United States v. Evano , 553 F.3d 109 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 07-2605
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD EVANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Lipez and Howard,
Circuit Judges.
Raymond Mansolillo with whom Law Office of Raymond Mansolillo
was on brief for appellant.
Jack W. Pirozzolo, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
January 22, 2009
BOUDIN, Circuit Judge. Between around August 1997 and
June 2005, Ronald Evano and his wife engaged in a series of frauds
by intentionally ingesting glass and then claiming that it came
from food sold by various restaurants, supermarkets and hotels. To
avoid detection, they used fictitious identifications and submitted
false insurance claims in several different states. Evano and his
wife bilked insurers of over $200,000 and incurred over $100,000 in
unpaid medical bills.
On March 16, 2006, the government charged Evano in a 33-
count indictment alleging various forms of fraud and false
statements.1 Evano pled guilty to 20 counts and was sentenced to
63 months imprisonment, along with supervised release and
restitution requirements. This appeal is concerned with challenges
to the district court's sentencing, which was based on a guideline
range of 51-63 months, calculated using a total offense level of 22
and a criminal history category (CHC) of III.
The calculation began with an initial base offense level
of 7, which was increased as follows: 12 levels for a loss amount
between $200,000 and $400,000, U.S.S.G. § 2B1.1(b)(1)(G) (2005); 2
levels because the offense involved between 10 and 50 victims, id.
§ 2B1.1(b)(2)(A); 2 levels based on use of sophisticated means, id.
1
Evano was indicted and charged with mail fraud, 18 U.S.C. §
1341 (2000); wire fraud, id. § 1343; identity fraud, id. §
1028(a)(7); social security fraud, 42 U.S.C. § 408(a)(7)(B) §
(C)(2000); conspiracy to defraud the United States, id. § 371; and
false statements relating to health care matters, id. § 1035(a).
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§ 2B1.1(b)(9)(C); and 2 levels based on identity theft, id. §
2B1.1(b)(10)(C)(ii). The resulting sum was then reduced 3 levels
for acceptance of responsibility, id. § 3E1.1.
On appeal, Evano challenges the sophisticated means and
identity theft enhancements, as well as his category III criminal
history designation. We review de novo the district court’s
reading of guideline provisions, United States v. Stoupis, 530 F.3d
82, 84 (1st Cir. 2008), and underlying factual findings for clear
error, id. Deference may be accorded, depending on circumstances,
to application of general standards to particular facts. United
States v. Duclos, 214 F.3d 27, 31 (1st Cir. 2000).
Evano received the two-level identity theft enhancement
for “possession of five or more means of identification that
unlawfully were produced from, or obtained by the use of, another
means of identification.” USSG § 2B1.1(b)(10)(c)(ii). Evano
claims that the enhancement was inapplicable because he did not use
false information to create or obtain other documents. However,
the pre-sentence report shows that Evano used the social security
numbers of at least eight individuals in order to obtain documents
such as driver's licenses and Social Security cards. On multiple
occasions, Evano used a social security number that was not his own
to secure a Massachusetts driver's license.
Relying on United States v. Godin, 534 F.3d 51 (1st Cir.
2008), Evano also argues that the government failed to prove that
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he knew the false ID information was of an actual person. Godin
held that the federal aggravated identity theft statute, 18 U.S.C.
§ 1028A(a)(1) (2006), requires that the defendant knew that the
false information belonged to a real person. The government says
that the sentencing enhancement does not require such knowledge:
that it is enough that he used the "means of identification." The
government is correct that Godin does not apply here.
The federal statute at issue in Godin makes it criminal
for one who, “during and in relation to” a felony, “knowingly
transfers, possesses, or uses, without lawful authority, a means of
identification of another person.” 18 U.S.C. § 1028A(a)(1).
Godin, applying the rule of lenity, read “knowingly” to apply to
“of another person,” thus requiring that the defendant know that
identification information pertains to an actual person. 534 F.3d
at 61. By contrast, the enhancement at issue here requires only
"possession of five or more means of identification that unlawfully
were produced from, or obtained by the use of, another means of
identification.” The enhancement provision--unlike the statute--
does not use the word "knowingly."
Sentencing enhancements often apply even without a strong
mens rea requirement. United States v. Figuereo, 404 F.3d 537, 541
(1st Cir. 2005); United States v. Lavender, 224 F.3d 939, 941 (9th
Cir. 2000). Here, the "legislative history" of the enhancement,
adopted pursuant to a statutory directive, bears out this reading.
