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United States v. Murray

United States District Court, E.D. Virginia, Norfolk Division

March 1, 2017

UNITED STATES OF AMERICA,
v.
ERIC CHARLES MURRAY, Defend nut.

          OPINION

         On February 28, 2017, this Court sentenced Eric Charles Murray ("Defendant") to a term of imprisonment of 88 months. At the sentencing hearing on February 28, 2017, this Court made two findings with respect to Defendant's criminal history and acceptance of responsibility, as represented in the Presentence Investigation Report ("PSR"). ECF No. 25. The finding with respect to Defendant's criminal history represented a downward departure pursuant to United States Sentencing Guidelines ("USSG") § 4A1.3. These findings also altered the applicable Sentencing Guidelines range for the Defendant; accordingly, the Court sentenced the Defendant within this revised Guidelines range. This opinion elaborates on the Court's reasons for its findings and is to be filed simultaneously with the sentencing judgment order.

         I. PROCEDURAL BACKGROUND

         On September 12, 2016, Defendant was named in a nine-count indictment charging him with Conspiracy to Commit Bank, Mail & Wire Fraud, in violation of 18 U.S.C. § 1349 (Count 1); Mail Fraud, in violation of 18 U.S.C. § 1343 (Count 2); Bank Fraud, in violation of 18 U.S.C. § 1344 (Counts 3-5); Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A (Counts 6-8); and Possession of a Firearm by Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) (Count 9). ECF No. 1. On November 15, 2016, Defendant pleaded guilty to Counts 1, 7, and 9, pursuant to a written plea agreement with the Government. ECF No. 21.

         II. FACTUAL BACKGROUND

         According to the Statement of Facts, beginning in April 2016, Defendant and a coconspirator purchased from several Internet websites, without lawful authorization, the numbers of financial institution accounts belonging to actual individuals. Defendant and the coconspirator then re-encoded and re-embossed prepaid/gift cards with the unlawfully purchased credit or debit card numbers with equipment in a home forgery lab. They then used these cards to make unauthorized purchases. ECF No. 22. In two searches of his home, law enforcement also recovered two guns, one registered to his wife and the other reported stolen. PSR, ECF No. 25, at 10-14.

         On May 25, 2016, Defendant was arrested and charged with state offenses in Newport News and Hampton based on the same offense conduct. He was being held without bond in Hampton after his arrest in May on a charge of Violent Felon in Possession of a Firearm. The Commonwealth Attorney's Offices of Newport News and Hampton withdrew the state charges in favor of federal prosecution of the same on September 13 and 14, 2016. On September 15, 2016, Defendant was arrested and made his initial appearance for federal offenses. ECF No. 11. See also PSR, ECF No. 25, at 10-14.

         Jail calls between Defendant and his father prior to his indictment for the federal arrests revealed that he discussed strategies for being acquitted of the then-pending state charges (including having Defendant's wife "take" the firearm charges). Id. at 15. Defendant later admitted to possessing one of the guns. Defendant had previously been convicted of felonies with terms of imprisonment exceeding one year and had not had his gun rights restored. IcL at 14.

         III. THE PRESENTENCE INVESTIGATION REPORT

         The PSR prepared by the Probation Office determined that Defendant's total offense level was 26. PSR, ECF No. 25 ¶ 69. With respect to Count 1, Conspiracy to Commit Bank, Mail, and Wire Fraud, the base offense level was determined to be 7 (pursuant to USSG § 2B 1.1 (a)(1)). Defendant then received enhancements for (1) loss exceeding $150, 000, (pursuant to USSG § 2B 1.1 (b)(1)(F)); (2) an offense involving 10 or more victims, (pursuant to USSG § 2Bl.l(b)(10)(C)); (3) employing sophisticated means, (pursuant to USSG § 2Bl.l(b)(10)(C)); and (4) employing device-making equipment or involving the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification, (pursuant to USSG §§ 2B1.1 (b)(11)(A)(i) and 2Bl.l(b)(ll)(C)(i)). The adjusted offense level for Count 1 was 23. Id. ¶¶ 46-54.

         Count 7, Aggravated Identity Theft, resulted in an offense level of 0, USSG § 2B1.6, but carried a mandatory 24-month consecutive sentence. Id. ¶¶ 55-56.

         With respect to Count 9, Possession of a Firearm by a Convicted Felon, the base offense level was 20. USSG § 2K2.1(a)(4)(A). Defendant also received (1) a enhancement for a stolen firearm, pursuant to USSG § 2K2.1(b)(4)(A), and (2) a enhancement for obstruction of justice, pursuant to USSG § 3C1.1. The adjusted offense level for Count 9 was determined to be 24. Id. ¶¶ 57-62.

         Based on adjustments for multiple counts, Defendant's combined adjusted offense level was determined to be 26. Defendant did not receive a downward adjustment for acceptance of responsibility because an enhancement for obstruction of justice generally demonstrates lack of acceptance of responsibility. Id. ¶¶ 63-69.

         The PSR also determined that Defendant's Criminal History Category was IV. Id. ¶¶ 77-79. With an offense level of 26 and a Criminal History Category of IV, the Guidelines recommended a sentence of 92 to 115 months, in addition to 24 months consecutive for the 18 U.S.C. § 1028A conviction.

         Defendant presented two objections to the PSR and one motion for a downward departure pursuant to USSG § 4A1.3(b) in his Position on Sentencing: (I) Defendant objected to the loss amount attributed to him, ECF No. 27, at 2; (2) Defendant objected to the lack of adjustment for acceptance of responsibility, Id. at 4; and (3) Defendant asked that the Court depart downward and find Defendant's Criminal History Category to be a III, rather than a IV, Id. at 11.

         Only the objection to the lack of adjustment for acceptance of responsibility and the motion for downward departure affected the Guidelines range because, pursuant to USSG § 3D1, the gun possession charge drove the total offense level. At the sentencing hearing, the Court found that the Defendant had accepted responsibility. PSR, ECF No. 25 ¶¶ 43, 44, 61, 119. The Government then moved for an additional 1-point adjustment for acceptance of responsibility, resulting in a reduction of 3 points to the offense level from 26 to 23. The Court also granted Defendant's motion for a downward departure, and found that the Defendant had a Criminal History Category of III, rather than IV. The Court sustained, however, the loss amount attributed to the Defendant. See id. ...


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