Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

MEMORANDUM^* 

Steven James Trexler appeals from the sentence imposed upon his guilty plea to one count charging unauthorized use of a credit card in violation of 18 U.S.C. §§ 2, 1029(a) (2); one count charging forgery of a United States Treasury check in violation of 18 U.S.C. §§ 2, 510(a) (2); and one count charging receipt of stolen mail in violation of 18 U.S.C. § 1708. We vacate Trexler's sentence and remand for resentencing.

Trexler was sentenced pursuant to the United States Sentencing Guidelines (the Guidelines). The presentence report calculated Trexler's total offense level at sixteen. The base offense level for crimes involving fraud or deceit is six. U.S.S.G. Sec. 2F1.1(a). Six points were added because the loss involved between $100,000 and $200,000. Id. Sec. 2F1.1(b) (1) (G).¹  Two points were added because the scheme involved more than minimal planning and harmed more than one victim. Id. Sec. 2F1.1(b) (2). Four points were added because Trexler "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Id. Sec. 3B1.1(a). Finally, Trexler received a two point credit for acceptance of responsibility. Id. Sec. 3E1.1(a).

The presentence report calculated Trexler's criminal history points as thirteen, putting Trexler in criminal history category VI. Given the total offense level of sixteen points and a criminal history category of VI, the applicable guideline range was forty-six to fifty-seven months. Id. Sentencing Table. The report recommended an upward departure to a custodial sentence of seventy-two months, on the grounds the Guidelines did not adequately take into account the scope of the offense or Trexler's criminal history.

At sentencing, Trexler objected orally, for the first time, to the report's recommendation of an upward adjustment based on specific offense characteristics and Trexler's role in the scheme. Notwithstanding Trexler's failure to comply with S.D. Cal. R. 430-4(3), which requires any objections to the presentence report be filed in writing within seventeen days after the report is filed, the court considered Trexler's objections.

Trexler argued the evidence did not support the six point enhancement for losses between $100,000 and $200,000, asserting there was no "ostensible evidence to link him with sums greater than" approximately $10,000. Trexler argued the four point enhancement for his leadership role in the scheme was inappropriate, since he was involved primarily only with his wife and with Patti Edwards, who was named in the indictments but not herself indicted. Trexler asserted he came into contact with the other members of the group only occasionally and fortuitously.

The court rejected Trexler's contentions. The court agreed Trexler was not alone responsible for losses in excess of $100,000, but regarded the scheme as a conspiracy in which Trexler was a major participant. The court remarked that Trexler's characterization of his role as a limited one "defies all the known facts in the case." Accordingly, the court concluded it was appropriate to attribute losses in excess of $100,000 to Trexler and to enhance his sentence for playing a leadership role in an extensive scheme.

The court also rejected Trexler's objections to departing upwardly because the Guidelines did not take into account the consequences of Trexler's offense, pointing out that seven individuals supported themselves for a two-year period by stealing mail, cashing stolen checks and using stolen credit cards, and, although no accurate accounting of the loss suffered could be made because of the nature of the crimes committed, the loss was "certainly well over one hundred to two hundred thousand dollars."

The court further found Trexler's criminal history category did not adequately reflect his record. The court noted that a case against Trexler involving similar charges had been dismissed under a plea agreement, that Trexler had received the benefit of merging his federal indictments under Fed. R. Crim. P. 20, that he had a prior state conviction for possession of a forged note and a prior arrest for burglary of a stolen identification card, and that all of the prior incidents reflected a similar modus operandi, indicating Trexler had supported himself through fraud.

Departing from the applicable guideline range of forty-six to fifty-seven months, the court imposed a custodial sentence of eighty-four months: seven years on the credit card count, seven years on the forgery count, and five years, the statutory maximum, on the count for receipt of stolen mail. All sentences are to run concurrently. The court also imposed a three year term of supervised release to follow the custodial sentence.

Trexler appeals the enhancement of his basic offense level for the amount of loss suffered and for his role in the offense, and the upward departure from the applicable guideline range.² 

Enhancement

Defendant's Role

The statements of Deborah Pierce, Dana Jo Hendley, and Susan Trexler, as well as Steven Trexler's own admissions, contained in the presentence report, amply support the district court's finding Trexler played a leading role in "criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. Sec. 3B1.1(a). Saccoccie and Trexler were in leadership roles; the women were used primarily to pass the checks and make purchases with the credit cards. The district court found codefendant Lonnie Saccoccie was initially the ringleader and taught Trexler how to make counterfeit identification cards and mailbox keys, and to rob mailboxes. The entire group, however, operated through a common scheme, and all worked together in California and Nevada. When Trexler traveled east with his wife and Patti Edwards, he continued to develop and refine the scheme.

Amount of Loss

Given Trexler's leading role in the scheme, it was appropriate for the district court to attribute to Trexler, for sentencing purposes, the losses caused by the entire scheme (id. Secs. 1B1.3(a) (1) & comment. (n. 1)); and the district court did not clearly err in estimating the total loss exceeded $100,000. Id. Sec. 2F1.1, comment. (n.8). Trexler and his codefendents lived on the proceeds of their counterfeiting and theft for about two years. When Saccoccie was arrested, there were eighty-two pieces of stolen mail in his car, representing a potential loss of $74,050. Susan Trexler admitted taking $12,000 in one day in Las Vegas, and a total of about $30,000 from a single bank. Steven admitted stealing about fifty checks over two months in San Diego, Denver, Las Vegas, Kansas City and Myrtle Beach, South Carolina.

Upward Departure

Extent Consequences

Assuming the district court had adequate information to support its finding the loss suffered was greater than the $100,000 to $200,000 relied on for the six point enhancement under section 2F1.1(b) (1), nevertheless it was error to depart from the Guidelines range on this ground. The Guidelines explicitly take the amount of loss into account. If the loss was indeed greater than $100,000 to $200,000 the appropriate enhancement for the larger figure under section 2F1.1(b) (1) should have been selected. Section 5K2.5, providing for a departure if the defendant has caused damage or loss to property, does not support a departure; this provision is expressly limited to situations where the loss is "not taken into account within the guidelines."

Past Criminal Conduct

The sentencing court is authorized to depart from the guideline range if the defendant's criminal history category "does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. Sec. 4A1.3.

The events of Trexler's past, as set forth in the presentence report, are not in dispute. The district court did not abuse its discretion in determining Trexler's criminal history category did not adequately reflect the risk of recidivism, given the dismissal of the similar case, the merger of his federal indictments under Rule 20, his state conviction for possession of a forged note and his arrest for burglary of a stolen identification card.

Nevertheless, because the amount of loss suffered is an inappropriate ground for departure we VACATE Trexler's sentence and REMAND for resentencing.