*

Honorable William C. O'Kelley, Senior U.S. District Judge

for the Northern District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-6016.

UNITED STATES of America, Plaintiff-Appellee,

v.

Melvin Elroy WHITE, a.k.a Robert Lee Rios, Defendant-Appellant.

Aug. 6, 1997.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CR-95-N-174-S), Edwin L. Nelson, Judge.

Before BIRCH, Circuit Judge, RONEY, Senior Circuit Judge, and

O'KELLEY*

, Senior District Judge.

RONEY, Senior Circuit Judge:

Melvin Elroy White pled guilty to ten counts of transportation

of stolen monies in interstate commerce in violation of 18 U.S.C.

§ 2314. He appeals his sentence on the ground that the district

court erred in departing upward after it decided that the

Sentencing Commission had failed to consider adequately the factors

contained in 18 U.S.C. § 2326, part of the Senior Citizens Against

Marketing Scams Act of 1994 (hereinafter "the SCAMS Act"). Because

the district court erred in applying section 2326 to a statute not

expressly enumerated therein, we vacate and remand for

resentencing.

This appeal presents a sentencing issue of first impression in

this Court. White conducted a telemarketing fraud scheme in

Georgia wherein he contacted elderly people throughout the United

States, advising them they had won a cash prize but, before the
prize could be sent, they had to send money for state and federal

income taxes or fees. When White received the victims' checks in

payment, he would transport them for deposit to banks located in

Alabama. Since the telemarketing scheme was fraudulent, White was

indicted and pled guilty to ten counts of transporting in

interstate commerce property stolen, converted, or taken by fraud

in the amount of $5,000 or more pursuant to 18 U.S.C. § 2314. The

three individual victims listed in the indictment were all over 80

years old and had sent to White checks totaling $80,296.00.

The PSI recommended that the district court make an upward

departure and sentence White to seven years imprisonment on the

basis of the focus of the SCAMS Act. 18 U.S.C. § 2326. That

statute specifically lists six telemarketing offenses for which

enhancement may be given if the victims were over 55. Section 2314

is not one of the listed statutes. The PSI, nevertheless,

justified its recommendation upon the belief that the applicable

Guideline range did not reflect the seriousness of the criminal act

in light of the SCAMS Act.

(The Guideline range) ... in light of this new law,

under-represents the seriousness of the defendant's criminal

behavior. This defendant targeted numerous elderly victims

and over $600,000 in illicitly-obtained funds were traced to

his Birmingham bank accounts, none of which has been

recovered. He is now claiming he has no assets.

Especially in light of the consideration that, in all

likelihood, only a very small percentage of restitution will

ever be paid, 10 years imprisonment ... represents a much more

just sentence, considering the egregiousness of the offense

wherein one of the most vulnerable segments of the populace

was preyed upon.

White objected, maintaining that he did not receive prior

notice of the application of the SCAMS Act to his sentence at the
time he entered his plea, the Guidelines had already taken into

consideration the fact that the victims were elderly and his

sentence had been enhanced on that basis, and his sentence was

increased on the incorrect basis that the Commission had not

considered the victims' ages.

The district court, however, overruled the objection and, in

departing upward, sentenced White to 72 months' imprisonment rather

than within the applicable 37 to 46 months range under the

Guidelines. The district court justified the upward departure on

the basis that Congress had by oversight omitted to include 18

U.S.C. § 2314 within the provisions of the SCAMS Act, and that the

Sentencing Commission had not adequately considered the concerns

expressed by Congress in the SCAMS Act regarding the age and number

of victims.

The district court had adopted the sentence calculations in

the PSI report as follows:

a. Base Offense Level 2F1.1(b)(1) 6

b. Specific Offense

 Characteristics: 2F1.1(b)(1)(K)/

1B1.3 + 10

2F1.1(b)(2) + 2

c. Adjustments:

 i. Enhancements 3A1.1(b) + 2

ii. Reductions 3E1.1(b)(2) ! 3
Total (Adjusted offense level): 1 7

2. Criminal History Category: IV 

3. Applicable Guideline Range: 37-46 mos.

—————

The Statement of Reasons for the 72-month sentence included

the following:

The sentence departs from the guideline range due to the

court's finding there is a reason for an upward departure

based upon the provisions of 18 U.S.C. § 2326 which shows that

the Sentencing Commission has not adequately considered the

concerns expressed by the new statute. As a result, the court

finds that the offense level is 23, which when combined with

criminal history category IV, yields an imprisonment range of

70 to 87 months.

