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United States v. Davis

United States Court of Appeals, Eighth Circuit

November 16, 2017

United States of America Plaintiff- Appellee
v.
Candice A. Davis Defendant-Appellant

          Submitted: September 22, 2017

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before COLLOTON, BENTON, and KELLY, Circuit Judges.

          BENTON, Circuit Judge.

         Candice 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[1] sentenced her to 75 months' imprisonment. Davis appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         In her 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."

         At sentencing, Davis objected to the presentence investigation report (PSR) and the court's enhancements. She also requested a reduction for acceptance of responsibility.

         I.

         Davis 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 omitted).

         In her 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 defendants.
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].

         The 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 ...

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