Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kleiner

United States Court of Appeals, Second Circuit

September 2, 2014

UNITED STATES OF AMERICA, Appellee,
v.
CARY LEE KLEINER, Defendant-Appellant

Submitted: August 26, 2014

On this appeal from a conviction for bank fraud, defendant contends that a miscalculation in his Sentencing Guidelines renders his 24-month prison sentence procedurally unreasonable. Specifically, defendant contends that his use of another person's name and address to create a counterfeit driver's license, which he then presented as his own to the bank victim of his fraud, does not warrant a two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(i) for " unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification." We reject this argument, following the reasoning applied by this court in United States v. Sash, 396 F.3d 515 (2d Cir. 2005), to construe U.S.S.G. § 2B1.1(b)(11)(C)(ii) .

AFFIRMED.

BARCLAY T. JOHNSON, Research & Writing Attorney (Steven L. Barth, Assistant Federal Public Defender, on the brief), Federal Public Defender's Office, District of Vermont, Burlington, Vermont, for Defendant-Appellant Cary Lee Kleiner.

WILLIAM B. DARROW (Gregory L. Waples, on the brief), Assistant United States Attorneys, for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellee.

Before: WINTER, RAGGI, and CARNEY, Circuit Judges.

OPINION

Page 156

Reena Raggi, Circuit Judge

Cary Lee Kleiner, who pleaded guilty to bank fraud, see 18 U.S.C. § 1344(1), appeals from that part of the judgment of conviction entered in the United States District Court for the District of Vermont (J. Garvan Murtha, Judge ) as sentenced him to 24 months' incarceration.[1] Kleiner contends that the sentence is infected by procedural error in the calculation of his Sentencing Guidelines range. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (stating that " [a] district court commits procedural error where it . . . makes a mistake in its Guidelines

Page 157

calculation" ). Specifically, Kleiner argues that his use of another person's name and address to create a counterfeit driver's license that he used in committing the crime of conviction does not warrant a two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(i) for " the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification." The argument is defeated by the reasoning this court employed to construe U.S.S.G. § 2B1.1(b)(11)(C)(ii) in United States v. Sash, 396 F.3d 515 (2d Cir. 2005), which we here conclude applies equally to U.S.S.G. § 2B1.1(b)(11)(C)(i).

I. Background

A. The Crime of Conviction

On March 7, 2012, Cary Lee Kleiner telephoned TD Bank in Montpelier, Vermont and represented himself to be Richard J. Butler, an actual customer of the bank. In that role, Kleiner advised a bank representative that he wished to schedule a cash withdrawal of $74,000 for the following day. A call from the bank's security department to the real Richard Butler confirmed that he neither intended nor authorized any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.