United States v. Fabian Winston Parkinson , 657 F. App'x 853 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12236
________________________
D.C. Docket No. 0:14-cr-60233-JIC-1
UNITED STATES OF AMERICA,
pE Plaintiff-Appellee,
versus
FABIAN WINSTON PARKINSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 27, 2016)
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Before WILSON and JULIE CARNES, Circuit Judges, and WOOD, * District
Judge.
PER CURIAM:
Fabian Winston Parkinson appeals his fifty-seven-month sentence,
imposed at the high end of the advisory guideline range, after pleading guilty to
one count of mail fraud, in violation of 18 U.S.C. § 1341. Parkinson was
charged in an indictment with eight counts of mail fraud for knowingly causing
fraudulent fees to be placed in the mail for the purpose of executing a fraudulent
lottery scheme, in violation of 18 U.S.C. § 1341. Parkinson pleaded guilty to
count two of the indictment, in exchange for a dismissal of the remaining
counts.
According to the presentence investigation report (“PSI”), from in or
about April 2011 through March 2014, Parkinson participated in a scheme to
defraud victims by telling them that they had won a large amount of money in
a lottery, but that they needed to pay fees before receiving their winnings.
Parkinson and his co-schemer then kept the money that the victims mailed to
them without paying out any lottery winnings. The co-schemer contacted
elderly victims over the telephone and persuaded them to pay the fees in order
to collect their winnings.
*
Honorable Lisa Godbey Wood, United States District Chief Judge for the Southern District of
Georgia, sitting by designation.
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Victim NG, who was ninety-one years old, was called by an unknown male.
NG purchased gift cards, which were used by various Jamaican IP addresses to
make online purchases. Parkinson was one of the recipients of the purchases.
NG also purchased Green Dot debit cards, but was scolded by the caller, who
wanted Green Dot Money Paks instead. The two debit cards were activated
online by Parkinson, using his name and address, from an IP address in Florida.
NG sent a $9,950 cashier’s check to Parkinson, which he deposited into his bank
account. NG was called by a magicJack phone number, which also called
Parkinson over 200 times between May and October 2013. NG was defrauded
of approximately $150,000. Victim NG lived alone and had few remaining
friends. She believed that Parkinson and his co-schemer knew her comings and
goings and feared that she could not stop sending them money. She was asked to
mortgage her condominium, and she took money from an IRA to give to
Parkinson, which put her in a higher tax bracket.
Victim SD, who was eighty years old, stated that she mailed $9,900 to
“Winston Sabian” after talking to “Mr. Peterson,” who instructed her to hide the
cash in the pages of a magazine and mail it to Parkinson. SD sent money
approximately ten times; was defrauded of over $90,000; and opened a home equity
line of credit to continue payments. A magicJack registered to the same person
as the one who called victim NG and activated by “Fabian Parkinson’s iPAD”
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called SD 420 times in February and March 2014. This magicJack also called
Parkinson’s cell phone fifteen times and received two calls from his cell phone.
Victim SD’s daughter noted that her mother, now deceased, was a lonely widow
and was suffering from pancreatic cancer when contacted as part of the scheme.
Parkinson or his co-schemer “befriended” her by representing themselves as an
attorney and “fellow Hispanic immigrant” who wanted to help her avoid paying
taxes on her winnings.
Victim CL mailed several packages to Parkinson. She also sent a check to a
different victim, BO, which caused BO to believe she was being paid. CL called
Parkinson’s two cell phones forty-two times from October 2013 through March
2014. Victim BO, who was eighty-three years old, mailed Parkinson money orders
totaling $2,500 and wired him $2,500. Victim JS, who was eighty-four years old,
mailed a $5,000 personal check to Parkinson. A search recovered the original
envelope from JS and a $5,000 deposit slip from Parkinson’s account in
Parkinson’s closet. Victim AA, who was eighty-eight years old, was given
Parkinson’s name and address, and Parkinson deposited a $10,000 cashier’s check
from her. From November 26, 2013, through May 26, 2014, AA received 261
calls from the same number that called victim SD. More than twenty other
victims, mostly elderly, were victimized in a similar way. A composition
notebook found in Parkinson’s car contained many names with dates of birth and
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phone numbers, mostly of elderly people. A “lead list” found on Parkinson’s
computer also referenced mostly elderly people.
Victims KP and JC were eighty-two and ninety respectively. Their
children had them declared mentally incompetent in order to prevent them from
sending more money. KP’s daughter stated that Parkinson and his co-schemer
knew when her mother received her monthly checks, and that her mother would
go out in snowstorms to send money. KP’s daughter described the callers as
“relentless” and noted that her mother’s phone number was changed several times
by Parkinson and/or a co-schemer to make it more difficult for her family to
contact her. KP was adjudged to be a totally incapacitated person and in the
early-to-mid stages of dementia.
