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United States of America v. Lisa Locke

December 27, 2011

UNITED STATES OF AMERICA,
APPELLEE
v.
LISA LOCKE, ALSO KNOWN AS LISA DAVIS-LOCKE, ALSO KNOWN AS LISA DAVIS, APPELLANT



Appeal from the United States District Court for the District of Columbia (No. 1:09-cr-00259-1)

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge:

Argued October 13, 2011

Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit Judges.*fn1

Opinion for the Court filed by Circuit Judge HENDERSON.

Lisa Locke (Locke or Defendant) appeals her sentence of 60 months' imprisonment resulting from her convictions of possession of stolen mail and aggravated identity theft. Locke claims that the district court erred when it "failed to consider" two mitigating arguments she advanced. Appellant's Br. at 11. Because the record reflects that the district court in fact considered both arguments and provided a "reasoned basis" for Locke's sentence, see Rita v. United States, 551 U.S. 338, 356 (2007), we affirm.

I.

Between January 2007 and April 2008, Locke participated in a conspiracy to possess stolen mail and present forged checks to banks and check-cashing stores throughout the Washington, D.C. area. The fifteen-month conspiracy caused an actual loss of more than $120,000 but had an intended loss of more than $340,000. Locke was subsequently charged with conspiracy, see 18 U.S.C. § 371, nine counts of possession of stolen mail, see id. § 1708, three counts of possession of a forged security, see id. § 513(a), seven counts of bank fraud, see id. § 1344, and nineteen counts of aggravated identity theft, see id. § 1028A(a)(1).

On April 27, 2010, Locke and the government entered into a plea bargain. Locke agreed to plead guilty to one count of possession of stolen mail and one count of aggravated identity theft; the government agreed to dismiss all remaining counts and not to seek a total sentence of more than 60 months' imprisonment. The parties further stipulated to the appropriate offense level under the United States Sentencing Guidelines (U.S.S.G. or Guidelines) for the possession of stolen mail charge.*fn2 The government, however, reserved the right to seek a four-level increase on the ground that Locke was an "organizer or leader" of a conspiracy involving more than five participants. See U.S.S.G. § 3B1.1(a). With this four-level increase and with a criminal history category of III, her Guidelines range was between 57 and 71 months, consecutive to the mandatory minimum sentence of 24 months on the charge of aggravated identity theft.

In her sentencing memoranda and during the sentencing hearing, Locke argued that a number of mitigating factors warranted a below-Guidelines sentence. Locke asked the court to consider her "desire to meet with prosecutors and report on the crimes of other[] co[-] conspirators." Def.'s Mem. in Aid of Sentencing at 4, United States v. Locke, Cr. No. 09-259-01 (D.D.C. Sept. 21, 2010) (Def.'s Mem.). She also asserted that the intended loss calculation was almost three times the actual loss and, thus, a Guidelines range based on the intended loss, see U.S.S.G. § 2B1.1, overstated the severity of the crime. Def.'s Mem. at 6. The government countered that Locke was "the leader of a long running conspiracy . ., causing harm to more than 50 victims," Omnibus Sentencing Mem. at 6, United States v. Locke, Cr. No. 09-259-01 (D.D.C. Sept. 20, 2010), and that, although Locke had agreed to provide information about her co- conspirators, she had refused to provide information about her son and her brother, both of whom had unrelated criminal cases pending in D.C. Superior Court. Tr. of Sentencing at 45, United States v. Locke, Cr. No. 09-259-01 (D.D.C. Dec. 10, 2010) (Sentencing Tr.) ("We know she knows a lot. She didn't want to talk about everything, so we didn't want to hear from her. That was her choice."). In light of these factors, the government recommended a sentence of 36 months on the charge of possessing stolen mail as well as the mandatory minimum sentence of 24 months, consecutive, on the charge of aggravated identity theft, for a total sentence of 60 months.

At the sentencing hearing, the district court first addressed the appropriate U.S.S.G. range for the possession of stolen mail charge. After weighing the evidence regarding Locke's involvement in the conspiracy, the court concluded that Locke "should get the four-level increase for her role . . . as an organizer or leader of the conspiracy, which involves more than five participants." Id. at 21. Then the court turned to Locke's overall sentence on both charges. In announcing the sentence, the district court did not explicitly address each of Locke's arguments for a below-Guidelines sentence. It did, however, explain the basis for the sentence it imposed:

Now, let me focus on the offense here. It's a very serious, significant offense, with an impact on many, many victims, and a result and an injury that strikes at the heart of commercial and personal interests in the community that are of fundamental importance, particularly the personal interests, both monetarily, but also in terms of privacy and identification concerns. Over $120,000 of actual loss occurred, and well over $300,000 was the intended or in some instances some part of that attempted loss.

This was a fairly long-term conspiracy. It didn't take place over just a couple of days or a couple of weeks. It extended over many months. It was well planned. And that planning and execution included a significant role by the [D]efendant.

And in some ways, . . . I don't feel that the [D]efendant has shown complete acceptance of responsibility and remorse. She has for doing bad things, but she hasn't for what seems to me to be the totality of the conduct she was engaged in.

When I consider all of the factors under 3553(a), including appropriate punishment, deterrence both with respect to Ms. [Locke] and others, protection of the public and the community, and everything else that is included in the assessment under 3553(a), I conclude that the ...


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