USA v. Richard A. Price

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13579
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20129-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD A. PRICE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 29, 2016)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Richard Price appeals his total 87-month sentence of imprisonment after
pleading guilty to bank fraud, in violation of 18 U.S.C. § 1344, and aggravated
identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Price argues
that the district court clearly erred in applying the sophisticated-means
enhancement, U.S.S.G. § 2B1.1(b)(10)(C), to the facts of this case. Price also
argues—for the first time on appeal—that the sophisticated-means enhancement is
vague, rendering it void as both beyond the power of the Sentencing Commission
to promulgate and in violation of due process. After careful review, we affirm.
I.
The facts of this case are undisputed, but the conclusions to be drawn from
them are not. According to the presentence investigation report (“PSR”), Price
fraudulently opened at least five joint bank accounts at Wells Fargo Bank. He did
so in order to deposit and then cash United States Treasury checks issued to other
individuals for tax refunds or loans from federal employees’ retirement accounts.1
To open the joint accounts, Price produced documentation purporting to name
Price as trustee for the assets of another person he named on the joint bank
account. He provided the bank with fraudulent trust agreements containing a
forged signature of the other person named on the joint account, as well as falsified
addresses and contact and employment information for the other person. The
1 The PSR does not explain how Price obtained these checks—just that they were
“unlawfully acquired without the intended recipient’s knowledge, authorization, or consent.”
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names on the trust agreements and the joint accounts matched names on the
Treasury checks Price unlawfully acquired.
Once Price successfully opened a joint account under the name of the
individual on the Treasury check, Price deposited the check and then withdrew
funds from the account or used a debit card tied to the account to make purchases
and pay his own expenses. According to the government, the total intended loss in
the case was $1,648,597.17. The case involved twelve victims, including nine
individuals whose identities were compromised, Wells Fargo Bank, the Internal
Revenue Service, and the Federal Thrift Savings Plan. The offense conduct
occurred between December 2014 and January 2015.
On March 5, 2015, a federal grand jury charged Price with five counts of
bank fraud, in violation of 18 U.S.C. § 1344, and five counts of aggravated identity
theft, in violation of 18 U.S.C. § 1028A. Price pled guilty under a written plea
agreement to one count of bank fraud (Count 5) and one count of aggravated
identity theft (Count 10).
The PSR assigned Price a base offense level of 7, pursuant to U.S.S.G.
§ 2B1.1(a)(1). It also applied a 16-level enhancement under § 2B1.1(b)(1)(I),
because the loss amount of $1,648,597.17 exceeded $1,000,000 but was not more
than $2,500,000, and a 2-level enhancement under § 2B1.1(b)(2)(A), because the
offense involved ten or more victims. Finally, the PSR assessed a 2-level
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enhancement because “the offense involved sophisticated means,” pursuant to
§ 2B1.1(b)(10)(C), yielding a total offense level of 27. Price had three criminal
history points and was assigned a criminal-history category of III. This established
a guideline range of 87 to 108 months of imprisonment. These guideline
calculations pertain to Count 5 only, because Count 10 required a two-year term of
imprisonment imposed consecutively to any other sentence. See 18 U.S.C.
§ 1028A(a)(1), (b)(2).
Before the sentencing hearing, the parties filed memoranda addressing,
among other issues, whether the sophisticated-means enhancement was applicable.
After hearing argument from both parties at the sentencing hearing, the district
court determined that the enhancement applied and denied Price’s objection on that
ground. After ruling on the objection, the district court announced its intention to
impose the same sentence regardless of whether Price successfully challenged the
sophisticated-means enhancement on appeal. The parties also agreed that Price
was entitled to a 3-level reduction for acceptance of responsibility. U.S.S.G.
§ 3E1.1.
The district court calculated Price’s total offense level to be 24 and his
criminal history to be III, yielding a guideline range of 63 to 78 months of
imprisonment for Count 5, to be followed by a consecutive 24 months of
imprisonment for Count 10. The court sentenced Price to 63 months of
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imprisonment as to Count 5 and a consecutive term of 24 months as to Count 10.
Price now brings this appeal.
II.
Price first challenges the district court’s application of the sophisticated-
means enhancement to the facts of this case. He argues that his actions were no
more than run-of-the-mill bank fraud and did not involve sufficiently complex or
intricate conduct to warrant application of the enhancement.
We review for clear error a district court’s finding that the defendant used
sophisticated means. United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir.
2011). Review for clear error is deferential, and we will not disturb a district
court’s findings unless we are left with a definite and firm conviction that a
mistake was made. United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir.
2010).
The Guidelines provide for a two-level enhancement if the offense “involved
sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). “Sophisticated means” is
defined in Application Note 9 of the commentary to § 2B1.1 as “especially
complex or especially intricate offense conduct pertaining to the execution or
concealment of an offense.” U.S.S.G. § 2B1.1 cmt. n.9(B). Conduct such as
hiding assets or transactions “through the use of fictitious entities, corporate shells,
or offshore financial accounts” ordinarily indicates sophisticated means. Id. But
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the defendant’s conduct does not need to match the examples given in Application
Note 9 in order to be considered sophisticated. United States v. Feaster, 798 F.3d
1374, 1380-82 (11th Cir. 2015) (collecting cases). And there is no requirement
that each of a defendant’s individual actions be sophisticated. Ghertler, 605 F.3d
at 1267. Rather, it is sufficient if the “totality of the scheme” was sophisticated.
