United States v. Annette Sandoval , 668 F.3d 865 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1219, 10-1338 & 10-1607
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NNETTE N. S ANDOVAL, A PRIL H ICKS,
and S EAN V ANDERHACK,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 00627—David H. Coar, Judge.
A RGUED A PRIL 14, 2011—D ECIDED D ECEMBER 27, 2011
Before E ASTERBROOK, Chief Judge, and R OVNER, and
S YKES, Circuit Judges.
R OVNER, Circuit Judge. When most people think of
fencing, the combat sport played with swords comes
to mind. The defendants here, however, engaged in
fencing of the criminal sort—namely, reselling high-end
stolen goods to third parties at discounted prices. The
defendants worked together to steal credit card informa-
2 Nos. 10-1219, 10-1338 & 10-1607
tion from retail establishments and fraudulently order
merchandise that they then kept, resold, or returned
for cash or merchandise credit. Their scheme unraveled
in part because loss-prevention agents at stores such as
Neiman Marcus and Saks Fifth Avenue became sus-
picious of the schemers’ extravagant orders for next-
day delivery. Seven individuals were convicted in all,
and three defendants appeal. On appeal, they challenge
only their sentences, which vary in range from 144 down
to 21 months’ imprisonment. We consider the three de-
fendants’ arguments in turn. For the reasons stated
below, we affirm in all respects.
I.
A.
Annette Sandoval orchestrated the conspiracy.1 Through-
out 2007, she and her coconspirators stole clientele
books from high-end department stores such as Neiman
Marcus, Saks Fifth Avenue, and Bloomingdale’s. Clientele
books are maintained by store sales associates and con-
tain information on valued customers such as their
names, addresses, clothing preferences, birthdays, and,
1
The government originally returned indictments against
the defendants charging them with participating in a scheme
to defraud, see 18 U.S.C. §§ 1029, 1341-43, but later filed super-
seding indictments charging a conspiracy under § 1028A-
1029(a)-(b) (identity theft and conspiracy to commit fraud
related to access devices).
Nos. 10-1219, 10-1338 & 10-1607 3
most importantly for our purposes, credit card numbers.
Sandoval and her coconspirators would then use the
credit card numbers to order thousands of dollars worth
of merchandise. She would arrange for the merchandise
to be either held for pick-up or express shipped to
various destinations inside and outside of Illinois.
Sandoval’s coconspirators would then retrieve the stolen
merchandise. Depending on the package delivery method,
the defendants would pick it up from the store, steal it
from the porch of the delivery address (often the victim
herself), or intercept the delivery person and claim to
be the intended recipient. After retrieving the mer-
chandise, Sandoval’s coconspirators would bring it to
her. She would keep some of it herself and then do one
of two things with the rest: sell or “fence” it to third
parties at discounted prices or return it to the store for
cash or merchandise credit. For their part in the scheme
the coconspirators would receive payment or a portion
of the merchandise.
Sandoval pleaded guilty to conspiracy to commit access
device fraud, 18 U.S.C. § 1029(b)(2) (Count I), attempted
possession of access devices, id. § 1029(a)(3) (Count II),
and aggravated identity theft, id. § 1028A(a)(1) (Count
III). The only issue Sandoval raises on appeal relates to
the calculation of the number of victims for sentencing
purposes. When sentencing Sandoval, the district
court calculated her advisory guideline range using the
November 2009 version of the Sentencing Guidelines.
Under § 2B1.1(b)(2)(B), she received a four-level increase
in her offense level because her crime had more than
50 victims. This increase resulted in a guideline range of
4 Nos. 10-1219, 10-1338 & 10-1607
120-150 months. Over Sandoval’s objection about the
calculation of victims, the district court sentenced her to
120 months on Counts I and II (to run concurrently) and
added a consecutive 24-month sentence on Count III
as required by 18 U.S.C. § 1028A(b) (mandating a concur-
rent sentence for aggravated identity theft conviction).
