United States v. Willie Harris , 791 F.3d 772 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1846
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIE J. HARRIS,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:10-cr-00123-PPS-APR-1 — Philip P. Simon, Chief Judge.
ARGUED FEBRUARY 25, 2015 — DECIDED JULY 1, 2015
Before BAUER, FLAUM, and MANION, Circuit Judges.
BAUER, Circuit Judge. On May 10, 2013, defendant-appel-
lant, Willie J. Harris, was convicted of two counts of fraud and
one count of conspiracy to commit fraud with identification
documents in violation of 18 U.S.C. §§ 1028(a)(7), 1028(f),
1029(b)(2), and 1349, three counts of production and trafficking
in counterfeit devices (credit card fraud) in violation of 18
U.S.C. § 1029(a)(2), and one count of aggravated identity theft
in violation of 18 U.S.C. § 1028A. The district court sentenced
2 No. 14-1846
Harris to 156 months’ imprisonment and ordered him to pay
$299,298.67 in restitution. On appeal, Harris contends that the
court erroneously denied his pretrial motion to suppress and
that there was insufficient evidence to support his conviction.
He also appeals his sentence, arguing that the district court
erred in applying a number of sentencing enhancements and
imposed an unreasonable sentence. For the reasons that follow,
we affirm.
I. BACKGROUND
From 2007 to 2010, Harris was involved in a conspiracy to
commit account takeover fraud, in which he and seven co-
conspirators fraudulently added themselves as authorized
users on existing credit card accounts without the account
holders’ knowledge or permission. Once added, Harris and
his co-conspirators took out cash advances, cashed conve-
nience checks, and made fraudulent purchases with the
victims’ accounts. The scheme lasted three years, involved
over fifty victims, and resulted in approximately $300,000 in
pecuniary loss.
Harris’ fraudulent transactions began in Indiana in 2007.
During 2007, he added co-conspirators as authorized users of
victims’ credit cards. He also directed co-conspirators to draw
on these accounts through cash advances and checks. Some-
time amid the 2007 activity, he relocated to Atlanta, Georgia,
but continued fraudulently adding users to victims’ credit
cards in Indiana.
On April 7, 2008, Harris and one of his co-conspirators,
seventeen-year-old Darriell Watkins, attempted to obtain a
$4,500 cash advance at a Chase Bank branch in Munster,
No. 14-1846 3
Indiana. Watkins went into the bank, while Harris waited
outside in his truck. The credit card Watkins used for the
advance had been issued on the account of a man named Mark
Sulzman, without his authority or permission. Suspicious of
the legality of the transaction, the bank alerted the Munster
Police Department. Upon arrival, an officer arrested Harris
and placed him in the back of a police car. Another officer
searched Watkins, discovering the fraudulent credit card, a
second credit card not in Watkins’ name, and a slip of paper
containing Sulzman’s birth date, social security number, credit
card numbers, address, phone number, his mother’s maiden
name, and his bank password. When Watkins was placed in a
patrol car, she asked an officer to retrieve her personal belong-
ings from Harris’ truck—namely, a backpack, a coat, and
“school stuff.” The officer returned a backpack, a notebook that
he found under the backpack, and a wallet to Watkins, all of
which were in plain view in the truck.
Watkins and Harris were both interviewed thereafter.
During her interview, Watkins explained that the backpack
recovered from the truck was hers, but the notebook and
wallet belonged to Harris. When asked, Harris admitted the
wallet was his, but said the notebook belonged to Watkins.
Because both of them disclaimed ownership, the notebook
remained in police custody. The notebook contained a litany of
personal information about fourteen people, including birth
dates, addresses, social security numbers, credit card numbers,
and security codes. A fingerprint examination revealed 48/50
prints pulled from the notebook matched Harris’ prints.
Eventually, both Watkins and Harris were released from
custody.
4 No. 14-1846
In March 2009, law enforcement began investigating
Harris after he was connected to $26,000 worth of suspicious
transactions. The investigation continued into 2010, when local
police and postal inspector Cecil Frank executed a search
warrant on Harris’ Atlanta apartment. They seized computers,
thumb drives, and Harris himself. A second notebook contain-
ing personal information about a host of people was also
discovered.
Harris was indicted on June 21, 2010. The indictment
alleged a conspiracy from March 2007 to January 2010
to commit identity theft and credit card fraud. Seven co-
conspirators were also indicted.1 With the exception of one
person, all of Harris’ co-conspirators pleaded guilty.
