Filed: Nov. 01, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 11-1-2006 USA v. Wilson Precedential or Non-Precedential: Non-Precedential Docket No. 05-3883 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Wilson" (2006). 2006 Decisions. Paper 253. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/253 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 11-1-2006 USA v. Wilson Precedential or Non-Precedential: Non-Precedential Docket No. 05-3883 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Wilson" (2006). 2006 Decisions. Paper 253. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/253 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-1-2006
USA v. Wilson
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3883
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Wilson" (2006). 2006 Decisions. Paper 253.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/253
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3883
UNITED STATES OF AMERICA
v.
MICHAEL WILSON,
a/k/a MIZ
Michael Wilson,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cr-00580-3)
District Judge: Honorable Petrese B. Tucker
Argued on September 28, 2006
Before: RENDELL, ROTH and GIBSON*, Circuit Judges.
(Opinion Filed: November 1, 2006)
Johanna E. Markind, Esquire (ARGUED)
1500 Walnut Street, Suite 1100
Philadelphia, PA 19102
Counsel for Appellant
*Honorable John R. Gibson, Senior Eighth Circuit Judge, sitting by designation.
Patrick L. Meehan, Esquire
United States Attorney
Robert A. Zauzmer, Esquire
Assistant United States Attorney
Chief of Appeals
Mary E. Crawley, Esquire
Assistant United States Attorney
Paul G. Shapiro, Esquire (ARGUED)
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION
ROTH, Circuit Judge:
On October 13, 2004, Michael Wilson and twelve other individuals were indicted on
one charge of conspiracy to commit bank fraud and two charges of bank fraud, in violation
of 18 U.S.C. § 371 and 1344, respectively. Wilson provided an extensive confession and,
on April 4, 2005, pleaded guilty to the three counts. He was not party to any plea agreement.
The District Court held a sentencing hearing on August 3, 2005, at which it determined that
Wilson fell within a Sentencing Guidelines range of 84 to 105 months imprisonment.
Departing downward, the District Court imposed a sentence of 72 months imprisonment,
three years supervised released, restitution of $430,000, and a special assessment of $300.
Wilson appeals, challenging this sentence as unreasonable. For the reasons set forth below,
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we affirm the sentence.
I. Jurisdiction and Standard of Review
The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have
jurisdiction to review Wilson’s sentence for reasonableness under 18 U.S.C. § 3742(a)(1) and
28 U.S.C. § 1291. In reviewing the reasonableness of Wilson’s sentence, we look to whether
the District Court considered the factors listed in 18 U.S.C. § 3553(a). United States v.
Cooper,
437 F.3d 324, 329 (3d Cir. 2006). We exercise plenary review over the District
Court’s legal interpretation of the Sentencing Guidelines and review its factual findings for
clear error. United States v. Irvin,
369 F.3d 284, 286 n.2 (3d Cir. 2004).
II. Background
From July 2002 until February 2003, Wilson took part in a scheme to defraud Citizens
Bank and PNC Bank by recruiting individuals to open sham bank accounts, then drawing
funds from these accounts. The leader of the conspiracy was David Bernard; Wilson, along
with four other individuals, assisted Bernard as recruiters. Under the overall scheme, the
recruiters found individuals in need of money, induced them to open bank accounts in their
own names, brought them to the banks, and then retained their automatic teller machine cards
and passcodes. Once in control of these accounts, the recruiters would use them to
fraudulently obtain money from the banks, either by depositing worthless checks and
withdrawing the funds before the banks discovered the fraud, or by making ATM
withdrawals during hours when the banks were unable to verify whether the accounts
contained sufficient funds. All told, the conspirators managed to defraud Citizens Bank of
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approximately $430,207 and PNC Bank of approximately $171,024.
On October 13, 2004, Wilson provided a written confession in which he catalogued
much of his involvement in the conspiracy. He admitted to driving individuals to Citizens
Bank to open accounts, averaging five to ten people per week at the height of his activity.
