Eugene Darwin Porter was convicted by a jury on one count of being a felon in possession of a firearm and five counts of falsely representing a social security number. The district court sentenced him to 180 months in prison. Porter appealed, arguing that the evidence was insufficient for the social security number convictions, the U.S. Sentencing Guidelines were unconstitutional, his Sixth Amendment rights were violated by judge-made findings during sentencing, and that the Guidelines were misapplied in his case. The court affirmed both the convictions and the sentence.
The background of the case involved an incident on February 9, 2003, when Porter’s son, Benjamin, heard gunfire and saw Porter leaving the scene. Benjamin testified that he had discovered Porter was using his social security number to open unauthorized credit card accounts and had informed Porter that he knew about it. This discovery led to tension between them, culminating in the shooting. The prosecution presented evidence, including a credit card application filled out in Benjamin’s name with his social security number, which Benjamin denied having authorized. He also identified the typeface as from Porter’s typewriter and recognized Porter’s handwriting on the application.
To substantiate Count 3, the government presented Exhibit 2, a credit card application from November 8, 1999, sourced from Capital One Bank's records. This application included Benjamin’s name, social security number, purported signature, a birthdate of August 13, 1978, and Porter’s address. Benjamin denied involvement with the application but recognized his father’s handwriting on it. For Count 4, Exhibit 8, a U.S. Cellular service agreement dated January 4, 2000, was introduced, also using Benjamin’s details with a birthdate of January 14, 1943. Benjamin again denied filling this out, acknowledging his father’s signature. Count 5 involved Exhibit 4, a June 4, 2002, credit card application from Capital One Bank, with Benjamin’s information and a birthdate of August 13, 1982. Benjamin testified he did not sign this application, noting his father’s typewriter was used. For Count 6, Exhibit 5, dated July 30, 2002, was presented, containing Benjamin’s information with a birthdate of January 14, 1943. Again, Benjamin stated he did not sign it and recognized his father’s signature. At trial, the government introduced Exhibit 53, a plea agreement signed by Porter, detailing fraudulent credit card applications submitted using Benjamin's name and social security number, intended to conceal Porter’s identity. Additional exhibits included Benjamin’s actual signature and social security card, contrasting with Porter’s signature. Porter claimed ignorance of his son’s social security number and denied using his typewriter for the applications. He provided evidence of obtaining credit cards and services under his own name, asserting no need to use Benjamin's information. A jury convicted Porter on Counts 2 through 6.
The district court applied multiple sentence enhancements to Porter based on the U.S. Sentencing Guidelines (U.S.S.G.), including a four-level enhancement for firearm use in connection with a felony (U.S.S.G. 2K2.1), a two-level enhancement for obstruction of justice (U.S.S.G. 3C1.1), and a seven-level upward departure for discharging a high-powered weapon into a residence (U.S.S.G. 5K2.6). The court found by a preponderance of the evidence that Porter fired several live rounds into his son’s home, which could have resulted in serious injury or death if not for a bathtub that deflected some rounds. Although the district court noted that an upward departure for underrepresentation of criminal history under section 4A1.3 was valid, it deemed the upward departure under section 5K2.6 sufficient since the sentence reached the statutory maximum. Consequently, Porter was sentenced to a total of 180 months’ imprisonment: 120 months for Count 1 and 60 months for Counts 2 through 6, with the latter sentences running concurrently but consecutively to Count 1. The court expressed that the sentence was appropriate given the circumstances.
In the discussion on the sufficiency of the evidence, Porter challenged the convictions on Counts 2 through 6, arguing that the only evidence was uncorroborated testimony from his son, which he disputed. The appellate review standard is strict, requiring the evidence to be viewed in the light most favorable to the government, resolving conflicts and accepting reasonable inferences that support the jury's verdict. The jury convicted Porter under 42 U.S.C. 408(a)(7)(B) for falsely representing a social security number, which necessitated proving four elements beyond a reasonable doubt: intent to deceive, false representation of a social security number, and that the representation concerned either Porter or another person.
The jury had ample evidence to convict Porter for falsely representing a social security number, as he submitted multiple credit card applications and a mobile phone service application using Benjamin’s name and social security number. Key evidence included Benjamin's testimony, records from Capital One Bank and U.S. Cellular, Porter’s admissions in his plea agreement, and his violent actions following Benjamin’s confrontation about the misuse. The jury clearly found Porter’s testimony unconvincing, and appellate review does not extend to assessing witness credibility. While Porter argued that mere possession of a social security number does not constitute a violation, evidence demonstrated he actively fraudulently used Benjamin's identity, leading to the affirmation of his convictions on several counts.
Regarding sentencing, Porter claimed violations of his Sixth Amendment rights based on the Supreme Court's ruling in Blakely v. Washington, asserting he should only be sentenced based on jury findings. He contested the district court's decision to enhance his sentence due to obstructing justice and firearm use. Porter argued that these considerations should not exceed a maximum of 24 months based on a calculated Criminal History Category of II and an Offense Level of 14. The Supreme Court's subsequent decision in United States v. Booker established an advisory Guidelines system, allowing courts to tailor sentences while reviewing them for unreasonableness.
The standard of review is pivotal in appeals concerning Booker issues, as evidenced in United States v. Rodriguez-Ceballos. Porter claims he preserved the Blakely issue at sentencing; however, he acknowledges failing to specifically object based on Apprendi and the Sixth Amendment during the sentencing hearing. The government argues that Porter did not raise these issues in the district court, necessitating a plain-error review. Upon reviewing the record, it is concluded that Porter did not preserve a Sixth Amendment objection, thus leading to plain-error review as per United States v. Pirani. This strict standard requires Porter to demonstrate (1) an error; (2) that is plain; and (3) that affects substantial rights. If these conditions are met, the court may remand for resentencing if (4) the error seriously affects the fairness or integrity of judicial proceedings.
The district court is assumed to have committed Booker error by treating the Guidelines as mandatory, but the key issue is whether this error impacted Porter's substantial rights. To satisfy the third Olano condition, Porter must show a reasonable probability that he would have received a more favorable sentence under the advisory guidelines. The record indicates that the district court believed the sentence was appropriate, and there’s no evidence suggesting it would have imposed a lighter sentence under an advisory regime.
Additionally, Porter argues that the district court misapplied the Guidelines, specifically by improperly departing upward seven levels for discharging a firearm at his son’s residence. While acknowledging that the departure was based on a permissible factor under U.S.S.G. 5K2.6, he contends that the extent of the departure was unreasonable, effectively amounting to an 11-level increase, resulting in a sentence disproportionate to similar offenses.
Review of sentencing guidelines remains de novo post-Booker, with factual findings assessed for clear error. The Supreme Court's unreasonableness standard pertains solely to the ultimate sentence, not to the interpretation of guidelines. The district court applied a seven-level upward departure under section 5K2.6, justified by Porter’s use of a firearm during an offense, which aligns with the guideline's provisions regarding weapon use and potential danger. The district court noted that Porter’s shooting spree endangered life, fitting section 5K2.6's criteria. The court did not misapply guidelines related to obstruction of justice or firearm use, as these enhancements were applicable to Porter’s actions. The enhancements included a four-level increase for firearm use during a felony and a two-level increase for obstructing justice. Ultimately, Porter’s sentence was found reasonable, complying with guidelines and fulfilling the requirements of 18 U.S.C. 3553(a) regarding the seriousness of the offense, deterrence, and public safety. The appellate court affirmed Porter’s convictions and sentence.
