United States of America v. Leonard Shough

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-5455
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UNITED STATES OF AMERICA
v.
LEONARD SHOUGH,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 04-cr-00009E)
District Judge: Honorable Maurice B. Cohill, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
May 15, 2007
Before: FISHER, NYGAARD and ROTH, Circuit Judges.
(Filed July 16, 2007)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Leonard Shough appeals from a judgment of sentence arguing that the District
Court erred in granting the Government’s request for a five-level enhancement and that,
as a result, his sentence is unreasonable in light of United States v. Booker, 543 U.S. 320

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(2005). For the following reasons, we will affirm the District Court’s judgment of
sentence.
I.
Because we write only for the parties, who are familiar with this matter, we will
forgo a lengthy recitation of the facts. At some point in 1980, an individual named
Kenneth Green gave Leonard Shough a ride in his car. During the ride, Shough stole
Green’s car, which contained Green’s wallet, driver’s license, Social Security card and
discharge papers from the United States Army. Adding insult to injury, Shough began
using Green’s name and Social Security number to live a double life. Assuming Green’s
identity, Shough married, worked, and enlisted in the United States Army Reserve. He
went so far as to name his son Kenneth Green, Jr. He also obtained several mortgages,
bank accounts and credit cards using Green’s name and Social Security number.
On several occasions, Shough applied for replacement Social Security cards in
both Green’s name and his own name. In 1994, while earning income as a painter under
Green’s name, Shough applied for Social Security disability benefits under his true name,
claiming that he was unable to work as a result of various medical conditions. Shough
was initially granted disability payments in the amount of $460 a month, later increased to
$500 a month. He received a total of $63,644.85 in fraudulent payments.
In 2002, Shough’s wife passed away and, at her wake, suspicions were aroused
when attendees heard Shough being referred to as both Ken and Leonard. Shortly
thereafter, anonymous tipsters alerted the Erie, Pennsylvania police and the Social

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Security Administration that Shough was assuming Green’s identity. A subsequent
investigation confirmed that Shough had been using Green’s name and other identifying
documents for over twenty years.
In February 2004, a grand jury returned a seven-count indictment against Shough
relating to the fraudulent use of another person’s identification and Social Security
number between November 1998 and December 2003. Shough pleaded guilty to Count
One, identity theft in violation of 18 U.S.C. § 1028(a)(7) and § (b)(1)(D), of the
indictment and acknowledged responsibility for Counts Two through Seven.
On January 25, 2005, the District Court sentenced Shough pursuant to the United
States Sentencing Guidelines (“Guidelines”). The District Court calculated a criminal
history category of V and a base offense level of 17, which yields an advisory range of
27-33 months of imprisonment. Pursuant to the Guidelines, the Government moved for a
five-level enhancement arguing that the true Kenneth Green suffered substantial harm to
his credit. The District Court granted the motion and Shough was sentenced to a term of
84 months of imprisonment. Shough filed a timely notice of appeal to this Court,
whereupon we remanded for resentencing in light of Booker.
At the resentencing hearing on December 6, 2005, the District Court calculated
Shough’s base offense level to be 15 because of the reduced figure associated with the
crimes ($129,714.85), the use of another’s identity, and for acceptance of responsibility.
The Government once again moved for a five-level enhancement on the same grounds as
before and the motion was granted. With a recalculated offense level of 20 and a criminal

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history category of V, the advisory Guidelines range was 63-78 months of imprisonment.
After consideration of the advisory Guidelines, the District Court resentenced Shough to a
term of 78 months of imprisonment. This timely appeal followed.
II.
The District Court had jurisdiction over this criminal matter pursuant to 18 U.S.C.
§ 3231 and we have jurisdiction over the matter under 28 U.S.C. § 1291. In assessing a
sentence, we review de novo the question of whether the District Court properly applied
the Guidelines, but review its factual determinations for clear error. See United States v.
Batista De La Cruz, 460 F.3d 466, 468 (3d Cir. 2006). We review the ultimate sentence
for reasonableness under the factors set forth in 18 U.S.C. § 3553(a). United States v.
Cooper, 437 F.3d 324, 329 (3d Cir. 2006).
Shough first argues that the District Court improperly applied a five-level
enhancement but we find no error with the District Court’s application of that Guidelines
enhancement. In considering the enhancement at the first sentencing hearing, the District
Court heard testimony from a Government agent regarding the amount of harm Green
suffered as a result of Shough’s criminal actions. The agent recounted that Green had
difficulty obtaining credit in his name, had been detained because of crimes Shough
committed, was unable to purchase a home, and was forced to change his Social Security
number in an attempt to differentiate himself from Shough. Thus, Shough’s assertion that
his actions did not cause Green substantial harm is flatly contradicted by substantial

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evidence in the record and we find no evidence to suggest that the District Court
erroneously applied the enhancement.
Shough’s argument concerning the reasonableness of his sentence is equally
without merit. The burden rests with the defendant to show that the sentence is
unreasonable in light of the particular circumstances. Cooper, 437 F.3d at 331. In
appellate review of a sentence, “the touchstone of ‘reasonableness’ is whether the record
as a whole reflects rational and meaningful consideration of the factors enumerated in 18
U.S.C.S. § 3553(a).” Grier, 475 F.3d at 571. For consideration to be meaningful, a court
does not need to make findings as to each factor or “state by rote that they have read the
Booker decision or that they know the sentencing Guidelines are now advisory,” but the
record must show that “the court took the factors into account in sentencing.” Cooper,
437 F.3d at 331.
The District Court in this case acknowledged the advisory nature of the Guidelines
and further stated that it “considered the [G]uideline[s] range and the other factors set
forth in 18 U.S.C. § 3553(a) in imposing an appropriate sentence.” Specifically, it found
Shough’s fraud to be “one of the worst fraud cases I have ever heard,” and further
concluded that “the real Mr. Green’s life is absolutely ruined, and the ripple effect on his
family is terrible.” With these considerations in mind, the District Court sentenced
Shough within the advisory range to a term of 78 months of imprisonment. The District
Court’s statements support a finding that meaningful consideration was given to the

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sentencing factors and that the factors were applied reasonably to the particular facts of
this case.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.

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