Prior to trial, Harris moved to suppress the notebook found
in April 2008 on the ground that his arrest at the bank was
illegal, as was the removal of the notebook from his truck. The
district court denied the motion on April 18, 2013, concluding
that the officer had sufficient probable cause to search the
vehicle under the automobile exception. The district court also
found the search constitutionally permissible as incident to
Watkins’ arrest.
At trial, five of Harris’ co-defendants testified to Harris’
involvement in the scheme, describing his role as a leader. At
the close of the government’s case, Harris moved for judgment
of acquittal pursuant to Federal Rule of Criminal Procedure 29.
With respect to the conspiracy charge, Harris argued that the
1
There were seven additional co-conspirators who were not indicted due
to their status as minors.
No. 14-1846 5
evidence showed two conspiracies, not one; as for the substan-
tive counts, Harris stated only that “there doesn’t exist suffi-
cient evidence to go forward on them.” The district court
rejected both arguments and denied the motion.
The jury found Harris guilty on all counts on May 10, 2013.
Two sentencing hearings followed. At the first on February 27,
2014, the district court overruled a number of Harris’ objec-
tions to Guidelines enhancements, including a sophisticated
means enhancement and a relocation enhancement. The court
also found that a two-level enhancement under United States
Sentencing Commission Guidelines Manual (“U.S.S.G.”)
§ 3B1.4 applied because Harris used minors to commit the
offense, but elected to forego imposing it. The court next
applied a three-level enhancement under U.S.S.G. § 3B1.1(b) to
Harris as a manager or supervisor of the scheme. Finally, the
court found that Harris obstructed justice, meriting a two-level
enhancement. At the second sentencing hearing on April 4,
2014, the district court added four points to Harris’ offense
level because the number of victims exceeded fifty. The court
also found that the total amount of loss was approximately
$300,000, warranting a twelve point enhancement under
U.S.S.G. § 2B1.1(b)(1)(G).
As a result of the enhancements, Harris’ offense level was
32. With his criminal history category of III, the Guidelines
imprisonment range was set at 151 to 188 months. The court
imposed a below-Guidelines sentence of 132 months and
added the mandatory two-year consecutive sentence for the
aggravated identity theft count, for a total of 156 months’
imprisonment.
6 No. 14-1846
II. DISCUSSION
Harris raises a number of arguments on appeal. First, he
contends that the district court erred in denying his motion to
suppress the notebook found on April 7, 2008. Next, Harris
challenges whether sufficient evidence supports his conviction.
Finally, Harris raises several challenges to his sentence. We
will discuss each of his arguments in turn.
A. Denial of the Motion to Suppress
Warrantless searches are per se unreasonable under the
Fourth Amendment, subject to a few well-established excep-
tions. The district court ruled that two recognized exceptions
applied to the warrantless search of Harris’ vehicle: the
automobile exception and a search incident to arrest exception.
Accordingly, the court denied Harris’ motion to suppress the
aforementioned notebook. Harris challenges this ruling on
appeal. We review a denial of a motion to suppress de novo as
to legal conclusions, and for clear error as to factual findings.
United States v. Glover, 755 F.3d 811, 815 (7th Cir. 2014).
Under the automobile exception, “where there is probable
cause to believe that a vehicle contains contraband or evidence
of a crime, law enforcement may conduct a warrantless search
of the vehicle.” United States v. Zahursky, 580 F.3d 515, 521 (7th
Cir. 2009). Probable cause exists where, based on a totality of
the circumstances, “there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Id.
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Law enforce-
ment officers may draw reasonable inferences from the facts
based on their training and experience. Zahursky, 580 F.3d at
521. We review de novo the district court’s conclusion regarding
No. 14-1846 7
probable cause. United States v. Richards, 719 F.3d 746, 754 (7th
Cir. 2013) (citing United States v. Williams, 627 F.3d 247, 251 (7th
Cir. 2010)).
Harris contends that the automobile exception does not
excuse the warrantless search of his truck because the law
enforcement agent lacked probable cause to search his vehicle.
Specifically, he argues there was no reasonable basis for the
officer to believe there would be evidence of identity theft in
Harris’ truck based on Watkins’ arrest. But the record estab-
lishes that probable cause to search the truck did exist. Harris’
passenger, Watkins, had just been arrested and caught with
multiple credit cards not in her name, as well as a slip of paper
containing personal information about the name on at least one
of those cards. And Watkins’ means of transportation to the
bank, apparently for the purpose of committing fraud with
those credit cards, was Harris’ truck. Under those circum-
stances, it was reasonable to believe that there would be
further evidence of the identity fraud in the truck. See Zahursky,
580 F.3d at 521–22 (finding probable cause in support of
automobile exception to warrantless search where it was
reasonable for officers to believe defendant would leave
evidence of his crime in his car). Based on these facts, we find
that probable cause to search Harris’ vehicle existed and the
search was justified. Because the search was permissible under
the automobile exception, we need not consider whether the
search was permissible as incident to an arrest, the other
exception relied on by the district court and contested by
Harris.