Although the Government maintains that, based upon the facts,

the district court correctly found that this case was "unusual" and

outside the "heartland" of the offenses for which White was being

sentenced, Koon v. United States, --- U.S. ----, ----, 116 S.Ct.

2035, 2046, 135 L.Ed.2d 392 (1996); United States v. Alpert, 28

F.3d 1104, 1108 (11th Cir.1994), it does not appear that the

district court made any such finding. Rather, the district court's

upward departure was based solely upon its conclusions regarding

the Commission's consideration of the SCAMS Act and not upon any

finding that this case was unusual or contained any "aggravating or

mitigating circumstance[s]," 18 U.S.C. § 3553(b).

 The district court erred in departing upward from the

Guidelines on the basis of the SCAMS Act because the statute under

which White was convicted, 18 U.S.C. § 2314, was not included in
the specific fraud statutes listed in the SCAMS Act. The SCAMS Act

provides for enhanced penalties, mandatory restitution, sentencing

commission review of victim related adjustment of fraud against the

elderly, and funding for enforcement activities for telemarketing

fraud against the elderly. See Pub.L. No. 103-322 § 250001, 108

Stat. 2081 (1994). The SCAMS Act enhances fraud penalties as

follows:

A person who is convicted of an offense under section 1028,

1029, 1341, 1342, 1343, or 1344 in connection with the conduct

of telemarketing—

(1) may be imprisoned for a term of up to 5 years in

addition to any term of imprisonment imposed under any of

those sections, respectively; and

(2) in the case of an offense under any of those sections

that—

(A) victimized ten or more persons over the age of

55; or

(B) targeted persons over the age of 55,

may be imprisoned for a term of up to 10 years in

addition to any term of imprisonment imposed under any of

those sections, respectively.

18 U.S.C. § 2326 (enhancing penalties under 18 U.S.C. § 1028,

"Fraud and related activity in connection with identification

devices"; § 1029, "Fraud and related activity in connection with

[account] access devices"; § 1341, "[Mail] Frauds and swindles";

§ 1342 "Fictitious name or address [mail fraud]"; § 1343 "Fraud by

wire, radio, or television"; and § 1344, "Bank fraud."). White

was not convicted under any of these specific sections.

 We review de novo the district court's conclusion that the

Sentencing Commission did not adequately consider the factors

expressed in the SCAMS Act. See Koon, --- U.S. at ----, 116 S.Ct.
at 2047. Whether the Commission adequately considered those

factors in reviewing the guidelines can be reasonably argued either

way. White cites a report issued by the Sentencing Commission in

response to the directive from Congress to review the adequacy of

"victim related adjustments for fraud offenses against old victims"

as a basis for his contention that the Commission did consider

these factors. Report to Congress: Adequacy of Penalties for

Fraud Offenses Involving Elderly Victims (March 13, 1995) (prepared

pursuant to section 250003 of the SCAMS Act, Pub.L. No. 103-322 §

250001, 108 Stat. 2081 (1994)). The Government cites the same

report in arguing that the Commission did not adequately consider

the factors focused upon by section 2326. Citing the legislative

history of the SCAMS Act, H.R.Conf.Rep. No. 103-711, at 398-99

(1994), reprinted in 1994 U.S.C.C.A.N. 1839, 1866-67, the

Government maintains that, in passing that Act, Congress was

stating that the Guidelines did not adequately address the type of

conduct engaged in by White. To carry this argument to its

conclusion, however, would require the courts to rewrite 18 U.S.C.

§ 2326 to permit enhancement in the sentence for conviction of any

offense in connection with a telemarketing scheme that victimized

or targeted people over the age of 55. If Congress had wanted to

so provide it would have been easy to do so. The selection of the

statutes set forth reflects an intent to omit all others. See

United States v. Koonce, 991 F.2d 693, 698 (11th Cir.1993)

(recognizing the canon of statutory construction that inclusion of

one implies exclusion of others; inclusio unius est exclusio

alterius); cf. United States v. Castro, 837 F.2d 441, 442-43 (11th
Cir.1988) (canon does not apply when legislative history and

context are contrary to such a reading of the statute).

VACATED AND REMANDED FOR RESENTENCING.