United States v. Lester Norton , 176 F. App'x 992 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 21, 2006
No. 04-14148 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60024-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESTER NORTON, a.k.a. Davon Lee Wallace,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 21, 2006)
Before HULL, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Lester Norton appeals his sentence of thirty months imprisonment, imposed
following his guilty plea for conspiracy to commit bank fraud and bank fraud.
Norton’s sentence included several enhancements based on facts not found by the
jury nor admitted by Norton. Therefore, Norton’s sentence violates the Sixth
Amendment under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 161
L.Ed.2d 621 (2005), and we remand for the district court to resentence Norton
under an advisory guidelines scheme. We conclude, however, that the district
court properly denied the reduction for Norton’s alleged minor role in the offense,
and correctly applied the enhancement for identity theft.
I. Background
Norton was indicted along with one codefendant, Alfred Davis, for one
count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371, and
three counts of bank fraud, in violation of 18 U.S.C. § 1344. He entered an
unconditional plea to all four counts. According to the record, Davis created an
internet Paypal account (which enables internet payment and money transfers for
purchases) in the name of Donald Hink, who Davis falsely listed as the
administrator of Boca Raton Community Hospital. Davis transferred funds from
the hospital’s account to his Paypal account, and then transferred the money from
Paypal to an account at that Norton had opened at Wachovia using the fake name
of Davon Lee Wallace and another person’s real social security number. Norton
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then withdrew funds amounting to $105,000 from the Wachovia account.
The probation officer prepared a presentence investigation report (“PSI”),
grouping the offenses together and assigning a base offense level of 7 under
U.S.S.G. § 2B1.1(a)(1), with a 10-level enhancement for the intended amount of
loss of $200,000. According to the probation officer, after the defendants
transferred $105,000, they attempted to transfer an additional $95,000 into the
Paypal account, which Paypal discovered and stopped. The probation officer then
recommended a two-level enhancement for sophisticated means, U.S.S.G.
§ 2B1.1(b)(8)(C), and another two-level enhancement for identity theft under
U.S.S.G. § 2B1.1(b)(9)(C)(i). With a 3-level reduction for acceptance of
responsibility, Norton’s total offense level was 18, and his criminal history
category was III, resulting in a guidelines range of 33 to 41 months imprisonment.
Norton filed several objections to the PSI. First he claimed that the
enhancements were unconstitutional under Blakely (now Booker). Second, he
made factual objections to the amount of loss, which he conceded should have
been $105,000, and to the enhancements for sophisticated means and identity theft.
Third, he claimed he was entitled to a reduction for his minor role in the offenses.
At sentencing, Secret Service agent Charles Brad Leopard testified that
Norton had opened the accounts under a fake name due to his criminal history and
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his desire to hide money from his probation officer. Leopard explained that
Norton’s role in the conspiracy was to open the account and withdraw funds
through cashier’s checks, withdrawals, and through giving Davis ATM access and
blank checks. According to Leopard, Norton used the account before the
conspiracy began, although he could not say for what purposes.
After considering the arguments, the district court sustained the objection to
the amount of loss, finding that the amount was too speculative. The court
overruled the Blakely objection and the objections to sophisticated means and
identity theft, finding that Norton had used another person’s name and another
social security number to open accounts as part of the conspiracy. The court
indicated, however, that these issues presented “close calls.” The court further
denied a reduction for role in the offense, concluding that Norton played an
integral part in the scheme, and, even though his conduct was less culpable than
Davis’s conduct, he was not a minor participant. With a total offense level of 17,
Norton’s guidelines range was 30 to 37 months imprisonment. The court
sentenced Norton to 30 months on each count, to run concurrently, and ordered
him to pay restitution in the amount of $105,000.
II. Discussion
A. Booker error
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In Booker, the Supreme Court held that Blakely applied to the federal
sentencing guidelines and that the Sixth Amendment required that any fact that
increased a defendant’s sentence beyond the maximum sentence authorized by the
facts established by a plea or a jury verdict must be admitted by the defendant or
proven to a jury beyond a reasonable doubt. 125 S.Ct. at 738. This court has
explained that a Booker error also results from the district court’s use of a
mandatory guidelines scheme, even in the absence of any constitutional error.
United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). Notably, after
Booker, the same extra-verdict enhancements remain, and the district court
considers the same factual evidence in applying the enhancements as it would
under a mandatory guidelines scheme. United States v. Williams, 408 F.3d 745(11th Cir. 2005). Additionally, after Booker, this court applies the same standard
of review for applications of guidelines enhancements. United States v. Crawford,
407 F.3d 1174, 1178 (11th Cir. 2005).
Because Norton preserved his Booker challenge in the district court, we
review the sentences de novo, but will reverse only if the error was not harmless.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). The burden is on the
government to show that the error was harmless. Id. There are two standards for
the harmless error test. Constitutional harmless error occurs when the error did not
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affect the defendant’s substantial rights, that is “where it is clear ‘beyond a
reasonable doubt that the error complained of did not contribute to the [sentence]
obtained.’” United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005).