Wilson also admitted to personally recruiting approximately six account openers (out of a
total 179) and personally withdrawing funds from Citizens Bank accounts. In his confession,
Wilson demonstrated knowledge of the scheme’s fundamental operations and the identities
of at least most of his co-conspirators. Perhaps most strikingly, Wilson recounted his
attendance at two motivational meetings held at a hotel where approximately 25-30
individuals gathered to discuss their strategic vision for the conspiracy. Wilson recalled
Bernard speaking from the microphone about the conspirators’ dealings with both Citizens
Bank and PNC Bank. Despite attending these meetings in which conspirators discussed the
fraud against both banks, Wilson maintains that his involvement was limited to defrauding
Citizens Bank. However, the government produced additional evidence linking Wilson to
the PNC part of the conspiracy. The District Court found that Wilson participated in
defrauding both banks and held him responsible for a loss of over $400,000.
III. Discussion
Wilson challenges his sentence in two respects. First, he argues that the District Court
incorrectly calculated the applicable Guidelines range. Second, he argues that regardless of
whether the District Court incorrectly calculated the range, his sentence was unreasonable
in light of the factors listed in 18 U.S.C. § 3553(a). We consider these arguments in turn.
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A. Calculation of Guidelines Range
Although we ultimately review Wilson’s sentence for overall reasonableness, our first
task is to determine whether the District Court correctly calculated the applicable sentencing
range under the Sentencing Guidelines. We do this because among the factors that a District
Court acting reasonably must consider is what sentencing range is applicable under the
Guidelines. 18 U.S.C. § 3553(a)(4). If the District Court relies upon an incorrect application
of the Guidelines, it is therefore in error. See
Cooper, 437 F.3d at 330.
As an initial matter, Wilson argues that the District Court erred in its application of
the Guidelines by finding facts at sentencing by a preponderance of the evidence, rather than
beyond a reasonable doubt. As we have already held, when a district judge finds facts in
calculating the applicable range under the Sentencing Guidelines, the applicable standard of
proof is preponderance of the evidence.1 See
Cooper, 437 F.3d at 330. The District Court
did not need to find facts by any more exacting a standard.2
Next, Wilson challenges a fourteen-point enhancement that was added under United
States Sentencing Guideline § 2B1.1(b) for committing an offense involving a loss of over
$400,000 but under $1,000,000.3 He argues that in reaching the $400,000 figure, the District
1
None of the facts found at sentencing in this case would constitute a “separate crime.”
Cf.
Cooper, 437 F.3d at 330 n.7.
2
As to its finding regarding the amount of loss, the District Court stated that it had
before it sufficient evidence to find over $400,000 loss under either standard.
3
Because of the dates of Wilson’s relevant conduct, we look to the 2002 Sentencing
Guidelines.
5
Court incorrectly attributed to Wilson losses caused by others for which he was not legally
responsible. Because Wilson was involved in a criminal conspiracy, he is responsible for
both the losses caused by his personal conduct, U.S.S.G. § 1B1.3(a)(1)(A), and the losses
caused by “all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). The question before us is
whether the District Court clearly erred in finding, by at least a preponderance of the
evidence, that for Wilson, these losses together totaled over $400,000.
In United States v. Collado,
975 F.2d 985 (3d Cir. 1992), we held that in attributing
losses caused by a defendant’s co-conspirators to that defendant, a district court must
consider whether the co-conspirators’ conduct was in furtherance of the jointly-undertaken
activity, within the scope of the defendant’s agreements, and reasonably foreseeable in
connection with the criminal activity the defendant agreed to
undertake. 975 F.2d at 995.
Wilson contends that the District Court erred because it did not determine how much of the
loss either occurred before Wilson joined the conspiracy or was otherwise beyond the scope
of his agreement. The District Court, however, was not obligated to make such
determinations. Although a district court’s inquiry must be individualized to the defendant,
Collado “did not impose an immutable requirement that the district court hold extensive
hearings to make explicit, particularized findings as to the exact date on which each
defendant committed to the conspiracy or the precise contours of each conspirator’s
agreement.” United States v. Rennert,
374 F.3d 206, 214 (3d Cir. 2004). As long as the
scope of the defendant’s involvement is clear from the record, the district court’s decision
6
may be affirmed. United States v. Duliga,
204 F.3d 97, 101 n.2 (3d Cir. 2000).
The record is clear that the scope of Wilson’s agreement was significantly broader
than he now contends. Wilson, by his own confession, was thoroughly immersed in the
conspiracy. His participation included recruiting account openers, bringing the openers to
the bank, withdrawing funds from the accounts, and attending conspiratorial strategy sessions
in which the overall scheme was discussed and planned. Wilson had extensive, albeit
incomplete, knowledge of the scheme, and he participated in most every stage of its
execution. Moreover, the District Court concluded from the evidence in the record that
Wilson participated in a scheme that included defrauding both Citizens Bank and PNC Bank,
meaning that the loss from both banks fell within the scope of Wilson’s agreement. The total
loss figure as to both banks is well above $400,000, further minimizing the need for highly
particularized findings regarding the scope of Wilson’s agreement. According to the record
before the District Court, a preponderance of the evidence supported the conclusion that
Wilson agreed to facilitate a broad scheme that caused the foreseeable loss of some amount
clearly over $400,000.