Sandoval’s argument hinges on a change between the
guidelines in effect when she committed her crime and
the version used for sentencing purposes in 2009. Before
2009, § 2B1.1 defined a “victim” as “any person who
sustained any part of the actual loss determined under
subsection (b)(1).” U.S.S.G. § 2B1.1 cmt. n. 1. Subsection
(b)(1) referred only to monetary harm, and the applica-
tion notes explained that the “actual loss” was required
to be “pecuniary harm . . . that is monetary or that is
otherwise readily measurable in money.” Id. at cmt.
n. 3(A)(i), (iii). The guideline amendments effective in
November 2009, however, expanded the definition of
“victim” in “cases involving means of identification” to
include individuals who suffered pecuniary harm or
“any individual whose means of identification was used
unlawfully or without authority.” Id. at cmt. n.4(E)
(2009). Because the court sentenced Sandoval using the
November 2009 guidelines manual, it included in the
count of victims both the 40 stores and credit card compa-
nies that sustained actual loss as well as the 65 victims
whose credit cards were used, regardless of monetary loss.
Sandoval acknowledged at sentencing that under
the 2009 guidelines she qualified for the 4-level increase
applicable to crimes involving 50 or more victims. But
Nos. 10-1219, 10-1338 & 10-1607 5
she maintained that the district court should disregard
the guideline amendment because there was no evidence
that cardholders were actually harmed or expended
significant time or effort cancelling their credit cards.
Thus, she reasoned, applying § 2B1.1(b)(2) as amended
resulted in a sentence that was greater than necessary
under 18 U.S.C. § 3553(a). The district court rejected
Sandoval’s arguments and concluded that she did
“deserve a guideline sentence.”
Assuming the district court did not commit a pro-
cedural error, we apply the familiar abuse-of-discretion
standard to determine if its sentencing decision was
reasonable. See Gall v. United States, 552 U.S. 38, 46 (2007);
Rita v. United States, 551 U.S. 338, 363-65 (2007) (Stevens, J.,
concurring). Procedural errors include failing to cal-
culate or incorrectly calculating the guideline range,
treating the guidelines as mandatory, failing to consider
the § 3553(a) factors, or failing to satisfactorily explain
the given sentence. Gall, 552 U.S. at 51. Absent any proce-
dural error, a sentence within a properly calculated
guideline range is entitled to a rebuttable presumption
of reasonableness. Rita, 551 U.S. at 341-49. We review
the district court’s interpretation of the sentencing guide-
lines de novo. United States v. Aslan, 644 F.3d 526, 531
(7th Cir. 2011).
Perhaps in an attempt to avoid the presumption of
reasonableness that would otherwise attach to
Sandoval’s sentence, she argues that the district court
committed a procedural error by treating the guidelines
as mandatory. Specifically, she claims that the judge
6 Nos. 10-1219, 10-1338 & 10-1607
misunderstood his authority to disagree with the policy
rationale behind the amended § 2B1.1(b)(2). Citing
Kimbrough, Sandoval emphasizes the district court’s
authority to deviate from the guidelines on policy
grounds, including disagreement with the guidelines. See
Kimbrough v. United States, 552 U.S. 85, 109-10 (2007)
(district court does not abuse discretion by concluding
that guidelines’ crack/powder disparity yields “greater
than necessary” sentence under § 3553(a)).
Sandoval’s argument falls flat because it is clear from
the transcript that the district court fully understood
its authority but simply chose not to exercise it. Rightly
so. The change to § 2B1.1 is unlike the crack/powder
disparity the Court highlighted in Kimbrough. As Kim-
brough itself explains, the Sentencing Commission failed
to account for “ ‘empirical data and national experi-
ence’ ” when formulating the crack cocaine guidelines.
Id. at 109 (quoting United States v. Pruitt, 502 F.3d
1154, 1171 (10th Cir. 2007)). And the Commission itself
recognized that the crack/powder disparity produced
disproportionately harsh sentences for crack offenders.
Kimbrough, 552 U.S. at 110.
