreds of sentencings,
raising thousands of issues, a district judge should be able to rely on counsel, as
officers of the court and zealous advocates, to call arguable error to the court’s
attention. Where that does not occur, the district judges of this circuit should
be able to count on this court faithfully to apply the strict plain-error standard
to forfeited error. Because that did not happen here, I respectfully dissent.
42