United States v. Tanganica Corbett
Opinion
*1035
This appeal requires us to review two sentencing enhancements for plain error and to reverse one of them. After Tanganica Corbett pleaded guilty to participation in an identity-fraud conspiracy, the district court enhanced her offense level under the Sentencing Guidelines two levels for an offense involving ten or more victims and ten levels for an offense that caused a loss that exceeds $150,000 but does not exceed $250,000.
See
United States Sentencing Guidelines Manual § 2B1.1(b)(1)(F), (b)(2)(A)(i) (Nov. 2016). Corbett objected to each enhancement in the district court, but on different grounds from her arguments on appeal, so we review each issue for plain error only. We agree with Corbett that the district court committed plain error in its application of the ten-or-more-victims enhancement because, contrary to our precedent,
United States v. Hall
,
I. BACKGROUND
Tanganica Corbett and Kevin Weaver II worked at Florida Hospital near Orlando, Florida. From July 2012 to July 2013, Weaver held the position of release-of-information specialist. During that time, Weaver downloaded patients' "face sheets"-profiles that include a patient's name, health information, date of birth, Social Security number, and insurance details-without the authority to do so. He then sold them to an unidentified co-conspirator who, the government believed, intended to use the information to open credit-card accounts and to commit other forms of identity fraud.
In July 2013, Corbett took over Weaver's position as release-of-information specialist. He solicited her to obtain face sheets without authority and to pass them on to him. She complied. In March 2014, Weaver paid her about $150 to $200 for her assistance.
A grand jury charged Corbett and Weaver with conspiracy to obtain and disclose individually identifiable health information for commercial advantage, personal gain, or malicious harm.
See
*1036
42 U.S.C. § 1320d-6(a)(2)-(3), (b)(3) ;
Using the 2016 edition of the Sentencing Guidelines Manual, the probation officer assigned Corbett a total offense level of 22 based on a base offense level of 6 and four enhancements, two of which Corbett objects to in this appeal.
See
U.S.S.G. § 2B1.1(a)(2) (prescribing the base offense level). First, the probation officer found that "the defendants," collectively, "unlawfully accessed more than 1,700 means of identification," so the probation officer applied the two-level enhancement for an offense that "involved 10 or more victims."
Among other timely objections to the probation officer's Guidelines calculations, Corbett objected to the probation officer's calculation of the loss amount on the ground that it did not limit her relevant conduct as required by section 1B1.3 of the Guidelines. Corbett also objected to the probation officer's failure to apply a three-level reduction for acceptance of responsibility.
See
At the sentencing hearing, Corbett confirmed that she had "no objections to the facts" in the presentence investigation report, but she presented her "legal objections" to the probation officer's calculations under the Guidelines, including her objections to the loss amount and the ten-or-more-victims enhancement. With respect to the loss amount, Corbett did not press her relevant-conduct argument based on section 1B1.3 but instead argued that Florida Hospital's expenses should have been excluded as "costs incurred by victims primarily to aid the government in[ ] the prosecution and criminal investigation of an offense."
The district court sentenced Corbett to three concurrent terms of 12 months and one day of imprisonment and three years *1037 of supervised release. The district court said that the severity of the offense-"by far the worst" identity-theft case it had ever seen-was "a major aggravating factor." But it found "significant mitigating factors" in that Corbett "up until this event had been a productive person with no criminal conduct," was "clearly less culpable than ... Weaver," may not have fully understood "that she was doing wrong," was "remorseful," and had "cooperated with the Government." The district court remarked favorably that Corbett had "maintained employment notwithstanding these difficulties," recognized her "family obligations," and deemed her unlikely to reoffend. The district court also took note that Corbett's financial gain was "minuscule." Observing that the probation officer had recommended a variant sentence of 24 months before the acceptance-of-responsibility adjustment had been applied, the district court reasoned, "based on that, the probation officer's recommendation under [the district court's] calculation of the guideline score would be probably closer to 12 to 18 months." The district court stated that, "[u]nder normal circumstances," it might "find probation to be appropriate ... based on these significant mitigating factors," but that, "[u]nfortunately, that mitigation [was] outweighed by the seriousness of this offense." Corbett maintained her objections to the loss amount and to the ten-or-more-victims enhancement.
II. STANDARDS OF REVIEW
We review Corbett's sentence "under an abuse-of-discretion standard."
Gall v. United States
,
We review unpreserved sentencing objections only for plain error.
United States v. Joyner
,
III. DISCUSSION
We divide our discussion in two parts. First, we explain that the district court *1038 plainly erred when it applied the ten-or-more-victims enhancement. Second, we explain that Corbett has established no plain error in the application of the loss-amount enhancement.
