                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2007

USA v. Shough
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5455




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 05-5455
                                      ____________

                            UNITED STATES OF AMERICA

                                               v.

                                  LEONARD SHOUGH,

                                           Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                 (D.C. No. 04-cr-00009E)
                     District Judge: Honorable Maurice B. Cohill, Jr.
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 15, 2007

               Before: FISHER, NYGAARD and ROTH, Circuit Judges.

                                   (Filed July 16, 2007)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Leonard Shough appeals from a judgment of sentence arguing that the District

Court erred in granting the Government’s request for a five-level enhancement and that,

as a result, his sentence is unreasonable in light of United States v. Booker, 543 U.S. 320
(2005). For the following reasons, we will affirm the District Court’s judgment of

sentence.

                                            I.

       Because we write only for the parties, who are familiar with this matter, we will

forgo a lengthy recitation of the facts. At some point in 1980, an individual named

Kenneth Green gave Leonard Shough a ride in his car. During the ride, Shough stole

Green’s car, which contained Green’s wallet, driver’s license, Social Security card and

discharge papers from the United States Army. Adding insult to injury, Shough began

using Green’s name and Social Security number to live a double life. Assuming Green’s

identity, Shough married, worked, and enlisted in the United States Army Reserve. He

went so far as to name his son Kenneth Green, Jr. He also obtained several mortgages,

bank accounts and credit cards using Green’s name and Social Security number.

       On several occasions, Shough applied for replacement Social Security cards in

both Green’s name and his own name. In 1994, while earning income as a painter under

Green’s name, Shough applied for Social Security disability benefits under his true name,

claiming that he was unable to work as a result of various medical conditions. Shough

was initially granted disability payments in the amount of $460 a month, later increased to

$500 a month. He received a total of $63,644.85 in fraudulent payments.

       In 2002, Shough’s wife passed away and, at her wake, suspicions were aroused

when attendees heard Shough being referred to as both Ken and Leonard. Shortly

thereafter, anonymous tipsters alerted the Erie, Pennsylvania police and the Social

                                             2
Security Administration that Shough was assuming Green’s identity. A subsequent

investigation confirmed that Shough had been using Green’s name and other identifying

documents for over twenty years.

       In February 2004, a grand jury returned a seven-count indictment against Shough

relating to the fraudulent use of another person’s identification and Social Security

number between November 1998 and December 2003. Shough pleaded guilty to Count

One, identity theft in violation of 18 U.S.C. § 1028(a)(7) and § (b)(1)(D), of the

indictment and acknowledged responsibility for Counts Two through Seven.

       On January 25, 2005, the District Court sentenced Shough pursuant to the United

States Sentencing Guidelines (“Guidelines”). The District Court calculated a criminal

history category of V and a base offense level of 17, which yields an advisory range of

27-33 months of imprisonment. Pursuant to the Guidelines, the Government moved for a

five-level enhancement arguing that the true Kenneth Green suffered substantial harm to

his credit. The District Court granted the motion and Shough was sentenced to a term of

84 months of imprisonment. Shough filed a timely notice of appeal to this Court,

whereupon we remanded for resentencing in light of Booker.

       At the resentencing hearing on December 6, 2005, the District Court calculated

Shough’s base offense level to be 15 because of the reduced figure associated with the

crimes ($129,714.85), the use of another’s identity, and for acceptance of responsibility.

The Government once again moved for a five-level enhancement on the same grounds as

before and the motion was granted. With a recalculated offense level of 20 and a criminal

                                             3
history category of V, the advisory Guidelines range was 63-78 months of imprisonment.

After consideration of the advisory Guidelines, the District Court resentenced Shough to a

term of 78 months of imprisonment. This timely appeal followed.

                                            II.

       The District Court had jurisdiction over this criminal matter pursuant to 18 U.S.C.

§ 3231 and we have jurisdiction over the matter under 28 U.S.C. § 1291. In assessing a

sentence, we review de novo the question of whether the District Court properly applied

the Guidelines, but review its factual determinations for clear error. See United States v.

Batista De La Cruz, 460 F.3d 466, 468 (3d Cir. 2006). We review the ultimate sentence

for reasonableness under the factors set forth in 18 U.S.C. § 3553(a). United States v.

Cooper, 437 F.3d 324, 329 (3d Cir. 2006).

       Shough first argues that the District Court improperly applied a five-level

enhancement but we find no error with the District Court’s application of that Guidelines

enhancement. In considering the enhancement at the first sentencing hearing, the District

Court heard testimony from a Government agent regarding the amount of harm Green

suffered as a result of Shough’s criminal actions. The agent recounted that Green had

difficulty obtaining credit in his name, had been detained because of crimes Shough

committed, was unable to purchase a home, and was forced to change his Social Security

number in an attempt to differentiate himself from Shough. Thus, Shough’s assertion that

his actions did not cause Green substantial harm is flatly contradicted by substantial



                                             4
evidence in the record and we find no evidence to suggest that the District Court

erroneously applied the enhancement.

       Shough’s argument concerning the reasonableness of his sentence is equally

without merit. The burden rests with the defendant to show that the sentence is

unreasonable in light of the particular circumstances. Cooper, 437 F.3d at 331. In

appellate review of a sentence, “the touchstone of ‘reasonableness’ is whether the record

as a whole reflects rational and meaningful consideration of the factors enumerated in 18

U.S.C.S. § 3553(a).” Grier, 475 F.3d at 571. For consideration to be meaningful, a court

does not need to make findings as to each factor or “state by rote that they have read the

Booker decision or that they know the sentencing Guidelines are now advisory,” but the

record must show that “the court took the factors into account in sentencing.” Cooper,

437 F.3d at 331.

       The District Court in this case acknowledged the advisory nature of the Guidelines

and further stated that it “considered the [G]uideline[s] range and the other factors set

forth in 18 U.S.C. § 3553(a) in imposing an appropriate sentence.” Specifically, it found

Shough’s fraud to be “one of the worst fraud cases I have ever heard,” and further

concluded that “the real Mr. Green’s life is absolutely ruined, and the ripple effect on his

family is terrible.” With these considerations in mind, the District Court sentenced

Shough within the advisory range to a term of 78 months of imprisonment. The District

Court’s statements support a finding that meaningful consideration was given to the



                                              5
sentencing factors and that the factors were applied reasonably to the particular facts of

this case.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                             6
