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United States v. Heckel

June 22, 2009


Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 41-John C. Shabaz, Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge.


Before POSNER, KANNE, and SYKES,Circuit Judges.

After auctioning items on the Internet that he had no intention of delivering, Jeffrey Heckel was indicted on five counts of wire fraud. He pleaded guilty to one of those counts and was sentenced to 30 months in prison. Heckel appeals his sentence; he contends that the district court erred in calculating both his offense level and criminal-history score when it applied a two-level enhancement for mass-marketing and added three criminal-history points for a state-court theft conviction.

We affirm. Application of the mass-marketing enhancement was appropriate because Heckel used the Internet to conduct large-scale advertising to attract bidders to his fraudulent online auctions. Moreover, the district court did not clearly err when it determined that Heckel's previous state conviction had resulted in a 19-month term in prison, which added three criminal-history points to his total. Heckel's recollection that his sentence was shorter was insufficient to cast doubt on the reliability and accuracy of the information in the presentence investigation report ("PSR"), on which the district court relied. Because the district court correctly calculated Heckel's offense level and criminal-history score and imposed a sentence within the applicable guidelines range, we presume that the sentence was reasonsable-a presumption Heckel has failed to rebut.

I. Background

Beginning in March 2002, Jeffrey Heckel used two Internet auction websites to defraud successful bidders on items he had listed for sale. The scheme was simple: He would list an item for auction, accept the highest bid, cash the check sent to him by the winning bidder, and ship a product far inferior to the one advertised on the website. Heckel's fraud netted him in excess of $15,000.

Most of the winning bidders cheated by Heckel's fraud contacted law-enforcement authorities, and his operation was shut down just over a year after it had begun. Heckel was indicted on five counts of mail fraud in violation of 18 U.S.C. § 1341. He agreed to plead guilty to one count and pay restitution to all five victims. In exchange the government dismissed the remaining counts and recom-mended that he receive a reduction in his offense level for acceptance of responsibility. The district court accepted Heckel's plea.

The probation office calculated a total offense level of 11 under the sentencing guidelines, which included a base offense level of 7 plus a 4-level increase because the amount of loss was more than $10,000 but less than $30,000. U.S.S.G. § 2B1.1(a)(1) & (b)(1)(C) (2006). The PSR also applied the two-level reduction for acceptance of responsibility, id. § 3E1.1(a), but then added two levels because the offense was committed through "mass-marketing," id. § 2B1.1(b)(2)(A)(ii). Heckel objected to the application of the mass-marketing enhancement.

For Heckel's criminal-history score, the PSR initially assessed 12 points, placing him in criminal-history Cate-gory V. Heckel made two objections to this total. The probation office then agreed with one of these objections and issued an addendum reducing Heckel's score to 10, the minimum for Category V. The probation office disagreed with Heckel's second objection-relating to his state conviction for theft-and refused to reduce Heckel's total any further.

The district court accepted the reduction from 12 to 10 points, but did not specifically address Heckel's objection regarding the treatment of his theft conviction. As a result, Heckel remained in criminal-history Category V. The court also rejected Heckel's challenge to the application of the mass-marketing enhancement, so the guidelines recommended a range of 24-30 months. Commenting on Heckel's extensive criminal past and the need to deter any future criminal behavior, the court sentenced Heckel to 30 months in prison and 3 years of supervised release. Heckel appealed.

II. Analysis

Our review of a district court's application of the guidelines is de novo, but we review findings of fact for clear error. United States v. Samuels, 521 F.3d 804, 815 (7th Cir. 2008). Sentencing factfinding is entitled to deference " 'unless we have a definite and firm conviction that a mistake has been ...

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