                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3579




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 07-3579
                                    ____________

                          UNITED STATES OF AMERICA

                                             v.

                                 GEORGE R. HOLT,

                                            Appellant
                                    ____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 07-cr-00098)
                  District Judge: The Honorable William W. Caldwell
                                     ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    June 3, 2008

      Before: FISHER and JORDAN, Circuit Judges, and YOHN,* District Judge.

                                (Filed: June 13, 2008)
                                     ____________

                                      OPINION
                                    ____________




      *
        The Honorable William H. Yohn, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
YOHN, District Judge.

       George R. Holt appeals the sentence imposed on him by the District Court after he

pleaded guilty to one count of conspiracy to commit bank fraud and one count of bank

fraud. Holt argues the District Court erred in applying a two-level leadership role

increase to Holt’s offense level under the United States Sentencing Guidelines. For the

reasons discussed below, we will affirm.

                                             I.

       The criminal scheme at issue in this case began as a part of Holt’s employment

with a church, Shared Ministries. Shared Ministries hired Holt to work as a part-time

administrative assistant on June 6, 2006. Shortly after beginning his employment at the

church, Holt obtained the social security number of the church’s choir director. He and

his codefendant, Toni Lewis, used the number to open two credit card accounts in the

director’s name, and they subsequently made $16,801.67 in unauthorized purchases with

the cards. They also took $9586.75 in contributions and payments that had been mailed

to the church and deposited the money in an account at PNC Bank that Lewis opened in

Shared Ministries’ name. Finally, they used the church’s Office Max credit card to make

$730.17 in unauthorized purchases.

       On March 7, 2007, a grand jury indicted Holt on the following counts:

(1) conspiracy to commit fraud, in violation of 18 U.S.C. § 371; (2) bank fraud, in

violation of 18 U.S.C. § 1344(1) & (2); (3) identification fraud, in violation of 18 U.S.C.



                                             2
§ 1028(a)(7) & (b)(1)(D); (4) access device fraud, in violation of 18 U.S.C. § 1029(a)(2)

& (c)(1)(A)(i); and (5) making false statements to a federally insured credit union, in

violation of 18 U.S.C. § 1014. Pursuant to a plea agreement, Holt pled guilty to the first

two counts of the indictment on April 18, 2007. The statutory maximum terms of

imprisonment were five years for the first count and thirty years for the second count.

       The presentence investigation report recommended a two-level increase to Holt’s

offense level under U.S.S.G. § 31B.1(c).1 This recommendation was based on the

following evidence of Holt’s leadership role in the scheme. In a statement given to police

on November 16, 2006, Holt admitted that he asked Lewis to open the account at the PNC

Bank. He also explained that he applied for two credit card accounts and opened a post

office box in Shared Ministries’ name to receive the credit card bills. Holt further

admitted that he had the address on the credit cards changed so the bills would not be sent

to Shared Ministries’ main office.


       1
        Section 3B1.1 provides:
              Based on the defendant’s role in the offense, increase the offense
       level as follows:
              (a) If the defendant was an organizer or leader of a criminal
              activity that involved five or more participants or was
              otherwise extensive, increase by 4 levels.
              (b) If the defendant was a manager or supervisor (but not an
              organizer or leader) and the criminal activity involved five or
              more participants or was otherwise extensive, increase by 3
              levels.
              (c) If the defendant was an organizer, leader, manager, or
              supervisor in any criminal activity other than described in (a)
              or (b), increase by 2 levels.

                                             3
       The United States Attorney’s office interviewed Holt on March 8, 2007. During

this interview, Holt provided a more detailed explanation of the scheme. He told the

interviewer that all of the employees at Shared Ministries were female, and if they had not

been, he would not have needed Lewis to assist him with the scheme. He also said that it

was his idea to obtain the credit cards using the choir director’s name and it was his idea

to take the checks that were mailed to Shared Ministries. Holt also explained that he had

Lewis open the PNC account because he worked at the church and did not want his name

on the account. He said that he set up the bank account to require two signatures to

withdraw money because he did not want Lewis to scam him. Holt told the investigator

that he and Lewis evenly split the money that went into the account.

       Lewis was interviewed by investigators on April 11, 2007. She explained that Holt

called her in July 2006 and said he had a plan that he did not want to discuss with her

over the phone. When they met, Holt explained to Lewis that he had a plan to obtain

money and that Lewis would receive $1000 for her assistance. According to Lewis, Holt

told her that he had a credit card in the choir director’s name, explaining that the director

was in jail and had given Holt permission to use the card. Lewis said that she and Holt

applied for a second credit card using the choir director’s name. Lewis explained that

they went on one shopping spree with the cards. She further admitted that Holt gave her

approximately $50 to $100 in cash from the credit cards on three or four occasions.




                                              4
       According to Lewis, about a month after they used the credit cards, Holt called her

and asked her to open a bank account. She initially refused, but she agreed after Holt

asked her for the third time. Lewis admitted that after she saw money was going into and

out of the account, she decided to use some of the money in the account to pay three

utility bills, and she wrote additional checks for cash, totaling somewhere between $500

and $660.2

       Holt objected to the presentence investigation report’s recommended two-level

increase, and the District Court held a hearing on August 22, 2007. At the hearing, Holt

testified that the scheme actually began when Lewis visited him while he was working at

Shared Ministries. Holt stated that while Lewis was there, she brought up the idea of

using other people’s social security numbers to obtain credit cards. He further testified

that it was his idea to open the bank account and that he gave Lewis the information she

needed to open the account in Shared Ministries’ name. Holt admitted that he opened the

credit card accounts with information he received from the church files and that Lewis

did not have anything to do with opening those accounts. He also admitted to opening the

post office box himself. Finally, Holt testified that he gave Lewis a key to the church,

and sometimes she would take checks from the church without his knowledge.