Harris makes a third argument challenging the district
court’s denial of his motion to suppress. He argues that the
8 No. 14-1846
notebook is “fruit of the poisonous tree” stemming from his
illegal arrest, and must be suppressed as a result. But Harris
misunderstands the law. An illegal arrest does not bar the
admission of evidence otherwise untainted by the constitu-
tional violation. United States v. Crews, 445 U.S. 463, 471–76
(1980). In Crews, the Supreme Court held that even though the
defendant was arrested without probable cause in violation of
the Fourth Amendment, a subsequent in-court identification
was admissible because it was untainted by the illegal arrest.
Id. at 477. So, in light of Crews, we need not reach the issue of
whether or not Harris’ arrest was valid; even if Harris had
been arrested without probable cause, the arrest would not bar
admission of the notebook, the only evidence he wishes to
suppress, found as a result of a valid automobile search.
B. Sufficiency of the Evidence
Harris next challenges the sufficiency of the evidence in
support of his identity theft, aggravated identity theft, and
credit card fraud convictions. In reviewing whether sufficient
evidence supports a conviction, we view the evidence in the
light most favorable to the prosecution. United States v. Groves,
470 F.3d 311, 323 (7th Cir. 2006). We will affirm if any rational
trier of fact could have found the elements of the crime beyond
a reasonable doubt, and will overturn only if the record is
devoid of evidence from which a reasonable jury could find
guilt beyond a reasonable doubt. Id.
Harris fails to contest any specific element of any of the
challenged convictions. Instead, the basis of his challenge to
each conviction is the same—that the evidence supporting the
convictions stemmed from biased testimony and was therefore
No. 14-1846 9
insufficient to support the convictions. Harris’ argument fails
for a simple reason—we do not weigh the evidence or reassess
the credibility of witnesses on appeal, United States v. Griffin,
310 F.3d 1017, 1022 (7th Cir. 2002), a point of law Harris
concedes. Nevertheless, Harris contends that the testimony
was biased and incredible for two reasons: the testifying co-
defendants were Harris’ family and friends, and they avoided
jail time by testifying against Harris. Harris essentially invites
us to re-weigh the evidence, but, again, that is not our role. The
jury remains the proper assessor of the credibility of the
witnesses, not us. See id. Unless the testimony is incredible as
a matter of law, we must uphold the verdict. United States v.
Dennis, 115 F.3d 524, 535 (7th Cir. 1997). Here, the jury was
aware of the plea agreements signed by the co-defendants and
defense counsel argued the bias of the testifying witnesses in
his closing statement. The jury elected to convict even when
presented with these credibility issues, as it was free to do.
Accordingly, the convictions stand.
C. Sentencing Enhancement Challenges
Harris next challenges several offense level enhancements
that the district court applied at sentencing. He contends that
the district court erroneously applied the number of victims
enhancement, the manager or supervisor enhancement, and
sophisticated means or relocation enhancement. As a result, he
seeks remand and resentencing.
1. Number of Victims Enhancement
The Guidelines provide for a two-level increase of a
defendant’s offense level if the offense involved ten or more
victims, and a four-level increase if the offense involved fifty
10 No. 14-1846
or more victims. See U.S.S.G. § 2B1.1(b)(2)(A)–(B). Over Harris’
objection, the district court found that the total number of
victims was more than fifty and thus applied a four-level
increase to Harris’ offense level. On appeal, Harris contends
that the district court violated the ex post facto clause by
applying a Guidelines edition promulgated after his criminal
acts. See Peugh v. United States, 133 S. Ct. 2072, 186 L. Ed. 2d 84
(2013) (holding the ex post facto clause is violated when a
defendant is sentenced under current Guidelines providing
higher sentencing range than Guidelines in effect at the time of
the offense). Although Harris challenged the number of victims
enhancement as a factual matter below, this constitutional
challenge is new. Because this argument is raised for the first
time on appeal, we review the district court’s application of the
Guidelines for plain error. See United States v. Middlebrook, 553
F.3d 572, 577 (7th Cir. 2009) (applying plain error review where
defendant’s loss calculation argument on appeal was com-
pletely different from the loss calculation argument raised at
sentencing). Under plain error review, the defendant must
show (1) an error or defect that (2) is clear or obvious and (3)
affects the defendant’s substantial rights. United States v. Butler,
777 F.3d 382, 388 (7th Cir. 2015) (citing United States v. Olano,
507 U.S. 725, 736 (1993)).
Harris argues that the 2008 Guidelines edition should have
applied to his sentence and that the court erred in applying a
later edition. Notably, the 2008 edition limited the definition of
victims to those who suffered actual loss or bodily injury as a
result of the offense. See U.S.S.G. § 2B1.1(b)(2), cmt. n.1 (2008).