Last, Wilson challenges the District Court’s decision to not grant a two-point
reduction under U.S.S.G. § 3B1.2(b) for being a “minor participant” in the criminal activity.
Under Application Note 5, in order to qualify as a “minor participant,” an individual must
be “less culpable than most other participants.” Given the 179 account openers who
participated in the scheme, each of whom was less culpable than Wilson, it is difficult to
view Wilson as a minor participant. Particularly in light of its finding that Wilson played an
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“integral part” in the scheme, the District Court did not err in refusing to grant a reduction
under § 3B1.2(b).
B. Overall Reasonableness of Sentence
Even though we find that the District Court correctly applied the Guidelines, we must
also examine whether the sentence it imposed is reasonable in light of 18 U.S.C. § 3553(a).
Wilson argues that the District Court inadequately considered sentencing disparities under
§ 3553(a)(6), which requires the sentencing court to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of
similar conduct.” We disagree.
First, Wilson notes that Bernard (the leader of the scheme) was sentenced to 63
months of incarceration, nine months fewer than the 72 months that Wilson was sentenced
to serve. This fact is of little moment. Section 3553(a)(6) does not direct the sentencing
court to avoid sentencing disparities between any two individuals found guilty of similar
conduct. Rather, § 3553(a)(6) restricts itself to sentence disparities among defendants with
similar records who have been found guilty of similar conduct. Wilson and Bernard did not
have similar criminal records. Wilson’s lengthy criminal record placed him in a criminal
history category of VI, whereas Bernard’s significantly shorter record placed him in a
criminal history category of II. Had Wilson’s criminal history been similar to Bernard’s, he
would have qualified for an advisory range of 46-57 months incarceration, the maximum of
which is less than the 63 months to which Bernard was sentenced.
Second, Wilson argues that the District Court acted unreasonably by failing to
8
consider sentences imposed by federal courts in other jurisdictions. When Wilson’s counsel
presented the District Court with a handful of examples at sentencing, the Court dismissed
the comparison, noting that it could not account for what courts in other jurisdictions may
do. Such dismissal was appropriate. Given that the District Court had no information on the
facts of the other cases and that Wilson’s sentence fell well below the Guidelines
recommendation, the District Court was reasonable in its unwillingness to consider
discrepancies allegedly arising from this scattershot of other federal cases.
Finally, Wilson argues that his sentence is unreasonable because it is longer than the
sentence he would have received had he been prosecuted in state court. He submits that
under Pennsylvania law, his conduct would have resulted in a sentence of 27-33 months of
incarceration. The District Court acted reasonably in finding this fact unpersuasive. Wilson
notes that in Pennsylvania, he would have been punished for the crime of theft by deception
and causing a loss of over $100,000. From this fact alone, it is apparent that Pennsylvania
criminal law is markedly different from federal criminal law, under which bank fraud is
differentiated from other forms of theft and crimes causing a loss of over $400,000 are
punished more severely than are crimes causing a loss merely exceeding $100,000. The
District Court was well within the bounds of reasonableness in determining that the
comparison was inapt.
Moreover, the disparities in sentencing that the U.S. Sentencing Guidelines are
intended to reduce are disparities between sentences imposed under the provisions of the
Guidelines, i.e., federal sentences. In view of the advisory function of the Guidelines, we
9
assume that the Guidelines advise on the parity of sentences which fall within the Guidelines’
range and that the “sentencing disparity” referred to in § 3553(a)(6) is relevant to a
comparison of federal to federal sentences – not federal to state sentences – so long as the
federal sentences fall within the Guidelines’ range.
IV. Conclusion
For the reasons set forth above, we will affirm the judgment of sentence of the District
Court.
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