United States v. Douglas Keith Cord ( 1996 )

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No. 95-2651
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Douglas Keith Cord, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 6, 1996
Filed: February 12, 1996
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Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
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PER CURIAM.
Douglas Keith Cord challenges the 21-month sentence imposed by
the District Court1 after he pleaded guilty to conspiring to commit
wire fraud, in violation of 18 U.S.C. §§ 371, 1343 (1994). We
affirm.
In August 1994 Cord started a fraudulent telemarketing
business, Midwest Consultants Division (Midwest), in Davenport,
Iowa. Midwest telephoned its victims and told them they had won a
substantial prize, but would need to send a "redemption fee" before
the prize could be awarded. Midwest defrauded thirty-four victims,
most of whom were elderly women, of almost $61,000.
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The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
Cord's presentence report included a two-level increase under
U.S.S.G. § 2F1.1(b)(2) (1994) for more than minimal planning, and
a two-level aggravating-role increase under U.S.S.G. § 3B1.1(c)
(1994), because Cord organized, led, managed, or supervised
criminal activity involving less than five participants. Cord
objected, arguing that the aggravating-role enhancement double
counted his "organizational activities" in starting Midwest, which
were taken into account by the more-than-minimal planning
adjustment.
At sentencing, an FBI special agent testified about Cord's
activities in starting and operating Midwest. The government
argued that the evidence supported both increases, and that
applying both increases did not constitute double counting, because
they addressed different aspects of Cord's conduct. Cord responded
that "essentially the same acts" and the "same facet of conduct"
were being used to support both increases. The District Court
rejected Cord's argument, and sentenced him to 21 months
imprisonment and three years supervised release.
On appeal Cord maintains that, because "there [was]
indistinguishable factual overlap," the District Court double
counted the same conduct when it applied both increases, and thus
violated Cord's due process rights and the rule of lenity. Cord
relies on United States v. Chichy, 1 F.3d 1501, 1505-07 (6th Cir.),
cert. denied, 114 S. Ct. 620 (1993); United States v. Romano, 970
F.2d 164, 167 (6th Cir. 1992); and United States v. Werlinger, 894
F.2d 1015 (8th Cir. 1990).
We review de novo the District Court's application of the
guidelines. United States v. Reetz, 18 F.3d 595, 600 (8th Cir.
1994). We conclude that Cord's argument fails, based on our
decision in United States v. Willis, 997 F.2d 407, 418-19 (8th Cir.
1993), cert. denied, 114 S. Ct. 704 (1994), where we held that the
District Court's imposition of increases under sections 2F1.1(b)(2)
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and 3B1.1(a) did not amount to impermissible double counting. See
also United States v. Stevenson, 68 F.3d 1292, 1294-95 (11th Cir.
1995) (rejecting double-counting challenge to application of
§§ 2F1.1(b)(2) and 3B1.1(b)); United States v. Smithson, 49 F.3d
138, 145 (5th Cir. 1995) (rejecting double-counting challenge to
application of §§ 2F1.1(b)(2) and 3B1.1(c)).
Although Romano and Chichy (which applied Romano) reached a
different conclusion, Cord's reliance on these decisions is
misplaced, as we explicitly rejected the Romano reasoning in
Willis, 997 F.2d at 418-19. Werlinger, 894 F.2d at 1017-19, is
inapposite, as it addressed the propriety of cumulative increases
for more than minimal planning and obstruction of justice.
Moreover, as Cord recognizes, the Sentencing Commission has since
added commentary to the Guidelines directing District Courts to
apply cumulatively the increases under sections 2F1.1(b)(2) and
3B1.1. See U.S.S.G. § 1B1.1, comment. (n.4) (effective November 1,
1993, see U.S.S.G. Apps. B & C Amend. No. 497); see also Stevenson,
68 F.3d at 1295 (application note 4 was Commission's response to
Romano); United States v. Harris, 41 F.3d 1121, 1123 (7th Cir.
1994) (application note 4 only clarified existing policy). Cord's
argument regarding "indistinguishable factual overlap," even if
true, is unavailing. See id. at 1124.
We also note that the District Court distinguished between the
different aspects of Cord's conduct in applying the two increases.
See Willis, 997 F.2d at 419 (noting that § 2F1.1(b)(2) applies when
crime evidenced planning and forethought, while § 3B1.1 addresses
additional culpability inherent in leading or organizing criminal
activity). We agree with the District Court that evidence in the
record supports both increases, including Cord's conduct in
personally calling a number of victims more than once, see U.S.S.G.
§ 1B1.1, comment. (n.1(f)) (more than minimal planning present in
case involving repeated acts over time), and his conduct in setting
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up the business and claiming a larger share of the proceeds than
his associates, see U.S.S.G. § 3B1.1, comment. (n.4) & (backg'd.).
Accordingly, the judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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