In amending the application note to § 2B1.1, the Com-
mission sought to account for the impact identity theft
type crimes have on cardholders who may not have
actually lost money. The Commission explained that such
an individual “even if fully reimbursed, must often
spend significant time resolving credit problems and
related issues, and such lost time may not be adequately
accounted for in the loss calculations under the guide-
Nos. 10-1219, 10-1338 & 10-1607 7
lines.” U.S.S.G. app. C supp., Amend. 726 (2009). This
explanation undoubtedly describes the cardholder vic-
tims here. Despite this, Sandoval insists that the gov-
ernment failed to present evidence that the cardholders
were inconvenienced by her fraud. From this she posits
that the revised guideline is inapplicable to her crime,
and that the district court should have thus disregarded
it on policy grounds. She also cites a number of cases
predating the revised definition to support her posi-
tion that a victim must occasion financial loss or some
quantifiable inconvenience. For obvious reasons, the
cases predating the change are inapplicable here. And
we reject, as the district court did, Sandoval’s assertion
that her victims were not sufficiently inconvenienced
by the process of replacing the cards that were compro-
mised by her fraud.
Nothing in the sentencing transcript supports
Sandoval’s assertion that the court felt bound by the
expanded definition of “victim.” The court listened to
Sandoval’s argument that the Sentencing Commission
ignored certain Federal Trade Commission studies when
it expanded the definition of victim. Sandoval argued
that the studies did not support the view that an
individual whose loss was fully reimbursed by the
credit card company must nonetheless spend sig-
nificant time cancelling credit cards and resolving
credit problems. After hearing her position, the court
responded that it was not “a reasonable result” to
excuse Sandoval from responsibility because “either
through the vigilance of the card holder or the vigilance
of the store or the vigilance of the credit card company[,]
8 Nos. 10-1219, 10-1338 & 10-1607
she’s thwarted” in her attempt to fraudulently use some-
one else’s credit card information. The court also pointed
out that Sandoval’s sort of fraud “undermines the very
existence” of the “credit economy” in which we now
operate. Finally, the court explicitly rejected Sandoval’s
citation to cases relying on the earlier version of § 2B1.1,
noting that there was “no indication that the [courts]
would reach the same result under the new guideline.”
Given the court’s discussion at sentencing, it is clear
that it understood Sandoval’s argument and also under-
stood that if it disagreed with the basis for the ex-
panded definition of victim, it had the authority to
deviate from the range prescribed by that guideline.
See United States v. Allday, 542 F.3d 571, 574 (7th Cir. 2009)
(fact that judge concludes after argument that ad-
visory range is reasonable “in no way demonstrates that
the court erroneously presumed the range reasonable”)
(emphasis in original); see also United States v. Curb, 626
F.3d 921, 927-28 (7th Cir. 2010) (“A district judge’s rea-
soned agreement with an advisory sentencing guideline
will not be deemed unreasonable on appeal.”). It simply
chose not to. The court did, however, sentence Sandoval
at the low end of the guideline range in recognition of
the recent change to the guidelines, stating, “[B]ecause
of the change in the guidelines, I’m going to give you
some credit for that, but I think you do deserve a guide-
line sentence in this case.”
In sum, the court considered and ultimately rejected
Sandoval’s argument that the amended § 2B1.1 should
not apply to her crime. Given the evidence in the
Nos. 10-1219, 10-1338 & 10-1607 9
record that the 65 individuals whose credit card numbers
she used each had to spend time talking to his or her
respective credit card issuer to verify the fraudulent
charges, reverse the charges, and close and reissue the
card, it was certainly reasonable for the court to con-
clude that those individuals were “victims” within the
meaning of amended § 2B1.1. And nothing else about
Sandoval’s ultimate sentence at the low end of the
properly calculated guideline range is unreasonable. See
United States v. Moreno-Padilla, 602 F.3d 802, 812-13 (7th
Cir. 2010) (court is never required to deviate from guide-
lines on policy grounds).
