                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 95-11044


                    UNITED STATES OF AMERICA,


                                                Plaintiff-Appellee,


                              VERSUS


                         WENDY LOIS WELLS,


                                                Defendant-Appellant.




          Appeal from the United States District Court
               for the Northern District of Texas
                         November 27, 1996


Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:

     Wendy Lois Wells (“Wells”) appeals the district court’s upward

departure from the Sentencing Guidelines for her conviction for

mail fraud pursuant to 18 U.S.C. § 1341.

                   FACTS and PROCEDURAL HISTORY

     A five-count indictment charged Wells with mail fraud, use of

an unauthorized access device with intent to defraud, and use of an

unauthorized social security account number for the purpose of

fraud, in violation of 18 U.S.C. §§ 1341, 1029(a)(2), and 42 U.S.C.
§ 408(a)(8). Pursuant to a plea agreement, Wells pleaded guilty to

one count of mail fraud.

     Wells,   while   employed   as   a   substitute   teacher,   searched

through the desks of at least two teachers for whom she was

substituting, obtained personal information and social security

numbers, and had credit cards sent to her using their names and

social security numbers.         Wells then made purchases with the

fraudulently obtained credit cards.          The credit cards, account

statements, and merchandise were sent to a fictitious address Wells

set up in Irving, Texas.

     Wells’ base offense level for a violation of 18 U.S.C. § 1341

was 6 pursuant to U.S.S.G. § 2F1.1(a).           Her offense level was

increased four levels because the loss exceeded $20,000 and another

two levels because the scheme involved more than minimal planning

or more than one victim.    Wells received a two-level reduction for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.          With a

total offense level of 10 and a criminal history category of V,

Wells’ Guideline range of imprisonment was 21 to 27 months.

     The district court filed sua sponte two letters it received

from victims of Wells’ scheme.        The government filed a motion for

upward departure after the first letter was filed.        At sentencing,

the district court granted the government’s motion for upward

departure.    Wells was sentenced to a term of imprisonment of 30

months, three years of supervised release, and restitution in the



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amount of $4,000.




                              DISCUSSION

     Wells argues that the district court’s upward departure was

“unlawful” because it was based on factors “already considered by

the [Sentencing Commission] in setting the base offense level under

a   particular   guideline    section     or      the   specific   offense

characteristics under that guideline section.”          Wells’ Brief at 6.

Wells argues further that the Sentencing Commission has determined

that “mere aggravation, no matter how real, would not support a

departure.”   Wells’ Reply Brief at 3.

     At oral argument in September 1996, the parties argued the

applicability of Koon v. United States, --- U.S. ---, 116 S.Ct.

2035 (1996), which was filed in June 1996, after the briefs in this

case had been filed.1    In Koon, police officers were charged with

violating Rodney King’s constitutional rights by using unreasonable

force incident to arrest pursuant to 18 U.S.C. § 242.              In its

analysis of the Ninth Circuit’s appellate review of the sentencing

court’s   downward   departure,   the   Supreme    Court   determined   the

appropriate standard of review and factors to be considered by a

district court judge in departing from the Guidelines.



     1
     The government briefed Koon in its Supplemental Letter Brief
dated August 9, 1996; Wells responded on August 15, 1996.

                                   3
     As an initial matter, the Court noted, “[a] district court

must impose a sentence within the applicable Guideline range, if it

finds the case to be a typical one.”        Id., 116 S.Ct. at 2040

(citing 18 U.S.C. § 3553(a)). A departure from the Guideline range

is appropriate in “certain circumstances”    Id.

     The district court’s departure is not reviewed de novo, but

rather for an abuse of discretion.    Id., 116 S.Ct. at 2043.   The

parties here do not dispute that Koon clarified that a district

court judge’s decision to depart is reviewed for an abuse of

discretion.    Because the “sentencing court’s departure decisions

are based on the facts of the case,” the appellate court needs to

detail the facts that were before the district court.     Id., 116

S.Ct. at 2040.

     In this case, the presentence report lists the merchants

defrauded and itemizes the loss amounts attributed to each.     The

total accountable loss was over $20,000.     The presentence report

also details Wells’ identity fraud as to victims Jennifer Sutton

(“Sutton”), Mildred Robinson and Margaret Sells.    The court also

considered two letters submitted by victims of this fraud scheme,

Sutton and Sue B. Cain (“Cain”), teachers for whom Wells had

substituted.

     Cain described her experiences resulting from Wells’ fraud

scheme as follows:

          It has been extremely difficult for me to begin the new
     school year with the emotional strain of dealing with all

                                 4
      aspects of this situation.      It has cost me in terms of
      multiple times off work to appeal in J.P. Courts to explain
      and defend my position, to research our credit reports and to
      make literally hundreds of phone calls to explain my situation
      to the merchants and collection agencies who accepted the
      fraudulent checks given by Wendy Wells using my name and
      Social Security number.       Each week I have faced the
      possibility of additional unjust arrest warrants in my name
      stemming from Wendy Well’s [sic] fraudulent use of my name.
      For my own protection, I am being forced to carry a forgery
      affidavit with me at all times to prevent an unfair arrest.
      It is overwhelming that someone can take over one’s identity
      so quickly.

