United States v. Michelle Williams (03-5107) Tanisha Jones Ward (03-5189) Robert Kelly, III (03-5192)
Docket: 03-5107, 03-5189, 03-5192
Court: Court of Appeals for the Sixth Circuit; December 23, 2003; Federal Appellate Court
Defendants Michelle Williams, Robert Kelly, III, and Tanisha Jones Ward appealed their sentences after pleading guilty to identity theft under 18 U.S.C. § 1028(a)(7) and related charges. The court found that the 2002 Sentencing Guidelines' enhancement under § 2B1.1(b)(9)(C)(i) applied to Williams and Kelly's actions, which involved using false identifiers to secure home loans. Due to ex post facto considerations, the district court opted to apply the 1998 Sentencing Guidelines for Kelly and Ward, as those were in effect at the time of their offenses, rather than the 2002 Guidelines applicable at sentencing. Williams contested the enhancement's application, while Kelly argued for the 2002 Guidelines without the enhancement. Ward sought a downward departure in sentencing based on her family situation and lesser culpability. Ultimately, the Court of Appeals affirmed the sentences for all three defendants. The underlying scheme involved falsified information for FHA loans, with significant funds disbursed to Williams and Kelly, while Ward acted as the realtor and also submitted false information for her loan application.
The government advocated for an enhancement in Williams's case due to her use of another person’s social security number to secure two loans, which it argued constituted false identification. Williams contended that the enhancement was inapplicable since she only committed a single act—the signing of loan documents with false information—and claimed she purchased the loan package from Mr. Green without further misuse of the social security number. The district court rejected her argument, stating that guideline 2B1.1(b)(9) directly applied to her circumstances. The court referenced the broad definition of means of identification, which includes a bank loan, and cited relevant application notes and commentary that supported the enhancement's applicability.
In Kelly's case, he pleaded guilty to using Samuel Robert DeMoya's social security number but objected to a two-point enhancement for more than minimal planning. He argued for the application of the 2002 Sentencing Guidelines instead of the 1998 version and contended that the enhancement under 2B1.1(b)(9)(C)(i) should not apply since he was seeking a home loan for himself rather than perpetrating a scam. The government favored the 1998 guidelines due to ex post facto concerns, asserting that the 2002 guidelines would necessitate the enhancement, resulting in a higher guideline range. The district court found that the 1998 guidelines applied, dismissing Kelly's argument that using his own name negated the applicability of the enhancement. It emphasized that harm to the individual whose social security number was used remained, regardless of the name used. The court determined that a minimum offense level of 12 was appropriate for Williams.
On July 3, 2002, Ward pled guilty to using Allison Campbell's social security number and making false statements to a U.S. department. Unlike her co-defendants, Williams and Kelly, Ward requested a downward departure from the sentencing guidelines, arguing her extraordinary family circumstances, that her actions were aberrant, and that she was less culpable than others involved. The government opposed this, asserting that the four-level enhancement for the organizer role adequately reflected the differences in culpability, noting the prolonged nature of the offenses and that Ward's lack of prior criminal history was considered in the guideline range.
The district court denied Ward's request, finding her family responsibilities did not warrant a downward departure, emphasizing the necessity of restitution and imprisonment. It concluded that Ward was more culpable than co-defendants who sought loans directly due to her significant involvement and that the lengthy and repeated nature of her conduct did not qualify as aberrant behavior. The court determined that the aggregate of her circumstances did not take her case outside the typical range for such offenses.
In reviewing the district court's application of the Sentencing Guidelines, findings of fact are accepted unless clearly erroneous, and a deferential standard is applied to the application of guidelines to the facts. The Identity Theft and Assumption Deterrence Act of 1998 (ITADA) was highlighted, which defined identity theft and directed the Sentencing Commission to amend guidelines to impose appropriate penalties for such crimes. The relevant guideline, 2B1.1(b)(9)(C), addresses aggravated identity theft, specifically the unlawful use of another's personal identifying information to create new forms of identification.
Section 2B1.1(b)(9)(C)(i) of the United States Sentencing Guidelines allows for a two-level increase in a defendant's base offense level if they unlawfully use any means of identification without authorization to produce or obtain another means of identification. If this adjustment results in an offense level below 12, it will be raised to level 12, reflecting the offense's seriousness and the challenges in detecting such crimes before they cause harm, including damage to credit ratings and reputations.
In the case of Williams and Kelly, the court found that the enhancement was applicable because they used another person's social security number to obtain a bank loan number. Williams contended that the bank loan number did not constitute false identification and argued that she purchased the loan package rather than using the social security number to acquire additional false identification. Kelly claimed the enhancement was inapplicable to him because he took the bank loan in his own name.
The term 'means of identification' is defined under 18 U.S.C. 1028(d)(4) as any name or number that identifies an individual, which includes social security numbers and account numbers. The Sentencing Commission has provided examples illustrating when the enhancement applies, such as obtaining a bank loan in another individual’s name using their social security number. Conversely, the guidelines specify scenarios where the enhancement does not apply, such as using a stolen credit card solely for purchases or forging a signature to cash a check, as these actions do not involve obtaining another means of identification.
Williams and Kelly fraudulently used someone else's social security number to secure home loans in their own names. Kelly contends that a bank loan number should not be classified as a "means of identification" under 18 U.S.C. § 1028. However, the statute and its commentary define a bank loan number as a "means of identification" since it can facilitate financial transactions. Both defendants argue that their situations differ from the provided example involving the use of two identifiers because they obtained loans in their own names. Yet, the statute allows for a name or number to constitute a "means of identification" even if used separately. The distinction lies in the fact that obtaining a bank loan creates a new line of credit, which constitutes a greater harm than using an existing credit card. Williams also claims that purchasing a loan package rather than a social security number exempts her from the enhancement, but this argument fails since the harm remains the same regardless of how the social security number was acquired. The court correctly applied the 2B1.1(b)(9)(C)(i) enhancement to both defendants' actions. Regarding sentencing guidelines, if applying the current guidelines would contravene the ex post facto clause, the guidelines in effect at the time of the offense should be used. In Kelly's case, he was sentenced under the 1998 Sentencing Guidelines because the 2002 guidelines would have resulted in a higher offense level due to the enhancement.
The adjusted offense levels under the 2002 and 1998 Sentencing Guidelines are 12 and 9, respectively, with the 2B1.1(b)(9)(C)(i) enhancement applicable to Kelly's conduct. The district court correctly applied the 1998 Sentencing Guidelines without violating ex post facto concerns. Regarding Ward’s appeal for a downward departure, generally, such refusals are not subject to review unless the district court believes it lacks legal authority to grant one. A de novo review of the sentencing transcript shows that the district court acknowledged its discretion to depart downward but determined that Ward's case did not present atypical circumstances warranting such a departure. Judge Gibbons clarified that the factors presented did not take the case outside the norm, as many were already addressed in the guidelines. Consequently, Ward cannot contest the denial of her downward departure motion. The sentences for Williams, Kelly, and Ward are affirmed.
