## Facts

- Shannon O. Pinnick (also known as Scott A. Bishop) was indicted on four fraud-related counts involving multiple aliases and different fraudulent methods.
- Count four (offense of conviction) alleged bank fraud: over two days in late December 1992, Pinnick cashed five counterfeit checks totaling $6,000 drawn on another person’s bank account, using that person’s identity.
- Counts one and two alleged counterfeit-check schemes in late September and early October 1992: opening a brokerage account with a counterfeit check (about $19,000) and purchasing a car with another counterfeit check (about $18,000), using the same alias.
- Count three alleged access-device fraud in August–September 1992: submitting a fraudulent online credit-card application using assumed names and making nearly $5,000 in purchases.
- Pinnick pled guilty to count four under a plea agreement; counts one through three were dismissed.
- At the plea hearing, Pinnick admitted the allegations of count four and acknowledged using certain aliases, but did not admit conduct underlying the dismissed counts.
- The presentence report treated counts one through three as “relevant conduct” under U.S.S.G. § 1B1.3(a)(2), increasing the offense level and resulting in a 21-month sentence.
- Pinnick sought a downward departure; the district court declined.

## Issues

1. Whether the district court properly treated conduct charged in dismissed counts as “relevant conduct” under U.S.S.G. § 1B1.3(a)(2) when sentencing Pinnick on the bank-fraud count of conviction.
2. Whether an appellate court may review the district court’s refusal to grant a downward departure, including an asserted failure to state reasons for denying it.

## Decision

- The court affirmed inclusion of counts one and two as relevant conduct because they were sufficiently connected to the offense of conviction as part of the same course of conduct.
- The court held count three was not relevant conduct because it was not sufficiently related in method and overall pattern to the counterfeit-check bank-fraud offense.
- The court vacated the sentence and remanded for resentencing excluding count three from the relevant-conduct calculation.
- The court held the denial of a downward departure was not reviewable because the record did not indicate the district court believed it lacked authority to depart.

## Legal Principles

- Under U.S.S.G. § 1B1.3(a)(2), for offenses subject to grouping, sentencing may account for acts that are part of the “same course of conduct or common scheme or plan” as the offense of conviction.
- “Same course of conduct” turns on whether acts are sufficiently connected to constitute a single episode, spree, or ongoing series of offenses.
- Courts evaluate the relationship among offenses using similarity, regularity, and temporal proximity, making a qualitative assessment; no single factor is dispositive.
- A discretionary refusal to depart downward is generally unreviewable on appeal absent an indication the sentencing court mistakenly believed it lacked authority to depart.

## Conclusion

The D.C. Circuit required resentencing because an online credit-card fraud scheme was too dissimilar and remote to be treated as relevant conduct to a counterfeit-check bank-fraud conviction, while closely related counterfeit-check episodes were properly included; the district court’s discretionary refusal to depart downward was not appealable on this record.


United States v. Pinnick, 47 F.3d 434 (D.C. Cir. 1995)