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United States v. White

United States Court of Appeals, Seventh Circuit

March 2, 2018

United States of America, Plaintiff-Appellee,
v.
Vance White, Defendant-Appellant.

          Argued January 5, 2018

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13-cr-00767-3 - Harry D. Leinenweber, Judge.

          Before Kanne, Rovner, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Vance White participated in a wire fraud scheme and pleaded guilty to one count of wire fraud, 18 U.S.C. § 1343, and one count of aggravated identity theft, 18 U.S.C. § 1028A(a)(1). The district court calculated White's Sentencing Guidelines range based on the amount of loss caused by the entire scheme over four years. During most of that time, though, White was in prison. We conclude that White's guilty plea did not admit his involvement from the outset of the scheme. No other evidence in the record provides sufficient support to hold White responsible for the entire duration. We therefore vacate his sentence and remand for resentencing.

         I. Factual and Procedural Background

         White and his co-schemers bought merchandise in retail stores with fake checks and then returned the merchandise for cash. Over about four years, the group targeted 32 stores and inflicted actual losses of approximately $627, 000. Posing as representatives of a third-party check-processing company, the schemers contacted retail stores and obtained customers' bank account information from the most recent personal checks used at the stores. The schemers used the account information to make counterfeit checks. They then used the checks to buy merchandise that they would later return for cash.

         In his plea agreement, White admitted to a key paragraph of the government's factual basis for the plea:

Beginning no later than in or around the fall of 2009 and continuing until at least in or around the summer of 2013, in the Northern District of Illinois, Eastern Division, and elsewhere, … VANCE WHITE …, together with other individuals known and unknown to the Grand Jury (the "coschemers"), knowingly devised, intended to devise, and participated in a scheme to defraud and to obtain money by means of materially false and fraudulent pretenses, representations, and promises.

         The problem is that White was in prison for most of that time. He entered state custody on September 18, 2009 and was not released until nearly two years later, on August 19, 2011. He went back into custody on August 20, 2012, leaving him at liberty to pursue the fraud for only one year during the fouryear scheme.[1]

         In calculating a guideline sentencing range, the district court found that White's offense level was 22. White's criminal history category was VI, already the highest level at age 30, based on numerous fraud, theft, and forgery convictions. The guideline range was 84 to 105 months in prison. The court imposed a total sentence of 59 months, giving White credit for 24 months served on a related Illinois forgery conviction. See U.S.S.G. §§ 5G1.3(b), 5K2.23. The court structured the sentence in two parts: 35 months for the wire fraud count, plus a mandatory, consecutive 24 months for the identity theft count. The court also ordered that the 59-month sentence run concurrently with sentences from two different Illinois cases. White is due to be released in August 2018.

         II. Analysis

         A. Loss Amount

         White's principal argument is that the district court used the wrong guideline offense level, holding him responsible for losses imposed by co-schemers while he was in prison before he joined the scheme. The guideline issue is governed by U.S.S.G. § 1B1.3(a)(1), which offers guidance for when a particular defendant should be held responsible for actions of coschemers. According to White, the district court used an offense level that was two levels too high. We review de novo legal interpretations and applications of the Guidelines, United States v. Sykes, 774 F.3d 1145, 1149 (7th Cir. 2014), citing United States v. Wright, 651 F.3d 764, 774 (7th Cir. 2011), and we ...


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