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United States v. Buckner

United States District Court, N.D. Indiana, Fort Wayne Division

December 21, 2017

UNITED STATES OF AMERICA
v.
JAMIE BUCKNER

          SENTENCING OPINION

          THERESA L. SPRINGMANN CHIEF JUDGE

         The Defendant, Jamie Buckner, pled guilty to eight counts of theft of United States property. As part of a check fraud scheme, the Defendant presented over one hundred checks during a five-month period to post offices throughout Indiana for the purchase of stamps and shipping services. The checks were written on accounts with insufficient funds. During the last transaction that she completed before her arrest, a man accompanied the Defendant to the post office. The man's check, instead of one bearing the Defendant's name, was presented in exchange for nearly $800 worth of goods. Count 8, which is based on this transaction, thus charges the Defendant with willfully and knowingly, aiding, abetting, counseling or commanding another individual to steal, purloin, and convert to her own use or the use of another, U.S. postage stamps and merchandise belonging to the United States Postal Service, by assisting in the presentation as payment a check, knowing that it would not be honored. The probation officer who prepared the Presentence Investigation Report (PSR) in anticipation of sentencing relied on the conduct that forms the basis for Count 8 to apply a two-level enhancement to the Defendant's base offense level under U.S.S.G. § 3B1.1 for being an organizer, leader, manager, or supervisor.

         The Defendant objected to the enhancement. On August 11, 2015, the Court held an evidentiary hearing in which the Defendant and her husband testified. The purpose of the testimony was to support the Defendant's objection, as well as her request for a sentence below the advisory Guideline range. The parties have submitted post-hearing briefs. This Sentencing Opinion provides a ruling on the objection and other matters directly impacting the calculation of the advisory Guidelines.

         ANALYSIS

         “When calculating a sentence, a district court first calculates the proper range under the sentencing guidelines. It then considers that guideline range in addition to any of the other relevant sentencing factors under 18 U.S.C. § 3553(a) before arriving at the appropriate sentence.” United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008).

         Facts relevant to sentencing should be proved by a preponderance of the evidence. United States v. England, 555 F.3d 616, 622 (7th Cir. 2009); see also United States v. Krieger, 628 F.3d 857, 862 (7th Cir. 2010) (advising that sentencing factors that do not increase the defendant's sentence beyond the statutory range may be found by the court at sentencing by a preponderance of the evidence). “A proposition proved by a preponderance of the evidence is one that has been shown to be more likely than not.” United States v. Davis, 682 F.3d 596, 612 (7th Cir. 2012). With respect to sentencing,

a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come. A corollary to this general principle is the rule that a sentencing judge may consider relevant information without regard to the rules of evidence provided that the information has a sufficient indicia of reliability to support its probable accuracy.

United States v. Hankton, 432 F.3d 779, 789 (7th Cir. 2005) (quotation marks, ellipses, and brackets omitted). Reliability is determined based on the totality of evidence before the court, and a sentencing determination may be premised on any basis that is supported by the record. Id. at 790.

         A. Aggravating Role in the Offense

         The Defendant objects to the 2-level increase assessed under U.S.S.G. § 3B1.1(c) for being an organizer, leader, manager, or supervisor in any criminal activity. A defendant's offense level is increased pursuant to U.S.S.G. § 3B1.1(c) if she was an organizer, leader, manager, or supervisor of one or more participants in criminal activity. U.S.S.G. § 3B1.1, comment n.2. A participant is someone who is criminally responsible for the commission of the offense even if the person is not convicted. United States v. Zuno, 731 F.3d 718, 723 (7th Cir. 2013); U.S.S.G. § 3B1.1, comment n.1 (noting that someone who is not criminally responsible for the commission of the offense, such as an undercover law enforcement officer, is not a participant).

         Factors to consider when determining whether the enhancement applies include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. U.S.S.G. §3B1.1, comment n.4. Under Seventh Circuit case law, courts are not required to consider these factors, but to the extent they “help to ‘straightforwardly' identify whether a defendant ‘helps manage or supervise a criminal scheme, ' courts may continue to consider them.” United States v. Weaver, 716 F.3d 439, 443 (7th Cir. 2013) (quoting United States v. Grigsby, 692 F.3d 778, 790 (7th Cir. 2012)).

         Here, the basis for the enhancement is set forth in paragraphs 26-32 of the PSR, which sets out the offense conduct that is the basis for Count 8 of the Indictment. These facts are based on Postal Inspector Andrew Gottfried's investigation into numerous bad checks that had been presented to United States postal offices throughout Indiana. In response to these bad checks, postal employees throughout the Greater Indiana District had received electronic mail notifications regarding a possible check fraud scheme involving insufficient fund checks in the name of Jamie S. Buckner, the Defendant in this case. Because of the electronic bulletin, the Defendant was turned away from a post office in Fort Wayne on August 7, 2015.

         On November 18, 2015, an employee of the Waynedale postal station reported in an electronic mail message to Inspector Gottfried that he believed that the Defendant had been at the Waynedale Station that morning with a man who was in his mid-twenties. According to the Waynedale station employee who completed the transaction, a check, number 0003 drawn on Old National Bank in the amount of $784.00 in the name of Lincoln Shepherd, was presented for payment. During the transaction, the woman took charge and did all of the talking. The woman advised that the man (Shepherd) was doing a mass mailing for his business and wanted stamps that would make a statement. The woman wrote the check and directed the man to sign it and present his identification.

         After the Defendant and Shepherd left the Waynedale station, they went to the Hessen Cassel Post Office. An employee recognized the Defendant as the woman who had passed bad checks at the station before, and the manager contacted the Fort Wayne Police Department about a possible theft in progress by Lincoln Shepherd and Jamie Buckner. A police officer responded and approached the Defendant and Shepherd, who advised they were at the post office to purchase stamps. The officer learned from the station manager that the cashier recognized the Defendant as the same woman who had passed bad checks at the station before. He also advised that, earlier in the day, the man and woman had passed a check in Lincoln Shepherd's name at the Waynedale Branch for almost $800. The manager called the bank and learned that the check would not clear. Based on communication between the responding officer and Inspector Gottfried, the Defendant and Shepherd were transported to the police department to be interviewed.

         During Shepherd's interview, he stated that he told the Defendant that he wanted to make some legal money and the Defendant told him that he could do marketing. The Defendant assisted Shepherd in opening a checking account by taking him to Old National Bank and giving him a check for $50.00 to open the account. At Old National Bank, Shepherd was given starter checks. Shepherd stated that the Defendant then directed him to the post office where the Defendant coached him through the purchase of $784 in postage stamps. Shepherd stated that the Defendant then ...


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