Feaster, 798 F.3d at 1380-81.
We cannot say that the district court clearly erred in finding that Price used
sophisticated means to execute or conceal his bank-fraud scheme. While some
individual steps in the scheme may have been unsophisticated, we are not left with
a definite and firm conviction that, viewing the scheme as a whole, the district
court made a mistake in applying the enhancement. The totality of the scheme
involved acquiring large-value Treasury checks, creating fraudulent trust
documents and supporting documentation, including false addresses and contact
and employment information, forging signatures on the fraudulent documents,
opening the joint account at the bank, and then withdrawing the funds from the
joint account. The execution of the scheme shows a level of planning and
repetition—knowing which documents and supporting information the bank would
need to believe that the joint bank accounts were legitimate—that is sufficient to
apply the enhancement. See Barrington, 648 F.3d at 1199.
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While it is true that Price made little effort to conceal his identity and that
the scheme was short-lived, we do not find either of these factors dispositive under
the circumstances. See Feaster, 798 F.3d at 1381 (noting that the “the length of
the scheme and the loss inflicted by it . . . can be acceptable factors in determining
whether the totality of the scheme employed sophisticated means” (emphasis
added)); Ghertler, 605 F.3d at 1268 (upholding application of the sophisticated-
means enhancement despite the defendant’s use of “little or no effort to conceal
either the fact of his fraud or his identity”). Based on the undisputed facts in the
record, the district court did not clearly err in applying the sophisticated-means
enhancement. See Ghertler, 605 F.3d at 1267.
III.
Next, Price argues that the sophisticated-means enhancement is void for
vagueness on two grounds. Price first contends that the Sentencing Commission’s
enabling legislation clearly prohibits it from crafting vague guidelines. Congress
created the Commission to eliminate arbitrary and capricious federal sentencing
practices, Price argues, and the promulgation of vague guidelines contravenes
Congress’s express purpose of providing “certainty and fairness” in sentencing
through the guidelines. See 28 U.S.C. §§ 991(b)(1)(B), 994(f). He also asserts that
“[t]here is no question” that the sophisticated-means enhancement is vague, citing
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to a comment in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), that the
sophisticated-means enhancement “could be described as vague,” id. at 1196.
Second, Price contends that vague guidelines violate due process, and he
argues that this Court’s decision in Matchett, which held that advisory guidelines
cannot be unconstitutionally vague, id., was wrongly decided and is not controlling
in this case because it did not discuss the potential for arbitrary enforcement.
Price concedes that we review these sentencing challenges raised for the first
time on appeal for plain error only. See, e.g., United States v. Richardson, 166
F.3d 1360, 1361 (11th Cir. 1999). “To find plain error, there must be: (1) error, (2)
that is plain, and (3) that has affected the defendant’s substantial rights.” United
States v. Hesser, 800 F.3d 1310, 1324 (11th Cir. 2015) (quoting other sources). If
those three conditions are met, we may exercise our discretion to correct the error,
“but only if the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks omitted). Unless the
explicit language of a statute or rule specifically resolves an issue, plain error
cannot exist without precedent from the Supreme Court or this Court directly
resolving the issue. Id. at 1325. An error affects substantial rights “if there is a
reasonable probability of a different result absent the error.” Id.
Here, Price cannot show that any error was “plain.” As for Price’s first
argument, the broad language in the Sentencing Commission’s enabling
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legislation—directing the Commission to promote certainty and fairness in
sentencing when crafting guidelines—does not specifically resolve the issue, and
Price has not cited any authority, binding or persuasive, holding that the
promulgation of guidelines that “could be described as vague” is beyond the power
given to the Commission by Congress. See Hesser, 800 F.3d at 1324-25. With
regard to his second challenge, Matchett forecloses the argument that the
guidelines can be unconstitutionally vague. We are bound by that holding under
the prior-precedent rule. United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir.
2009). Even aside from Matchett, though, neither this Court nor the Supreme
Court has held either that guidelines in general can be unconstitutionally vague or
that the sophisticated-means enhancement in particular is unconstitutionally vague.
See Hesser, 800 F.3d at 1325.
Price also cannot show that any error in applying a vague guideline affected
his substantial rights. The district court explicitly stated that it would have
imposed the same sentence even in the absence of the sophisticated-means
enhancement. Therefore, there is no “reasonable probability of a different result
absent the error.” Id. For these reasons, Price’s vagueness challenges to the
sophisticated-means enhancement fail on plain-error review.
IV.
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In sum, we uphold the district court’s application of the sophisticated-means
enhancement in determining Price’s guideline level. Consequently, we affirm his
sentence.
AFFIRMED.
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