Wednesday, April 04, 2018
Third Circuit Upholds Application of Sentencing Enhancements for Leadership Role and Conspiracy Relocation in Bank and Wire Fraud Conspiracy
In United States v. Thung Van Huynh, 884 F.3d 160 (3d Cir., March 6, 2018), Defendant pled guilty to participating in a bank and wire fraud conspiracy to purchase luxury wristwatches. Specifically, Defendant admitted to purchasing stolen identification and credit reporting information from prospective car buyers in order to create counterfeit driver’s licenses and credit cards. Defendant then gave the counterfeit driver’s licenses and credit cards to his co-conspirators so that they could obtain lines of credit at several financial institutions. The co-conspirators used the lines of credit to purchase the wristwatches. Defendant then sold the wristwatches to a fence in California for cash, which he used to pay his co-conspirators for their services and to cover other expenses of the fraudulent scheme.
In the plea agreement, the government reserved the right to seek an enhancement for Defendant’s leadership role under U.S.S.G. ' 3B1.1(a). However, the plea agreement did not discuss the application of the conspiracy relocation enhancement under U.S.S.G. '' 2B1.1(b)(10). Nonetheless, the plea agreement expressly stated that the government was not restricted in responding to the sentencing court’s questions regarding the application of any sentencing guideline.
The probation office concluded that these two enhancements applied, and the sentencing court agreed. Specifically, the sentencing court concluded that Defendant’s fraudulent scheme, involving several co-conspirators who facilitated or actually made purchases at dozens of jewelry stores across 16 states, was “extensive.”
Defendant challenged the application of both of these enhancements. In reference to the relocation enhancement, Defendant claimed that he did not move his fraudulent scheme from one jurisdiction to another in order to evade law enforcement officials, but merely operated the scheme in multiple locations. In reference to the leadership enhancement, Defendant claimed that he was an equal partner with another co-conspirator, and that he shared the proceeds of the scheme equally with the other co-conspirators. He also claimed that he did not exercise decision-making authority over the co-conspirators or the conspiracy’s profits.
The Third Circuit ultimately affirmed the sentence, concluding that the sentencing court did not clearly err when it applied both of the enhancements. The court ruled that the relocation enhancement was properly applied because Defendant targeted stores far from his home in California, primarily on the East Coast. Defendant himself was stopped by law enforcement officials in Michigan and Texas while attempting to purchase wristwatches. Defendant also never targeted the same store twice, except for a single instance.
The Third Circuit also ruled that the leadership enhancement was properly applied, due to the “overwhelming evidence” of Defendant’s “singular leadership role.” The evidence presented established that Defendant recruited the co-conspirators, obtained the supplies necessary for them to execute the scheme, identified the targeted stores, made the travel arrangements, and controlled the scheme’s finances.
Defendant also claimed that the government had breached the plea agreement by failing to object to the sentencing court’s application of the relocation enhancement. The Third Circuit also ruled that the government did not breach the plea agreement because the language included in the agreement allowed the government fully answer any questions posed by the sentencing court regarding the application of the guidelines. Consequently, the plea agreement did not require the government to affirmatively object to the application of any sentencing guideline. In fact, when questioned by the court during the sentencing hearing, the government agreed with Defendant that the relocation enhancement did not apply.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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