Criminal Law

Dist. Ct. did not err in imposing 157-month term of incarceration on wire fraud, furnishing false and fraudulent material information in documents required under federal drug laws and distributing controlled substances charges arising out of defendant’s scheme to impersonate psychiatrist who treated patients and prescribed controlled substances. Dist. Ct. could properly base said sentence, in part, on enhancements for use of sophisticated means under section 2B1.1(b)(10)(C) of USSG and for conduct that involved conscious or reckless disregard of risk of death or serious bodily injury under section 2B1.1(b)(15)(A) of USSG, where: (1) defendant’s creation of fake diplomas, resumes and unauthorized licenses, as well as generation of government filings in order to conceal his scheme qualified as sophisticated means enhancement; and (2) defendant’s treatment of patients with serious psychiatric problems, where defendant had no training to do so, posed danger for said patients that satisfied “serious bodily injury” requirement under section 2B1.1

Dist. Ct. did not err in sentencing defendant to 324-month term of incarceration, as well as imposed $1,669,050.98 in restitution on charges of conspiracy, mail and wire fraud and interstate extortion arising out of on-line dating scheme in which defendant fooled victims into thinking they were communicating with successful businessmen and, after obtaining victims’ trust, sought money and merchandise from victims. Dist. Ct. could properly apply substantial hardship and vulnerable victims enhancements, where: (1) seven victims listed in presentence report asserted either insolvency, bankruptcy, substantial loss to savings or substantial change to employment or living circumstances arising out of charged scheme; and (2) defendant targeted victims who were vulnerable because of divorce, being widows or being abandoned because he believed that they would be susceptible to his deceitful tactics. Defendant also qualified for military misrepresentation enhancement, where record showed that defendant led victims to believe that money they sent would be used to complete work on behalf of U.S. military. Too, defendant qualified for organizer or leader enhancement, where defendant recruited accomplices, placed orders for merchandise, acquired phony credit card data to purchase merchandise and directed others on what to tell victims. With respect to loss calculation, Dist. Ct. properly placed burden of defendant to rebut accuracy of calculation set forth in presentence report, and Dist. Ct. could properly base restitution order on said loss calculation.

Dist. Ct. did not err in imposing three-year term of incarceration after finding that defendant had violated terms of his five-year supervised release on drug conspiracy charge, where defendant was caught driving under influence of heroin. While defendant argued that Dist. Ct. committed procedural error during revocation hearing by failing to adequately consider relevant sentencing range recommended by Guidelines policy statements, record showed that Dist. Ct. was aware of and rejected applicable policy statements as starting point in determining defendant’s sentence. Also, Dist. Ct. gave appropriate consideration regarding alleged error in criminal history calculation at defendant’s original sentencing and provided specific reasons for sentence it imposed. As such, Dist. Ct. sufficiently addressed and rejected defendant’s claim that lower suggested sentencing range would have impacted sentence ultimately imposed.

Dist. Ct. did not err in sentencing defendant on limited remand to same 444-month sentence on series of firearm related crimes, even though Dist. Ct. had imposed original sentence under belief that it could not consider mandatory minimum sentence for defendant’s conviction under section 924(c) when deciding sentences for other crimes. Dist. Ct. could properly find that there was no basis for reduction in defendant’s sentence, even if it had been aware of ability to consider mandatory minimum sentence defendant would receive on section 924(c) firearm charge, given viciousness of defendant’s crimes, including kidnapping and torture of woman who was victim.

Dist. Ct. did not err in sentencing defendant to 98-month term of incarceration followed by three-year term of supervised release, even though defendant argued that Dist. Ct. failed to make explicit Guidelines calculation for his term of supervised release. Explicit announcement by Dist. Ct. of Guidelines recommendation for supervised release is not required, and record showed that Dist. Ct. otherwise made numerous references to presentence report that contained Guidelines calculation for supervised release and explicitly adopted Guidelines calculation contained in said report. Also, Dist. Ct. appropriately considered Guidelines’ departure provision/policy statements during its section 3553(a) analysis and considered defendant’s mitigation arguments, even though it did not find them to be persuasive.