District Court Record at 69 (Letter filed November 3, 1995).             In

addition,   Cain   filed    a   three-page   attachment   to   the   letter

detailing meetings with attorneys and bank officials, warrants

issued against her, and court appearances.

      Sutton details her experiences as follows:

      Correcting this [situation] has become a full time job.
      Having written and mailed over 50 letters, made an unknown
      number of phone calls, had to take time off from school and
      leave my classes with yet another substitute teacher, be
      interupted [sic] during class regularly to speak with police
      officers, detectives, postal inspectors, lawyers, and school
      district personell [sic] has been overwhelming. I have had to
      go to stores and financial instituions [sic] where Ms. Wells
      used my identity and accued [sic] bad debts . . . . My husband
      and I have both been turned down for credit due to this
      fraudulant [sic] activity.    When I use my credit cards in
      stores, I am often asked to produce identification, asked to
      wait while the clerk calls a manager, asked to pay in cash,
      and even denied the ability to make purchases.

District Court Record at 75 (Letter filed November 3, 1996).

      The sentencing judge found that this case involved “extreme

circumstances, as described in these two letters . . .”        Sentencing

Transcript at 11.    The sentencing judge also detailed his reasons

for   concluding   that    these   circumstances   went   “beyond    what’s


                                     5
normally involved in a case like this:”

      The thing that impresses me is not just the misuse of the
      credit cards, but the description by each one of the victims
      about the tremendous amount of time and energy that they had
      to devote to getting their credit cleared up, the
      embarrassment which they suffered from stores, collection
      agencies, being turned down for credit, having to produce
      identification, having to carry a perjury -- affidavit, having
      to carry -- having to pay cash.

Id.

      The parties agree that Koon clarifies that a sentencing court

contemplating departure should ask four questions:

      1) What features of this case, potentially, take it outside
      the Guidelines’ “heartland”2 and make of it a special, or
      unusual, case?

      2) Has the Commission forbidden departures based on those
      features?3

      3) If not, has the Commission encouraged departures based on
      those features?


      2
          The Court in Koon defines “heartland” cases:

  Turning our attention, as instructed, to the Guidelines manual,
  we learn that the Commission did not adequately take into
  account cases that are, for one reason or another, “unusual.”
  1995 U.S.S.G. ch. 1, pt. A, intro. comment. 4(b).           The
  Introduction to the Guidelines explains:

      “The Commission intends the sentencing court to treat each
      guideline as carving out a ‘heartland,’ a set of typical cases
      embodying the conduct that each guideline describes. When a
      court finds an atypical case, one to which a particular
      guideline   linguistically    applies   but    where   conduct
      significantly differs from the norm, the court may consider
      whether a departure is warranted.” Ibid.

Id., 116 S.Ct. at 2044.
      3
     Wells does not dispute that the Sentencing Commission has not
forbidden departures in fraud cases based on harm.

                                  6
     4) If not, has the Commission discouraged departures based on
     those features?

Id., 116 S.Ct. at 2045 (quoting United States v. Rivera, 994 F.2d

942, 949 (1st Cir. 1993)).

     The district court identified the features it considered took

this case out of the “heartland.”            Wells argues that the analysis

ends with     the   first   question,       since    this   case   involves   harm

sufficiently considered by § 2F1.1.                 Specifically, Wells claims

that “identity fraud” inherently involves the type of harm suffered

by these victims.

     The Court in Koon also defines the scope of inquiry available

to the sentencing court answering the above questions:

     Acknowledging the wisdom, even the necessity, of sentencing
     procedures that take into account individual circumstances,
     see 28 U.S.C. § 991(b)(1)(B), Congress allows district courts
     to depart from the applicable Guideline range if “the court
     finds that there exists an aggravating or mitigating
     circumstance of a kind, or to a degree, not adequately taken
     into consideration by the Sentencing Commission in formulating
     the guidelines that should result in a sentence different from
     that described.” 18 U.S.C. § 3443(b). To determine whether
     a circumstance was adequately taken into consideration by the
     Commission, Congress instructed courts to “consider only the
     sentencing guidelines, policy statements, and official
     commentary of the Sentencing Commission.” Ibid.

Id., 116 S.Ct. at 2044.

     Wells does not argue that the district court impermissibly

considered evidence beyond the guidelines, policy statements and

commentary.     Instead, Wells contends that the court should have

concluded that the psychological harm to the victims did not rise



                                        7
to the level considered in § 5K2.3,4 the guideline generally

addressing upward departure.   The appellant argues that, since the

victims failed to demonstrate a “substantial impairment of the

intellectual, psychological, emotional, or behavioral functioning,”

the court impermissibly departed upward.   The Koon Court requires,

however, that the sentencing court’s analysis must conclude that,

“as occurring in the particular circumstances,” this case is

“outside the heartland of the applicable Guideline.”      Id., 116

S.Ct. at 2051.