One year later, in 2009, the Guidelines Commission added
Application Note 4(E), which expanded “victim” to include
No. 14-1846 11
“any individual whose means of identification was used
unlawfully or without authority,” regardless of actual mone-
tary loss. See id. at U.S.S.G. § 2B1.1(b)(2), cmt. n.4(E) (2009).
This provision remains in effect to this day.
Harris is correct that under the 2008 Guidelines, the
number of victims in his case would have been less than fifty,
as many did not suffer actual loss. But later versions of the
Guidelines, which include the expanded “victim” definition,
apply. In United States v. Hallahan, 756 F.3d 962 (7th Cir. 2014),
we held if any of a defendant’s criminal conduct occurred after
a revised edition of the Guidelines becomes effective, that
edition applies to all of the defendant’s offenses without
violating the ex post facto clause. Id. at 979. Harris’ conduct
spanned from 2007 to 2010, easily encompassing the 2009
addition of Application Note 4(E). Therefore, the district court
correctly counted as victims individuals whose identification
was used without authority, in addition to those who suffered
actual monetary loss. The district court did not plainly err in
applying a four-level victim enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(2).
2. Manager or Supervisor Enhancement
The district court applied a three-level enhancement to
Harris’ sentence based on his role as a manager or supervisor
in the identity theft conspiracy. The enhancement is appro-
priate for a defendant who acts as “a manager or supervisor …
and the criminal activity involved five or more participants.”
U.S.S.G. § 3B1.1(b). Harris objected to the enhancement, so we
review the district court’s factual determinations for clear
error, United States v. Walsh, 723 F.3d 802, 807 (7th Cir. 2013);
12 No. 14-1846
whether those facts support an enhancement is reviewed
de novo, United States v. Pabey, 664 F.3d 1084, 1094 (7th Cir.
2011). We reverse a district court’s application of a Guidelines
enhancement only if we are left with a “definite and firm
conviction that a mistake has been made.” United States v.
Johnson, 489 F.3d 794, 796 (7th Cir. 2007).
In deciding to apply the enhancement, the district court
credited testimony from Harris’ co-defendants. Each testified
that Harris recruited them into the scheme and that they took
their instruction and direction from him. They also testified
that Harris would accompany them to the Bureau of Motor
vehicles to help them obtain the fraudulent identification,
which was corroborated by videotape on at least one occasion.
Additionally, Harris made travel arrangements for the co-
conspirators in furtherance of the fraud on multiple occasions.
On these facts, the district court had sufficient factual basis to
apply the manager or supervisor enhancement and did not err
in doing so.
3. Sophisticated Means and Relocation Enhancement
The sophisticated means enhancement and the relocation
enhancement are both found in U.S.S.G. § 2B1.1(b)(9) (2010).
That provision of the Guidelines provides that if the conduct
at issue involved sophisticated means or relocation, a two-level
enhancement applies. U.S.S.G. § 2B1.1(b)(9)(A) and (C) (2010).
The district court found that Harris’ conduct involved both
sophisticated means and relocation; accordingly, the court
applied U.S.S.G. § 2B1.1(b)(9)’s two-level enhancement to
Harris’ sentence. Again, we review the district court’s factual
determinations for clear error because Harris raised this
No. 14-1846 13
objection at sentencing, and we review whether those facts
support an enhancement de novo. Pabey, 664 F.3d at 1094. We
will review the district court’s reasoning as to each ground
separately.
Application Note 8(B) to U.S.S.G. § 2B1.1 states that a
scheme employs “sophisticated means” if it involves “espe-
cially complex or especially intricate offense conduct pertain-
ing to the execution or concealment of an offense.” U.S.S.G.
§ 2B1.1(b), cmt. n.8(B) (2010). The enhancement is warranted
when the defendant’s offense, viewed as a whole, shows a
greater level of planning or concealment than typical fraud of
its kind. United States v. Ghaddar, 678 F.3d 600, 602 (7th Cir.
2012) (per curiam).
