Filed: Jun. 13, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-13-2008 USA v. Holt Precedential or Non-Precedential: Non-Precedential Docket No. 07-3579 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Holt" (2008). 2008 Decisions. Paper 1023. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1023 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-13-2008 USA v. Holt Precedential or Non-Precedential: Non-Precedential Docket No. 07-3579 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Holt" (2008). 2008 Decisions. Paper 1023. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1023 This decision is brought to you for free and open access by the Opinions of the United States Co..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-13-2008
USA v. Holt
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3579
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Holt" (2008). 2008 Decisions. Paper 1023.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1023
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 2008 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NOT PRECEDENTIAL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. 07-3579
____________
UNITED STATES OF AMERICA
v.
GEORGE R. HOLT,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 07-cr-00098)
District Judge: The Honorable William W. Caldwell
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 3, 2008
Before: FISHER and JORDAN, Circuit Judges, and YOHN,* District Judge.
(Filed: June 13, 2008)
____________
OPINION
____________
*
The Honorable William H. Yohn, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
YOHN, District Judge.
George R. Holt appeals the sentence imposed on him by the District Court after he
pleaded guilty to one count of conspiracy to commit bank fraud and one count of bank
fraud. Holt argues the District Court erred in applying a two-level leadership role
increase to Holt’s offense level under the United States Sentencing Guidelines. For the
reasons discussed below, we will affirm.
I.
The criminal scheme at issue in this case began as a part of Holt’s employment
with a church, Shared Ministries. Shared Ministries hired Holt to work as a part-time
administrative assistant on June 6, 2006. Shortly after beginning his employment at the
church, Holt obtained the social security number of the church’s choir director. He and
his codefendant, Toni Lewis, used the number to open two credit card accounts in the
director’s name, and they subsequently made $16,801.67 in unauthorized purchases with
the cards. They also took $9586.75 in contributions and payments that had been mailed
to the church and deposited the money in an account at PNC Bank that Lewis opened in
Shared Ministries’ name. Finally, they used the church’s Office Max credit card to make
$730.17 in unauthorized purchases.
On March 7, 2007, a grand jury indicted Holt on the following counts:
(1) conspiracy to commit fraud, in violation of 18 U.S.C. § 371; (2) bank fraud, in
violation of 18 U.S.C. § 1344(1) & (2); (3) identification fraud, in violation of 18 U.S.C.
2
§ 1028(a)(7) & (b)(1)(D); (4) access device fraud, in violation of 18 U.S.C. § 1029(a)(2)
& (c)(1)(A)(i); and (5) making false statements to a federally insured credit union, in
violation of 18 U.S.C. § 1014. Pursuant to a plea agreement, Holt pled guilty to the first
two counts of the indictment on April 18, 2007. The statutory maximum terms of
imprisonment were five years for the first count and thirty years for the second count.
The presentence investigation report recommended a two-level increase to Holt’s
offense level under U.S.S.G. § 31B.1(c).1 This recommendation was based on the
following evidence of Holt’s leadership role in the scheme. In a statement given to police
on November 16, 2006, Holt admitted that he asked Lewis to open the account at the PNC
Bank. He also explained that he applied for two credit card accounts and opened a post
office box in Shared Ministries’ name to receive the credit card bills. Holt further
admitted that he had the address on the credit cards changed so the bills would not be sent
to Shared Ministries’ main office.
1
Section 3B1.1 provides:
Based on the defendant’s role in the offense, increase the offense
level as follows:
(a) If the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive, increase by 4 levels.
(b) If 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, increase by 3
levels.
(c) If the defendant was an organizer, leader, manager, or
supervisor in any criminal activity other than described in (a)
or (b), increase by 2 levels.
3
The United States Attorney’s office interviewed Holt on March 8, 2007. During
this interview, Holt provided a more detailed explanation of the scheme. He told the
interviewer that all of the employees at Shared Ministries were female, and if they had not
been, he would not have needed Lewis to assist him with the scheme. He also said that it
was his idea to obtain the credit cards using the choir director’s name and it was his idea
to take the checks that were mailed to Shared Ministries. Holt also explained that he had
Lewis open the PNC account because he worked at the church and did not want his name
on the account. He said that he set up the bank account to require two signatures to
withdraw money because he did not want Lewis to scam him. Holt told the investigator
that he and Lewis evenly split the money that went into the account.
Lewis was interviewed by investigators on April 11, 2007. She explained that Holt
called her in July 2006 and said he had a plan that he did not want to discuss with her
over the phone. When they met, Holt explained to Lewis that he had a plan to obtain
money and that Lewis would receive $1000 for her assistance. According to Lewis, Holt
told her that he had a credit card in the choir director’s name, explaining that the director
was in jail and had given Holt permission to use the card. Lewis said that she and Holt
applied for a second credit card using the choir director’s name. Lewis explained that
they went on one shopping spree with the cards. She further admitted that Holt gave her
approximately $50 to $100 in cash from the credit cards on three or four occasions.
4
According to Lewis, about a month after they used the credit cards, Holt called her
and asked her to open a bank account. She initially refused, but she agreed after Holt
asked her for the third time. Lewis admitted that after she saw money was going into and
out of the account, she decided to use some of the money in the account to pay three
utility bills, and she wrote additional checks for cash, totaling somewhere between $500
and $660.2
Holt objected to the presentence investigation report’s recommended two-level
increase, and the District Court held a hearing on August 22, 2007. At the hearing, Holt
testified that the scheme actually began when Lewis visited him while he was working at
Shared Ministries. Holt stated that while Lewis was there, she brought up the idea of
using other people’s social security numbers to obtain credit cards. He further testified
that it was his idea to open the bank account and that he gave Lewis the information she
needed to open the account in Shared Ministries’ name. Holt admitted that he opened the
credit card accounts with information he received from the church files and that Lewis
did not have anything to do with opening those accounts. He also admitted to opening the
post office box himself. Finally, Holt testified that he gave Lewis a key to the church,
and sometimes she would take checks from the church without his knowledge.
