UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-11044

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WENDY LOIS WELLS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

November 27, 1996

Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Wendy Lois Wells (“Wells”) appeals the district court’s upward

departure from the Sentencing Guidelines for her con viction for

mail fraud pursuant to 18 U.S.C. § 1341.

FACTS and PROCEDURAL HISTORY

A five-count indictment charged Wells with mail fraud, use of

an unauthorized access device with intent to defraud, and use of an

unauthori zed social security account number for the purpose of

fraud, in violation of 18 U.S.C. §§ 1341, 1029(a)(2), and 42 U.S.C.2

§ 408(a)(8). Pursuant to a plea agreement, Wells pleaded guilty to

one count of mail fraud.

Wells, while employed as a substitute teacher, searched

through the d esks of at least two teachers for whom she was

substituting, obtained personal information and social security

numbers, and had credit cards sent to her using their names and

social security numbers. Wells then made purchases with the

fraudulently obta ined credit cards. The credit cards, account

statements, and merchandise were sent to a fictitious address Wells

set up in Irving, Texas.

Wells’ base offense level for a violation of 18 U.S.C. § 1341

was 6 pursuant to U.S.S.G. § 2F1.1(a ). Her offense level was

increased four levels because the loss exceeded $20,000 and another

two levels because the scheme involved more than minimal planning

or more than one victim. Wells received a two-level reduction for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. With a

tota l offense level of 10 and a criminal history category of V,

Wells’ Guideline range of imprisonment was 21 to 27 months.

The district court filed s ua sponte two letters it received

from victims of Wells’ scheme. The government filed a motion for

upward departure after the first letter was filed. At sentencing,

the district court granted the government’s motion for upward

departure. Wells was sentenced to a term of imprisonment of 30

months, three years of supervised release, and restitution in the1 The government briefed Koon in its Supplemental Letter Brief

dated August 9, 1996; Wells responded on August 15, 1996.

3 amount of $4,000.

DISCUSSION

Wells a rgues that the district court’s upward departure was

“unlawful” because it was based on factors “already considered by

the [Sentencing Commission] in setting the base offense level under

a particular guideline section or the specific offense

characteristics under that guideline section.” Wells’ Brief at 6.

Wells argues further that the Sentencing Commission has determined

that “mere aggravation, no matter how real, would not support a

departure.” Wells’ Reply Brief at 3.

At oral argument in September 1996, the parties argued the

applicability of Koon v. United States

, --- U.S. ---, 116 S.Ct.

2035 (1996), which was filed in June 1996, after the briefs in this

case had been filed. 1 In K oon, po l ice officers were charged with

violating Rodney King’s constitutional rights by using unreasonable

force incident to arrest pursuant to 18 U .S.C. § 242. In its

analysis of the Ninth Circuit’s appellate review of the sentencing

court’s downward departure, the Supreme Court determined the

appropriate standard of review and factors to be considered by a

district court judge in departing from the Guidelines.4

A s an initial matter, the Court noted, “[a] district court

must impose a sentence within the applicable Guideline range, if it

finds the case to be a typical one.” I d., 116 S.Ct. at 2040

(citing 18 U.S.C. § 3553(a)). A departure from the Guideline range

is appropriate in “certain circumstances” Id.

T he district court’s departure is not reviewed de novo, but

rather for an abuse of discretion. I d.

, 116 S.Ct. at 2043. The

parties here do not dispute that Koon clarified that a district

court judge’s decision to depart is reviewed for an abuse of

discretion. Because the “sentencing court’s departure decisions

are based on the facts of the case,” the appellate court needs to

detai l the facts that were before the district court. I d.

, 116

S.Ct. at 2040.

In this case, the presentence report lists the merchants

defrauded and itemizes the loss amounts attributed to each. The

total accountable l oss was over $20,000. The presentence report

a lso details Wells’ identity fraud as to victims Jennifer Sut ton

(“Sutton”), Mildred Robinson and Margar et Sells. The court also

considered two letters submitted by victims of this fraud scheme,

Sutton and Sue B. Cain (“Cain”), teachers for whom Wells had

substituted.

Cain described her experiences resulting from Wells’ fraud

scheme as follows:

It has been extremely difficult for me to begin the new

school year with the emotional strain of dealing with all5

aspects of this situation. It has cost me in terms of

multiple times off work to appeal in J.P. Courts to explain

and defend my position, to research our credit reports and to

make literally hundreds of phone calls to explain my situation

to the merchants and collection agencies who accepted the

fraudulent checks given by Wendy Wells using m y name and

Social Security number. Each week I have faced the

possibility of additional unjust arrest warrants in my name

stemming from Wendy Well’s [sic] fraudulent use of my name.

