In United States v. Presendieu, No. 15-14830 (Jan. 19, 2018) (Hull, Jordan, Boggs), the Court affirmed one defendant's bank-fraud and aggravated identity theft convictions, but vacated the other defendant's sentence due to two guideline miscalculations.
On appeal, the defendant argued for the first time that his guilty plea was invalid, because he was not adequately informed of the nature of the charges against him, since the court did not list and explain each element of the offenses. Applying plain error, the Court rejected that argument, finding that neither offense was complex, the defendant was intelligent, the defendant understood the facts set forth in the factual proffer, he had discussed those facts with his attorney, and he voluntarily and intelligently pled guilty to the charges.
As for the other defendant's sentence, the Court first concluded that the district court erred in calculating her loss amount, because, under the 2015 amendment to the relevant conduct Guideline, it improperly included conduct that was outside the scope of her "jointly undertaken criminal activity." The Court found no evidence to support any connection between the defendant and the conduct of another individual in the larger check-cashing scheme on which the loss amount was partially based.
The Court upheld the two-level enhancement for production of counterfeit or unauthorized access devices under USSG 2B1.1(b)(11)(B)(i). Although application of this enhancement is limited where the defendant is convicted of aggravated identity theft, the Court found that her offense involved production of false identification cards, as she provided cards to others and repeatedly referenced her source.
The Court upheld the two-level enhancement for the use of sophisticated means under USSG 2B1.1(b)(10)(C). The defendant relied on Amendment 792, which required intentional conduct, but the Court refused to apply it to her, because it took effect after her sentencing, and it was a substantive rather than clarifying amendment. Without the amendment, the Court found that the offense involved sophisticated means, because the defendant employed intricate measures to execute and then conceal the bank fraud.
Finally the Court found that the district court erred by denying her request for a two-level minor-role reduction under USSG 3B1.2(b). The district court erred by relying solely on one factor--that the defendant was being held accountable only for her own actions as opposed to the broader conspiracy. While that was a permissible factor, it was only one of many relevant factors under Amendment 794. Moreover, the evidence was conflicting regarding her relative role, and the district court had not made factual findings in that regard.
Judge Jordan issued a concurring opinion on the plea issue. He opined that, while the defendant had not shown plain error, there was seldom a good reason for a court not to set out the elements of an offense during the plea colloquy. And he was skeptical that aggravated identity theft was an offense whose elements were apparent to lay people.