That leaves Sandoval’s claim that applying § 2B1.1 as
amended violated the ex post facto clause of the Con-
stitution. We held in United States v. Demaree, 459 F.3d
791 (7th Cir. 2006), that because the guidelines are advi-
sory, changes that retroactively increase the sentencing
range for a crime are not ex post facto laws. Despite
disagreement from other circuits, see United States v.
Wetherald, 636 F.3d 1315, 1321 (11th Cir. 2011); United
States v. Ortiz, 621 F.3d 82, 87 (2d Cir. 2010); United States
v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008), we
have consistently upheld Demaree, see, e.g., United States
v. Robertson, 2011 WL 5555865, at *3 (7th Cir. Nov. 16,
2011). Sandoval presents no new arguments to convince
us that we should reverse course on this issue now.
Accordingly, we affirm Sandoval’s convictions and sen-
tences.
10 Nos. 10-1219, 10-1338 & 10-1607
B.
Sean Vanderhack’s role in the scheme was to inter-
cept the merchandise upon delivery. He would arrive at
a predetermined drop-off location—sometimes residen-
tial locations and sometimes hotels—and take the pack-
ages. One of his pick-up locations was the home of
Susan and Walter Schweiger. Sandoval ordered $5,000
worth of merchandise from Saks Fifth Avenue using
Susan Schweiger’s credit card, but Saks had suspected
something and contacted the Schweigers before deliv-
ering the package. Although Saks stopped delivery on
the package, the Schweigers devised their own plan to
catch the perpetrator (Saks had declined their offer to
receive the package in an attempt to bait the thieves).
After putting a decoy box on their front porch, the
Schweigers spotted Vanderhack, who walked by the
house twice and looked at the package while talking on
a cell phone.
Both Susan and Walter Schweiger detailed their en-
counter at Vanderhack’s bench trial. After Susan testified
but before Walter’s testimony, Vanderhack approached
the Schweigers in the courthouse hallway and attempted
to justify his presence in their neighborhood. He said
he was there to meet a friend and told them that stealing
packages from porches was not his “thing.” Susan later
reported feeling intimidated during the exchange by
Vanderhack’s size and stance. Walter, however, was
unmoved by Vanderhack’s story: he called Vanderhack
a liar and proceeded to testify as planned.
Vanderhack was convicted of one count of conspiracy
to commit access device fraud, 18 U.S.C. § 1029(b)(2),
Nos. 10-1219, 10-1338 & 10-1607 11
and one count of theft of goods transported in interstate
commerce, id. § 659. The district court sentenced him
to concurrent sentences of 21 months’ imprisonment
on the two counts. Based on the hallway exchange
with the Schweigers, Vanderhack’s guideline range in-
cluded a two-level increase for obstruction of justice.
See U.S.S.G. § 3C1.1. We review the adequacy of the
district court’s obstruction findings de novo and any
underlying factual findings for clear error. United States
v. Price, 516 F.3d 597, 606-07 (7th Cir. 2008).
Vanderhack argues on appeal that although his
exchange with the Schweigers was “just plain stupid,” it
was not obstructive conduct as contemplated by
§ 3C1.1. Section 3C1.1 applies when a defendant will-
fully attempts to obstruct justice with obstructive
conduct relating to the offense of conviction. The appli-
cation notes explain that obstructive conduct includes
“threatening, intimidating, or otherwise unlawfully
influencing” a witness or “attempting to do so.” U.S.S.G.
§ 3C1.1 cmt. n. 4(a). The 2-point adjustment is warranted
whether or not a defendant’s attempt to obstruct justice
succeeds. United States v. Strode, 552 F.3d 630, 635 (7th
Cir. 2009).
