United States of America v. Melissa Hicks

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4018
UNITED STATES OF AMERICA
v.
MELISSA HICKS,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 05-cr-00019E)
District Judge: Honorable Maurice B. Cohill, Jr.
Submitted Under Third Circuit LAR 34.1(a)
March 11, 2008
Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges
(Filed: April 2, 2008)
OPINION
ALDISERT, Circuit Judge
Appellant Melissa Hicks appeals her sentence of 60 months of imprisonment
imposed by the United States District Court for the Western District of Pennsylvania.

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Specifically, Hicks alleges that the District Court erred in determining the amount of loss
attributable to her conduct and that the District Court improperly imposed an upward
departure based on the number of her prior criminal convictions.
Because we write exclusively for the parties and the parties are familiar with the
facts and proceedings below, we will not revisit them here.
I.
The District Court determined that the loss attributable to Hicks’ criminal conduct
was $40,407.10. Because the amount of loss attributed to Hicks’ conduct was in excess of
$30,000, the Sentencing Guidelines called for a six level increase in her base offense
level. U.S.S.G. § 2B1.1(b)(1). Hicks contests the District Court’s determination as to the
loss, arguing that the District Court improperly included in its calculation counterfeit
checks that Hicks did not admit to passing and that the government had not proved she
had passed.
In fashioning an appropriate sentence, a district court may consider conduct not
charged in the indictment nor pleaded to by the defendant. United States v. Booker, 543
U.S. 220, 251-252 (2005) (quoting U.S.S.G. § 1B1.3, cmt., background (“Conduct that is
not formally charged or is not an element of the offense of conviction may enter into
determination of the applicable guideline sentencing range.”)). A district court applies the
preponderance of the evidence standard to conduct relevant to sentencing enhancements
under the Sentencing Guidelines. United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007)
(en banc). This Court “must accept the District Court’s factual finding as to the amount of

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loss unless it is clearly erroneous.” United States v. Brennan, 326 F.3d 176, 194 (3d Cir.
2003).
In this case, Hicks pleaded guilty to passing checks in the names of Stacy Childs,
Navada Green and Yvette Middleton, to conspiring with known and unknown individuals
to commit the offenses of uttering or possessing counterfeit checks, and to possession or
use of five or more identification documents for unlawful purposes. Although the
indictment did not charge Hicks with passing checks in the names of Eldora Harris,
Robyn English or Joyce Hunt, the government presented evidence that these checks were
part of the same fraudulent scheme carried out by Hicks and her co-conspirators. The
Harris check bore the same telephone number as the checks that Hicks admitted to
passing. Also, the checks used in the loss calculation were passed at the same stores and
in the same general locations as the checks to which Hicks admitted guilt. As the
government’s theory involved a scheme among several individuals to pass counterfeit
checks and the Harris, English and Hunt checks bore sufficient similarities to those Hicks
admitted passing, the District Court did not err in determining that these checks could be
included in the loss calculation.
II.
Hicks also contends that the District Court improperly considered the number of
her prior criminal convictions, rather than the nature and severity of these prior offenses,
when it decided to impose a sentence in excess of the advisory Sentencing Guidelines
range. With an offense level of 10 and 37 criminal history points, the Sentencing

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Guidelines provided for a sentence of 24-30 months of imprisonment. The District Court
departed from this advisory range, however, and sentenced Hicks to 60 months of
imprisonment.
The Sentencing Guidelines permit an upward departure “[i]f reliable information
indicates that the defendant’s criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the likelihood that the defendant will
commit other crimes . . . .” U.S.S.G. § 4A1.3(a)(1). In this case, the District Court
specifically mentioned Hicks’ extensive criminal history, including her forty-one prior
convictions for theft and forgery crimes, and Hicks’ pattern of “taking money by
deception” when it determined that an upward departure was warranted. App. 105.
Indeed, the District Court commented that Hicks’ conduct was “no different than reaching
right into the merchant’s cash register and pulling it out, pulling out the cash.” Id. We are
satisfied that the District Court properly considered the nature of Hicks’ prior convictions
in determining that the sentence established by the Sentencing Guidelines under-
represented her criminal history or under-represented the likelihood that she will commit
further crimes. We are also satisfied that the sentence of 60 months of imprisonment was
a reasonable one under these circumstances.
* * * * *
We have considered all of the contentions presented by the parties and have
concluded that no further discussion is necessary.
The judgment of the District Court will be affirmed.

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