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United States v. King

United States Court of Appeals, Seventh Circuit

June 30, 2017

United States of America, Plaintiff-Appellee,
Carnell King, Defendant-Appellant.

          Argued May 31, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR 353 - Robert W. Gettleman, Judge.

          Before Kanne, Sykes, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Defendant Carnell King appeals his below-guideline sentence. Since he pled guilty and the district court's guideline calculation was admittedly correct, it is not surprising that we affirm the sentence. We issue a precedential opinion in the case, however, because King has raised a novel argument about the relationship between the Sentencing Guidelines and the statute instructing sentencing judges on what to consider in making their decisions, 18 U.S.C. § 3553(a).

         The district judge did exactly what he was supposed to do in this case: calculate the correct offense level and criminal history category under the Guidelines, then step back and use his independent judgment under § 3553(a) to impose a sentence tailored to the individual offender and his crimes. See Gall v. United States, 552 U.S. 38, 49-50 (2007). King argues, however, that the "parsimony principle" in § 3553(a), which instructs the court to impose a sentence "sufficient, but not greater than necessary, " to serve the statutory purposes of sentencing, requires an adjustment of the applicable guideline calculations themselves. In support, he cites a tentative suggestion from a non-precedential Sixth Circuit decision. We reject his argument, which would make post-BooA:er federal sentencing even more complex than it already is, but without gaining any apparent benefit in terms of more just sentences.

         I. The Crimes and the Punishment

         King is an unsuccessful fraudster. Between 2012 and 2014, he obtained personal identifying information (e.g., addresses, dates of birth, and Social Security numbers) for more than 100 people, including the Director of the National Security Agency. King used this information to create and use, or to attempt to use, 185 access devices (e.g., credit and debit cards). He also prepared and submitted 62 false tax refund claims in names other than his own. Thankfully, King was not very successful in his endeavors. Reported actual losses from his crimes totaled only $10, 980 ($367 from credit cards and $10, 613 in false tax returns).

         King was first arrested in June 2014 and charged with access device fraud. He was not detained before trial, but one condition of his release was that he not commit a federal crime. In November 2014, though, King was arrested again and charged with wire fraud. King had resumed his activities and attempted to use credit card accounts of various individuals less than two months after his initial arrest. His pretrial release was revoked and he was detained. King eventually pled guilty to five counts, including a charge of aggravated identity theft under 18 U.S.C. § 1028A(a)(1), which requires a minimum sentence of 24 months in prison consecutive to any other sentence. The district court sentenced King to concurrent terms of 24 and 30 months in prison on three access device fraud counts under 18 U.S.C. § 1029(a) and § 1029(b)(1) and the fraudulent tax refund count under 18 U.S.C. § 287. That sentence was below the applicable guideline range. The court added the mandatory consecutive 24 months for aggravated identity theft for a total sentence of 54 months.

         On appeal, King challenges his sentence on the three access device fraud counts and the fraudulent tax refund count. We start with the guideline calculation. Because all the crimes were so closely related, they were grouped together under U.S.S.G. § 3D1.2 for guideline calculation purposes. Under § 2B1.1, the Guideline for fraud offenses, the base offense level was six, and two levels were added based on the number of victims. The Guideline for fraud offenses makes the amount of loss a major factor in the calculation. The general rule is that the amount of loss is the greater of actual or intended loss. § 2B1.1 note 3. For the multiple crimes in King's case, the actual loss was $10, 980. The additional intended loss, however, was $195, 948 from 62 fraudulent tax refund claims and $92, 500 based on possession of 185 fake credit and debit cards, derived from § 2B1.1 note 3(F)(i), which instructs that the loss amount shall be not less than $500 per device.[1]

         The total loss for guideline purposes was $288, 448. Because that was more than $250, 000 but less than $550, 000, twelve levels were added to King's offense level. § 2B1.1(b)(1)(G). King has not contested the accuracy of the loss calculation in the district court or on appeal. With other adjustments for obstruction of justice and King's criminal history of Category II, the final guideline range for King was 46 to 57 months in prison, plus the mandatory consecutive 24 months for aggravated identity theft.[2]

         The district judge concluded, however, that the guideline range overstated King's culpability. The judge noted in particular the defense argument that so much of the loss amount was driven by "theoretical" rather than actual loss. The judge provided a thoughtful explanation of the sentence that considered a variety of aggravating and mitigating factors, including King's continued crimes while on pretrial release, the harm to the victims, the conditions of King's pretrial detention, and his family situation. In the end, the court imposed a below-guideline sentence of 30 months plus the mandatory consecutive 24 months for a total sentence of 54 months in prison.

         II. The Relationship Between the Guidelines and § 3553(a)

         So far, then, it is hard to see what King is appealing. The district court calculated the guideline range accurately, as King agrees, and then used its power and responsibility under § 3553(a) to impose a below-guideline sentence. That procedure follows the guidance of the Supreme Court, this court, and the Sentencing Commission. See Gall, 552 U.S. at 49-50; Rita v. United States,551 U.S. 338, 351 (2007); United States v. Pennington, 667 F.3d 953, 956 (7th Cir. 2012); U.S.S.G. ยง 1B1.1. And ...

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