The opinion of the court was delivered by: Judge Blanche M. Manning
Defendant Carey Portman was convicted of seven counts of bank fraud, see 18 U.S.C. § 1344, and possessing forged securities, see 18 U.S.C. § 513(a). Count One was based upon Portman's use of false Nigerian inheritance documents in his unsuccessful attempt to obtain a $102,825 loan from Citibank. The remaining six counts are based upon four separate incidents in which he attempted to negotiate or deposit forged checks. He is before the court for sentencing.
Portman's probation officer calculated the following sentencing range under the Sentencing Guidelines. First, the offenses are grouped because the conduct of each count would be deemed relevant conduct for every other count. See U.S.S.G. § 3D1.2©, (d). The base offense level is 7 because the maximum statutory term is 20 or more years' imprisonment. See U.S.S.G. § 2B1.1. To that, 16 levels are added for an intended loss of more than $1,000,000. Finally, two levels are added because the offense involved ten or more victims. The resulting adjusted offense level is 25. The probation officer did not credit Portman with acceptance of responsibility, so his total offense level was also 25. The probation officer assigned Portman one criminal history point (although the PSR is not clear on what crime the point was premised), and a criminal history category of I. An adjusted offense level of 25 combined with a criminal history category of I results in a sentencing range of 57-71 months.
Portman has filed two sentencing memoranda. In one memorandum, he challenges the calculation of intended loss set forth in his presentence report and asks for a downward departure based upon his argument that the amount of intended loss overstates the seriousness of his crime. In the other memorandum, he moves for a downward departure based upon diminished capacity. He also challenges the probation officer's assertion that his offenses involved ten victims-Portman contends that the five alleged victims of his Nigerian inheritance scam should not be counted, which would reduce by two his total offense level. In response, the government stands by the probation officer's calculation of intended loss and the number of victims, and argues against a downward departure.
I. Portman's Objections to Guidelines Calculations and Motions for Downward Departures Based Upon Overstated Intended Loss and Diminished Capacity
A. Calculation of Loss & Number of Victims
The probation officer calculated an intended loss of $1,020,825, based upon the following conduct:
Nigerian Inheritance Scam
$102,825 attempted loan from Citibank $120,000 attempted loan from Daniel O'Connell $120,000 attempted loan from Stephen Spitzer $120,000 attempted loan from Advantis $30,000 attempted loan from Stone Pine and Paul Bagley $20,000 attempted loan from Stone Pine and Paul Bagley
$125,000 forged check he attempted to cash at Oak Brook Bank $155,000 forged check he attempted to cash at North Community Bank $100,000 forged check he attempted to cash at Washington Mutual Bank $128,000 forged check he attempted to cash at TCF Bank
1. Nigerian Inheritance Scam
First, Portman objects to including any of the intended loss attributed to the Nigerian inheritance scam except for the $102,825 he attempted to obtain from Citibank. He argues that the other loans were the subject of counts that the government dropped before trial. Therefore, the alleged conduct was not proven at trial beyond a reasonable doubt. Additionally, he argues that because the Nigerian inheritance scam was not proved beyond a reasonable doubt, the probation officer should not have included the five alleged victims when he determined that Portman's offenses involved ten victims.
A district court may resolve contested matters relevant to sentencing, determining facts by a preponderance of the evidence. In making factual determinations, the district court is entitled to rely on the proposed findings in the presentence report, as long as the presentence report sufficiently articulates the basis for its findings. See United States v. Burke, 148 F.3d 832, 835 (7th Cir. 1998). The defendant may not challenge the factual findings in the presentence report by merely denying them, but rather must present evidence that the findings are unreliable. See United States v. Mustread, 42 F.3d 1097, 1101-02 (7th Cir. 1994).
The presentence report details each of the instances in which Portman attempted to obtain loans as part of his Nigerian inheritance scheme, and attaches copies of letters that Portman wrote to each of his victims in which he acknowledges attempting to obtain loans in the amounts described. The presentence report therefore sufficiently identifies the basis for its findings. Furthermore, at sentencing the parties questioned two agents who investigated Portman-postal inspector Gabriel Ortiz and special agent Jason Kane. Both Ortiz and Kane offered testimony consistent with the findings in the presentence report and the court found their testimony to be entirely credible. Although Portman objects generally to the findings in the presentence report and to the facts as testified by Ortiz and Kane, Portman has not presented evidence that the testimony or the findings in the presentence report are unreliable, and in fact does not even challenge their truthfulness.
Accordingly, the court adopts the presentence report's calculation of intended loss arising from Portman's Nigerian investment scam. It also accepts the probation officer's ...