Case Information
*1 Bеfore HANSEN, Chief Judge, LOKEN and MURPHY, Circuit Judges.
___________
MURPHY, Circuit Judge.
James Edward Thornberg pled guilty to wire fraud, in violation of 18 U.S.C. *2 § 1343, and money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). The district court sentenced him to 96 months after departing upward from the sentencing guidelines. Thornberg appeals, and we affirm.
Throughout 1998 James Thornberg engaged in an elaborate scheme to sell ethanol powered vehicles. The vehicles did not actually exist, but Thornberg and his accomplice created false press releases, color brochurеs, specification sheets, and invoices about them. They offered vehicles powered completely by ethanol and capable of traveling over 1000 miles on one tank of fuel. Victims of the fraud were induced to furnish down payments оn the vehicles, and more than $65,000 had been mailed or wired to Thornberg before the scheme was uncovered. The vehicles were never produced, and the down payments were never returned.
At the time Thornberg was arrested in November 2001, he was also operating a business called Bell Corporation. This entity purported to distribute storage structures throughout the Western Hemisphere and to do more than $40,000,000 in business annually. Thornberg later admitted that his only financial asset was a used car worth $5000. The voice mail service for Bell Corporation continued to be operational into at least the first half of 2002.
In January 2002, Thornberg was indicted on twenty two felony charges: one count of conspiracy, in violation of 18 U.S.C. § 371, seven сounts of mail fraud, in violation of 18 U.S.C. § 1341, five counts of wire fraud, in violation of 18 U.S.C. § 1343, and nine counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Thornberg entered into a plea agreement, which was not binding on the court, under which he would plead guilty to one count оf wire fraud and one count of money laundering. The United States agreed in return to dismiss the twenty *3 other counts of the indictment and to recommend that Thornberg receive a reduction in his offense level for acceptance of responsibility and that he be sentenced within the guideline range determined by the district court.
In researching Thornberg's criminal history for the presentence investigation report (PSR), the United States Probation Office learned that among his convictions was one for a California battery. Thornberg urged the Probation Office not to count the battery conviction when calculating his criminal history, reporting that it had been dismissed upon his completion of an anger management course. The investigation by the Prоbation Office revealed that the battery charge had indeed been dismissed, but only after Thornberg had submitted to the court a letter and certificate of course completion signed by John W. Venutti, identified as a psychologist. Further investigation revealed that Venutti was an alias used by Thornberg and that the documents submitted to the court in California were false. The battery was then counted in calculating Thornberg's criminal history.
Thornberg came before the district court for sentencing on April 29, 2002. Thе court increased his offense level by four levels under § 2B1.1 of the sentencing guidelines because the wire fraud had involved sophisticated means and false pieces of identification. See United States Sentencing Commission, Guidelines Manual, § 2B1.1(b)(8)(C), (b)(9)(C)(i) (Nov. 2001) [USSG]. Because of his misrepresentations about his battery conviction and supposed completion of an anger management course, the court imposed a two level enhancement for obstruction of justice under § 3C1.1 and deсlined to award a reduction for acceptance of responsibility under § 3E1.1. See USSG §§ 3C1.1, 3E1.1. His adjusted offense level was calculated to be 22.
The court found that criminal history category III did not adequately reflect the seriousness of Thornberg's past criminal conduct or the likelihood that he would commit future crimes. Describing Thornberg as "a classic con man, and a crook of *4 long standing throughout his lifetime," the court departed upward under USSG § 4A1.3 to criminal history category V, which providеs a sentencing range of 77 to 96 months for an offense level of 22, id. Ch.5, Pt.A. Thornberg was sentenced at the high end of the range, to 60 months on the wire fraud count and 36 months for money laundering, to be served consecutively. Pursuant to 18 U.S.C. § 3553(c), the district court provided а written statement of its reasons for departing from the guidelines.
On appeal, Thornberg argues that the district court erred in departing upward.
