United States District Court, D. Maine
PRESENTENCE ORDER ON APPLICATION OF SENTENCING
ENHANCEMENT FOR RELOCATION OF A FRAUDULENT SCHEME PURSUANT TO
UNITED STATES SENTENCING GUIDELINE §
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
United States of America seeks application of a two-level
sentencing enhancement for relocation of a fraudulent scheme
under United States Sentencing Guideline (U.S.S.G. or
Guidelines) § 2B1.1(b)(10)(A) to a defendant being
sentenced on various counts related to access device fraud.
Based on the description of the offense conduct in the
Presentence Investigation Report, the Prosecution Version of
the Offense, and the Government's memorandum, the Court
concludes that the Government failed to demonstrate that the
defendant relocated his scheme, which was only ever located
in Maine, or that the defendant's alleged relocation was
for the purpose of evading law enforcement. The Court
declines to apply the relocation sentencing enhancement.
January 24, 2019, the United States of America (Government)
filed a criminal complaint against Bryan Boley. Criminal
Compl. (ECF No. 1). Also on January 24, 2019, the
Magistrate Judge issued an arrest warrant for Mr. Boley.
Arrest Warrant (ECF No. 4). On January 29, 2019, the
Magistrate Judge held an initial appearance for Mr. Boley.
Min. Entry for Proceedings Held Before Magistrate Judge
John H. Rich III (ECF No. 8).
Grand Jury issued a six-count indictment against Mr. Boley on
March 1, 2019. Indictment (ECF No.
The indictment alleged: (1) Count One, a conspiracy to use a
counterfeit access device from July 31, 2018 until January
23, 2019; (2) Count Two, use or attempted use of a
counterfeit access device between July 31, 2018 and August
12, 2018; (3) Count Three, use or attempted use of a
counterfeit access device between September 2, 2018 and
September 7, 2018; (4) Count Four, use or attempted use of a
counterfeit access device between December 16, 2018 until
December 26, 2018; (5) Count Five, possession of at least
fifteen counterfeit access devices between an unknown date
and January 23, 2019; and (6) Count Six, access device fraud
- production or possession of device making equipment between
an unknown date and January 22, 2019. Id. at 1-4.
The indictment also contained a forfeiture allegation.
Id. at 4-5. On May 16, 2019, Mr. Boley pleaded
guilty to all counts of the indictment and consented to the
forfeiture. Min. Entry for Proceedings Held Before Judge
John A. Woodcock, Jr. (ECF No. 60). There is no plea
September 6, 2019, the Government filed a memorandum seeking
application of a sentencing enhancement for relocation of a
fraudulent scheme to Mr. Boley. Gov't's Mem. in
Support of Sentencing Enhancement for Relocation of a
Fraudulent Scheme (ECF No. 117) (Gov't's
Mem.). On September 20, 2019, Mr. Boley filed a
response. Resp. to Gov't Mem. in Support of
Sentencing Enhancement for Relocation of Scheme (ECF No.
119) (Def.'s Resp.). On September 27, 2019, the
Government filed a reply. Gov't's Sentencing Mem.
and Reply to Def.'s Resp. to Gov't's Mem. in
Support of Sentencing Enhancement for Relocation of a
Fraudulent Scheme at 8-11 (ECF No. 127)
(Gov't's Reply). On October 21, 2019, the
Government filed a supplemental sentencing memorandum that
included a discussion of the relocation enhancement.
Gov't's Suppl. Sentencing Mem. at 4-5 (ECF
No. 136) (Gov't's Suppl. Mem.). On October
28, 2019, Mr. Boley filed a supplemental sentencing
memorandum that included a discussion of the relocation
enhancement. Def.'s Suppl. Sentencing Mem. (ECF
No. 141) (Def.'s Suppl. Mem.).
July 31, 2018 to January 23, 2019, Mr. Boley resided in
Maryland or the Washington, D.C. area. Am. Pros.
Ver. at 1; PSR ¶ 51. Mr. Boley has an
uncle who lives in Maine, with whom he stayed one night.
PSR ¶ 8-9. Mr. Boley, along with two other
members of the conspiracy, “traveled to Maine to commit
access device fraud.” Am. Pros. Ver. at 1.
When Mr. Boley's hotel room in Maine was searched
pursuant to a warrant on January 22, 2019, his room
approximately 85 plastic cards, including 20 unopened gift
cards; a credit card reading and writing machine; a white
Alcatel cell phone; a dell laptop; Greyhound bus tickets from
Washington, D.C., to Boston, MA, and a receipt and itinerary
from Boston, MA, to Burlington, VT; and a collection of
approximately 25 receipts showing multiple purchases or
attempted purchases of gift cards and other items in Maine,
as well as a receipt from Vermont, two receipts from
Massachusetts, and a receipt from Washington, D.C.
Id. at 3-4. The PSR reflects that Mr. Boley and his
co-conspirators committed fraud in various locations in
southern Maine, including stores located in Auburn, Lisbon
Falls, Lewiston, South Portland, and Topsham. PSR
¶¶ 8-11; Gov't's Mem., Attach. 1.
Additionally, a review of the laptop found in Mr. Boley's
hotel room has revealed “51 additional cards, 38 . . .
from various locations in Maine, 6 . . . from Massachusetts,
3 . . . from Virginia, 2 . . . from Maryland, and 1 each from
Vermont and Wisconsin.” Gov't's Suppl.
Mem. at 4.
POSITIONS OF THE PARTIES
Government supports application of the relocation
enhancement, arguing this case is more like cases where
courts have applied the enhancement than those where they
have not. Gov't's Mem. at 4. Mr. Boley
“and his co-conspirators resided in Maryland, in the
greater D.C. area, but came several states north to Maine to
commit access device fraud.” Id. at 5.
