                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0247n.06
                                                                                            FILED
                                            No. 10-6357
                                                                                       Mar 02, 2012
                             UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE WESTERN DISTRICT OF
RONALD W.G. HESSA,                                    )      KENTUCKY
                                                      )
       Defendant-Appellant.                           )




       Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.


       PER CURIAM. Ronald W.G. Hessa, who is represented by counsel, appeals his twenty-one

month sentence for using counterfeit access devices with the intent to defraud in violation of 18

U.S.C. § 1029(a)(1).

       Hessa was indicted on April 6, 2009, for buying replica sports jerseys from thrift stores,

creating counterfeit UPC bar codes and receipts, and using them to return the jerseys at J.C. Penney

stores around the United States. He pleaded guilty to five specific fraudulent returns, but admitted

for the purposes of his plea that he had returned hundreds of items using this method in numerous

states. His presentence report calculated a criminal history category of II, and a total offense level

of thirteen. The report found a base offense level of six under USSG § 2B1.1(a)(2); an eight-level

enhancement for a loss of $110,851.86 under USSG § 2B1.1(b)(1)(E); a two-level enhancement for

producing authentication features under USSG § 2B1.1(b)(10)(B)(ii); and a three-level reduction for

acceptance of responsibility under USSG § 3E1.1.
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       The district court adopted the report, but also found, over Hessa’s objection, that a two-level

enhancement for relocation of a fraudulent scheme to evade law enforcement was applicable under

USSG § 2B1.1(b)(9)(A)1. With this two-level enhancement, Hessa’s total offense level became

fifteen, resulting in an advisory sentencing guidelines range of twenty-one to twenty-seven months

of imprisonment. The district court sentenced Hessa to concurrent terms of twenty-one months of

imprisonment on each of the five counts. Hessa was also sentenced to two years of supervised

release. The district court imposed a $500 special assessment and ordered restitution of $75,000.

       Hessa argues on appeal that: 1) the district court erred by increasing his offense score by two

levels for either the relocation enhancement or the sophisticated means enhancement; and 2) the

application of the enhancements for both the sophisticated means and the production of an authentic

feature enhancement constituted impermissible double-counting.

       We review sentences for procedural and substantive reasonableness. Gall v. United States,

552 U.S. 38, 51 (2007). First, we “ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If no

procedural error occurred, we “then consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard.” Id. A sentence may be substantively unreasonable “if the

district court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or

unreasonably weighs a pertinent factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir.), cert.




       1
           This provision is now located at USSG § 2B1.1(b)(10)(A).
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                                                -3-

denied, 131 S. Ct. 3077 (2011). When a sentence falls within the applicable guideline range, we

afford it a rebuttable presumption of substantive reasonableness. Id.

        Our review of the record establishes that the district court did not apply the sophisticated

means enhancement, but rather the relocation enhancement. Although the district court mentioned

the sophisticated means enhancement during the sentencing hearing, the court actually applied the

relocation enhancement.

        The application of the relocation enhancement was not procedurally unreasonable. This

enhancement applies when “the defendant relocated, or participated in relocating, a fraudulent

scheme to another jurisdiction to evade law enforcement or regulatory officials.”                USSG

§ 2B1.1(b)(9)(A). Hessa argues that the record does not demonstrate that he had any purpose of

evading law enforcement, and that he was instead simply going to different stores as a “method of

operation.” The district court nevertheless found that Hessa was moving from state to state to avoid

law enforcement. Given that Hessa did not otherwise explain why he was traveling from location

to location, the district court’s finding that the travel was “in large part for the purpose of evading”

and “more likely a relocation for the purpose, in this case, of evading” was not clearly erroneous.

        Further, Hessa’s actions fall within the plain language of the enhancement. He admitted that

he traveled to numerous states making fraudulent returns at J.C. Penney stores. The logical

explanation for Hessa’s interestate travel is that he traveled between multiple stores to avoid

detection by J.C. Penny. Thus, Hessa was trying to “relocate[] . . . a fraudulent scheme . . . to evade

law enforcement or regulatory officials.” USSG § 2B1.1(b)(9)(A). Therefore, the district court did

not err in applying the relocation enhancement.
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         Finally, Hessa argues that the district court impermissibly double counted his guidelines score

by using both the sophisticated means and counterfeit access device enhancements. However,

because the district court did not apply the sophisticated means enhancement, this claim is without

merit.

         The district court’s judgment is affirmed.