Victim LP, who was eighty years old, estimated that she sent between
$15,000 and $20,000 in connection with this scheme. She was hopeful of
receiving the lottery winnings so that she could give them to her children and
grandchildren when she died. She would receive a call every month just before
she received her Social Security check, and even when she informed the caller
that her water and electricity had been turned off, the caller still told her that she
needed to send more money. She stated that the caller made her feel like there
was someone who really cared about her.
Postal Inspectors interviewed Parkinson after intercepting a package to
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him which contained $9,900 in cash interspersed within a magazine. Parkinson
claimed to be in the shipping business and stated that his Jamaican customers
sent him payments, but records showed that between April 2011 and March
2014, he received only $4,709 from Jamaica, while he sent $127,894 to Jamaica.
A search of Parkinson’s room uncovered a magicJack, Western Union receipts,
prepaid cards in names other than his, an envelope from victim NG, and a
laptop. A search of the laptop found a “lead list,” which provided names,
telephone numbers, and often addresses and ages of individuals. Several texts
on Parkinson’s two cell phones contained prepaid card numbers and Western
Union money transfer control numbers.
In preparing the PSI, the probation officer calculated a base offense level
of seven, under U.S.S.G. § 2B l.l (a). Parkinson received a ten-level
enhancement because the loss was more than $120,000 but not more than
$200,000, under § 2B l.l(b)(l )(F). He received a two-level enhancement because
the offense involved ten or more victims and was committed through mass
marketing, under § 2Bl.l (b)(2)(A). He received another two-level enhancement
because a substantial part of the scheme was committed from outside the United
States, under § 2Bl.l (b)(10). Finally, he received a two-level enhancement
because he knew or should have known that a victim of the offense was
vulnerable, under § 3Al.l (b)(l), and two additional levels because the offense
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involved a large number of vulnerable victims, under § 3Al.l (b)(2). Parkinson
received a three-level reduction, under § 3El.l (a), for clearly demonstrating
acceptance of responsibility. These combined to a total offense level of twenty-
two. Based on a criminal history category of two, and an adjusted offense level
of twenty-two, the guideline range was forty-six to fifty-seven months’
imprisonment.
Parkinson filed an objection to the combined four-level vulnerable
victim enhancement under § 3Al.l (b)(l)-(2). He argued that age alone was
not enough to show “unusual vulnerability.” He further argued that even if
victims KP, JC, and LP were unusually vulnerable, he did not have personal
contact with them and should not have known of their infirmity. He further
argued that there were only “a very small number of victims that may be
considered to be unusually vulnerable,” which would eliminate at least the two-
level enhancement for a large number of victims. Parkinson did not object to any
of the facts about the victims in the PSI, only to the contention that they were
unusually vulnerable for a reason beyond mere age or that he should have known
about any infirmity.
At sentencing, the district court heard evidence concerning the applicability
of the enhancements under § 3Al.l(b)(l) and (2). After considering the evidence
introduced and the parties’ arguments, the district court found that the vulnerable
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victim enhancements applied. Having received statements from both parties, the
PSI, and the § 3553(a) factors, the court noted that “[t]his is one of the most cruel
and despicable scams [imaginable.] Pr[e]ying on the elderly and infirmed is
unconscionable. It shows a person with no conscience.” It stated that it would
impose a sentence within the guideline range only because Parkinson pleaded
guilty, and sentenced him to fifty-seven months’ imprisonment, the top of the
guideline range.
“We review de novo the district court’s interpretation of the Guidelines and
its application of the Guidelines to the facts.” United States v. Campbell, 491 F.3d
1306, 1315 (11th Cir. 2007) (internal quotation marks omitted). “In fraud cases,
the repeated targeting of a victim, a practice called ‘reloading,’ constitutes
evidence that the defendant knew the victim was particularly vulnerable to the
fraud scheme.” United States v. Day, 405 F.3d 1293, 1296 (11th Cir. 2005). Here,
our de novo review of the record confirms that a large number of vulnerable
victims were repeatedly subject to fraudulent requests for money by Parkinson or
his co-conspirator. See id.; see also U.S.S.G. § 1B1.3(a)(1) (for sentencing
enhancements, defendant is liable for reasonably foreseeable actions of co-
conspirator). Hence, the record supports the district court’s ultimate conclusion
that the vulnerable victim enhancements apply.
After reviewing the parties’ briefs and the record, and with the benefit of
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oral argument, we affirm the district court.
AFFIRMED.
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