United States v. Kehinda Mitchell , 914 F.3d 581 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1600
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kehinda Mitchell
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: November 12, 2018
Filed: January 23, 2019
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Before BENTON, BEAM, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
On November 21, 2017, Appellant Kehinda Mitchell pled guilty to three
counts: (1) Conspiracy to Commit Offenses Against the United States, (2) Interstate
Transportation of a Stolen Vehicle, and (3) Fraudulent Use of Access Devices. The
district court1 sentenced Mitchell to 41 months’ imprisonment to be followed by three
years of supervised release. Mitchell now appeals, asserting that (1) the district court
erred by applying a two-level sophisticated-means enhancement under
§2B1.1(b)(10)(C) of the United States Sentencing Guidelines Manual (“Guidelines”
or “U.S.S.G.”), (2) the district court committed procedural error by failing to consider
the 18 U.S.C. § 3553(a) sentencing factors and to adequately explain its reasons for
the sentence, and (3) his high end of the Guidelines range sentence is substantively
unreasonable.
I. Background
On December 5, 2015, Mitchell and an unindicted co-conspirator, as loan co-
applicants, purchased a new 2015 Dodge Durango for $56,234.58 from an automobile
dealership in Platteville, Wisconsin. To obtain the loan, Mitchell fraudulently used
the Social Security number of another individual and falsely claimed he earned
$7,500 per month as the director of a dental center. In the months following, Mitchell
and his co-defendants, Earl Douglas Chapman and Julius Rishawn Livingston,
obtained the identifying information of at least twenty-four individuals.
Mitchell, Chapman, Livingston, and one other individual traveled from Illinois
to the St. Louis, Missouri, area in the Durango on March 8, 2016. They possessed
counterfeit Illinois driver’s licenses; identifying information of other individuals,
including names, dates of birth, Social Security numbers, and credit/debit account
numbers; and fraudulent credit cards bearing the names and account numbers of
others. The co-defendants also possessed merchandise and gift cards that they
fraudulently purchased in Columbus, Ohio; Charlotte, North Carolina; and Southfield,
Michigan, between February 21, 2016, and March 2, 2016.
1
The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
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On the day of their arrival in the St. Louis area, the men traveled to three Target
stores. Chapman and Livingston used fraudulent credit cards to purchase Target gift
cards and merchandise exceeding $5,750 in value. Livingston also unsuccessfully
attempted to purchase two iPads at one of the Target stores. That same day, Chapman
applied for a Saks Fifth Avenue line of credit in Frontenac, Missouri, using the
personal information of victim J.M. and a counterfeit driver’s license bearing J.M.’s
information and Chapman’s photo. Chapman successfully purchased merchandise
totaling $2,047.90.
On March 9, 2016, Chapman applied for a Neiman Marcus line of credit at its
store in Frontenac, again using J.M.’s information and the same counterfeit license.
Using the Neiman Marcus line of credit and a fraudulent USAA Mastercard,
Chapman purchased merchandise valuing $7,257.23 and left in the Durango.
That evening, the men drove to Town and Country, Missouri, and returned to
one of the Target stores. Chapman attempted to use two fraudulent credit cards to
purchase Target gift cards, iPads, and a package of T-shirts, but each card was
declined twice. Aware that a fraud was in progress, a Target loss prevention associate
contacted the Town and Country Police Department. Meanwhile, Chapman went to
the electronics section of the store and attempted to use another fraudulent credit
card. The card was initially declined, but Chapman successfully purchased $1,861.31
worth of merchandise on the second swipe. As the defendants were driving away
from the store, officers arrived on scene. The officers stopped the Durango in the
parking lot of a nearby grocery store and arrested the defendants. Inside the Durango
and the defendants’ hotel room in downtown St. Louis, officers located several
counterfeit driver’s licenses, fraudulent credit cards, gift cards, and items of
merchandise purchased with the fraudulent credit cards.
Mitchell pled guilty to the three counts and proceeded to sentencing on March
8, 2018. After hearing from counsel, the court found Mitchell’s base offense level
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was 6. The court applied enhancements for the amount of loss, number of victims,
the possession/use/production/trafficking of an authentication feature, and obstruction
of justice. Relevant here, the court also applied (over defense objection) a two-level
enhancement for sophisticated means under U.S.S.G. §2B1.1(b)(10)(C). The court
denied a four-level minimal-participant reduction and a two-level reduction for
acceptance of responsibility. The court found the total offense level was 20.
Mitchell received one criminal history point for a 2014 theft by deception -
false impression conviction in Allegheny County, Pennsylvania. That conviction
involved Mitchell’s purchase of a Mercedes valued at $147,435.88 in which he used
a stolen Social Security number. Mitchell’s history also included a conviction for
first-degree murder in 1995 in Cook County, Illinois. He served fifteen years of a
thirty-year sentence before being paroled. After his release from prison, he was
exonerated. With one criminal history point, Mitchell’s criminal history category was
I.