     Wells’ argument ignores that the application notes to § 2F1.1,

the guideline under which she was sentenced, specifically address


     4
         U.S.S.G. § 5K2.3 provides:

     Extreme Psychological Injury (Policy Statement)

     If a victim or victims suffered psychological injury much more
     serious than that normally resulting from commission of the
     offense, the court may increase the sentence above the
     authorized guideline range.      The extent of the increase
     ordinarily should depend on the severity of the psychological
     injury and the extent to which the injury was intended or
     knowingly risked.

     Normally, psychological injury would be sufficiently severe to
     warrant application of this adjustment only when there is a
     substantial impairment of the intellectual, psychological,
     emotional, or behavioral functioning of a victim, when the
     impairment is likely to be of an extended or continuous
     duration, and when the impairment manifests itself by physical
     or psychological symptoms or by changes in behavior patterns.
     The court should consider the extent to which such harm was
     likely, given the nature of the defendant’s conduct.




                                 8
an upward departure for non-monetary harm and psychological harm.

We agree with the government’s argument that the harm to the

victims considered by the district court is precisely the type for

which § 2F1.1 encourages an upward departure.       Specifically, the

application notes to § 2F1.15 provide:

     In cases in which the loss determined under subsection (b)(1)
     does not fully capture the harmfulness and seriousness of the
     conduct, an upward departure may be warranted. Examples may
     include the following:

     (a)    a primary objective of the fraud was non-monetary; or the
            fraud   caused   or   risked   reasonably    foreseeable,
            substantial non-monetary harm;

     (c)    the offense caused reasonably foreseeable, physical or
            psychological harm or severe emotional trauma;

U.S.S.G. § 2F1.1 app.nn.10(a) and (c) (1995).         The government

argues that the loss table in § 2F1.1 addresses the losses of

merchants and insurers in this fraud scheme, not the losses of the

victims trying to put their lives back together.    We agree that the

loss table accounts for the dollar amount at issue in this case,

but these victims did not suffer monetary harm to any measurable

degree.     Instead, the substitute teachers whose identity Wells

assumed lost days from work, feared arrest, were forced to appear

     5
      We also find it significant that the Sentencing Commission
amended the application notes to broaden the grounds for departure.
Prior to these amendments, which became effective 1993, the same
application notes provided for departure if:

  (a)     the primary objective was non-monetary;

  (c)     the offense caused physical or psychological harm;

U.S.S.G. § 2F1.1 app.nn.19(a) and (c) (1992).

                                  9
in court, struggled to repair their credit rating, were not able to

use the credit cards in their possession, and still face problems

connected with this offense.   The loss table has not taken this

extreme personal victimization, which certainly can be viewed as

going beyond “aggravation,” into account.   This departure decision

is the type encouraged by the Sentencing Commission, since the

sentencing court is in a unique position to make the necessary

factual determinations:

     A district court’s decision to depart from the Guidelines, by
     contrast, will in most cases be due substantial deference, for
     it embodies the traditional exercise of discretion by a
     sentencing court. See Mistretta, 488 U.S. at 367, 109 S.Ct.
     at 652 . . . . Before a departure is permitted, certain
     aspects of the case must be found unusual enough for it to
     fall outside the heartland of cases in the Guideline.       To
     resolve this question, the district court must make a refined
     assessment of the many facts bearing on the outcome, informed
     by its vantage point and day-to-day experience in criminal
     sentencing. Whether a given factor is present to a degree not
     adequately considered by the Commission, or whether a
     discouraged factor nonetheless justifies departure because it
     is present in some unusual or exceptional way, are matters
     determined in large part by comparison with the facts of other
     Guidelines cases.    District courts have an institutional
     advantage over appellate courts in making these sorts of
     determinations, especially as they see so many more Guidelines
     cases than appellate courts do. In 1994, for example, 93.9%
     of Guidelines cases were not appealed. Letter from Pamela G.
     Montgomery, Deputy General Counsel, United States Sentencing
     Commission (Mar. 29, 1996). “To ignore the district court’s
     special competence--about the ‘ordinariness’ or ‘unusualness’
     of a particular case--would risk depriving the Sentencing
     Commission of an important source of information, namely, the
     reactions   of   the   trial  judge   to   the   fact-specific
     circumstances of the case . . . .” Rivera, 994 F.2d at 951.

Koon, 116 S.Ct. at 2046-47.

     We find that the district court properly considered the


                                10
particular circumstances of this case in making its determination

to   depart   upward.      The   district     court   reasonably   could   have

concluded, in its sound discretion, that the victims’ travails

involving arrest, warrants, court appearances, forgery charges and

continuing credit difficulties made their harm “unusual,” taking

the case out of the “heartland.”            A three-month upward departure,

resulting     in   a   30-month,    rather     than   a   27-month,   term   of

imprisonment, is not an abuse of discretion in this case.6

                                   CONCLUSION

      We find that the district court did not abuse its discretion

in departing upward for the harm suffered by the victims whose

identities    were     appropriated    by    Wells.       Accordingly,   Wells’

sentence is AFFIRMED.




      6
      Since we affirm the district court’s upward departure under
U.S.S.G. § 2F1.1, we do not decide here whether Wells’ sentence
could have been adjusted upward for an abuse of a position of
trust, argued alternatively by the government at sentencing.


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