We agree with Vanderhack that his conduct was indeed
“stupid,” but the district court was correct to conclude
that it was also obstructive. Vanderhack suggests that his
comments to the Schweigers do not evince the requisite
specific intent to influence their testimony. See United
States v. Martinez, 650 F.3d 667, 670 (7th Cir. 2011) (“[W]e
have interpreted § 3C1.1’s use of the word “willfully” to
12 Nos. 10-1219, 10-1338 & 10-1607
require a specific intent to obstruct justice.”). He relies
on the fact that Susan Schweiger had already testified
and that after their encounter Walter testified as
previously planned. But the fact that Walter did not feel
intimidated by Vanderhack and went forward with
his testimony does not undercut the possibility that
Vanderhack wanted to influence his testimony. Al-
though Vanderhack characterizes his comments standing
alone as innocuous, the statements must be considered
in context. Frankly, if not to influence Walter’s testimony,
it is difficult to imagine what other reason Vanderhack
would have for approaching the Schweigers outside of
the courtroom directly before Walter’s testimony and
trying to explain away his presence in their neighbor-
hood. Indeed, other than “stupidity,” Vanderhack himself
fails to offer a plausible non-obstructive motive for his
encounter. Given the facts, the district court certainly did
not err by concluding that Vanderhack approached the
Schweigers with the specific intent to influence Walter’s
testimony against him. The 2-level adjustment under
§ 3C1.1 was therefore warranted. See United States v.
House, 551 F.3d 694, 699 (7th Cir. 2009) (“The bare attempt
to persuade a witness not to offer otherwise truthful
testimony would indeed be an attempt to unlawfully
influence the outcome of the proceeding.”).
C.
That leaves April Hicks. She acted as a lookout for
others stealing clientele books and also helped pick up
the packages of fraudulently ordered merchandise. Hicks
Nos. 10-1219, 10-1338 & 10-1607 13
entered a plea declaration to one count of participating
in a scheme to defraud. See 18 U.S.C. § 1342. (Hicks
pleaded guilty before the government filed its super-
seding indictment changing the § 1342 charge to a con-
spiracy charge under § 1029(a)(2).) Before sentencing,
Hicks cooperated with government agents in their in-
vestigation against her co-schemers. She contacted the
agents to tip them off to a call she received from Sandoval
directing her to travel to Highland Park, Illinois, with
Vanderhack to pick up a package. She also wore a wire
and recorded several conversations with Sandoval that
were played at Vanderhack’s trial. Finally, she testified
before the grand jury and also at Vanderhack’s trial. In
light of her cooperation with the government, the court
sentenced her to 40 months’ imprisonment—a sentence
well under the 57-71 month range dictated by her
offense level of 18 and significantly, her criminal
history category VI.2
Hicks argues on appeal that when selecting her sen-
tence the district court failed to fully account for her
personal circumstances and overemphasized what she
claims was an inflated criminal history category. Hicks’s
extensive criminal history consisted of a steady string
of retail theft and other convictions that she received
for the most part prior to 2002—during the years when
2
The court also took into account the fact that if Hicks had
pleaded guilty after the government’s theory of the offense
changed from a scheme to a conspiracy, she would have had
an offense level of 17 instead of 18.
14 Nos. 10-1219, 10-1338 & 10-1607
she was regularly using heroin. At sentencing, she
argued that she had reformed dramatically in recent
years. Beginning in August 2007, she had become and
remained drug free. She had also attended college while
caring singlehandedly for her two young children. The
court also heard from Hicks’s employer, a quadriplegic
who attested via letter to her trustworthiness and com-
mitment and dedication to her children. And she main-
tained that other defendants with lesser roles than she
had received shorter sentences. Finally, she emphasized
her cooperation and the extraordinary needs of her chil-
dren, who would be left with no one to care for them if
she was imprisoned. In light of all this, Hicks asserts
that in fashioning its sentence the district court focused
on her extensive criminal history to the exclusion of
the other salient § 3553(a) factors—essentially elevating
the criminal history guideline to mandatory status.