First, he contends that the upward departure resulted in an unreasonable sentence and
was unwarranted because the facts did not differentiate him from the typical offender
falling within criminal history category III. Second, he contends that the district court
improperly engaged in double counting by using the same conduct to increase his
offense lеvel and to depart upward from the guidelines. Finally, Thornberg argues
that in increasing his criminal history by two categories, the district court failed to
compare his criminal history with the criminal histories of other offenders at each
step.
[3]
In reviewing a dеparture from the guidelines, we "ask whether the sentencing
court abused its discretion." Koon v. United States,
The PSR, to which Thornberg did not object, revealed that Thornberg had previously been convicted of 17 counts of mail fraud for which he was sentenced to 96 months in federal prison; had failed to appear in the courts of at least two different states after being charged with grand theft and embezzlement in South Dakota and gross misdemeanor theft in Minnesota; had been associated with a multitude of business, some owing millions of dollars to unsecured creditors; had operated a foundation that was shut down by Minnesota authorities for using fraud, misrepresentation, and deceptive practices; hаd claimed to have posttraumatic stress disorder from service in Vietnam even though he had never served in any branch of the military; and had used at least six false social security numbers and numerous aliases in the course of his operations. Thе PSR also showed that, at the time of his arrest, Thornberg was operating Bell Corporation, which falsely claimed to transact over $40,000,000 in annual business, and that he subsequently tried to deceive the court about the disposition of a prior conviсtion.
Thornberg argues that much of his history does not differentiate him from a 151, 108th Cong. § 401(d)(1), (2) (2003). Since the district court did not commit clear error in its fact finding [§ 3742(e)], gave written reasons for its departure [PROTECT Act sec. 401(d)(1), § 3742(e)(3)(A)], did not base its departure on an impermissible factor [id. sec. 401(d)(1), § 3742(e)(3)(B)], and did not abuse its discretion in determining that the sentence was reasonable [id. sec. 401(d)(1), § 3742(e)(3)(C); id. § 401(d)(2)], we would also affirm under the PROTECT Act. See also id. sec. 401(d)(3)(C), § 3742(f)(2).
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typical category III offender. He contends that fraud has not been proven against Bell
Corporation or the 50 other businesses associated with him, that the existence of an
active voice mail account did not prove that he was continuing to operate Bell
Corporation while incarcerated, and thаt several of the alleged aliases were actually
just the names of prior users of his mailbox. Thornberg's argument fails to take into
account that § 4A1.3 only requires that a sentencing court base a departure on
reliable
information
. The facts described in the PSR were not disputed or objected to, and
they represent reliable information indicating that Thornberg had been engaged in
continuing fraudulent conduct and was likely to victimize others in the future if not
deterred. Cf. United States v. Vagenas,
Thornberg also argues that the district court did not adequately explain why it
passed over criminal history category IV when it departed from category III to V.
The district court was not required to "specifically mention that it had cоnsidered
each intermediate criminal history category." United States v. Collins,
For these reasons and because we conclude that the district court did not err in departing upward and that its sentence was reasonable, we affirm the judgment.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
[1] The Honorable Dаvid R. Hansen stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 31, 2003. He has been succeeded by the Honorable James B. Loken.
[2] The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota.
[3] In his reply brief Thornberg raises an additional argument for the first time. He contends that the government should be estopped from supporting the upward departure because it had promised to recommend to the district court a sentence within the guideline range. We note that the plea agreement provided that the government would recommend a sentence within the guideline range calculated by the district court, and the agreement apрarently said nothing about limiting the government on an appeal. Moreover, it is well settled that we will not consider an argument raised for the first time in a reply brief. Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 564 n.1 (8th Cir. 2003).
[4] Congress has recently passed legislation, to become effective when signed by the president, which amends 18 U.S.C. § 3742(e) and affects the standard of appellate review for sentencing guideline issues, including departures. See PROTECT Act, S.