UNITED STATES of America, Plaintiff-Appellee. v. Stephen THOMAS, Defendant-Appellant.
No. 15-3717
United States Court of Appeals, Eighth Circuit.
Submitted: September 23, 2016. Filed: November 10, 2016
839 F.3d 762
Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
The Government raises several counterarguments to suppression. First, it argues that Craddock had no reasonable expectation of privacy in the stolen key fob, the stolen car, or the handgun. While Craddock had no reasonable expectation of privacy in the stolen vehicle or contraband, see United States v. Long, 797 F.3d 558, 568 (8th Cir. 2015), he did have a reasonable expectation of privacy in the contents of his pants pockets. See United States v. $53,082 in U.S. Currency, 985 F.2d 245, 249 (6th Cir. 1993) (finding an expectation of privacy “in items сarried on one‘s person“). Second, the Government contends that the evidence is admissible under the inevitable discovery doctrine. The inevitable discovery doctrine provides an exception to the exclusionary rule where “the prosecution can establish by a preponderance of the evidence that the informаtion ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444 (1984), 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Although the Government argues that the police would have inevitably discovered the contents of the stolen vehicle, the Government does not contend that the police would have inevitably discovered the key fob in Craddock‘s pocket. Accordingly, inevitable discоvery has no bearing on whether the key fob should have been suppressed. To the extent the inevitable discovery doctrine applies to evidence other than the key fob, the district court did not address the question, and we decline to decide it in the first instance.
Accordingly, the officer‘s seizure of the key fob exceeded the apрropriate scope of a Terry frisk, and it should have been suppressed. As a result, we do not reach Craddock‘s sentencing challenge.
III.
For the foregoing reasons, we vacate Craddock‘s conviction and remand for proceedings not inconsistent with this opinion.
Counsel who represented the appellee was Marc Krickbaum, AUSA, of Des Moines, IA.
MURPHY, Circuit Judge.
Stephen Thomas pled guilty to conspiracy to possess fifteen or more counterfeit access devices and conspiracy to commit mail fraud, in violation of
I.
From 2014 to 2015, Thomas was a member of a group of four individuals who obtained gift cards and credit cards embossed with the names of three group members and encoded with stolen information. With the cards the grоup conducted fraudulent global cash access (GCA) transactions at casinos. In such transactions cash advances are obtained on credit cards at casino kiosks and the receipts are converted into cash by a casino cashier. The group also used such fraudulent cards at restaurants and retail stores. In Novembеr 2014, Thomas and Robert Foust traveled to the Ameristar Casino in Council Bluffs,
On February 16, 2015 a hotel employee in Bloomington, Minnesota notified law enforcement that there was a suspicious male, later identified as Thomas, using numerous prepaid credit cards to pay for his room. When Bloomington police officers made contact with Thomas, he provided them with a false name and driver license which prevented them from discovering his outstanding arrest warrant for a 2009 escape from federal prison. The officers were granted entry to Thomas’ hotel room and searched his person but did not make any arrests. Officers later found 30 fraudulent cards in the hotel embossed with the names of the other three people in Thomas’ group.
Three days later law enforcement identified a suspicious piece of mail addrеssed to Foust at the Econo Lodge Inn and Suites in Des Moines, Iowa. When Foust was confronted, he gave the officers consent to search a package in which 50 fraudulent cards were discovered. Foust thereafter consented to a search of the room he had been sharing with four others, including Thomas. Law enforcement found 82 fraudulent cards in their hotel room and 18 fraudulent cards in a rental van that the group was using.
Thomas was indicted and later pled guilty to conspiracy to possess fifteen or more counterfeit access devices and conspiracy to commit mail fraud, possession of fifteen or more counterfeit devices, and false statements to a fedеral official. At sentencing the district court determined that his base offense level was 14 under
Thomas was assigned a criminal history category of four because his record included 1999 convictions for possession of a counterfeit credit card and unlawful possession of a controlled drug. Since he had been sentenced for those offеnses in January 2000, the district court counted them because they had been imposed within fifteen years of the commencement of his current offense. See
II.