The court calculated an advisory Guidelines range of 33 to 41 months.
Mitchell moved for a downward variance for the following reasons: (1) his “good
character, limited criminal history, and unblemished personal history” show “he poses
no risk of recidivism,” which was attested to in a letter from a jail supervisor; (2)
Mitchell’s role in the offense was limited; and (3) he unjustly lost fifteen years of his
life due to the wrongful murder conviction. The government moved for an upward
variance.
After Mitchell spoke in allocution, the district court pronounced a sentence of
41 months’ imprisonment:
After reviewing the Presentence Report, hearing and ruling objections
to the Presentence Report, reviewing the Defendant’s sentencing
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memorandum and letters of support and the Government’s motions and
objections to the sentencing – Defendant’s Sentencing Memorandum.
The instant offense involved the Defendant conspiring with two others
to fraudulently obtain merchandise and gift cards by using the personal
identification and credit information of 24 individuals. The Defendant
is most culpable as he fraudulently obtained an automobile using the
Social Security Number of a minor child in order to transport the
Defendants during the offense.
The Defendant’s criminal history includes one prior conviction for theft
by deception.
The Defendant is the father to two minor children.
As such, in light of the advisory guidelines range and the provisions of
18 USC Section 3553(a), a sentence of 41 months’ imprisonment, which
represents the high end of the guideline range, I believe, would be
sufficient but not greater than necessary to comply with the purposes set
forth in 18 USC Section 3553(a).
...
And just so you will know, I’ve considered what has happened to you
in the past, and that’s one . . . reason why I didn’t vary upward at the
request of Ms. Berry, but I don’t believe any of that stuff about this is
somebody else’s fault. You were behind this mess, and today is the first
time that I’ve ever heard you almost admit it, but you couldn’t even
admit that. So that’s why you didn’t get a higher sentence.
Mitchell timely appealed his sentence.
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II. Discussion
A. Sophisticated-Means Enhancement
Mitchell argues the district court erred when it applied a two-level
enhancement for sophisticated means under U.S.S.G. §2B1.1(b)(10)(C). We review
a district court’s “factual finding of whether a . . . scheme qualifies as ‘sophisticated’
for clear error.” United States v. Jones, 778 F.3d 1056, 1059 (8th Cir. 2015) (ellipses
in original) (quoting United States v. Huston, 744 F.3d 589, 592 & n.2 (8th Cir.
2014)). The finding “will stand ‘unless the decision is unsupported by substantial
evidence, is based on an erroneous view of the applicable law, or in light of the entire
record, we are left with a firm and definite conviction that a mistake has been made.’”
Id. (quoting United States v. Walker, 688 F.3d 416, 420–21 (8th Cir. 2012)).
The Guidelines provide for a two-level enhancement when the offense
“involved sophisticated means and the defendant intentionally engaged in or caused
the conduct constituting sophisticated means.” U.S.S.G. §2B1.1(b)(10)(C). The
Application Note defines “sophisticated means” as “especially complex or especially
intricate conduct pertaining to the execution or concealment of an offense.” U.S.S.G.
§2B1.1 cmt. n.9(B). “‘Sophisticated means need not be highly sophisticated,’ and the
adjustment is ‘proper when the offense conduct, viewed as a whole, was notably more
intricate than that of the garden-variety offense.’” United States v. Gaye, 902 F.3d
780, 791 (8th Cir. 2018) (quoting United States v. Norwood, 774 F.3d 476, 480 (8th
Cir. 2014) (per curiam)). “Repetitive and coordinated conduct, though no one step
is particularly complicated, can be a sophisticated scheme.” United States v. Melton,
870 F.3d 830, 843 (8th Cir. 2017) (quoting United States v. Jenkins, 578 F.3d 745,
751 (8th Cir. 2009)). “[T]he sophistication of the offense conduct is associated with
the means of repetition, the coordination required to carry out the repeated conduct,
and the number of repetitions or length of time over which the scheme took place.”
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Gaye, 902 F.3d at 791 (alteration in original) (quoting United States v. Laws, 819
F.3d 388, 393 (8th Cir. 2016)).
