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United States v. Fields

United States Court of Appeals, First Circuit

May 26, 2017

UNITED STATES OF AMERICA, Appellee,
v.
KEVIN JOSEPH FIELDS, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Landya B. McCafferty, U.S. District Judge]

          Claudia Leis Bolgen and Bolgen & Bolgen on brief for appellant.

          Emily Gray Rice, United States Attorney, and Seth R. Aframe, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Selya and Kayatta, Circuit Judges.

          SELYA, Circuit Judge.

         Defendant-appellant Kevin Joseph Fields stole more than $30, 000 worth of postage stamps by passing bad checks at various post offices. This stamp-stealing scheme proved ill-conceived and, following his conviction, the appellant was sentenced to a 30-month term of immurement. He now appeals his upwardly variant sentence. Discerning no error, we affirm.

         I. BACKGROUND

         Because this appeal follows a guilty plea, "we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the record of the disposition hearing." United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

         In June of 2014, the United States Postal Inspection Service began investigating reports that an individual was using bad checks to purchase stamps at a number of post offices in New Hampshire and Maine. A copy of one of the checks, written on an account at the Kennebunk Savings Bank, displayed the name and address of the appellant. The inspectors requested information about this account from the bank. It supplied the requested information and also disclosed that it had contacted the local sheriff's department about the account. That contact was inspired when - a few weeks earlier - the appellant made two deposits into the account using counterfeit checks (each in an amount in excess of $3000).

         Warming to the chase, postal inspectors located the appellant in Dover, New Hampshire. They advised him of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), which he waived. The appellant admitted to opening the checking account and using checks furnished by the bank to purchase stamps despite his knowledge that the account did not contain sufficient funds. He estimated that he had purchased nearly $27, 000 worth of stamps using bad checks, explained that "[m]oney drives me, " and related that he had taken the stamps to pawn shops and exchanged them either for cash or for merchandise. He added that he had created fake checks on his computer (though he had not purchased stamps with those home-made checks).

         Following a review of post office and bank records, inspectors concluded that, during the period from June 9 through June 17, 2014, the appellant had obtained more than $30, 000 worth of stamps by passing bad checks at post offices in New Hampshire, Maine, and Massachusetts. In due course, a federal grand jury sitting in the District of New Hampshire returned an indictment charging the appellant with possessing stolen government property (the stamps) with intent to convert that property. See 18 U.S.C. § 641. A summons and, later, an arrest warrant were issued but never served.

         We fast-forward to May of 2015, at which time the appellant wound up in state custody for an unrelated parole violation. He was brought before a federal magistrate pursuant to a writ of habeas corpus ad prosequendum and subsequently entered a guilty plea to the charge of possession of stolen government property with intent to convert. The district court allowed a change of counsel at the appellant's request and, some months later, held a sentencing hearing.

         The probation department submitted the PSI Report, which recommended a base offense level of six, see USSG §2B1.1(a)(2); a four-level enhancement premised on the amount of loss, see id. §2B1.1(b)(1)(C); and a two-level enhancement on the basis that the offense of conviction involved the possession or use of device-making equipment, see id. §2B1.1(b)(11)(A)(i). After subtracting two levels for acceptance of responsibility, see id. §3E1.1(a), the PSI Report recommended a total offense level of ten. The appellant's past convictions - including convictions for identity fraud, forgery, larceny, and the fraudulent use of credit cards - produced a criminal history score of 30, which the PSI Report augmented by two points because the appellant had committed the offense of conviction while on parole for unrelated state charges. See id. §4A1.1(d). These computations placed the appellant squarely in criminal history category VI.

         At sentencing, the district court adopted most of the guideline calculations limned in the PSI Report. The appellant objected, however, to the two-level enhancement for his alleged possession or use of device-making equipment. Though he had manufactured counterfeit checks, he had not employed them in his stamp-stealing scheme. The district court sustained this objection and reduced the appellant's total offense level accordingly. This adjustment in the appellant's offense level, coupled with his placement in criminal history category VI, yielded a guideline sentencing range of 18 to 24 months (as opposed to the 24- to 30-month range suggested in the PSI Report).

         The court proceeded to impose an above-the-range sentence of 30 months' imprisonment. In pronouncing sentence, the court emphasized the appellant's extensive criminal history and fretted that the appellant would not be deterred from future criminal conduct because earlier prison terms had failed to ameliorate his behavior. Thus, a relatively stiff sentence was needed to protect the public and to promote general deterrence. This timely appeal ensued.

         II. ANALYSIS

         As a general matter, we review the imposition of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Within this rubric, though, some specific parameters pertain. "[S]entencing claims are addressed under a two-step pavane. First, we address those claims that affect the procedural integrity of the sentence. Second, we address any residual question as to the substantive reasonableness of the sentence." United States v. Rodríguez-Adorno, 852 F.3d 168, 175 (1st Cir. 2017) (citations omitted). Our review "is characterized by a ...


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