Thomas first argues that the district court erred by increasing his base offense level by eight undеr
We review de novo “a district court‘s interpretation and application of the sentencing guidelines” and its factual findings for clear error. United States v. Gallimore, 491 F.3d 871, 874-75 (8th Cir. 2007). The loss amount “is the greater of actual loss or intended loss,”
Our court has yet to decide whether the $500 minimum in
This conclusion is supported by the application note‘s next sentence which reads: “However, if the unauthorized access device is a means of telecommunications access that identifies a specific telecommunications instrument or telecommunications account ..., and that means was only possessed, and not used, during the commission of the offense, loss shall be not less than $100 per unused means.” Id. This sentence shows that “the authors of the Guidelines knew how to limit the application of these provisions to the use of access devices.” United States v. Cardenas, 598 Fed.Appx. 264, 267 (5th Cir. 2015). Moreover, the second sentence indicatеs that this application note “treats an unused means of telecommunications access as already within the category of devices to which this section applies.” Id. If “any counterfeit access device or unauthorized access device” were intended to include only devices that had been actually used, there wоuld have been no need to explain how to treat unused unauthorized access devices because such devices would have been “outside the ambit of the provision.” Id. Every circuit to consider this issue has reached the same conclusion. See United States v. Moon, 808 F.3d 1085, 1091 (6th Cir. 2015) (collecting cases). The district court did not err when it concluded that a loss amount оf $500 may be attributed to fraudulent cards that are unused.
Thomas also argues on appeal that the government was required to prove that each of his fraudulent cards was usable. Since Thomas failed to present this argument to the district court, we review it for plain error. United States v. Taylor, 679 F.3d 1005, 1007 (8th Cir. 2012). We reverse for plain error “only if there has been (1) an error, (2) that is plain, and (3) that affects substantial rights.” United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016) (quoting United States v. Richardson, 537 F.3d 951, 959 (8th Cir. 2008)). Here, the district court did not commit plain error because neither the Supreme Court nor our court has addressed whether
We conclude that the district court did not err by increasing Thomas’ base offense level by eight under
III.
Thomas next argues that the district court erred by increasing his base offense level by four for being an “organizer or leader of a criminal activity that involved five or more participants” under
Thomas first argues that he was not an “organizer or leader” because he and his codefendants were equal partners in the fraudulent scheme. Under
The district court did not clearly err on this issue because Thomas’ conduct met almost every one of these factors. In Thomas’ plea agreement he admitted that he had “directed others to use” the fraudulent credit cards and “arranged for” the delivery of several packages of fraudulent cards. He also admitted that his codefendants were to provide him with the illegal proceeds and he promised “thеm a percentage of the money obtained” in exchange. Moreover, every one of his codefendants indicated that Thomas had been the leader, that he had controlled the fraudulent cards, and that he had controlled the money obtained from the cards. Two of Thomas’ codefendants additionally stated that he had reсruited them into the scheme and that he had received the largest share of the illegal proceeds.
Thomas also argues that the criminal activity did not involve “five or more participants” because only four were listed in the indictment. See
The district court thus did not clearly err when it increased Thomas’ base offense level by four for being an “оrganizer or leader of a criminal activity that involved five or more participants” under
IV.
Thomas also argues that the district court erred when it increased his base offense level by two for obstruction of justice. We accord “great deference to the sentencing court‘s decision to grant an en-
There is sufficient evidence to conclude that Thomas “consciously act[ed] with the purpose of obstructing justice.” United States v. Watts, 940 F.2d 332, 332-33 (8th Cir. 1991) (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990)). When police officers confronted Thomas in February 2015 in Bloomington, Minnesota, hе provided them with both a false name and fake identification. Since Thomas had escaped from federal prison in 2009, he could have assumed that officers would have discovered an arrest warrant if he provided them with his real name. His actions were also “purposefully calculated, and likely, to thwart the investigation or proseсution of the offense,”
The district court thus did not err in finding that Thomas obstructed both his investigation and prosecution.
V.
Thomas finally argues that the district court erred when it assessed three criminal history points for his 1999 conviction for possession of a counterfeit credit card and unlawful possession of a controlled drug. We review criminal history calculatiоns for clear error. United States v. Simms, 695 F.3d 863, 864 (8th Cir. 2012). When determining a defendant‘s criminal history category, a district court must count “[a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant‘s commencement of the instant offense.”
Thomas argues that the district court should not have attributed three points to his 1999 conviction because his sentence had been imposed in January 2000 and his later fraudulent scheme did not begin until February 2015. The district court found, however, that this fraudulent scheme started in November 2014 when Foust traveled with Thomas to the Ameristar Casino in Council Bluffs, Iowa and fraudulently obtained $370 through a GCA transaction. Thomas argues that these reports by Foust to lаw enforcement should not have been credited because he had an incentive to cooperate and his “memory appears sketchy.” Nevertheless, in both of Foust‘s statements he consistently described the November 2014 incident in Council Bluffs, which was also corroborated by video surveillance. The district court
VI.
For these reasons we affirm Thomas’ sentence.
DIANA E. MURPHY
UNITED STATES CIRCUIT JUDGE