United States v. Mitchell

914 F.3d 581

UNITED STATES of America, Plaintiff - Appellee

v.Kehinda MITCHELL, Defendant - Appellant

No. 18-1600

United States Court of Appeals, Eighth Circuit.

Submitted: November 12, 2018

Filed: January 23, 2019

Counsel who represented the appellant was Debra Loevy, of Chicago, IL., Tara Thompson of Chicago, IL.

Counsel who represented the appellee was Tracy Berry, AUSA, of Saint Louis, MO.

Before BENTON, BEAM, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

On November 21, 2017, Appellant Kehinda Mitchell pled guilty to three counts: (1) Conspiracy to Commit Offenses Against the United States, (2) Interstate Transportation of a Stolen Vehicle, and (3) Fraudulent Use of Access Devices. The district court¹ sentenced Mitchell to 41 months’ imprisonment to be followed by three years of supervised release. Mitchell now appeals, asserting that (1) the district court erred by applying a two-level sophisticated-means enhancement under § 2B1.1(b)(10)(C) of the United States Sentencing Guidelines Manual ("Guidelines" or "U.S.S.G."), (2) the district court committed procedural error by failing to consider the 18 U.S.C. § 3553(a) sentencing factors and to adequately explain its reasons for the sentence, and (3) his high end of the Guidelines range sentence is substantively unreasonable.

I. Background

On December 5, 2015, Mitchell and an unindicted co-conspirator, as loan co-applicants, purchased a new 2015 Dodge Durango for $56,234.58 from an automobile dealership in Platteville, Wisconsin. To obtain the loan, Mitchell fraudulently used the Social Security number of another individual and falsely claimed he earned $7,500 per month as the director of a dental center. In the months following, Mitchell and his co-defendants, Earl Douglas Chapman and Julius Rishawn Livingston, obtained the identifying information of at least twenty-four individuals.

Mitchell, Chapman, Livingston, and one other individual traveled from Illinois to the St. Louis, Missouri, area in the Durango on March 8, 2016. They possessed counterfeit Illinois driver’s licenses; identifying information of other individuals, including names, dates of birth, Social Security numbers, and credit/debit account numbers; and fraudulent credit cards bearing the names and account numbers of others. The co-defendants also possessed merchandise and gift cards that they fraudulently purchased in Columbus, Ohio; Charlotte, North Carolina; and Southfield, Michigan, between February 21, 2016, and March 2, 2016.

On the day of their arrival in the St. Louis area, the men traveled to three Target stores. Chapman and Livingston used fraudulent credit cards to purchase Target gift cards and merchandise exceeding $5,750 in value. Livingston also unsuccessfully attempted to purchase two iPads at one of the Target stores. That same day, Chapman applied for a Saks Fifth Avenue line of credit in Frontenac, Missouri, using the personal information of victim J.M. and a counterfeit driver’s license bearing J.M.’s information and Chapman’s photo. Chapman successfully purchased merchandise totaling $2,047.90.

On March 9, 2016, Chapman applied for a Neiman Marcus line of credit at its store in Frontenac, again using J.M.’s information and the same counterfeit license. Using the Neiman Marcus line of credit and a fraudulent USAA Mastercard, Chapman purchased merchandise valuing $7,257.23 and left in the Durango.

That evening, the men drove to Town and Country, Missouri, and returned to one of the Target stores. Chapman attempted to use two fraudulent credit cards to purchase Target gift cards, iPads, and a package of T-shirts, but each card was declined twice. Aware that a fraud was in progress, a Target loss prevention associate contacted the Town and Country Police Department. Meanwhile, Chapman went to the electronics section of the store and attempted to use another fraudulent credit card. The card was initially declined, but Chapman successfully purchased $1,861.31 worth of merchandise on the second swipe. As the defendants were driving away from the store, officers arrived on scene. The officers stopped the Durango in the parking lot of a nearby grocery store and arrested the defendants. Inside the Durango and the defendants’ hotel room in downtown St. Louis, officers located several counterfeit driver’s licenses, fraudulent credit cards, gift cards, and items of merchandise purchased with the fraudulent credit cards.

Mitchell pled guilty to the three counts and proceeded to sentencing on March 8, 2018. After hearing from counsel, the court found Mitchell’s base offense level was 6. The court applied enhancements for the amount of loss, number of victims, the possession/use/production/trafficking of an authentication feature, and obstruction of justice. Relevant here, the court also applied (over defense objection) a two-level enhancement for sophisticated means under U.S.S.G. § 2B1.1(b)(10)(C). The court denied a four-level minimal-participant reduction and a two-level reduction for acceptance of responsibility. The court found the total offense level was 20.

