United States v. Taylor , 60 F. App'x 429 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4710
TERRY GENE TAYLOR,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, District Judge.
(CR-01-6)
Submitted: February 28, 2003
Decided: March 17, 2003
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Kevin B. Burgess, HAMILTON, BURGESS, YOUNG & POLLARD,
P.L.L.C., Fayetteville, West Virginia, for Appellant. Kasey Warner,
United States Attorney, L. Anna Crawford, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TAYLOR
OPINION
PER CURIAM:
Terry Gene Taylor pled guilty to one count of wire fraud in viola-
tion of 18 U.S.C. § 1343 (2000), and was sentenced to the statutory
maximum term of five years imprisonment. Taylor appeals his sen-
tence, contending that the district court abused its discretion in depart-
ing above the guideline range and failed to give adequate notice of the
specific grounds for departure. He also contends that the eight-level
departure was excessive. We affirm.
Taylor defrauded at least 263 motorcycle dealers in twenty states
and fifty-two videographers, as well as Sports Illustrated, TV Guide,
and Playboy Enterprises. Taylor carried out his scheme by offering to
produce a television advertisement for the business to air on a pro-
gram called "Wheels TV," which he represented would be about
NASCAR racing and other motor sports, would be hosted by an
attractive blond woman, and would be shown on a local television sta-
tion affiliated with national TV network. Taylor sometimes showed
the victim a videotape of a "Wheels TV" program he had filmed. Tay-
lor booked air time with fifty television stations and sometimes
showed an intended victim his contract with the local station. Some
victims called their local station to verify Taylor’s claims and were
thus convinced that he was legitimate. However, Taylor did not pay
for most of the air time he booked, and the air time was cancelled.
Taylor also took out full-page ads for "Wheels TV" in national maga-
zines, which he showed to his intended victims. Taylor obtained the
ads by making an initial payment to the magazine with a worthless
check on a closed bank account and not making any subsequent pay-
ments. In addition, to bolster his credibility, Taylor showed potential
victims contracts that other dealers had signed with him.
When a victim agreed to buy a television ad and had paid Taylor
(usually between $500 and several thousand dollars), Taylor hired
videographers to film the purported commercials. Most of these peo-
ple were never paid for their work.
UNITED STATES v. TAYLOR 3
The probation officer used the U.S. Sentencing Guidelines Manual
for 2000 to calculate Taylor’s sentence, rather than the 2001 manual,
to avoid an ex post facto problem, and thus applied USSG § 2F1.1.
To the base offense level of 6, the probation officer added 11 levels
for a loss over $800,000, USSG § 2F1.1(b)(1)(I), and a 2-level
enhancement under subsection (b)(2) for more than minimal planning
and a scheme to defraud more than one victim. With an adjustment
for acceptance of responsibility, Taylor’s offense level was 16. He
was in criminal history category I, making his recommended guide-
line range 21-27 months. The presentence report mentioned three pos-
sible grounds for departure: (1) the adequacy of Taylor’s criminal
history category, USSG § 4A1.3, p.s., (2) dismissed and uncharged
conduct, USSG § 5K2.21, p.s., and (3) whether the guidelines ade-
quately addressed the harm to the individuals and businesses
defrauded by Taylor.
The district court gave notice twice before sentencing that it was
considering an upward departure. As potential grounds for departure,
the court listed the three grounds set out in the presentence report. In
its second notice, the court stated that the focus of the third possible
departure ground was "lost sales due to the absence of advertising, the
lost opportunities occasioned upon the videographers and others, and
the embarrassment and other harm suffered by the victims in having
to report the fraud to their superiors and, in some instances, their cus-
tomers."
The only issue at sentencing was the departure contemplated by the
district court. After hearing testimony from some of the fraud victims
present and reviewing letters submitted by other victims, the district
court departed upward by eight levels to a guideline range of 51-60
months and imposed a term of sixty months.
On appeal, Taylor first contends that the harm suffered by his vic-
tims was typical of all fraud victims and thus a departure was unwar-
ranted. A sentencing court may depart from the guideline range only
if the court finds an aggravating or mitigating factor of a kind, or to
a degree, not adequately considered by the Sentencing Commission.
18 U.S.C.A. § 3553(b) (2000); Koon v. United States, 518 U.S. 81, 98
(1996) (aspects of the case must be unusual enough to take it outside
the heartland of cases covered by the guideline). If the guidelines
4 UNITED STATES v. TAYLOR
encourage departure for a factor being considered as a basis for depar-
ture, the court may depart on that ground unless the factor has been
adequately taken into account by the applicable guideline. United
States v. Alejo-Alejo, 286 F.3d 711, 715 (4th Cir. 2002) (citing United
States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996)).