2
The government calculated that Lewis received less than $2000 of the $27,000
Holt and Lewis stole.
5
After Holt’s testimony and arguments from the attorneys regarding the two-level
increase, the District Court concluded: “I agree totally with the position of the
prosecution on this point, and I will deny the objection that has been made in the
presentence report. I think Mr. Holt was in a directing leadership type role, although Ms.
Lewis certainly went along willingly. Without him this whole thing couldn’t have
happened . . . .” The District Court subsequently applied the leadership role enhancement
and sentenced Holt to concurrent terms of sixteen months’ imprisonment on each count;
restitution in the amount of $17,456; a $200 special assessment; and concurrent terms of
three years’ supervised release on each count. Holt timely filed an appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District
Court’s interpretation of the advisory sentencing guidelines, and we review the District
Court’s factual findings for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir.
2007) (en banc). Any factual findings must be supported by a preponderance of the
evidence.
Id. at 568.
III.
Holt argues that during sentencing he testified that it was Lewis’s idea to use the
choir director’s social security number to obtain the credit cards. He also points out that
Lewis opened the PNC account, spent the money in the account, and used the credit
6
cards. Holt concludes that this evidence shows the scheme was undertaken jointly. He
further contends that there is no evidence that he controlled or supervised Lewis, and the
existence of an additional participant who bore equal responsibility for planning and
organizing the crime is insufficient to justify the enhancement. Finally, Holt argues that
the District Court’s finding that “without him this whole thing couldn’t have happened” is
not an adequate basis on which to apply the enhancement.
“To apply section 3B1.1, a district court must find that the defendant exercised
control over at least one other person.” United States v. Katora, 981 F.2d 1398, 1402 (3d
Cir. 1992). The District Court must also find that there were multiple participants in the
crime and that there was some differentiation in their relative culpabilities.
Id. at 1405.
Factors to consider when determining whether to apply a § 3B1.1 enhancement include:
(1) the exercise of decision making authority; (2) the nature of participation
in the commission of the offense; (3) the recruitment of accomplices; (4) the
claimed right to a larger share of the fruits of the crime; (5) the degree of
participation in planning or organizing the offense; (6) the nature and scope
of the illegal activity; and (7) the degree of control and authority exercised
over others.
United States v. Gricco, 277 F.3d 339, 358 (3d Cir. 2002) (quoting United States v.
Hunter,
52 F.3d 489, 492 (3d Cir.1995)). The government need not present evidence of
every factor or evidence that the defendant is the sole or predominate leader; rather, it
need only show sufficient evidence to justify a finding that the defendant is a leader or
organizer under § 3B1.1. United States v. Bass,
54 F.3d 125, 128-29 (3d Cir. 1995).
7
Although the District Court could have gone into a more detailed analysis of the
factors before it applied the two-level leadership increase, it did not err when it applied
the increase. The District Court found that Holt directed Lewis, and it recognized that
there were multiple participants with different culpabilities. Thus, the two Katora
prerequisites for applying the leadership enhancement were met.
Furthermore, the District Court adopted the government’s position on the two-
level leadership increase. In its sentencing memorandum and at the sentencing hearing,
the government argued that Holt’s first statements, in which he admitted that he recruited
Lewis to help him in the scheme, opened the credit card accounts, provided the
information necessary to open the bank account, came up with the idea to steal the
checks, opened the post office box, and directed and supervised Lewis’s activities
demonstrated that Holt had a leadership role in the scheme. The government also argued
that Holt’s testimony to the contrary at the sentencing hearing was not credible. The
District Court clearly stated that it agreed with the government’s version of the facts.
Examining this evidence, which the District Court accepted, in light of the factors
that should be considered in applying the leadership enhancement shows that the evidence
supports the finding that this scheme was not simply a jointly planned and executed
scheme. First, there was evidence that Holt exercised decision-making authority by
determining which credit cards to open, by opening the post office box, and by directing
Lewis to open the bank account. Additionally, Holt admitted that he was the one who
8
accessed the choir director’s social security number and the information about the church
that was necessary to open the bank account. Gathering this information and opening the
credit card accounts and post office box demonstrated that Holt’s participation in the
scheme was greater than Lewis’s participation. Similarly, the evidence demonstrated that
Holt had a larger degree of participation in planning and organizing the crimes because
opening the bank account, credit cards, and post office box were his ideas. Although Holt
denied that it was his idea to open the credit card accounts, he did not do so until the
sentencing hearing, and the District Court accepted the government’s position that this
testimony was not credible and that it contradicted the information he and Lewis
previously gave the investigators.
Lewis also told investigators that Holt recruited her as an accomplice,
demonstrating that Holt initiated the scheme. Further supporting this finding is Holt’s
admission that he only needed Lewis’s assistance in the scheme because all of the other
church employees were female. Additionally, although there was conflicting evidence
about how Holt and Lewis split the profits, there was some evidence that Holt had a
larger portion of the profits. Given all of this evidence, the District Court did not err
when it determined that the facts amply demonstrated that Holt met most, if not all, of the
factors, concluded that he was a leader or organizer of the scheme, and applied a two-
level enhancement for a leadership role to Holt’s offense level.
We will therefore affirm the judgment of the District Court.
9
