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United States v. Harris

United States District Court, D. Nebraska

May 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DOMONIC L. HARRIS, Defendant.

          TENTATIVE FINDINGS

          JOHN M. GERRARD, UNITED STATES DISTRICT JUDGE

         The Court has received the revised presentence investigation report (RPSR) in this case. The defendant has filed a motion for variance (filing 31). The defendant has also filed an objection (filing 41) to the revised presentence investigation report.

         IT IS ORDERED:

         1. The Court will consult and follow the Federal Sentencing Guidelines to the extent permitted and required by United States v. Booker, 543 U.S. 220 (2005) and subsequent cases. In this regard, the Court gives notice that, unless otherwise ordered, it will:

(a) give the advisory Guidelines respectful consideration within the context of each individual case and will filter the Guidelines' advice through the 18 U.S.C. § 3553(a) factors, but will not afford the Guidelines any particular or "substantial" weight;
(b) resolve all factual disputes relevant to sentencing by the greater weight of the evidence and without the aid of a jury;
(c) impose upon the United States the burden of proof on all Guidelines enhancements;
(d) impose upon the defendant the burden of proof on all Guidelines mitigators;
(e) depart from the advisory Guidelines, if appropriate, using pre-Booker departure theory; and
(f) in cases where a departure using pre-Booker departure theory is not warranted, deviate or vary from the Guidelines when there is a principled reason justifying a sentence different than that called for by application of the advisory Guidelines, again without affording the Guidelines any particular or "substantial" weight.

         2. The defendant has objected to the RSPR, arguing that three enhancements--the sophisticated means, the abuse of private or public trust, and the possession of five or more means of identification--should not be applied to his case. Filing 41 at 1.

         First, the defendant objects to the two-level enhancement for "sophisticated means" under U.S.S.G. § 2B1.1(b)(10)(C). Filing 41. The facts set forth in the RPSR, briefly summarized, are that the defendant was a United States Postal Service employee who submitted change of address requests to the Postal Service, without authorization, on behalf of at least thirteen individuals. RPSR at 6, 12. Once the addresses were changed, the defendant would request that credit cards be sent to these "new" addresses from which the defendant would retrieve the credit cards (which were in the victims' names), and then use those credit cards. RPSR at 12.

         The RPSR suggests that the defendant's conduct was sophisticated and thus, the "sophisticated means" enhancement applies. In determining whether the defendant's conduct was sophisticated, the Court will consider whether the underlying offense involved "especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense." United States v. Bolt, 782 F.3d 388, 391 (8th Cir. 2015) (citing § 2B1.1 cmt. n. 9(B)); United States v. Bistrup, 449 F.3d 873, 882 (8th Cir. 2006); United States v. Anderson, 349 F.3d 568, 570 (8th Cir. 2004). Even if any single step is not complicated, repetitive and coordinated conduct can amount to a sophisticated scheme. United States v. Norwood, 774 F.3d 476, 479 (8th Cir. 2014); see United States v. Kieffer, 621 F.3d 825, 835 (8th Cir. 2010); United States v. Jenkins, 578 F.3d 745, 751 (8th Cir. 2009); Bistrup, 449 F.3d at 882. Whether a scheme is sophisticated must be viewed in light of the fraudulent conduct and differentiated, by assessing the intricacy or planning of the conduct, from similar offenses conducted by different defendants. United States v. Hance, 501 F.3d 900, 909 (8th Cir. 2007). To that end, "sophisticated means" need not be highly sophisticated, and the enhancement may be proper when the offense conduct, viewed as a whole, was notably more intricate than that of the garden variety offense. Norwood, 774 F.3d at 480; Hance, 501 F.3d at 909.

         Here, the underlying offense conduct, at least as described by the RPSR, is more intricate than that of the garden variety offense. Compare Norwood, 774 F.3d at 480 (determining that the sophisticated-means enhancement was appropriately applied when the defendant's involvement in the scheme included recruiting others so as to avoid detection, using the government-issued identification cards of those recruits to create fraudulent checks), and United States v. Finck,407 F.3d 908, 913 (8th Cir. 2005) (finding the sophisticated-means enhancement was appropriately applied where the defendant's scheme involved repeatedly calling or faxing a company showing that money to purchase vehicles had been wired into the companies bank account when no such funds were ever wired); with Hance, 501 F.3d at 909 (finding that renting a post office box in one's own neighborhood under an assumed name for the purpose of mailing fake letters and testimonials lacks the level of intricacy, deliberation, or complexity to distinguish the defendant's crime from a garden-variety mail fraud offense). As such, the Court's tentative finding is that the conduct attributed to the defendant by the RPSR would allow for application of the "sophisticated means" enhancement. But whether the government has proven that conduct by a ...


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