A. The District Court Plainly Erred when It Applied the Ten-or-More-Victims Enhancement.
Section 2B1.1 of the Sentencing Guidelines provides a two-level enhancement for an offense that "involved 10 or more victims." U.S.S.G. § 2B1.1(b)(2)(A)(i). In general, a "victim" is a person who suffered an "actual loss" or an individual who "sustained bodily injury as a result of the offense."
Based on our decision in United States v. Hall , Corbett argues that the district court erred when it counted all 1,700 or more individuals whose face sheets were compromised as victims because the government did not prove that all of their means of identification had been "used" within the meaning of the relevant definition. As a threshold matter, we agree with the government that Corbett did not preserve this objection for appeal and that plain error is the correct standard of review. Corbett's only objection to the ten-or-more-victims enhancement in the district court was that the government had not proved that ten people suffered a financial loss. She made no argument based on Hall or on the meaning of the word "used."
But we agree with Corbett that the district court committed plain error. In
Hall
, we considered whether an almost identically situated defendant-a medical office assistant who, like Corbett, stole patients' identifying information and sold it to co-conspirators who in turn sold it to the primary identity fraudsters in the conspiracy-had "used" patients' means of identification.
See
Based on the plain meaning of the word "used" in the context of the relevant definition of "victim," we held that the "mere sale or transfer" of identifying information was not "equivalent to [its] actual use."
The government's argument for distinguishing
Hall
is untenable. Taking
Hall
's references to "the purpose of the conspiracy" out of context and treating them as the core of its holding, the government points out that the indictment charged that "the purpose of the conspiracy" between Corbett and Weaver was for them to "unlawfully enrich themselves by ... stealing ... and selling the patients' information," not to obtain fraudulent credit cards, and the government argues that Corbett "used" patients' information to that end when she sold it to Weaver. But a similar argument could have been made about the defendant in
Hall
, who, after all, also intended to enrich herself by selling the information she had stolen. Indeed, that argument
was
made, and we rejected it.
See
The government's contrary reading of Hall makes little conceptual sense. If "the purpose of the conspiracy" determined whether identical conduct did or did not qualify as "use" of a means of identification, then we would need to know how to define the decisive "purpose." Purposes can be described at varying levels of generality-remote or proximate, abstract or granular-but Hall provided no method for selecting the right one. And the proposal on which the government's argument depends-that the sentencing court should simply adopt, in haec verba , the description of "the purpose of the conspiracy" in the indictment-has no basis in Hall or in logic. The indictment's description of "the purpose of the conspiracy" served a narrative function; it did not recite an element of the offense. So the grand jury was not required to describe Corbett and Weaver's goals at any particular level of generality or with any particular amount of detail. And nothing in Hall suggests that the ten-or-more-victims sentencing enhancement depends on the level of generality the grand jury happens to select or the amount of detail it happens to include in its description of a defendant's aims. After all, Hall interpreted the word "used" in the context of a definition of "victim" that applies to identity-theft-related crimes. Every reasonable reader of the Guidelines would expect that whether someone counts as a "victim" of such a crime depends on what was done with his or her information-that is, on the defendant's conduct.
Although
Hall
explained that the defendant's conduct was
not
the use of means of identification, it made clear what
was
use: the "employ[ment of] that information" to "procure[ ] ... fraudulent credit cards and cash advances."
It follows that the district court erred when it counted every individual whose information was illegally downloaded as a "victim," regardless of whether that individual's information was ever fraudulently "used" for any purpose to which it was adapted as a means of identification. And we reject the government's argument that the error was not plain because our opinion in
Hall
left "room for doubt" about the issue. To be sure, when the governing text is unclear about a specific question, "there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it."
Lejarde-Rada
,
Although we will not correct even a plain error if it does not affect any party's substantial rights,
see
Fed. R. Crim. P. 52(b), the record establishes a reasonable probability that Corbett would have received a different sentence if the district court had not erroneously applied the two-level enhancement for an offense involving ten or more victims.
See
Molina-Martinez
,
At least in some circumstances, a sentence well below any possible sentencing range can be a powerful indicator that a miscalculated range did not affect a defendant's substantial rights, and the decision in
Molina-Martinez
is not to the contrary. In
Molina-Martinez
, the Supreme Court reasoned that, "[i]n the usual case," "the systemic function of the selected Guidelines range will affect the sentence," so, "[i]n most cases[,] a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome."