For my own protection, I ambeing forced to carry a forgery

affidavit with me at all times to prevent an unfair arrest.

It is overwhelming that someone can take over one’s identity

so quickly.

District Court Record at 69 (Letter f iled November 3, 1995). In

addition, Cain filed a three-page att achment to the letter

detailing meetings with attorneys and bank officials, warrants

issued against her, and court appearances.

Sutton details her experiences as follows:

Correcting this [situation] has become a full time job.

Having written and mailed over 50 letters, made an unknown

number of phone calls, had to take time off from school and

leave my classes with yet another substitute teacher, be

interupted [sic] during class regularly to speak with police

officers, detectives, postal inspectors, lawyers, and school

district personell [sic] has been overwhelming. I have had to

go to stores and financial instituions [sic] where Ms. Wells

used my identity and accued [sic] bad debts

. . . . My husband

and I ha ve both been turned down for credit due to this

fraudulant [sic] activity. When I use my credit cards in

stores, I am often asked to produce identification, asked to

wait while the clerk calls a manager, aske d to pay in cash,

and even denied the ability to make purchases.

District Court Record at 75 (Letter filed November 3, 1996).

The sentencing judge found that this ca se involved “extreme

circumstances, as described in these two letters

. . .” Sentencing

Transcript at 11. The sentencing judge also detailed his reasons

for concluding that these circumstances went “beyond what’s2 The Court in Koon defines “heartland” cases:

Turning our attention, as instructed, to the Guidelines manual,

we learn t hat the Commission did not adequately take into

account cases that are, for one reason or another, “unusual.”

1995 U.S.S.G. ch. 1, pt. A , intro. comment. 4(b). The

Introduction to the Guidelines explains:

“The Commission intends the sentencing cou rt 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 conduct

significantly differs from the norm, the court may consider

whether a departure is warranted.” Ibid.

Id., 116 S.Ct. at 2044.

3 Wells does not dispute that the Sentencing Commission has not

forbidden departures in fraud cases based on harm.

6 normally involved in a case like this:”

The thing that impresses me is not just the misuse of the

credit cards, but the description by each one of the victims

about the tremendous amount of time and energy that they had

to devote to getting thei r credit cleared up, the

embarrassment which they suffered from stores, collection

agencies, being turn ed down for credit, having to produce

identification, having to carry a perjury

-- affidavit, having

to carry -- having to pay cash.

Id.

The parties agree that Koon clarifies that a sentencing court

contemplating departure should ask four questions:

1) What features o f this case, potentially, take it outside

the Guidelines’ “heartland” 2 and make of it a special, or

unusual, case?

2) Has the Commission forbidden departures based on th ose

features? 3

3) If not, has the Commission encouraged departures based on

those features?7

4) If not, has the Commission discouraged departures based on

those features?

Id. , 116 S.Ct. at 2045 (quoting United States v. Rivera , 994 F.2d

942, 949 (1st Cir. 1993)).

The district court identified the features it considered took

this case out of the “heartland.” Wells argues that the analysis

ends with the first question, since this case involves harm

sufficientl y considered by § 2F1.1. Specifically, Wells claims

that “identity fraud” inherently involves the type of harm suffered

by these victims.

The Court in Koon also defines the scope of inquiry available

to the sentencing court answering the above questions:

Acknowledging the wisdom, even the necess ity, of sentencing

procedures that take into account individual circumstances,

see 28 U.S.C. § 991(b)(1)(B), Congress allows district courts

to depart from the applicable Guideline range if “the court

f inds that there exists an aggravating or mitigatin g

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. § 3443(b). To determine whether

a circumstance was adequately taken into consideration by the

Commission, Congress instructed courts to “consider only the

sentencing guidelines, policy statements, and official

commentary of the Sentencing Commission.” Ibid.

Id. , 116 S.Ct. at 2044.

Well s does not argue that the district court impermissibly

considered evidence beyond the guidelines, policy statements and

commentary. Instead, Wells contends that the court should have

concluded that the psychological harm to the victims did not rise4 U.S.S.G. § 5K2.3 provides:

Extreme Psychological Injury (Policy Statement)

If a victim or victims suffered psychological injury much more

serious than that normall y resulting from commission of the

off ense, the court may increase the sentence above the

authorized g uideline range. The extent of the increase

ordinarily should depend on the severity of the psychological

injury and the extent to which the injury was intended or

knowingly risked.

Normally, psychological injury would be sufficiently severe to

warrant application of this adjustme nt only when there is a

substantial impairment of the intellectual, psychological,

emotional, or behavioral functioning of a victim, when the

i mpairment is likely to be of an extended or cont inuous

duration, and when the impairment manifests itself by physical

or psychological symptoms or by changes in behavior patterns.