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As the Sentencing Commission explained, the guideline sought to
address Congress’ concern with the harm suffered by the victims
rather than the mens rea of the defendant. U.S.S.G. Supplement to
Appendix C, Amendment 596 (statute instructed the Commission to
consider the number of victims, harm to their reputations, and
inconvenience produced by the theft of their identities).
Indeed, in construing an adjacent subsection of the same
identity theft provision, U.S.S.G. § 2B1.1(b)(9)(C)(i) (enhancement
“[i]f the offense involved . . . the unauthorized transfer or use
of any means of identification unlawfully to produce or obtain any
other means of identification”), the Seventh Circuit held that the
provision does not require that one know that the means of
identification relates to a real person. United States v. Cisse,
103 Fed. Appx. 27, 29-30 (7th Cir. 2004) (unpublished opinion)
(saying “[i]t is not unforeseeable or even unlikely that a made-up
social security number will turn out to belong to a real person").
Evano also challenges the district court’s two-level
enhancement for “use of sophisticated means,” USSG §
2B1.1(b)(9)(c). He contends that use of false identification is
not a “sophisticated” means of carrying out a fraud but rather
quite typical, and therefore already punished by the sentence
dictated by the statute and guidelines base offense level. But the
district judge imposed the sophisticated means enhancement not
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simply because Evano used false IDs and documents but because he
undertook elaborate efforts to conceal his scheme.
The district court's reading of the guideline was sound
and its application reasonable. The commentary, USSG
2B1.1(b)(9)(C), cmt. n.8(B), instructs that
[f]or purposes of subsection (b)(9)(C), "'sophisticated
means'" means especially complex or especially intricate
offense conduct pertaining to the execution or
concealment of an offense. For example, in a
telemarketing scheme, locating the main office of the
scheme in one jurisdiction but locating soliciting
operations in another jurisdiction ordinarily indicates
sophisticated means.
The scheme may be sophisticated even if the individual elements
taken alone are not. United States v. Jackson, 346 F.3d 22, 25 (2nd
Cir. 2003).
Here, the Evanos targeted multiple restaurants, hotels,
supermarkets, hospitals, doctors and insurance companies in several
different regions, including Massachusetts, Rhode Island, Maryland,
Virginia and the District of Columbia. They used fictitious names,
fake identifications such as false social security numbers, and most
importantly, they actually ingested glass particles. All this was
enough to make their scheme more effective and difficult to thwart,
and it is enough to justify the enhancement.
Finally, Evano does not dispute that his offenses were
scored correctly under the guidelines and formally place him in
criminal history category III; but he argues that this assessment
overstates the seriousness of his criminal past. He says that none
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of his prior convictions involved violent crimes or drug offenses.
Rather, they involved motor vehicle violations, one DUI, larceny,
theft and shoplifting.
Whether this attack is permitted might be debated.
Insofar as Evano is claiming that the district judge should have
"departed" from the guideline's category III designation, the
district court's decision is unreviewable unless based on a
misapprehension by the judge of his own authority, United States v.
Richardson, 515 F.3d 74, 86 (1st Cir. 2008), and of this there is
no evidence. To the extent the claim is framed as a post-Booker
challenge to the overall reasonableness of the sentence, the
district court's explanation as to criminal history is reasonable:
My sense is that the criminal history is,
indeed, long and I think, on the other hand,
the nature of the offenses is not the sort
that we see in the gun and drug cases. There
is no violence. There is no life-endangering
activity. It’s mostly driving without a
license, shoplifting, disorderly conduct, and
the like.
On the other hand, it is, as I said before,
relentless, and by virtue of the fact that it
is relentless, Mr. Evano is a danger to the
society. He simply does not respect the rules
under which we work.
Nonetheless, I think that the Criminal History
Category 3 properly reflects both the length
and the nature of the offenses and will,
therefore, agree with the probation report
that Criminal History Category 3 is the
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correct one, and will go neither up nor down
on the Criminal History Category.2
It is not drugs and violence alone that mark out someone
as habitually criminal. The present scheme, although treated as a
continuing pattern of fraud, endured over a long period; it
doubtless caused much trouble and disruption; and even probation
status did not deter Evano from halting his criminal conduct. There
is nothing in the district court's assessment that is unreasonable.
Affirmed.
2
The sentencing judge’s final remark is in respect to a
request by the government to depart upward to a CHC IV.
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