We conclude there is a reasonable probability that the district court's error affected Corbett's sentence because, even though the district court varied downward from its calculated sentencing range, its sentencing decision remained tethered to what it believed to be the correct range under the Guidelines. More specifically, its sentencing decision was tethered to the variant sentence that it thought the probation officer, who had originally recommended a 24-month sentence based on a calculated range of 41 to 51 months, would recommend after the district court's application of the acceptance-of-responsibility reduction lowered the range to 30 to 37 months. "[B]ased on that [calculation]," the district court reasoned at the sentencing hearing, "the probation officer's recommendation ... would be probably closer to 12 to 18 months," and the district court imposed a sentence within that range. On this record, we cannot rule out the reasonable probability that the district court would have imposed a lesser sentence if it had excluded the two-level ten-or-more-victims enhancement, calculated a range of 24 to 30 months, and then estimated the probation officer's recommended variance based on that calculation.
The use of the ten-or-more-victims enhancement to calculate Corbett's total offense level was erroneous, the error was plain, and it affected Corbett's substantial rights. "In the ordinary case, proof of a plain Guidelines error that affects the defendant's substantial rights" satisfies the defendant's "burden to persuade the court that the error seriously affected the fairness, integrity or public reputation of judicial proceedings," and the government has not argued that Corbett's case is out of the ordinary in this respect.
Rosales-Mireles v. United States
, --- U.S. ----,
B. Corbett Has Established No Plain Error in the Application of the Loss-Amount Enhancement.
Section 2B1.1 of the Guidelines also provides for a ten-level enhancement if the loss resulting from an offense exceeds $150,000 but does not exceed $250,000. U.S.S.G. § 2B1.1(b)(1)(F). In general, "loss is the greater of actual loss," namely "the reasonably foreseeable pecuniary harm that resulted from the offense," and "intended loss," which "means the pecuniary harm that the defendant purposely sought to inflict."
Corbett argues that the district court committed significant procedural error in applying this enhancement because it failed to "hold[ ] the government to its burden of proving a disputed sentencing fact," but Corbett fails to clarify what "sentencing fact" related to the loss amount was "disputed." After all, Corbett expressed "no objection to the facts" of the presentence investigation report. Her objections to the probation officer's calculations under the Guidelines were only "legal objections." And Corbett's argument on appeal confusingly intertwines three distinct rationales for objecting to the enhancement.
First, as the centerpiece of her appellate argument, Corbett appears to contend that Florida Hospital's losses were not "reasonably foreseeable" to her, an argument she never presented in the district court.
See
U.S.S.G. § 2B1.1 cmt. n.3(A)(iv). The probation officer found that, "[a]s a result of Weaver, Corbett and the co-conspirators' conduct, Florida Hospital incurred costs associated with identifying and notifying patients whose individually identifiable health information was viewed without authority by Weaver and his co-conspirators. The loss incurred by Florida Hospital as a result of this conduct is $232,068.64." Because Corbett "did not specifically and clearly object to these factual statements"-or to any of the probation officer's factual findings-"[s]he is deemed to have admitted them and the district court was entitled to rely on them even in the absence of supporting evidence."
Aguilar-Ibarra
,
Second, Corbett's argument contains echoes of the objection she raised at the sentencing hearing, that Florida Hospital's losses should have been excluded as "costs incurred ... primarily to aid the government in[ ] the prosecution and criminal investigation of an offense." U.S.S.G. § 2B1.1 cmt. n.3(D)(ii). Again, by failing to object to the facts in the presentence investigation report, Corbett admitted that Florida Hospital incurred $232,068.64 in "costs associated with identifying and notifying patients" whose information Weaver and Corbett had compromised, so she placed no burden on the government to prove as a factual matter that any part of that amount was not incurred "primarily to aid the government." And if Corbett's argument is that "costs associated with identifying and notifying patients" are indistinct from costs incurred "primarily to aid the government" as a matter of law, then it fails on its face.
Finally, in a single paragraph of her initial brief, Corbett suggests that she "should not be held responsible for the costs of investigating any data breaches that occurred prior to July 28, 2013," the date she took over Weaver's job as release-of-information specialist. This suggestion corresponds to Corbett's original objection to the loss-amount enhancement: that the probation officer did not limit
*1043
Corbett's relevant conduct to the acts and omissions for which she was responsible under section 1B1.3 of the Guidelines.
See
U.S.S.G. § 1B1.3 cmt. n.3(B) (explaining, among other principles, that "[a] defendant's relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy");
see also, e.g.
,
United States v. Hunter
,
We remind the defense bar of the importance of
specific
factual and legal argumentation at every stage of sentencing proceedings. A defendant should "specifically and clearly object" to any facts in a presentence report that she does not intend to admit and that she wishes to require the government to prove by a preponderance of the evidence.
Aguilar-Ibarra
,
IV. CONCLUSION
We VACATE Corbett's sentence and REMAND for resentencing.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Tanganica CORBETT, Defendant-Appellant.
- Cited By
- 59 cases
- Status
- Published