Submitted: September 22, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON, BENTON, and KELLY, Circuit Judges.
BENTON, Circuit Judge.
A. Davis pled guilty to wire fraud, use of unauthorized
access devices, and aggravated identity theft in violation of
18 U.S.C. §§ 1343, 1029(a)(2), 1029(b)(1),
1029(c)(1)(A)(i), and 1028A(a)(1). The district
court sentenced her to 75 months'
imprisonment. Davis appeals. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
plea agreement, Davis stipulated: "Beginning on or about
November 1, 2013 and continuing to on or about December 1,
2015, in the Eastern District of Missouri, " Davis and
her co-defendant, Stacey Wilson, "recruited individuals
to open checking accounts at U.S. Bank with nominal amounts
of money." "They also recruited other individuals
who had existing checking accounts with debit cards at other
federally insured institutions." In total, Davis and
Wilson "recruited more than 15 individuals to open
accounts" or "provide their own bank account
information." The recruited individuals provided Davis
and Wilson "with their debit cards and checks issued on
their accounts." Using those checks (and other stolen
ones), Davis and Wilson drafted and deposited "checks in
amounts from $195.00 to $2, 300.00." They then withdrew
the deposited funds through ATMs, counter withdrawals, and
debit card purchases. "As a result of the scheme,
Wilson, Davis, and others obtained, and attempted to obtain,
more than $79, 000.00 in funds . . . between September 1,
2013 and December 1, 2015."
sentencing, Davis objected to the presentence investigation
report (PSR) and the court's enhancements. She also
requested a reduction for acceptance of responsibility.
contends the district court erred in overruling her
objections to the PSR. "For purposes of sentencing,
" this court reviews factual findings for "clear
error, applying the preponderance-of-the-evidence
standard." United States v. Atterberry, 775
F.3d 1085, 1090 (8th Cir. 2015). A district court cannot base
a sentence upon disputed, unproven allegations in the PSR.
See United States v. Richey, 758 F.3d 999, 1002 (8th
Cir. 2014). "A presentence report is not evidence and is
not a legally sufficient basis for making findings on
contested issues of material fact."
Id. (emphasis added) (internal quotation marks
written objections to the PSR, Davis contested the statement
she recruited more than 50 participants. The government then
produced a list of 51 individuals who provided their account
information to Davis and Wilson. At sentencing, Davis did not
raise the objection, but she does now. This court need not
determine whether she properly preserved the objection
because the issue is not material to any sentencing
enhancement. United States v. Mitchell, 825 F.3d
422, 425 (8th Cir. 2016) (holding the district court must
hold a hearing "when a defendant disputes material facts
in his PSR").
Three sections of the PSR reference "fifty
individuals" or "fifty participants":
13. As part of the fraudulent scheme, Stacey Wilson and
Candice A. Davis recruited approximately
fifty individuals to open checking and savings accounts with
U.S. Bank using fraudulent and stolen checks for the initial
deposits. Investigation determined one of the victims was
mentally disabled (B.J.) and several others were homeless.
Wilson and Davis drove the
recruited individuals to onsite and instore U.S. Bank
branches as these locations offered instant debit cards and
checks. All debit cards and checks were subsequently provided
to the defendants. Investigation determined
the recruited individuals received a minimal payment for
setting up the accounts and depositing the fraudulent or
stolen checks into the accounts for the
40. Specific Offense Characteristics: As the
offense involved sophisticated means, two-levels are added.
USSG §2B1.1(b)(10)(C). Specifically, the defendants
recruited more than fifty participants, was repeated five
times, and occurred for more than one year.
42. Adjustment for Role in the Offense: The
defendant was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more
participants or was otherwise extensive;
therefore, three levels are added. USSG §3B1.1(b). In
the instant offense, Stacey Wilson brought Candice into the
criminal organization. Throughout the offense, Davis helped
Wilson recruit approximately fifty individuals to open
checking and savings accounts with U.S. Bank accounts. After
the accounts were created, the defendants deposited
fraudulent and stolen checks into the bank accounts and
withdrew the inflated funds prior to the accounts being
closed. [The defendant and government disagree[ ]
[about] this enhancement].
reference to "fifty individuals" in paragraphs 13
and 42 is not material to the § 3B1.1(b) enhancement
because the enhancement requires only that the defendant be
an organizer or leader of a criminal activity that involves
"five or more participants." Davis stipulated it
involved 15 participants. The reference to "fifty
participants" in paragraph 40 is not material to the
§ 2Bl.l(b)(10)(C) enhancement because Davis stipulated
to the enhancement in the plea agreement:
The parties agree that 2 levels should be added pursuant to
Section 2Bl.l(b)(10)(C) because the offense otherwise
involved sophisticated means and the defendant intentionally
engaged in or caused ...