Additionally, “[w]hen [Mr. Boley's] hotel room was
searched, there were bus tickets found there reflecting
travel from Washington, D.C., to Boston, MA, and travel from
Burlington, VT, to Boston, MA . . ..” Id.
Twenty-five receipts were also found, with one from Vermont
“reflect[in]g the purchase of clothing at the
University Mall in Burlington, ” one from Brookline,
Massachusetts for an item valued at approximately $5 at a
CVS, and one from Washington, D.C. “reflect[ing] the
purchase of a money order.” Id. at 5 n.2. More
relevantly, one receipt found from an Old Navy in Everett,
Massachusetts, “reflect[ed] the purchase of two gift
cards, each valued at $50.00-in line with [Mr. Boley's]
other purchases of gift cards in Maine.” Id.
The Government also points out that “[r]eceipts and
police reports reflect that [Mr. Boley] and his
co-conspirators committed fraud in a variety of locations in
southern Maine, including at least various stores located in
Auburn, Lisbon Falls, Lewiston, South Portland, and Topsham .
. ..” Id. at 5.
Government contends this pattern of behavior is most like
that in United States v. Thung Van Huynh, 884 F.3d
160 (3d Cir. 2018), a case involving purchases of jewelry in
sixteen states that would then be shipped back to California
for sale, although it acknowledges that “the only
available evidence of the conspiracy's activity relates
to various locations in Maine.” Gov't's
Mem. at 5; Thung Van Huynh, 884 F.3d at 163.
The Government says that the recovered receipts and bus
tickets suggest that the scheme “extended into at least
Massachusetts . . . and possibly Vermont, ”
constituting “a ‘relocation' of the scheme
from [Mr. Boley's] state of residence, even if he never
performed any fraudulent activity in [his home state of]
Maryland.” Id. The Government differentiates
this case from United States v. Hines-Flagg, 789
F.3d 751 (7th Cir. 2015), because there, the defendant
operated in four contiguous states, and here, Mr. Boley's
area of operation is geographically removed from Maryland.
Gov't's Mem. at 6.
Government also points out that “[Mr. Boley] has no
apparent connection to Maine apart from his uncle, with whom
he only stayed one night, ” id., and argues
that this case is similar to United States v.
Thornton, 718 Fed. App'x 399 (6th Cir. 2018), a case
involving a bank fraud conspiracy reaching across thirteen
states and including “approximately 1, 400 counterfeit
checks and almost $3 million in intended loss, ”
id. at 400, in that “the evidence supports
that the defendants in this case operated the scheme as they
traveled.” Gov't's Mem. at 7. The
Government contends that “Maryland or the D.C. area
[did not] serve as a singular ‘hub'”
because “all essential aspects of the scheme . . . were
conducted in Maine . . ..” Id. at 7.
Bryan Boley's Opposition
Boley argues that this case is much more like
Hines-Flagg, as “[t]he facts support a finding
that Mr. Boley engaged in fraudulent activity in Maine and
Maine alone” because the Government has not presented
evidence “that Mr. Boley was actually engaged in
fraudulent activity in Maryland, Massachusetts, or Vermont .
. ..” Def.'s Resp. at 1. Mr. Boley points
out that the Guidelines refer to relocation of the scheme,
not the defendant, id. at 2 (quoting
Hines-Flagg, 789 F.3d at 755), and that Mr. Boley
“has . . . had a fairly transient existence, ”
such that “it would not be unusual for Mr. Boley to
visit any number of states, ” including Maine, where he
has an uncle. Id. Mr. Boley argues that “[i]n
order for a fraudulent scheme to be relocated, it logically
need have occurred in more than one location, ” and
here, the Government has presented no evidence beyond its
speculative inference based on a small number of receipts
that that is true. Id. at 2-3.
Boley differentiates Thung Van Huynh and United
States v. Savarese, 686 F.3d 1 (1st Cir. 2012),
pointing out that in those cases, the Government provided
evidence that “the defendants did engage in fraudulent
activity in multiple locations, moving their schemes from one
place to the next.” Def.'s Resp. at 3. In
Thung Van Huynh, the fraudulent purchases were made
at jewelry stores throughout the country, and in
Savarese, visits were made to 150 fitness clubs
across the country. Id. If such a pattern existed,
Mr. Boley argues, an inference of relocation would be easy,
but the Government has not established one. Id.
Mr. Boley argues that, should the Court find that Mr. Boley
did relocate his scheme, the Government has not met its
burden to show that the purpose of his relocation was to
evade law enforcement, as “the Government relies on
thin evidence and weak logic in a case where no evidence
suggests that Mr. Boley was relocating for this
purpose.” Id. at 4. Here, Mr. Boley asserts,
“there is no evidence of fraudulent activity in other
locations, simply a bus ticket, a few receipts, and a
suggestion by the Government that Mr. Boley's travel was
necessarily part of his fraudulent scheme.”
Id. Mr. Boley adopts the reasoning of the
Hines-Flagg Court to argue that “application
of [the relocation] enhancement requires more than just the
operation of a multijurisdictional scheme in order to reduce
the chances of detection.” Id. at 4-5 (quoting
Hines-Flagg, 789 F.3d at 756). Mr. Boley points out
that in Thung Van Huynh and other cases where courts
have inferred a purpose of evading law enforcement, there
were additional relevant factors. Id. at 5. In
Thung Van Huynh, for instance, the defendant did not
return to two particular states after he was questioned
there. Id. (citing Thung Van Huynh, 884
F.3d at 163). Here, “Mr. Boley attempted multiple
purchases at the same Rite-Aid in the Lewiston ...