United States v. Conley

89 F.4th 815

UNITED STATES of America, Plaintiff - Appellee, v. Pamela Kathryn CONLEY, Defendant - Appellant.

No. 22-5112

United States Court of Appeals, Tenth Circuit

FILED December 22, 2023

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CR-00064-JFH-1)

Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado, for Defendant - Appellant.

Steven J. Briden, Assistant United States Attorney, (Clinton J. Johnson, United States Attorney with him on the brief), Tulsa, Oklahoma, for Plaintiff - Appellee.

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

Pamela Kathryn Conley pled guilty to 24 counts of bank fraud and 4 counts of aggravated identity theft. The district court sentenced her to 30 months in prison for bank fraud and a consecutive 24 months for aggravated identity theft.

On appeal, Ms. Conley argues the district court erred in relying on the loss calculation in the presentence report ("PSR") to determine her U.S. Sentencing Guidelines ("U.S.S.G." or the "Guidelines") range for bank fraud. She also argues that in light of Dubin v. United States, 599 U.S. 110, 143 S.Ct. 1557, 216 L.Ed.2d 136 (2023), the court plainly erred in accepting her guilty plea to aggravated identity theft.

Exercising jurisdiction under 28 U.S.C. § 1291, we vacate Ms. Conley's sentence for bank fraud and remand for resentencing on those counts, and we affirm her convictions for aggravated identity theft.

I. BACKGROUND

A. Factual History

Between September 2016 and August 2021, Ms. Conley applied for loans at seven financial institutions using false employment and salary information. She sought $1,028,643.20 in loans and received $998,643.20. She used various cars, boats, and trailers as collateral.

In four instances, Ms. Conley used the names and forged signatures of financial-institution employees to create false lien releases for already encumbered vehicles. She used these lien releases to repledge the same vehicles as collateral for new loans.

B. Procedural History

A grand jury indicted Ms. Conley on 24 counts of bank fraud under 18 U.S.C. § 1344 and 4 counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). She pled guilty, without a plea agreement, to all 28 counts.

The Probation Office's PSR found the "loss" caused by Ms. Conley's offense was $1,020,591.62,¹ which triggered a 14-level increase in Ms. Conley's Guidelines offense level. Ms. Conley argued that the properly calculated loss amount should have been below $550,000, which would have triggered only a 12-level increase.

At the sentencing hearing, the district court, over Ms. Conley's objection, relied on the PSR's loss amount to calculate her Guidelines range for bank fraud as 30 to 37 months. The court sentenced her to 30 months in prison. It also sentenced her to a mandatory consecutive 24 months for aggravated identity theft, U.S.S.G. § 2B1.6, and three years of supervised release. The court ordered her to pay $451,064.64 in restitution.

Ms. Conley timely appealed.

II. DISCUSSION

Ms. Conley raises two issues. First, she challenges the district court's calculation of her Guidelines range for bank fraud. Second, she argues Dubin v. United States renders the court's acceptance of her guilty plea to aggravated identity theft plainly erroneous. We vacate Ms. Conley's sentence for bank fraud and remand for resentencing. We affirm her aggravated identity theft convictions.

A. Loss Calculation

The district court clearly erred in relying on disputed facts in the PSR to calculate Ms. Conley's Guidelines range for bank fraud, making her sentence procedurally unreasonable.

1. Legal Background

a. Standard of review

We review sentencing decisions for abuse of discretion. Peugh v. United States, 569 U.S. 530, 537, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). "When reviewing a district court's application of the Sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error." United States v. Maldonado-Passage, 4 F.4th 1097, 1103 (10th Cir. 2021) (alterations and quotations omitted).

"A district court's loss calculation at sentencing is a factual question we review for clear error." United States v. Griffith, 584 F.3d 1004, 1011 (10th Cir. 2009) (quotations omitted).² "[W]e may disturb the district court's loss determination—and consequent Guidelines enhancement—only if the court's finding is without factual support in the record or if, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made." United States v. Mullins, 613 F.3d 1273, 1292 (10th Cir. 2010) (quotations omitted).

b. Procedural reasonableness and the Guidelines

"[W]e evaluate sentences imposed by the district court for reasonableness." United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007); see United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Ms. Conley challenges only the procedural reasonableness of her sentence. "Procedural reasonableness involves using the proper method to calculate the sentence." Conlan, 500 F.3d at 1169; see Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). "In setting a procedurally reasonable sentence, a district court must calculate the proper advisory Guidelines range . . . ." United States v. Chee, 514 F.3d 1106, 1116 (10th Cir. 2008) (quotations omitted); see Rosales-Mireles v. United States, — U.S. —, 138 S. Ct. 1897, 1904, 201 L.Ed.2d 376 (2018).

