                                                                  PUBLISH


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                        FOR THE ELEVENTH CIRCUIT
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               --------------------              09/07/99
                                 No. 98-2660                 THOMAS K. KAHN
                               --------------------               CLERK
                       D.C. Docket No. 97-490-CR-T-23B


UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

      versus

KENNETH MELVIN,

                                                        Defendant-Appellant.

                                --------------------
                   Appeal from the United States District Court
                       for the Middle District of Florida
                                --------------------
                              (September 7, 1999)


Before DUBINA and HULL, Circuit Judges, and HOWARD*, Senior District
Judge.

HOWARD, Senior District Judge:

_________________
* Honorable Alex T. Howard, Jr., Senior U.S. District Judge for the Southern
District of Alabama, sitting by designation.
      Kenneth Melvin was charged by information and pleaded guilty to

trafficking in fraudulently obtained credit card accounts, in violation of 18 U.S.C.

§ 1029(A)(2), possession of fifteen or more unauthorized credit card accounts with

the intent to defraud, in violation of 18 U.S.C. § 1029(A)(3), and social security

fraud, in violation of 42 U.S.C. § 408(a)(7)(B). Melvin’s charges arose from a

scheme wherein Melvin obtained false credit cards, bank accounts and

identification cards primarily in the names of hospitalized children. Melvin

illegally obtained the personal information and social security numbers of these

children through his employment at the hospital in which the children were

receiving treatment.

      After a sentencing hearing, the district court determined that Melvin had an

adjusted offense level of fifteen and a criminal history category of II, resulting in a

guidelines imprisonment range of 21 to 27 months. However, the district court

departed upward by fifteen levels to reach an imprisonment range of 108 to 135

months. The district court found that Melvin’s crimes were “morally reprehensible

in the extreme” and departed upward because of the large number and vulnerable

nature of the child victims. The court sentenced Melvin to 120 months

imprisonment on counts one and two, and twenty-one months on count three, all to

be served concurrently.


                                           2
      Melvin appeals his sentence arguing (1) that the district court improperly

departed from the guidelines, and (2) that the extent and method of the district

court’s departure were unreasonable. We affirm.

I. BACKGROUND

      Melvin was employed in the housekeeping department of All Children’s

Hospital in Tampa, Florida from May to September 1997. In June 1997 a private

mailbox provider notified the Postal Inspector’s Office that Melvin was receiving

credit cards in various names at a rented mailbox. An initial investigation revealed

that Melvin maintained two apartments, a post office box at the main post office in

addition to the rented box, a rented storage unit and several bank accounts under

different names. After continued surveillance, Melvin was arrested and Melvin’s

apartment and storage unit were searched pursuant to a valid warrant.

      The search revealed that Melvin possessed the personal information of 135

individuals including birth dates and social security numbers. Of these individuals,

112 had been juvenile patients -- ranging in age from six months to fifteen years

old -- at the All Children’s Hospital. Using the information he obtained, Melvin

procured thirty-six unauthorized credit card accounts. Thirty-five of these

accounts were issued by First USA Bank, which incurred a loss of $17,307.08

because of Melvin’s charges. Sears Roebuck & Co. issued a single account and


                                          3
incurred a loss of $1,066.34. Melvin also fraudulently obtained telephone service

from GTE in the names of two individuals from which GTE suffered a loss of

$1,587.73. In addition, Melvin used the stolen personal information to obtain

identification cards in the names of other persons with Melvin’s picture. Using the

information, he obtained identification cards from Virginia, New York, New

Jersey, Florida and London, England.

      Melvin was charged by information and pleaded guilty pursuant to a plea

agreement with the government. At sentencing, the district court determined that

under the United States Sentencing Guidelines, Melvin’s adjusted offense level

was fifteen with a criminal history level of II, resulting in a Guidelines range of

fifteen to twenty-one months. In arriving at its calculation, the court initially

determined that Melvin’s base offense level was six under U.S.S.G. § 2F1.1, which

governs offenses involving fraud and deceit. The court added three levels to the

base offense level for losses greater than $10,000 but less than $20,000, pursuant

to U.S.S.G. § 2F1.1(b)(1)(D). The court added two levels for more than minimal

planning and multiple victims under U.S.S.G. § 2F1.1(b)(2)(A) and (B). The court

then again adjusted Melvin’s offense level upward by two levels for obstruction of

justice pursuant to U.S.S.G. § 3C1.1 because Melvin had provided a false name




                                           4
upon his arrest and to the Magistrate Judge in court proceedings. The court denied

the government’s request for an abuse-of-trust enhancement.