Statutory harmless error is a less demanding standard, but requires the government
to show that, viewing the proceedings in their entirety, the error had no effect or a
very slight effect on the sentence. Id.Here, the government concedes that the error was not harmless and that
Norton’s case should be remanded for resentencing under an advisory guidelines
scheme.1 Accordingly, we vacate and remand for resentencing. On remand, the
district court is required to sentence Norton under an advisory guidelines regime
and shall consider the guidelines range of 30 to 37 months imprisonment and the
sentencing factors of 18 U.S.C. § 3553(a) in determining a reasonable sentence.
Booker, 125 S.Ct. at 757; United States v. Devegter, slip op. at 1390-91(No. 04-
14075) (11th Cir. Feb. 16, 2006); Crawford, 407 F.3d at 1178.
B. Minor-Role Reduction
We review a district court’s determination of a defendant’s entitlement to a
role reduction for clear error. United States v. Rodriguez De Varon, 175 F.3d 930,
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Because Norton received extra-verdict enhancements, there was constitutional error in
addition to the statutory error. Given the district court’s statement that the application of these
enhancements presented a close call, the government has not met its burden of showing that the
constitutional error was harmless.
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938 (11th Cir. 1999) (en banc). The defendant has the burden of establishing his
role by a preponderance of the evidence. Id. at 939; see also United States v.
Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002). Minor-role reductions are to be
given infrequently. United States v. Costales, 5 F.3d 480, 486 (11th Cir. 1993).
A two-level reduction for playing a minor role in the offense under U.S.S.G.
§ 3B1.2(b) is warranted if the defendant is less culpable than most other
participants, but his role could not be described as minimal. U.S.S.G. § 3B1.2,
comment. (n.3). The district court’s determination concerning a role reduction is
premised on a case-by-case factual inquiry and the court is guided by two
principles. U.S.S.G. § 3B1.2, comment. (backg’d); De Varon, 175 F.3d at 941.
First, the district court must assess whether a defendant is a minor participant in the
relevant conduct attributed to him in calculating his base offense level. De Varon,
175 F.3d at 941. If a defendant’s relevant conduct is identical to his actual
conduct, then he cannot establish that he was entitled to a minor-role reduction. Id.Second, the district court may assess a defendant’s culpability as compared to other
participants in the relevant conduct. Id. at 944. It is possible that no one involved
in the offense was a minor participant. Id.Here, the court determined that Norton was responsible for his own conduct
of allowing his bank account to be used to transfer funds as part of the bank fraud
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scheme, which the court determined was an integral part of the conspiracy. Norton
has not met his burden of showing that this finding was clearly erroneous or that he
was entitled to a reduction. Moreover, even if Norton was less culpable than
Davis, it is possible that no one was a minor participant. Therefore, the district
court did not clearly err in denying the reduction.
C. Identity Theft
Finally, Norton argues that he should not have received an enhancement for
identity theft under U.S.S.G. § 2B1.1(b)(9)(C)(i). We conclude, however, that
Norton’s argument is without merit.
We review the district court’s factual findings for clear error and its legal
conclusions de novo. Devegter, slip op. at 1390.
Pursuant to § 2B1.1(b)(9)(C)(i), a defendant receives a two-level
enhancement if his offense conduct involved “the unauthorized transfer or use of
any means of identification unlawfully to produce or obtain any means of
identification.” U.S.S.G. § 2B1.1(b)(9)(C)(i). According to the commentary,
“means of identification” includes those offenses defined in 18 U.S.C. § 1028.
U.S.S.G. § 2B1.1, comment. (n.8(B)). According to § 1028(d)(7), “the term
‘means of identification’ refers to any name or number that may be used, alone or
in conjunction with any other information, to identify a specific individual . . . .”
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18 U.S.C. § 1028(d)(7); United States v. Auguste, 392 F.3d 1266, 1267-68 (11th
Cir. 2004).
In this case, the district court applied the enhancement because Norton
admitted that he opened the bank account using a real person’s name and a fake
social security number. Thus, under the guideline, Norton used one means of
identification (the name) to obtain another means of identification (the bank
account number). Auguste, 392 F.3d at 1268. Because Norton’s conduct falls
within the parameters of 18 U.S.C. § 1028(d)(7) and U.S.S.G. § 2B1.1(b)(9)(C)(i),
we conclude that the district court properly applied the enhancement.
III. Conclusion
For the foregoing reasons, we VACATE Norton’s 30-month sentence and
REMAND this case for resentencing under an advisory guidelines scheme.
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