Mitchell received one criminal history point for a 2014 theft by deception - false impression conviction in Allegheny County, Pennsylvania. That conviction involved Mitchell’s purchase of a Mercedes valued at $147,435.88 in which he used a stolen Social Security number. Mitchell’s history also included a conviction for first-degree murder in 1995 in Cook County, Illinois. He served fifteen years of a thirty-year sentence before being paroled. After his release from prison, he was exonerated. With one criminal history point, Mitchell’s criminal history category was I.

The court calculated an advisory Guidelines range of 33 to 41 months. Mitchell moved for a downward variance for the following reasons: (1) his "good character, limited criminal history, and unblemished personal history" show "he poses no risk of recidivism," which was attested to in a letter from a jail supervisor; (2) Mitchell’s role in the offense was limited; and (3) he unjustly lost fifteen years of his life due to the wrongful murder conviction. The government moved for an upward variance.

After Mitchell spoke in allocution, the district court pronounced a sentence of 41 months’ imprisonment:

After reviewing the Presentence Report, hearing and ruling objections to the Presentence Report, reviewing the Defendant’s sentencing memorandum and letters of support and the Government’s motions and objections to the sentencing – Defendant’s Sentencing Memorandum.

The instant offense involved the Defendant conspiring with two others to fraudulently obtain merchandise and gift cards by using the personal identification and credit information of 24 individuals. The Defendant is most culpable as he fraudulently obtained an automobile using the Social Security Number of a minor child in order to transport the Defendants during the offense.

The Defendant’s criminal history includes one prior conviction for theft by deception.

The Defendant is the father to two minor children.

As such, in light of the advisory guidelines range and the provisions of 18 USC Section 3553(a), a sentence of 41 months’ imprisonment, which represents the high end of the guideline range, I believe, would be sufficient but not greater than necessary to comply with the purposes set forth in 18 USC Section 3553(a).

...

And just so you will know, I’ve considered what has happened to you in the past, and that’s one ... reason why I didn’t vary upward at the request of Ms. Berry, but I don’t believe any of that stuff about this is somebody else’s fault. You were behind this mess, and today is the first time that I’ve ever heard you almost admit it, but you couldn’t even admit that. So that’s why you didn’t get a higher sentence.

Mitchell timely appealed his sentence.

II. Discussion

A. Sophisticated-Means Enhancement

Mitchell argues the district court erred when it applied a two-level enhancement for sophisticated means under U.S.S.G. § 2B1.1(b)(10)(C). We review a district court’s "factual finding of whether a ... scheme qualifies as ‘sophisticated’ for clear error." United States v. Jones, 778 F.3d 1056, 1059 (8th Cir. 2015) (ellipses in original) (quoting United States v. Huston, 744 F.3d 589, 592 & n.2 (8th Cir. 2014) ). The finding "will stand ‘unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.’ " Id. (quoting United States v. Walker, 688 F.3d 416, 420–21 (8th Cir. 2012) ).

The Guidelines provide for a two-level enhancement when the offense "involved sophisticated means and the defendant intentionally engaged in or caused the conduct constituting sophisticated means." U.S.S.G. § 2B1.1(b)(10)(C). The Application Note defines "sophisticated means" as "especially complex or especially intricate conduct pertaining to the execution or concealment of an offense." U.S.S.G. § 2B1.1 cmt. n.9(B). " ‘Sophisticated means need not be highly sophisticated,’ and the adjustment is ‘proper when the offense conduct, viewed as a whole, was notably more intricate than that of the garden-variety offense.’ " United States v. Gaye, 902 F.3d 780, 791 (8th Cir. 2018) (quoting United States v. Norwood, 774 F.3d 476, 480 (8th Cir. 2014) (per curiam) ). "Repetitive and coordinated conduct, though no one step is particularly complicated, can be a sophisticated scheme." United States v. Melton, 870 F.3d 830, 843 (8th Cir. 2017) (quoting United States v. Jenkins, 578 F.3d 745, 751 (8th Cir. 2009) ). "[T]he sophistication of the offense conduct is associated with the means of repetition, the coordination required to carry out the repeated conduct, and the number of repetitions or length of time over which the scheme took place." Gaye, 902 F.3d at 791 (alteration in original) (quoting United States v. Laws, 819 F.3d 388, 393 (8th Cir. 2016) ).

We conclude there was sufficient...