We conclude there was sufficient evidence in the sentencing record for the
district court to find the offense involved sophisticated means. Taken alone, the
individual activities that Mitchell and his co-defendants engaged in were not
extraordinarily intricate or high-tech—and sometimes were unsuccessful—but the
scheme as a whole was sufficiently sophisticated. To acquire a vehicle, which
allowed the defendants to travel to multiple states to make fraudulent purchases,
Mitchell used a fraudulently obtained Social Security number coupled with fabricated
employment information. During the following months, the defendants obtained the
identifying information of twenty-four individuals, counterfeit driver’s licenses, and
credit cards embedded with the victims’ account information. Between February 21,
2016, and March 2, 2016, they traveled to three cities where they successfully used
fraudulent credit cards to purchase Target gift cards without detection. During their
two-day shopping spree in St. Louis in March 2016, the defendants fraudulently
purchased more than $16,000 worth of merchandise and gift cards. In total, Mitchell
was tied to sixteen fraudulent credit card transactions in five states between February
2016 and May 2016.2
This “repetitive and coordinated conduct” of Mitchell and his co-defendants
over the course of several months amounted to a sophisticated scheme. United States
v. Borders, 829 F.3d 558, 570 (8th Cir. 2016) (quoting United States v. Fiorito, 640
F.3d 338, 351 (8th Cir. 2011)) (holding that the district court did not clearly err in
applying a sophisticated-means enhancement where the defendant was connected to
several events over a period of time, the scheme involved thousands of dollars, and
2
The defendants continued their fraudulent scheme after Mitchell was released
from custody on March 10, 2016. They were arrested in California on April 5, 2016,
after possessing and using fraudulent credit cards in that state. They also attempted
to fraudulently purchase two more vehicles in Michigan in May 2016.
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the defendant undertook multiple steps that were necessary for the scheme’s success).
The district court did not clearly err in imposing the two-level enhancement.
B. Procedural Reasonableness
Mitchell argues the district court committed procedural error by failing to
consider the sentencing factors listed in 18 U.S.C. § 3553(a) and to adequately
explain the sentence. Because Mitchell did not object to these alleged procedural
errors during sentencing, we review for plain error. United States v. Thomas, 790
F.3d 784, 786 (8th Cir. 2015) (citing United States v. Miller, 557 F.3d 910, 916 (8th
Cir. 2009)).
We conclude the district court did not err, let alone plainly err. During its
pronouncement of the sentence, the district court referenced the Presentence
Investigation Report, the parties’ sentencing memoranda, and letters in support of
Mitchell; discussed the nature of the offense, Mitchell’s role in the offense, and his
criminal history; mentioned § 3553(a) three times; and explained that Mitchell’s prior
wrongful conviction provided reason not to vary upward as the government had
requested. The record establishes the court considered the § 3553(a) factors and
adequately explained the sentence.
C. Substantive Reasonableness
Mitchell also contends his 41-month sentence is substantively unreasonable.
He argues the district court improperly gave great weight to negligible aggravating
factors that were already accounted for by the Guidelines and dismissed his
mitigation evidence as merely a reason for not varying upward. We review the
substantive reasonableness of a sentence “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). A district court abuses its
discretion when it “(1) fails to consider a relevant factor that should have received
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significant weight; (2) gives significant weight to an improper or irrelevant factor; or
(3) considers only the appropriate factors but in weighing those factors commits a
clear error of judgment.” United States v. Washington, 893 F.3d 1076, 1080 (8th Cir.
2018) (quoting United States v. Marshall, 891 F.3d 716, 719 (8th Cir. 2018) (per
curiam)). A sentence that falls within the Guidelines range is presumptively
reasonable. Id. (citing United States v. Meadows, 866 F.3d 913, 920 (8th Cir. 2017)).
The district court did not engage in impermissible double counting by using the
same conduct to enhance his offense level and to justify a possible upward variance.
The case relied on by Mitchell, United States v. Peck, 496 F.3d 885 (8th Cir. 2007),
is inapposite. Peck prohibits the application of “one part of the Guidelines . . . to
increase a defendant’s punishment on account of a kind of harm that has already
been . . . accounted for by application of another part of the Guidelines.” Id. at 890(second ellipses in original) (quoting United States v. Jones, 440 F.3d 927, 929 (8th
Cir. 2006)). In the present case, the district court relied on the same conduct that
affected the Guidelines range as justification for an upward variance were it not for
Mitchell’s prior wrongful conviction. We have explained that “factors that have
already been taken into account in calculating the advisory guideline range . . . can
nevertheless form the basis of a variance.” United States v. Chase, 560 F.3d 828, 831
(8th Cir. 2009) (citing United States v. White, 506 F.3d 635, 644 (8th Cir. 2007)).
The district court did not make a clear error of judgment when weighing the
aggravating and mitigating factors. The court decided that the nature of the offense
(specifically the number of victims), Mitchell’s role in the offense, his pattern of
fraudulent behavior since he was paroled, and his failure to completely own up to his
behavior outweighed the injustice done to him in the past and the rehabilitative
potential expressed by the jail supervisor. We grant district courts “wide latitude to
weigh the § 3553(a) [factors] in each case and assign some factors greater weight than
others in determining an appropriate sentence.” Washington, 893 F.3d at 1080–81
(quoting United States v. Ritchison, 887 F.3d 365, 370 (8th Cir. 2018)). Mitchell has
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not overcome the presumption of reasonableness that we afford to within-Guidelines
sentences.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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