"Any error in the Guidelines calculation renders a sentence procedurally unreasonable and, if the error is not harmless, requires remand." United States v. Scott, 529 F.3d 1290, 1300 (10th Cir. 2008); see also Peugh, 569 U.S. at 537, 133 S.Ct. 2072. When the government is the "beneficiary of the error," it must prove harmlessness by a preponderance of the evidence. United States v. Sanchez-Leon, 764 F.3d 1248, 1262-63 (10th Cir. 2014) (quotations omitted).

c. U.S.S.G. § 2B1.1

U.S.S.G. § 2B1.1 provides a two-step formula to calculate the base offense level for § 1344 bank fraud convictions: (1) § 2B1.1(a) sets the base offense level, then (2) § 2B1.1(b) increases it based on specific offense characteristics.

Section 2B1.1(b)(1) increases the base offense level according to the "loss" caused by the offense.³ To calculate loss, the sentencing court must take "the greater of actual loss or intended loss," U.S.S.G. § 2B1.1 cmt. n.3(A), then subtract certain "[c]redits" or deductions, id. § 2B1.1 cmt. n.3(E).

"Actual loss" is the monetary harm that resulted from the offense. Id. § 2B1.1 cmt. n.3(A)(i).⁴ "Intended loss" is the monetary "harm that the defendant purposely sought to inflict," regardless of the harm actually inflicted. Id. § 2B1.1 cmt. n.3(A)(ii). The greater of these amounts is the starting point for the loss calculation. Id. § 2B1.1 cmt. n.3(A).

The sentencing court then deducts (1) the amount of "money returned . . . by the defendant . . . to the victim before the offense was detected," id. § 2B1.1 cmt. n.3(E)(i),⁵ and (2) the value of any collateral that the victim has recovered by the time of sentencing, id. § 2B1.1 cmt. n.3(E)(ii).⁶

In summary, loss is the greater of actual or intended loss, less (1) the money returned before detection of the offense and (2) the value of any collateral recovered before sentencing.⁷ The resulting amount determines the increase to the defendant's base offense level. Relevant here, the sentencing court increases the base offense level by 12 if the loss is more than $250,000 and less than $550,000, and by 14 if the loss is more than $550,000 and less than $1,500,000. Id. § 2B1.1(b)(1).

d. PSR at sentencing

Sentencing courts often rely on facts in the PSR. Federal Rule of Criminal Procedure 32(i)(3) provides:

At sentencing, the court:

(A) may accept any undisputed portion of the [PSR] as a finding of fact; [and]

(B) must—for any disputed portion of the [PSR] or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing . . . .

"If a defendant fails to specifically object to a fact in the PSR, the fact is deemed admitted by the defendant and the government need not produce additional evidence in support of the admitted fact." United States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009). But "[w]hen a defendant objects to a fact in a [PSR]" and notifies the sentencing court that the fact is disputed, "the government must prove that fact at a sentencing hearing by a preponderance of the evidence." United States v. Barnett, 828 F.3d 1189, 1192 (10th Cir. 2016) (quotations omitted); see Fed. R. Crim. P. 32(i)(3). "The government can meet its burden by either presenting new evidence at sentencing or referring to evidence presented at trial." United States v. McDonald, 43 F.4th 1090, 1095 (10th Cir. 2022).

A defendant objects to a fact in the PSR by "mak[ing] specific allegations of factual inaccuracy" rather than challenging only "the ultimate conclusions in the [PSR]" or "the inferences to be drawn" from the facts. Barnett, 828 F.3d at 1192-93, 1195 (quotations omitted). "[T]he test is whether the district court was adequately alerted to the [factual] issue." United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014).

A sufficient objection may be "imprecise." Id.; see United States v. E.F., 920 F.3d 682, 687 (10th Cir. 2019) ("All that is required to preserve an issue for appeal is that the party 'informs the court of the party's objection and the grounds for that objection.' " (alterations omitted) (quoting Fed. R. Crim. P. 51(b))). For example, we found it sufficient that a defendant said at sentencing, "There were several mistakes in . . . [t]he amounts that were on [the PSR]," and the district court confirmed that it understood the defendant "disagree[d] with the probation officer's calculation." Harr...