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United States v. John

United States Court of Appeals for the Fifth Circuit

February 9, 2010, Filed

No. 08-10459


 [*269]  PRISCILLA R. OWEN, Circuit Judge:

Dimetriace Eva-Lavon John was found guilty by a jury on all counts of a seven-count indictment arising out of her involvement in a scheme to incur fraudulent charges on accounts held by various Citigroup customers. John challenges her convictions and sentence in this appeal. We affirm the convictions but vacate her sentence and remand for further proceedings.

Dimetriace Eva-Lavon John was employed as an account manager at Citigroup for approximately three years. By virtue of her position, she had access to Citigroup's internal computer system and customer account information contained in it. In September 2005, John provided Leland Riley, her half-brother,  [**2] with customer account information enabling Riley and other confederates to incur fraudulent charges.

John accessed and printed information pertaining to at least seventy-six corporate customer accounts and provided it to Riley. The information was in the form of either scanned images of checks written by the account holders or printouts of computer screens containing detailed account information. Before he was apprehended, Riley and cohorts used information John had provided to incur fraudulent charges on four different accounts.

A grand jury returned a seven-count indictment against John. Count 1 charged John with conspiracy to commit access device fraud in violation of 18 U.S.C. § 371. Counts 2 through 5 charged John with fraud in connection with an access device and aiding and abetting, in violation of 18 U.S.C. §§ 1029(a)(5) and (2). Counts 6  [*270]  and 7 charged John with exceeding authorized access to a protected computer in violation of 18 U.S.C. §§ 1030(a)(2)(A) and (C). A jury found John guilty on all seven counts.

A Presentence Report (PSR) concluded that the Sentencing Guideline applicable to the conspiracy count was § 2X1.1(a), 1 which provides that the base offense level is that  [**3] applicable to the substantive offense. The substantive offense underlying the conspiracy count--a violation of 18 U.S.C. § 1029(a)(5)-- is governed by § 2B1.1 of the Guidelines, which provides for a base offense level of six. However, in calculating the advisory Guidelines sentencing range, the PSR recommended that the base offense level be increased by 16 levels because the PSR concluded that John intended to cause a loss of approximately $ 1,451,865. The PSR also determined that John intended to obtain account holders' personal information and accordingly added two levels pursuant to § 2B1.1(b)(14)(A)(i)(II). After other adjustments that are not at issue in this appeal, the PSR arrived at a final base offense level of thirty. John had no criminal history, and the resulting advisory Guidelines range of imprisonment was 97-121 months. The district court ultimately sentenced John to 108 months' imprisonment.

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597 F.3d 263 *; 2010 U.S. App. LEXIS 2742 **

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DIMETRIACE EVA-LAVON JOHN, Defendant-Appellant.

Subsequent History: Decision reached on appeal by, Subsequent appeal at United States v. John, 2012 U.S. App. LEXIS 7385 (5th Cir. Tex., Apr. 12, 2012)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Texas. USDC No. 3:07-CR-177-3.


sentence, district court, Guidelines, accessed, prong, plain-error, printed, reliability, calculated, authorization, exceeds, imprisonment, convictions, public reputation, reduction, substantive offense, sentencing error, sentencing range, plain error, circumstances, conspiracy, asserts, Counts, checks, judicial proceedings, substantial rights, three-level, exceeding, advisory, charges

Criminal Law & Procedure, Sentencing, Sentencing Guidelines, General Overview, Inchoate Crimes, Conspiracy, Penalties, Standards of Review, Plain Error, Definition of Plain Error, Fraud, Computer Fraud, Elements, Abuse of Discretion, Evidence, Evidence, Testimony, Expert Witnesses, Criminal Proceedings, Admissibility, Procedural Matters, Rulings on Evidence, Daubert Standard, Relevance, Relevant Evidence, Expert Witnesses, Scientific Evidence, Crime Scenes, Fingerprints & Footprints, Weight & Sufficiency, Credibility of Witnesses, Trials, Defendant's Rights, Harmless & Invited Error, Lay Witnesses, Opinion Testimony, Personal Knowledge, Criminal Offenses, Adjustments & Enhancements, Appeals, Clear Error Review, Credit Card Fraud, Expired & Revoked Card & Number, Attempt, Judicial Discretion, Burdens of Proof, Plain Error, Imposition of Sentence, Factors, Departures From Guidelines, Judicial Review, Findings