Harris contends that the enhancement was not warranted
because his scheme was amateur in that he kept victims’
information in notebooks, he and co-conspirators were caught
multiple times, and he had fraudulent credit cards sent to his
home. But the district court found that Harris used multiple
aliases, obtained false state identification cards in two states to
support those aliases, and then used those aliases to obtain
fraudulent cards on victims’ accounts. The district court also
found that the scheme lasted three years and involved numer-
ous victims. See, e.g., United v. Anobah, 734 F.3d 733, 739 (7th
Cir. 2013) (affirming application of sophisticated means
enhancement where scheme spread over two states, used false
documents, false loan applications, and false documents to
support the misinformation contained in the loan applications).
Furthermore, it is irrelevant that Harris might have done
a better job concealing his fraud; in determining the appli-
cability of the sophisticated means enhancement, it does not
14 No. 14-1846
“matter that [Harris’s] own sloppiness or errors of judgment
may have contributed to the unraveling of his scheme.” United
States v. Wayland, 549 F.3d 526, 529 (7th Cir. 2008). Rather, the
level of planning or concealment in relation to typical fraud of
its kind is determinative. See Ghaddar, 678 F.3d at 602. Based on
the facts presented, the district court did not clearly err in
applying the sophisticated means enhancement.
The district court also found that Harris relocated his
scheme to another jurisdiction to evade law enforcement
within the meaning of the Guidelines. See U.S.S.G.
§ 2B1.1(b)(9)(A) (2010) (“If … the defendant relocated, or
participated in relocating, a fraudulent scheme to another
jurisdiction to evade law enforcement … increase [the defen-
dant’s offense level] by 2 levels.”). The evidence at trial
established that Harris initiated the scheme in Indiana and
eventually expanded to at least Georgia. The court credited
trial testimony suggesting Harris left Indiana for Georgia to
escape the scrutiny he was under by law enforcement; an
investigator testified that upon being served a warrant for the
search of his Atlanta apartment, Harris said, “I left Indiana.
What else did you want me to do?,” indicating a desire to
evade investigation. Once in Georgia, the scheme marched
on in the same manner as before, even involving the same co-
conspirators. Indeed, several co-defendants testified to that
effect, describing how Harris would fly them down to Georgia
in order to participate in the scheme. In sum, there was a
sufficient factual basis for the district court to impose the
relocation enhancement. Because there was sufficient factual
basis for U.S.S.G. § 2B1.1(b)(9)’s two-level enhancement under
either the sophisticated means rationale or the relocation
No. 14-1846 15
rationale, the district court did not err in applying the enhance-
ment to Harris’ sentence.
D. Unreasonable Sentence Challenge
Finally, Harris challenges his below-Guidelines sentence as
unreasonable. We review the reasonableness of a sentence for
an abuse of discretion, United States v. Turner, 569 F.3d 637, 640
(7th Cir. 2009), and note that a below-Guidelines sentence is
“presumptively reasonable against an attack by a defendant
claiming that the sentence is too high.” United States v. Liddell,
543 F.3d 877, 885 (7th Cir. 2008).
To rebut that presumption, Harris contends that his below-
Guidelines sentence was unreasonable given the disparities
between his sentence and those of his co-defendants, who
received no jail time. Section 3353 instructs a court to consider
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct.” 18 U.S.C. § 3553(a)(6). Harris argues
that his sentence violates this instruction. But, “a sentencing
difference is not a forbidden ‘disparity’ if it is justified by
legitimate considerations, such as rewards for cooperation.”
United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006)
(emphasis in original). Here, the mere differences between
Harris’ sentence and his co-defendants’ sentences do not
amount to an improper disparity. For Harris, the district court
initially calculated a final Guidelines range of 151 to 188
months, but imposed a below-Guidelines sentence of 132
months. Combined with the mandatory two years for the
aggravated identity theft, Harris was sentenced to a total of
156 months’ imprisonment. Unlike Harris, his co-defendants
16 No. 14-1846
received no jail time. But his co-defendants all cooperated
with the government, offering testimony about the scheme
at trial and against Harris. Such cooperation is typically
rewarded with lesser sentences, and results in a warranted
disparity in sentencing. See United States v. Gonzalez, 765 F.3d
732, 739–70 (7th Cir. 2014); Boscarino, 437 F.3d at 638.
In addition to the effect of the co-defendants’ cooperation,
the facts of the case support a different sentence for Harris.
Harris was the ringleader in the scheme and initiated the
illegal activity; by comparison, his co-defendants merely
followed his direction. Harris has failed to rebut the presump-
tion of reasonableness and the district court did not abuse its
discretion in imposing Harris’ sentence.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM Harris’
convictions and sentence.