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United States v. Rosenbaum

United States District Court, E.D. Michigan, Southern Division

July 31, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
SHERI ROSENBAUM, Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR RELEASE ON BOND PENDING APPEAL

PATRICK J. DuGGAN, District Judge.

After a six-day trial held in December of 2013, a jury convicted Defendant Sheri Rosenbaum of four counts of bank fraud in violation of 18 U.S.C. § 1344 and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. The Court sentenced Defendant in September of 2014, committing her to the custody of the Bureau of Prisons for a period of forty-eight months. Defendant, who has already commenced her term of incarceration, moves this Court for an order releasing her from the custody of the Bureau of Prisons on bond pending the disposition of her appeal. (ECF No. 134.) In her motion, Defendant challenges this Court's computation of financial loss for purposes of determining her offense level under United States Sentencing Guideline ("U.S.S.G.") § 2B1.1, as well as the procedural reasonableness of her sentence. Defendant also contends that her conviction on one of five counts is a legal nullity, as the five-year statute of limitations on the aggravated identity theft charge expired prior to the issuance of the fourth superseding indictment.

Having thoroughly considered the arguments set forth in both Defendant's and the Government's briefs, the Court determined that oral argument would not significantly aid the decisional process and dispensed with oral argument pursuant to Eastern District of Michigan Local Criminal Rule 12.1(a) and Local Rule 7.1(f)(2). For the reasons set forth herein, the Court concludes that Defendant has failed to discharge her burden of demonstrating that her appeal raises substantial questions of law. Accordingly, the Court will deny her motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant's convictions stem from two different fraudulent schemes. First, Defendant, who once made a living brokering mortgage loans, engaged in a mortgage fraud scheme that caused certain lenders to approve loans for unqualified applicants based upon false information provided on their loan applications. Second, Defendant supplied false information in a credit card application she took out in her then minor son's name, whose identity she stole to rack up credit card debt that she subsequently failed to pay.

On December 29, 2011, a federal grand jury returned a Second Superseding Indictment in this case, charging Defendant with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349 (count one), two counts of bank fraud in violation of 18 U.S.C. § 1344 (count three involved fraudulent residential loan applications submitted to federally-insured banks, while count four alleged Defendant submitted materially false credit card applications), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A (count five).[1] (ECF No. 18.) The identity theft alleged by the Government involved Defendant applying for and receiving a credit card in her minor son's name, racking up numerous charges, and failing to pay for those charges. (Id. )

A fourth superseding indictment was returned in August of 2013.[2] (ECF No. 70.) The indictment contained five counts related to bank fraud (counts one through four implicated 18 U.S.C. § 1344, three counts related to loans obtained on various parcels of real property and one related to fraudulent credit card applications) and identity theft (count five).

Defendant proceeded to trial, which began on December 2, 2013. After six days of testimony and argument, the jury unanimously convicted Defendant on all five counts. (ECF No. 114, Pg ID 1589-92.)

The Court conducted a bifurcated sentencing hearing, addressing the financial loss of the crimes for purposes of imposing a term of incarceration on September 3, 2014, and addressing the actual loss for purposes of restitution on September 29, 2014.[3] The central issue in dispute for sentencing purposes was the computation of the financial loss incurred by the various lenders under U.S.S.G. § 2B1.1 (Nov. 1, 2013), which increases the base offense level proportionate to the financial loss associated with the crime.

At the September 3, 2014 hearing, the Court, with input from counsel and the probation department, calculated a sentencing guidelines range of thirty-seven to forty-six months based on an actual loss amount of more than $400, 000 but less than $1, 000, 000, and imposed a below-guidelines sentence of twenty-four months on counts one through four.[4] (ECF No. 116, Pg ID 1656-58.) The Court also imposed the statutorily-mandated twenty-four-month sentence on the aggravated identity theft conviction, to run consecutive with the twenty-four-month sentence on the other four counts. (Id. at Pg ID 1657.) In response to defense counsel's inquiry, the Court noted that it was not opposed to permitting Defendant to self-surrender to the custody of the Bureau of Prisons at a later date.

The sentencing hearing resumed on September 29, 2014, at which time the parties addressed the issue of restitution.[5] The hearing opened with defense counsel explaining to the Court that he and the Government attorney "reached a resolution in regard to the total loss that should be attributable [to Defendant.]" (ECF No. 117, Pg ID 1666.) Counsel explained that the total loss for restitution purposes amounted to $391, 855.16; of that amount, the parties agreed that $41, 855.16 would be payable to American Express, with the balance ($350, 000) payable to SunTrust Mortgage. (Id. at Pg ID 1166-67.) This agreed-upon figure, however, conflicted with the figure presented by the parties at the previous hearing, which, it bears repeating, exceeded $400, 000. This is significant because the new figure lowered Defendant's offense level to nineteen (from twenty-one), with a corresponding reduction in the advisory guidelines range from thirty-seven to forty-six months to thirty to thirty-seven months. (Id. at 1669.) The Court acknowledged this change at the second hearing, explicitly correcting the record with regard to the advisory guidelines range. The Court declined to otherwise alter the sentence it previously imposed, noting that Defendant had benefitted from a variance on counts one through four. The Court stated its continued belief "that a 24-month sentence is [] appropriate" on counts one through four and, therefore, imposed the same sentence it had at the previous hearing. (Id. ) Subsequently, the Court accepted "the amount agreed to by the parties of $391, 855.16[]" for purposes of restitution. (Id. at Pg ID 1670.) Prior to concluding, the Court ensured that neither party had any unresolved objections to the sentence. (Id. )

On November 4, 2014 - subsequent to the imposition of the sentence but prior to Defendant self-surrendering to the Bureau of Prisons - the parties filed a joint motion to extend Defendant's voluntary surrender date beyond the originally-scheduled date of November 6, 2014. (ECF No. 106.) The Court granted this motion the following day, and extended Defendant's reporting date to February 6, 2015. (ECF No. 107.) Upon Defendant's February 3, 2015 motion, the Court once again postponed Defendant's reporting date, this time until June 10, 2015. (ECF Nos. 118, 119.) In mid-May 2015, Defendant once again sought an extension of her reporting date. (ECF No. 130-31.) The Government responded to this third request on May 29, 2015, urging the Court to deny Defendant's motion. (ECF No. 132.) In an Order entered on June 1, 2015, the Court denied Defendant's motion, explaining that an additional extension was not warranted. (ECF No. 133.) Defendant self-reported to FCI Alderson located in West Virginia on June 10, 2015, and has been serving her sentence since that time.[6]

On June 17, 2015, Defendant filed a motion for release on bond pending appeal and the Government responded on ...


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