United States v. Ortiz
2011 U.S. App. LEXIS 7395
| 8th Cir. | 2011Background
- Ortiz pled guilty to interstate transportation of stolen property under 18 U.S.C. §§ 2314 and 2, related to a national shoplifting scheme.
- A van loaded with stolen merchandise was stopped; Ortiz admitted transporting items for approximately $2,000 and later acknowledged knowing they were stolen.
- PSR calculated a base offense level of 6, added 8 levels for the value of merchandise, 2 for 10+ victims, 2 for receipt of stolen property, and 2 for sophisticated means, for a total offense level of 20 and a total level of 17 after acceptance of responsibility.
- Ortiz’s criminal history was II; the Guidelines range was 41–51 months.
- The district court departed upward under § 4A1.3 due to inadequacy of Ortiz’s criminal history category and also applied a § 5K2.21 upward departure for using nine different social security numbers, resulting in a total offense level of 22 and a criminal history category VI, with a guideline range of 84–105 months, and sentenced Ortiz to 105 months plus 3 years of supervised release.
- The court also imposed a two-level 3B1.1(c) leader enhancement and a two-level 3C1.1 obstruction enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CVRA testimony scope at sentencing | Ortiz argues CVRA testimony was beyond scope and irrelevant to her offense. | Ortiz contends district court properly admitted testimony to the victims' losses. | District court did not abuse its discretion; testimony allowed if reliable and reasonably heard. |
| Upward departure for inadequate criminal history | Ortiz contends the departure lacked justification for each intermediate category. | Court justified why categories II–VI were inadequate given Ortiz's history. | Procedural error harmless; same sentence would have been imposed. |
| Harmless error analysis for Guideline calculation | Ortiz argues misapplication of guidelines affected sentence. | Any error did not influence the sentence. | Errors were harmless; sentence affirmed. |
| Sufficiency of 3553(a) analysis during variance | Ortiz asserts insufficient consideration of § 3553(a) factors. | Court considered § 3553(a) factors and authority to sentence outside Guidelines. | Record demonstrates consideration of § 3553(a); argument merited no reversal. |
Key Cases Cited
- United States v. Walker, 393 F.3d 842 (8th Cir. 2005) (evidentiary standards at sentencing; CVRA considerations)
- United States v. Bastian, 603 F.3d 460 (8th Cir. 2010) (reliability for sentencing information; CVRA context)
- United States v. Fleck, 413 F.3d 883 (8th Cir. 2005) (reliability required for information at sentencing)
- United States v. M.R.M., 513 F.3d 866 (8th Cir. 2008) (scope of information for CVRA hearings)
- Kimbrough v. United States, 552 U.S. 85 (U.S. 2007) (discretion to vary from Guidelines; policy considerations)
- United States v. Azure, 536 F.3d 922 (8th Cir. 2008) (intermediate criminal history categories; Azure discussion)
- United States v. Shuler, 598 F.3d 444 (8th Cir. 2010) (harmless error in advisory guidelines era)
- United States v. Bah, 439 F.3d 423 (8th Cir. 2006) (blanket alternative sentence and guideline calculations)
- United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010) (procedural error harmless where same sentence would be imposed)
- United States v. Lamoreaux, 422 F.3d 750 (8th Cir. 2005) (no robotic invocation of § 3553(a) factors required)
- United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) (non-robotic application of § 3553(a) factors)