       2
       The government calculated that Lewis received less than $2000 of the $27,000
Holt and Lewis stole.

                                             5
       After Holt’s testimony and arguments from the attorneys regarding the two-level

increase, the District Court concluded: “I agree totally with the position of the

prosecution on this point, and I will deny the objection that has been made in the

presentence report. I think Mr. Holt was in a directing leadership type role, although Ms.

Lewis certainly went along willingly. Without him this whole thing couldn’t have

happened . . . .” The District Court subsequently applied the leadership role enhancement

and sentenced Holt to concurrent terms of sixteen months’ imprisonment on each count;

restitution in the amount of $17,456; a $200 special assessment; and concurrent terms of

three years’ supervised release on each count. Holt timely filed an appeal.

                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s interpretation of the advisory sentencing guidelines, and we review the District

Court’s factual findings for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir.

2007) (en banc). Any factual findings must be supported by a preponderance of the

evidence. Id. at 568.

                                            III.

       Holt argues that during sentencing he testified that it was Lewis’s idea to use the

choir director’s social security number to obtain the credit cards. He also points out that

Lewis opened the PNC account, spent the money in the account, and used the credit



                                             6
cards. Holt concludes that this evidence shows the scheme was undertaken jointly. He

further contends that there is no evidence that he controlled or supervised Lewis, and the

existence of an additional participant who bore equal responsibility for planning and

organizing the crime is insufficient to justify the enhancement. Finally, Holt argues that

the District Court’s finding that “without him this whole thing couldn’t have happened” is

not an adequate basis on which to apply the enhancement.

       “To apply section 3B1.1, a district court must find that the defendant exercised

control over at least one other person.” United States v. Katora, 981 F.2d 1398, 1402 (3d

Cir. 1992). The District Court must also find that there were multiple participants in the

crime and that there was some differentiation in their relative culpabilities. Id. at 1405.

Factors to consider when determining whether to apply a § 3B1.1 enhancement include:

       (1) the exercise of decision making authority; (2) the nature of participation
       in the commission of the offense; (3) the recruitment of accomplices; (4) the
       claimed right to a larger share of the fruits of the crime; (5) the degree of
       participation in planning or organizing the offense; (6) the nature and scope
       of the illegal activity; and (7) the degree of control and authority exercised
       over others.

United States v. Gricco, 277 F.3d 339, 358 (3d Cir. 2002) (quoting United States v.

Hunter, 52 F.3d 489, 492 (3d Cir.1995)). The government need not present evidence of

every factor or evidence that the defendant is the sole or predominate leader; rather, it

need only show sufficient evidence to justify a finding that the defendant is a leader or

organizer under § 3B1.1. United States v. Bass, 54 F.3d 125, 128-29 (3d Cir. 1995).




                                              7
       Although the District Court could have gone into a more detailed analysis of the

factors before it applied the two-level leadership increase, it did not err when it applied

the increase. The District Court found that Holt directed Lewis, and it recognized that

there were multiple participants with different culpabilities. Thus, the two Katora

prerequisites for applying the leadership enhancement were met.

       Furthermore, the District Court adopted the government’s position on the two-

level leadership increase. In its sentencing memorandum and at the sentencing hearing,

the government argued that Holt’s first statements, in which he admitted that he recruited

Lewis to help him in the scheme, opened the credit card accounts, provided the

information necessary to open the bank account, came up with the idea to steal the

checks, opened the post office box, and directed and supervised Lewis’s activities

demonstrated that Holt had a leadership role in the scheme. The government also argued

that Holt’s testimony to the contrary at the sentencing hearing was not credible. The

District Court clearly stated that it agreed with the government’s version of the facts.

       Examining this evidence, which the District Court accepted, in light of the factors

that should be considered in applying the leadership enhancement shows that the evidence

supports the finding that this scheme was not simply a jointly planned and executed

scheme. First, there was evidence that Holt exercised decision-making authority by

determining which credit cards to open, by opening the post office box, and by directing

Lewis to open the bank account. Additionally, Holt admitted that he was the one who



                                              8
accessed the choir director’s social security number and the information about the church

that was necessary to open the bank account. Gathering this information and opening the

credit card accounts and post office box demonstrated that Holt’s participation in the

scheme was greater than Lewis’s participation. Similarly, the evidence demonstrated that

Holt had a larger degree of participation in planning and organizing the crimes because

opening the bank account, credit cards, and post office box were his ideas. Although Holt

denied that it was his idea to open the credit card accounts, he did not do so until the

sentencing hearing, and the District Court accepted the government’s position that this

testimony was not credible and that it contradicted the information he and Lewis

previously gave the investigators.

       Lewis also told investigators that Holt recruited her as an accomplice,

demonstrating that Holt initiated the scheme. Further supporting this finding is Holt’s

admission that he only needed Lewis’s assistance in the scheme because all of the other

church employees were female. Additionally, although there was conflicting evidence

about how Holt and Lewis split the profits, there was some evidence that Holt had a

larger portion of the profits. Given all of this evidence, the District Court did not err

when it determined that the facts amply demonstrated that Holt met most, if not all, of the

factors, concluded that he was a leader or organizer of the scheme, and applied a two-

level enhancement for a leadership role to Holt’s offense level.

       We will therefore affirm the judgment of the District Court.



                                              9