Given her below-guidelines sentence, Hicks faces an
uphill battle on appeal. See United States v. Poetz, 582
F.3d 835, 837 (7th Cir. 2009) (“We have expressed skepti-
cism about defense arguments that a below-guidelines
sentence is unreasonable.”). Unfortunately, her argu-
ments fall short of demonstrating either that the court
treated the guidelines as mandatory or that it failed to
consider the applicable § 3553(a) factors. Indeed, the
transcript reveals that the court entertained and re-
sponded to each of Hicks’s arguments. As for the age
of her convictions, the court pointed out that the
criminal history calculation did not include her num-
erous convictions outside the 10-year range prescribed
by the guidelines. In rejecting Hicks’s argument that the
Nos. 10-1219, 10-1338 & 10-1607 15
convictions before 2002 were “too old,” the court stated
its belief that the 10-year line drawn by the guidelines
adequately accounted for old convictions. See § 4A1.2(e)
(excluding prior convictions more than 10 years old
that resulted in a sentence of under one year imprison-
ment). The court also expressed doubt that Hicks’s drug
addiction was entirely to blame for her numerous
theft convictions, stating that it was not particularly
persuasive that “these [convictions] are simply old and
that intermittently she stopped using drugs and then
went back and the crimes started again.” And the
court did account for her cooperation by sentencing
her below the guidelines range. The court also acknowl-
edged the difficult situation Hicks faced with her
children, pointing out that “the impact on families when
defendants are sent to prison” was “sinful.” Nonetheless,
the court concluded that it should not be asked to “bail
her out of the consequences of her own actions,”
pointedly referring to “the old saying if you can’t do
the time, don’t do the crime.” The court noted that short
of giving a “get out of jail free card to single parents,”
the “terrible circumstance” occasioned by imprisoning
a child’s only parent could not be avoided.
Moreover, after listening and responding to Hicks’s
arguments, the court continued the sentencing for two
days in order to think about her arguments before im-
posing a sentence. When it pronounced its sentence,
the court explained that it had attempted to fashion a
sentence that would be minimally disruptive for the
children, but had concluded that a “serious” sentence
was necessary “under the circumstances.” The court also
16 Nos. 10-1219, 10-1338 & 10-1607
extensively considered Hicks’s claim that her recent
reforms should override her criminal history. Ultimately
though, the court determined that it should not “relieve”
Hicks of “the consequences of prior criminal behavior.”
Contrary to Hicks’s assertions, the court’s unwillingness
to disregard her past does not demonstrate that it failed
to consider her as an individual as required under
§ 3553(a). Indeed, there is every indication from the
transcript that the court considered Hicks’s personal
history and circumstances when fashioning the sentence
it believed best served the goals of § 3553(a). There is
also no evidence that the court treated the guideline
range as mandatory, particularly given that the court
ultimately imposed a sentence 17 months below the
advisory guideline range.
Nor did the court ignore Hicks’s sentencing disparity
arguments. Hicks pointed out at sentencing that code-
fendant Kia Wright received only a 24-month sentence,
despite what Hicks claimed was a larger role in the
scheme. However, as the district court recognized, the
discrepancy is easily explained by the fact that Wright
had no criminal history points compared to Hicks’s
20 points—a Category I versus a Category VI for sen-
tencing purposes. In any event, Hicks’s argument does
not get off the ground given our refusal to entertain
sentencing challenges based on disparities between
codefendants’ sentences. See United States v. Omole, 523
F.3d 691, 700 (7th Cir. 2008) (“[T]his court refuses to
review the discrepancy between sentences of code-
fendants as a basis for challenging a sentence.”). In
sum, the record reveals that the court considered all
Nos. 10-1219, 10-1338 & 10-1607 17
of Hicks’s arguments and arrived at the sentence it be-
lieved best served the goals of § 3553(a). Although the
court could have chosen to overlook Hicks’s past
criminal behavior in light of her recent positive changes,
it was certainly not unreasonable for it to reject such
an outcome. See United States v. Moreno-Padilla, 602 F.3d
802, 814 (7th Cir. 2010) (“[T]he decision to follow the
Sentencing Guidelines is within the court’s discretion
just as the decision to reject them is.”).
II.
For the foregoing reasons, we A FFIRM the judgments
of the district court in all respects.
12-27-11