      Following the adjustments, the court announced that it was contemplating a

Guidelines departure. After announcing its intent to depart, the court rescheduled

the sentencing to the following week to give Melvin the opportunity to prepare

objections to the anticipated departure. At the subsequent sentencing hearing, the

government requested that the district court depart upward because the Guidelines

did not take into consideration the extraordinarily large number of children whom

Melvin had targeted as victims. The court heard testimony from the parents of two

of the children -- a four-month old infant and a ten-year old child -- Melvin had

victimized. One parent testified that because of Melvin’s offense, his daughter had

received a bad credit rating, and that the family had experienced difficulty with the

credit bureaus in attempting to clear her credit history. This parent testified that he

feared that his daughter’s credit history may never be corrected and that the credit

problems would affect her for the rest of her life.

      After hearing the testimony, the district judge adjusted Melvin’s sentence

upward by two levels pursuant to U.S.S.G. § 3A1.1 because the victims of the

offense were vulnerable. The judge then announced that he was departing upward




                                           5
from the Guidelines by fifteen levels pursuant to U.S.S.G. § 5K2.0. The court

stated:

      [T]his offense is morally reprehensible in the extreme. It appears to
      have systematically victimized in this instance approximately 135
      people, infants each one, hospitalized and presumably ill or otherwise
      frail and tender, in addition to being of tender years, unable to act in
      the preservation of their own interest, and both the children and their
      parents unable to act effectively to preserve their interests until the
      damage is already done without their individual or collective
      knowledge and of course without their consent. These victims are in
      effect especially vulnerable because they are, by the nature of their
      hospitalization and their frailty, captive victims. So I will simply raise
      the offense level fifteen to offense level thirty.

      Melvin argues that the district court’s bases for departing were already taken

into consideration in calculating his imprisonment range under the Guidelines.

Melvin also argues that even if departure was appropriate, the extent and method of

the departure were unreasonable.

II. DISCUSSION

      We review a district court’s decision to depart from the Guidelines for an

abuse of discretion. See Koon v. United States, 518 U.S. 81, 100 (1996). A district

court’s findings of fact are afforded substantial deference. See id. at 98. “The

abuse of discretion standard includes review to determine that the discretion was

not guided by erroneous legal conclusions.” Id. at 100.




                                          6
      A district court must impose a sentence within the Sentencing Guidelines

unless the court determines “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. § 3553(b).

      The Guidelines Manual explains:

      The Commission intends the sentencing courts 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 the conduct significantly differs from the norm, the court may
      consider whether a departure is warranted.

U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b).

      Before departing from the Guidelines, a district court must therefore

determine that an aggravating factor exists that places the case outside of the

Guidelines’ heartland. See Koon, 518 at U.S. 98. Whether a case is unusual

enough to fall outside of the heartland is determined in large part by comparison

with other Guidelines cases. See id. Because the district courts see so many

Guidelines cases, district courts have an institutional advantage over appellate

courts in determining whether a case is outside the heartland, and thus their

decisions are entitled to substantial deference. See id.



                                          7
      The examination of whether a factor is an appropriate basis for departure is

limited to (1) whether the Sentencing Commission has prohibited consideration of

the factor in departing from the Guidelines, and (2) whether the factor as occurring

in the particular instance takes the case outside of the heartland of the applicable

guideline. See id. at 109.