The court should consider the extent to which such harm was

likely, given the nature of the defendant’s conduct.

8 to the level considered in § 5K2.3, 4 the guideline generally

addressing upward departure. The appellant argues that, since the

victims failed to demonstrate a “substantial impairment of the

intellectual, psychological, emotional, or behavioral functioning,”

the court impermissibly departed upward. The K oon Court requires,

however, that the sentencing court’s analysis must conclude that,

“as occurring in the particular circumstances,” this case is

“outside the heartland of the applicable Guideline.” I d.

, 116

S.Ct. at 2051.

Wells’ argument ignores that the application notes to § 2F1.1,

the guideline under which she was sentenced, specifically address5 We also find it significant that the Sentencing Commission

amended the application notes to broaden the grounds for departure.

Prior to these amendments, which became effective 1993, the same

application notes provided for departure if:

(a) the primary objective was non-monetary;

(c) the offense caused physical or psychological harm;

U.S.S.G. § 2F1.1 app.nn.19(a) and (c) (1992).

9 an upward departure for non-monetary harm and psychological harm.

We agree with the government’s argument that the harm to the

victims considered by the district court is precisely the type for

w hich § 2F1.1 encourages an upward departure. Specifically, the

application notes to § 2F1.1 5 provide:

In 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. Examples may

include the following:

(a) a primary objective of the fraud was non-monetary; or the

fraud caused or risked reasonably foreseeable,

substantial non-monetary harm;

(c) the offense caused reasonably foreseeable, physical or

psychological harm or severe emotional trauma;

U.S.S.G. § 2F1.1 app.nn.10(a) and (c ) (1995). The government

argues that the loss table in § 2F1.1 addresses the losses of

merchants and insurers in this fraud scheme, not the losses of the

victims trying to put their lives back together. We agree that the

loss table accounts for the dollar amount at issue in this case,

but these victims did not suffer monetary harm to any measurable

degree. Instead, the substitute teachers whose identity Wells

assumed lost days from work, feared arrest, were forced to appear10

in court, struggled to repair their credit rating, were not able to

use the credit cards in their possession, and still face problems

connected with this offense. The loss table has not taken this

extreme personal victimization, which certainly can be viewed as

going beyond “aggravation,” into account. This departure decision

is the type encouraged by the Sentencing Commission, since the

sentencing court is in a unique position to make the necessary

factual determinations:

A district court’s decision to depart from the Guidelines, by

contrast, will in most cases be due substantial deference, for

it embodies the traditional exercise o f discretion by a

sentencing court. See Mistretta , 488 U.S. at 367, 109 S.Ct.

at 652

. . . . Before a departure is permitted, certain

aspects of the case must be found unusual enough for it to

fall outside the heartland of cases in the Guideline. To

resolve this question, the district court must make a refined

assessment of the many facts bearing on the outcome, informed

by its vantage point and day- to-day experience in criminal

sentencing. Whether a given factor is present to a degree not

adequately considered by the Commission, or whether a

discouraged factor nonetheless justifies departure because it

is presen t in some unusual or exceptional way, are matters

determined in large part by comparison with the facts of other

Guidelines cases. District courts have an institutional

advantage over appellate courts in making these sorts of

determinations, especially as they see so many more Guidelines

cases than appellate courts do. In 1994, for example, 93.9%

of Guidelines cases were not appealed. Letter from Pamela G.

Montgomery, Deputy General Counsel, United States Sentencing

Commission (Mar. 29, 1996). “To ignore the district court’s

special competence--about the ‘ordinariness’ or ‘unusualness’

of a part icular case--would risk depriving the Sentencing

Commission of an important source of information, namely, the

reactions of the trial ju d ge to the fact-specific

circumstances of the case . . . .” Rivera , 994 F.2d at 951.

Koon, 116 S.Ct. at 2046-47.

We find t hat the district court properly considered the6 Since we affirm the district court’s upward departure under

U.S.S.G. § 2F1.1, we do not decide here whether Wells’ sentence

could have been adjusted up ward for an abuse of a position of

trust, argued alternatively by the government at sentencing.

11 particular circumstances of this case in making its determination

to depart upward. The district court reasonably could have

concluded, in its sound discretion, that the victims’ travails

involving arrest, warrants, court appearances, forgery charges and

continuing credit difficulties made the ir harm “unusual,” taking

the case out of the “heartland.” A three-month upward departure,

resulting in a 30-month, rather than a 27-month, term of

imprisonment, is not an abuse of discretion in this case. 6

CONCLUSION

We find that the district court did not abuse its discretion

in departing upward for the harm suffered by the victims whose

identities were appropriated by Wells. Accordingly, Wells’

sentence is AFFIRMED

.