Argued September 11, 2014.
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:13-cr-00015 -- Tanya Walton Pratt, Judge.
For United States of America, Plaintiff - Appellee: Todd S. Shellenbarger, Attorney, Lauren Wheatley, Attorney, Office of The United States Attorney, Evansville, IN.
For Trevor Hinds, Defendant - Appellant: Daniel J. Hillis, Attorney, Office of The Federal Public Defender, Springfield, IL; John C. Taylor, Attorney, Office of The Federal Public Defender, Urbana, IL.
Before BAUER, MANION, and KANNE, Circuit Judges.
Kanne, Circuit Judge.
Defendant-Appellant Trevor Hinds appeals the district court's imposition of a two-level sentencing enhancement for production or trafficking under U.S.S.G. § 2B1.1(b)(11)(B)(i), as well as two special
conditions of his supervised release: one requiring him to pay a portion of his court-ordered substance abuse treatment and drug testing and the other requiring him to submit to suspicionless searches and seizures. For the reasons set forth below, we affirm the two-level enhancement but vacate the two special conditions at issue. Accordingly, we remand for re-sentencing.
A. The Conspiracy
Between March and April 2013, Hinds, together with co-conspirators Blandine Joseph, Paul Roberson, Tycia Peterson, and Amanda Adam, obtained approximately 300 counterfeit credit and debit cards. The conspirators' names were embossed on the front of the cards, but the cards were linked to accounts held by other account holders with Fifth Third Bank and Bremer Bank.
Plastic in hand, a shopping spree ensued. They made illegal purchases at a Nordstrom department store in Columbus, Ohio, and at various Sam's Clubs in Pennsylvania, Ohio, Kentucky, and Indiana. The sought-after items: cigarettes, clothing, and Apple electronic devices. Along the way, Hinds also rented a car and booked hotel rooms. Seventeen financial institutions fell victim to the spree.
But as the saying goes, all things (good or bad) must come to an end. This particular shopping spree ended in Clarksville, Indiana, on April 3, 2013. On that day, the Clarksville Police Department contacted the Secret Service after receiving a report from a local Sam's Club loss--prevention manager. The manager became suspicious after his store declined the credit cards of Adam, Peterson, and Roberson-individuals who matched the description of a Sam's Club fraud alert. While the manager verified the authenticity of the cards, he saw the men exit his store to join Hinds and Joseph in their rented Nissan Altima. So he went after them, tailing their car to a nearby Red Lobster. He also called the police.
The police responded quickly. They found Hinds sitting at a table inside the restaurant with his four co-conspirators. Hinds identified the Nissan Altima as his rental car, and he gave police consent to search it. Sergeant DeMoss of the Clarksville Police Department found a plastic bag under the driver's seat containing approximately 275 fraudulent credit and debit cards. The remaining cards, with the embossed names of Hinds and Joseph, were found in the men's and women's restrooms of the Red Lobster. An indictment followed.
B. The Plea and Sentence
Seven months later, on November 1, 2013, Hinds pled guilty--via open plea--to conspiracy to use counterfeit devices, possession of forged securities, and conspiracy to commit bank fraud in violation of 18 U.S.C. § § 1029(a)(1)-(b)(2), 472, 1344, and 1349, respectively. Hinds stipulated to the above facts, supported largely through the sentencing testimony of Secret Service
Special Agent John Ely. His appeal centers on his sentence, an issue to which we now turn.
The district court sentenced Hinds to imprisonment for three concurrent terms of thirty months, a sentence at the bottom of his calculated guideline range. This range resulted, in part, from a two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(B)(i) (adding two levels if the offense involved production or trafficking), which was recommended in the presentence report. Hinds objected to that enhancement at sentencing. He argued there was no evidence to prove that he actually produced or trafficked the fraudulent credit and debit cards. After some back-and-forth between Hinds and the government, the district court found the offense involved " the production or trafficking of counterfeit devices," (Sent. Tr. 57), so it applied the enhancement. The district court also ordered Hinds to pay restitution in the amount of $21,818.89, plus a special assessment of $300.00. The district court did not, however, order Hinds to pay interest on this restitution. The district court waived that requirement because it found he did " not have the ability to pay interest ... ." (Sent. Tr. 64.) The district court also did not order Hinds to pay a fine " based on [his] financial resources." ( Id.)
Despite its concern for Hinds's indigence, the district court imposed a special condition requiring him to pay a portion of his substance abuse treatment and drug testing during his period of supervised release (" payment condition" ). Per the district court:
[T]he defendant shall participate in a substance abuse treatment program at the direction of his probation officer, which may include no more than eight drug tests per month.
The defendant shall abstain from the use of all intoxicants, including alcohol, while participating in the substance abuse program, and he will be responsible for paying a portion of ...