      If a factor is forbidden, see e.g., U.S.S.G. § 5H1.10 (race, sex, national

origin, creed, religion, and socioeconomic status), a district court cannot use the

factor to depart. See id. at 96-97. If a factor is encouraged, see e.g., U.S.S.G. §

5K2.1 (offense causes death), a court may depart on the basis of the factor unless

the Guidelines already take the factor into account. See id. at 96. If a factor is

discouraged, see e.g., U.S.S.G. § 5H1.2 (education and vocational skills), or is an

encouraged factor already taken into account by the applicable guideline, see e.g.,

U.S.S.G. § 5K2.7 (disruption of governmental function in bribery offense), the

court may depart only if the factor is “present to an exceptional degree or in some

other way makes the case distinguishable from an ordinary case where the factor is

present.” See id. A sentencing court may depart on the basis of a factor not

addressed by the Sentencing Commission if the court determines that the factor

takes the case out of the Guideline’s heartland after considering the “‘structure and

theory of both the relevant individual guidelines and the Guidelines taken as a


                                           8
whole.’” See id. (quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir.

1993)).

      In the instant case, the district court found that Melvin victimized 135

individuals, most of whom were hospitalized children. The court found that these

children were particularly vulnerable because of their age and their infirmities.

Melvin argues that the district court erred in departing from the Guidelines based

on the number and vulnerability of the victims. According to Melvin, these factors

were already considered in the initial calculation of his sentence under the

Guidelines and therefore were in impermissible basis on which to depart.

A. Multiple Victims

      The Guidelines section covering fraud or deceit offenses, U.S.S.G §

2F1.1(b)(2), provides a two-level increase for offenses that (A) involved more than

minimal planning, or (B) defrauded more than one victim. The district court

invoked this provision and increased Melvin’s offense level by two levels. The

district court also cited the number of victims in its decision to depart from the

Guidelines. Melvin argues that the district court consequently departed on the

basis of a factor already considered under the Guidelines.

      The application notes in the commentary to § 2F1.1 specifically provide that

“victim” for purposes of subsection (b)(2)(B) “refers to the person or entity from


                                           9
which the funds come directly.” U.S.S.G. § 2F1.1, comment. (n.4). Therefore,

under § 2F1.1(b)(2)(B) , the multiple victim adjustment accounted solely for the

two financial institutions and the telephone provider that Melvin defrauded. The §

2F1.1 multiple victim adjustment did not consider the indirect victims, the children

and their families, who suffered because of Melvin’s scheme.

      As noted, a sentencing court may depart on the basis of a factor not

addressed by the Sentencing Commission if the court determines that the factor

takes the case out of the Guideline’s heartland after considering the “‘structure and

theory of both the relevant individual guidelines and the Guidelines taken as a

whole.’” See Koon, 518 U.S. at 96 (quoting United States v. Rivera, 994 F.2d 942,

949 (1st Cir. 1993)). The application notes to § 2F1.1 direct that “[i]n 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.” U.S.S.G.. § 2F1.1, comment. (n.11). The notes further provide, “[i]n

the case of an offense involving false identification documents or access devices,

an upward departure may be warranted where the actual loss does not adequately

reflect the seriousness of the conduct.” U.S.S.G.. § 2F1.1, comment. (n.12).

      With the exception of those listed factors that may never serve as a basis for

departure, the Sentencing Commission did not “limit the kinds of factors, whether


                                         10
or not mentioned anywhere else in the guidelines, that could constitute grounds for

departure in an unusual case.” U.S.S.G. Ch.1, Pt. A, intro. comment. 4(b). The

number of indirect victims is not a factor prohibited by the Guidelines and was

available as a basis for departure.

      Upon reviewing the evidence and hearing the testimony in this case, the

district court determined that the Guidelines failed to consider the harm Melvin

inflicted on the children and their families. The structure and theory of the relevant

guideline in this instance directs the court to depart when the applicable guideline

section fails to account for the harmfulness or the seriousness of the offense.

Following this mandate, the district court properly departed from the Guidelines

based on the extensive number of indirect victims not considered by the

Guidelines.

B. Vulnerable Victims

      At sentencing, the district court adjusted Melvin’s total offense level upward

by two levels pursuant to U.S.S.G. § 3A1.1 because of the vulnerable nature of

Melvin’s victims.1 The district court subsequently cited the vulnerability of the


      1
        The Application Notes in the Commentary to § 3A1.1 provide that
“‘vulnerable victim’ means a person (A) who is a victim of the offense of
conviction and any conduct for which the defendant is accountable under § 1B1.3
(Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly susceptible to the criminal
                                          11
victims as a basis for departing from the Guidelines and substantially increased

Melvin’s offense level. The court noted that Melvin’s victims were “infants each

one, hospitalized and presumably ill or otherwise frail and tender, in addition to

being of tender years, unable to act in the preservation of their own interest. . . .

These victims are in effect especially vulnerable because they are, by the nature of

their hospitalization and their frailty, captive victims.” Melvin argues that because

the vulnerability of his victims was considered by the Guidelines, the sentencing

court erred in departing on the basis of this factor.

      Inclusion of a factor in the Guidelines calculation does not proscribe

departure based on consideration of the factor. A sentencing court may depart

based on a considered factor if the factor is “present to an exceptional degree or in

some other way makes the case distinguishable from an ordinary case where the

factor is present.” See Koon, 518 U.S. at 96.

      In the instant case, the district court found Melvin’s offense was

“exceptional” and “distinguishable from an ordinary case.” The court stated:

      I find the offense to be so reprehensible that — which may not change
      its penal nature at all — but morally it is so reprehensible and
      gravitates at or near the very bottom of the rung of human behavior
      that I have had occasion to see. I think that the fellow who continued


conduct.” U.S.S.G. § 3A1.1 comment. (n.2). Consequently, § 3A1.1 encompasses
a broader range of “victims” than § 2F1.1(b)(2)(B).
                                           12
      when, when his mother died he buried her out back and continued to
      take her social security checks was lower, but we’re in the same
      bracket, as far as I’m concerned.

      The Supreme Court has recognized that district courts have an institutional

advantage over appellate courts in determining whether a case is exceptional or

distinguishable from an ordinary case. See Koon, 518 U.S. at 98. A sentencing

court’s unique perspective enables it to determine whether a case falls outside of

the heartland of cases. The Court has consequently admonished the appellate

courts to avoid substituting their judgment for that of the district court in this arena.

See id.

      In the instant case, the district judge evaluated Melvin’s offenses based on

his day-to-day experience in criminal sentencing. From his vantage point, Judge

Merryday determined that in his seven years on the bench he had only seen one

case which he considered more morally reprehensible. Consequently, the district

court determined that this case was both exceptional and distinguishable, and the

court properly departed from the Guidelines based on the vulnerability of the

victims.

C. Reasonableness

      Melvin argues that even if the factors relied on by the district court were

appropriate for departure, the extent and method of the departure were


                                           13
unreasonable. The district court departed from the Guidelines and increased

Melvin’s offense level from fifteen to thirty. The fifteen level departure increased

Melvin’s imprisonment range from 21 to 27 months to 108 to 135 months. The

district judge sentenced Melvin to 120 months imprisonment.

      A district court’s departure from the Guidelines must be reasonable. See

Williams v. United States, 503 U.S. 193, 202 (1992). When a sentencing court

departs from the Guidelines, a reviewing court determines the reasonableness of

the departure in light of the factors to be considered in imposing a sentence, as

stated in 18 U.S.C. § 3553, and the reasons the district court provided for departing

from the Guidelines. See 18 U.S.C. § 3742(e)(3).

      Section 3553(a) provides that in imposing a sentence the district court must

consider certain factors including the nature and circumstances of the offense, and

the need for the sentence to reflect the seriousness of the offense, promote respect

for the law, and to provide just punishment for the offense. 18 U.S.C. § 3553(a).

In the instant case, the district court was repulsed by the nature and circumstances

of Melvin’s offense. The district court found that Melvin had systematically

victimized over a hundred hospitalized children and their families -- victims that

were weak and frail, and particularly vulnerable due to their circumstances. The

district court found that due to their situations, the victims were unable to defend


                                          14
themselves and were in fact captive victims. Upon reviewing the evidence and

hearing testimony in this case, Judge Merryday proclaimed that this case was the

most morally reprehensible he had encountered in his years on the bench, save one

particular exception. Based on his findings, the district judge determined that a

fifteen level upward departure was justified.

      The Supreme Court has cautioned, “it is the prerogative of the district court,

not the court of appeals, to determine, in the first instance, the sentence that should

be imposed in light of certain factors properly considered under the Guidelines.”

Williams, 503 U.S. at 204. “‘[I]t is not the role of an appellate court to substitute

its judgment for that of the sentencing court as to the appropriateness of a

particular sentence.’” Id. (quoting Solem v. Helm, 463 U.S. 277, 290, n. 16

(1983)).

      In the instant case, the district court sentenced Melvin to 120 months

imprisonment. The statutory maximum for Melvin’s offenses was 300 months.2 In


      2
        Melvin’s violations and the statutory maximum for each violation are as
follows: count one: 18 U.S.C. § 1029(a)(2), maximum term ten years; count two:
18 U.S.C. § 1029(a)(3), maximum term ten years; and count three: 42 U.S.C. §
408(a)(7)(B), maximum term 5 years. See also 18 U.S.C. § 3584(a) (providing for
the imposition of consecutive terms).

      At oral argument, Melvin’s counsel argued that the grouping provisions of
Chapter 3, Part D of the guidelines may restrict the sentencing court’s ability to
sentence Melvin to the statutory maximum terms of imprisonment available for his
                                          15
light of the district court’s findings regarding the nature and circumstances of

Melvin’s offense, we hold that a sentence of 120 months is reasonable. See e.g.,

United States v. Garrison, 133 F.3d 831, 853 (11th Cir. 1998) (departure

increasing fine to statutory maximum reasonable); United States v. Taylor, 88 F.3d

938, 948 (11th Cir. 1996) (eight level departure was reasonable where sentence

was below statutory maximum); United States v. Nilson, 967 F.2d 539, 546 (11th

Cir. 1992) (departure reasonable where sentence was below statutory maximum).

      Melvin argues that the sentencing court was required to utilize some

mathematical formula to account for the departure. We have consistently rejected

this argument in the past. As we have explained, “once a sentencing court begins

the vertical departure on the guidelines chart, it ‘need not explicitly discuss [its]

reasons for bypassing incremental offense level sentencing ranges.’”3 See Taylor,


combined offenses. However, the grouping rules only apply in sentencing
pursuant to the Guidelines. Once the sentencing court departed from the
Guidelines, the court was no longer bound by the grouping rules. See United
States v. Perez, 956 F.2d 1098, 1102-3 (11th Cir. 1992) (approving Guideline
departure and imposition of consecutive sentences despite grouping rules); see also
United States v. Coplin, 24 F.3d 312, (1st Cir. 1994) (holding that when sentencing
court departs from the Guidelines, maximum sentence determined by statutory
maximum, not grouping rules).
      3
         This court has distinguished between “horizontal” and “vertical”
departures. See Taylor, 88 F.3d at 947. Horizontal increases are based on the
relevant criminal history category applicable to the defendant. See U.S.S.G. Ch. 4.
In a horizontal departure based on criminal history, the court departs upward by
                                           16
88 F.3d at 948 (quoting United States v. Dixon, 71 F.3d 380, 382 (11th Cir. 1995)).

We have stated: “Sentencing under the guidelines is not . . . an exact science.

Justice cannot be meted out according to mathematical formulas. The universe of

potential factors that might affect the seriousness of the given offense is too broad

to be refined in a mechanistic approach.” See United States v. Crawford, 883 F.2d

963, 966 (11th Cir. 1989) (quoting United States v. Mejia-Orosco, 867 F.2d 216

(5th Cir.1989)). The purpose of the guidelines is not to “relegate the sentencing

judge to the role of a scrivener whose only function is to tally the pluses and

minuses prescribed in the guidelines and produce a bottom line sentence.” United

States v. Weaver, 920 F.2d 1570, 1577 (11th Cir. 1991).

      We therefore conclude that both the extent and the method of the departure

in this case were reasonable.

III. Conclusion

      For the reasons discussed above, the sentence is affirmed.

AFFIRMED.




increments, ultimately assigning the defendant a higher criminal history category
to more accurately reflect the defendant’s past criminal conduct. See U.S.S.G. §
4A1.3. A vertical departure, as is the instant case, is an increase based on the
offense level. See Taylor, 88 F.3d at 947.
                                          17
