Appeal from the United States District Court for the Eastern District of Wisconsin. No. 03 CR 278-J.P. Stadtmueller, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before FLAUM, Chief Judge, and RIPPLE and SYKES, Circuit Judges.
On September 17, 2004, Gene Vaughn pleaded guilty to two counts of conspiracy, stemming from the theft, transportation and fraudulent endorsement of United States Treasury checks. See 18 U.S.C. §§ 371, 1956(h). The District Court for the Northern District of Illinois sentenced Mr. Vaughn to 121 months' imprisonment, as well as imposed a restitution obligation in the amount of $383,919.49. Mr. Vaughn now challenges his sentence; he submits that the district court erred in consulting the 2001 Sentencing Guidelines be- cause a majority of his conspiratorial conduct occurred prior to the enactment of those Guidelines. He also contends that the district court erred in applying the sentencing factors specified in 18 U.S.C. § 3553(a). For the reasons set forth in the following opinion, we affirm the judgment of the district court.
In early 2001, Mr. Vaughn entered into a conspiracy with a number of individuals to steal treasury checks, namely tax refund checks issued by the Internal Revenue Service and monthly checks issued by the Social Security Administration, from a postal distribution center in Los Angeles, California. These checks were stolen by Jonathan Culbert, Jr. and others between March 2001 and July 2002; Jonathan and Sheryl Culbert then mailed the checks to Marlon Holt in Florida, who mailed them to Mr. Vaughn in Wisconsin. R.159 at 3. It was agreed that Mr. Vaughn would open "nominee" accounts in the name of fictitious business entities for the purpose of depositing and transferring the funds to himself and his co-conspirators. Id.
Mr. Vaughn opened three bank accounts for this purpose. On March 23, 2001, he and Demetrious Garner opened a business checking account at Wells Fargo Bank in the name of fictitious entity, "EZ Check Cashing."*fn1 Id. Mr. Vaughn and Garner then fraudulently endorsed and deposited $388,378.26 in stolen treasury checks into this account. These funds were later withdrawn by Mr. Vaughn and transferred elsewhere. For example, during 2001, Mr. Vaughn wrote a series of checks-totaling $222,311- from the EZ Check Cashing account to a personal account at Charter One Bank, which had been opened under the alias, "Barry Vaughn." Id. at 5. Mr. Vaughn then used these funds for personal expenditures, including the purchase of a car. He also wrote checks, totaling $119,000, from the EZ Check Cashing account to several of his co-conspirators. The account was later closed by Wells Fargo due to suspicious activity. Id.
In March 2002, Mr. Vaughn, along with his niece, Tominka Vaughn, opened a second account at Wells Fargo, this time under the name of fictitious entity, "Ruekia Redd d/b/a Tax Returns by Redd." Id. They fraudulently endorsed and deposited $16,023.47 in stolen treasury checks into and made numerous cash withdrawals from the account. This account also was closed by the bank because of suspicious activity. Id.
Mr. Vaughn opened a third account in June 2002, this time at Bank One and in the name of fictitious entity, "Troy Phillips d/b/a Phillips Tax Agency." Id. at 4. Mr. Vaughn, along with his co-conspirators, fraudulently endorsed and deposited into this account eleven stolen checks, totaling $24,773.64. Mr. Vaughn also wrote checks from this account to the Barry Vaughn account at Charter One Bank. Id.
The checks fraudulently endorsed and deposited into these three accounts from March 2001 to July 2002 totaled $429,175.37; this sum included approximately $424,632.51 in stolen treasury checks and $4,542.86 in the form of a stolen non-treasury check. Id.
In May 2002, the United States Secret Service ("USSS") and the FBI began investigating the criminal activities of Mr. Vaughn and his co-conspirators. They obtained signature cards, deposit items and endorsed checks from Wells Fargo. On May 15, 2002, they interviewed Garner, who revealed various details of the conspiracy and implicated Mr. Vaughn. Tominka Vaughn was arrested on May 20, 2002, for attempting to pass a stolen check at Wells Fargo Bank; when interviewed, she also implicated Mr. Vaughn in the conspiracy. Four days later, the USSS obtained and executed a seizure warrant for Mr. Vaughn's vehicle, which had been purchased with the stolen funds; in the vehicle, they found a bank card for the Charter One account, and receipts for packages sent by Mr. Vaughn to his co-conspirators in Los Angeles. R.73, Ex.B.
B. District Court Proceedings
On December 9, 2003, a federal grand jury in the Eastern District of Wisconsin returned a thirteen-count indictment, charging Mr. Vaughn and five other defendants*fn2 with violations of 18 U.S.C. §§ 371, 510(a)(2), 1344, 1956(a)(1) (A)(I), 1956(a)(1)(B)(I) and 1956(h), and 31 U.S.C. §§ 5324(a)(3) and 5324(d)(2).*fn3 Mr. Vaughn pleaded guilty to two counts: (1) conspiracy to defraud the United States, including conspiracy to steal, transport, receive and forge ...