                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-1999

United States v. Stephens
Precedential or Non-Precedential:

Docket 99-5309




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Recommended Citation
"United States v. Stephens" (1999). 1999 Decisions. Paper 330.
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Filed December 28, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5309

UNITED STATES OF AMERICA

v.

DOLORES STEPHENS,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Criminal No. 98-cr-00662)
District Judge: Honorable Anne E. Thompson

Submitted Under Third Circuit LAR 34.1(a)
November 17, 1999

Before: ALITO and STAPLETON, Circuit Judges, and
FEIKENS, Senior District Judge.*

(Filed: December 28, 1999)



_________________________________________________________________

* The Honorable John Feikens, United States District Court for the
Eastern District of Michigan, sitting by designation.
       Faith S. Hochberg, United States
        Attorney
       George S. Leone, Chief,
        Appeals Division
       Elizabeth Ferguson, Assistant
        U.S. Attorney
       970 Broad Street
       Newark, New Jersey 07102

        Attorneys for Appellee

       David E. Schafer, Assistant Federal
        Public Defender
       22 South Clinton Avenue
       Station Plaza #4, 4th Floor
       Trenton, New Jersey 08609

        Attorney for Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:

Dolores Stephens ("Stephens") pleaded guilty to Social
Security fraud in violation of 18 U.S.C. S 510(a)(2). In
determining her sentence under the Sentencing Guidelines,
the District Court calculated a base offense level. Relevant
conduct for the purpose of determining specific offense
characteristics used in calculating the base offense level
includes "all acts and omissions committed . . . by the
defendant . . . that occurred during the commission of the
offense of conviction." U.S. Sentencing Guidelines
S 1B1.3(a)(1)(A). As relevant conduct, the District Court
considered conduct that could not be charged because the
applicable statute of limitations period had expired.
Stephens contests the upward adjustment in her base
offense level that resulted from the inclusion of this
conduct.

Stephens's father, Junius A. Purcell, died on September
7, 1968. His wife, Cora Purcell, cashed benefit checks
issued in his name until her death on March 7, 1974. From
that date until September 3, 1995, Stephens, cashed 257

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additional benefit checks issued in her father's name. In
August 1995, the Social Security Administration made a
home visit to check on Mr. Purcell, as he would have been
101 years old at that time. They soon discovered that
Stephens had been collecting the benefit checks sent to her
father.

The criminal information to which Stephens pled guilty
charged her with fraudulently cashing 43 benefit checks.
The rest of the fraudulent activity took place outside the
statute of limitations, and so was considered only at
sentencing. Stephens objects to the inclusion of the 214
checks cashed outside the statute of limitations period as
relevant conduct in determining her sentence. Under
U.S.S.G. S 2F1.1(a), the base offense level for fraud and
deceit is six. Under S 2F1.1(b)(1), if the amount of the loss
exceeds $2000, the base level is increased depending on the
specific offense characteristics, viz., the amount of the loss.
By considering all of the checks as relevant conduct, the
District Court found that the amount of the loss was
$133,340, resulting in an upward adjustment of seven
levels to Stephens's base offense level under S 2F1.1(b)(1).

Before the advent of the Sentencing Guidelines, a district
judge faced few limitations in determining a sentence:

       [A] trial judge in the federal judicial system generally
       has wide discretion in determining what sentence to
       impose. It is also true that before making that
       determination, a judge may appropriately conduct an
       inquiry broad in scope, largely unlimited either as to
       the kind of information he may consider, or the source
       from which it may come.

United States v. Tucker, 404 U.S. 443, 446 (1972). The
Sentencing Guidelines place many restraints on the
sentencing process; however, it is still the case that "[n]o
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted
of an offense which a court of the United States may receive
and consider for the purpose of imposing an appropriate
sentence." 18 U.S.C. S 3661. See also U.S.S.G. S 1B1.4.

Seven other courts of appeals have held that conduct
that is not chargeable because the statute of limitations

                                3
has expired may be considered in determining the
appropriate sentence under the Guidelines. See United
States v. Silkowski, 32 F.3d 682, 688 (2d Cir. 1994); United
States v. Lokey, 945 F.2d 825, 840 (5th Cir. 1991); United
States v. Pierce, 17 F.3d 146, 150 (6th Cir. 1994); United
States v. Matthews, 116 F.3d 305, 307 (7th Cir. 1997);
United States v. Neighbors, 23 F.3d 306, 311 (10th Cir.
1994); United States v. Behr, 93 F.3d 764, 765-66 (11th
Cir. 1996); United States v. Wishnefsky, 7 F.3d 254, 257
(D.C. Cir. 1993). We agree.

Stephens argues, however, that the District Court's
finding regarding the 214 checks cashed outside the statute
of limitations period was based on unreliable information.
Stephens did not raise this objection before the District
Court. Our standard of review, therefore, is plain error. See
Fed. R. Crim. P. 52(b). In pleading guilty, Stephens
admitted to cashing the checks during the entire period not
covered by the statute of limitations, but she contends that
in the period before the statute of limitations, she did not
commit fraud. She claims that she was cashing the checks
for a cousin whom she believed was authorized to receive
the money. We reject this argument.

The Court adopted the factual findings in the Presentence
Investigation Report. See Appellant's App. at 12. According
to that Report, Stephens could not give an address or date
of birth for the alleged cousin. See Presentence
Investigation Report at 5. Stephens's son, Emerson White,
said that he had never heard of any cousin, and that he did
not believe his mother's story. See id. at 7. Stephens never
provided any further information on the alleged cousin. She
has not contested the information provided by her son, and
she has not claimed that her son gave unreliable
information.

For these reasons, the judgment of the District Court is
affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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