A district court’s decision to depart is reviewed generally for abuse
of discretion. Koon, 81 U.S. at 98-99. However, a district court’s
determination that a factor is "encouraged" or "discouraged" as a
basis for departure is reviewed for clear error. Rybicki, 96 F.3d at
757-58. The district court in this case correctly determined that Appli-
cation Note 11 to § 2F1.1 encourages a departure when the fraud
"caused or risked reasonably foreseeable, substantial non-monetary
harm." The court also decided that the guidelines, principally § 2F1.1,
do not adequately take this factor into account. This decision is
reviewed de novo. Rybicki, 96 F.3d at 757-58.
Section 2F1.1 provides enhancements for certain non-monetary
harms, such as the defendant’s misrepresention that he was acting on
behalf of charitable causes or government agencies, and bodily injury
to a victim. However, the background commentary to § 2F1.1 states
that "amount of loss and whether the offense was an isolated crime
of opportunity or was sophisticated or repeated . . . are the primary
factors upon which the guideline has been based." Section 2F1.1 does
not address the loss of reputation or trust described by several of the
victims here, principally the videographers who produced the videos
and commercials that Taylor used to carry out the fraud, and who lost
not only money but, possibly, their good name by unwittingly aiding
Taylor’s commission of the offense. We conclude that the court did
not err in deciding that this particular harm is not adequately
accounted for in § 2F1.1 or elsewhere in the guidelines.
Taylor does not dispute that non-monetary harm may be the basis
for a departure under Application Note 11 to § 2F1.1, but contests the
district court’s assessment that the degree of non-monetary harm he
caused was so substantial and foreseeable that a departure was war-
ranted. This decision by the court is reviewed for abuse of discretion.
Rybicki, 96 F.3d at 758. Taylor contends that the harm suffered by his
victims was common to most fraud cases. He maintains that the court
overstated the fear of investing in future advertising expressed by the
UNITED STATES v. TAYLOR 5
motorcycle dealers who testified, and that such mistrust as was
expressed is typical of fraud victims. Taylor further argues that the
court was wrong to accept at face value the claims of Tim Dench and
Larry Smith, the two videographers who testified, because Dench said
his business was already in difficulty when he met Taylor and Smith
could not say with certainty that he had lost specific work because of
his identification with Taylor.
The court based its assessment on testimony and letters submitted
by victims concerning the effects of the fraud. While the suspicion
engendered in the dealers concerning future expenditures for advertis-
ing is not an atypical harm for a fraud victim, the harm done to the
videographers—who not only lost money but were inveigled into
assisting Taylor in carrying out the fraud and thus had their profes-
sional reputations damaged—is not typical of an ordinary fraud
offense. Harms of this type may warrant a departure. United States v.
Akindele, 84 F.3d 948, 954 (7th Cir. 1996) (where fraud victims’
credit histories were tarnished and criminal records wrongly created
in their names, harm transcended monetary loss and justified depar-
ture). We conclude, therefore, that the district court did not abuse its
discretion in departing.
Taylor’s claim that the district court did not give him fair notice of
the potential grounds for departure is wholly without merit. Federal
Rule of Criminal Procedure 32 requires the sentencing court to give
the parties reasonable notice if it is contemplating a departure on a
ground not identified in the presentence report or a prehearing sub-
mission by the government. The court must identify the specific
ground on which it may depart. Burns v. United States, 501 U.S. 129,
138-39 (1991). Here, the presentence report suggested three possible
grounds for departure: adequacy of criminal history category, USSG
§ 4A1.3, dismissed and uncharged conduct, USSG § 5K2.21, and
"whether the guidelines adequately address[ed] the harm to the indi-
viduals and businesses defrauded by the defendant." In its first notice
of a possible departure, the district court listed the same grounds. In
its second notice, the district court explained further the factors it
would consider in connection with ground three. Ultimately, the court
departed based on the third ground identified as a possible basis for
departure. Taylor received the required notice.
6 UNITED STATES v. TAYLOR
Finally, Taylor argues that the departure was excessive. The guide-
lines do not provide specific guidance for determining the extent of
a departure other than stating that it must be reasonable under the cir-
cumstances. United States v. Terry, 142 F.3d 702, 707 (4th Cir.
1998); 18 U.S.C. § 3742(f)(2) (2000). The district court must give a
principled explanation of the extent of the departure. Terry, 142 F.3d
at 707.
The court stated that it wished to impose for the non-monetary
harm a punishment equal to the punishment Taylor received for the
monetary loss he caused. Taylor received an eleven-level enhance-
ment under § 2F1.1 for having caused a loss of more than $800,000.
Viewed in this light, the court’s eight-level departure was not unrea-
sonable.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED