## Facts

- Wendy Lois Wells, a substitute teacher, searched teachers’ desks, took personal information and Social Security numbers, and used that information to obtain credit cards in the teachers’ names.
- Wells made fraudulent purchases and routed cards, statements, and merchandise to a fictitious address she established in Irving, Texas.
- A federal indictment charged Wells with mail fraud, unauthorized access-device fraud, and misuse of a Social Security number; she pleaded guilty to one count of mail fraud.
- Under the Sentencing Guidelines, the court calculated: base offense level 6; +4 for loss exceeding $20,000; +2 for more than minimal planning or more than one victim; −2 for acceptance of responsibility, for a total offense level 10.
- With criminal history category V, the guideline range was 21 to 27 months.
- The district court received and filed victim letters describing prolonged, non-monetary burdens from the identity theft (e.g., months of corrective efforts, extensive communications with institutions and law enforcement, continuing credit problems, and changes to daily life to avoid suspicion or arrest).
- Based on these letters, the government moved for an upward departure; the district court departed upward and sentenced Wells to 30 months’ imprisonment, three years’ supervised release, and $4,000 restitution.

## Issues

1. Whether an upward departure was permissible where victim letters described extensive non-monetary harms and burdens from identity theft beyond the monetary loss reflected in the guideline calculation.
2. Whether the departure impermissibly double-counted factors already captured by fraud enhancements (loss amount, more than one victim/more than minimal planning).
3. Under the post-*Koon* framework, whether the district court abused its discretion in deciding the case fell outside the guideline “heartland” and in the extent of the departure.

## Decision

- The Fifth Circuit affirmed the sentence, including the upward departure.
- The court held the district court acted within its discretion in finding the victims’ non-monetary, long-term harms were not adequately considered by the fraud guideline’s loss and victim-related adjustments.
- The court rejected the argument that the departure unlawfully double-counted guideline factors, distinguishing monetary loss/victim count from the extraordinary nature and degree of victim impact shown here.
- Applying abuse-of-discretion review, the court upheld the modest increase from a 27-month maximum guideline term to a 30-month sentence as reasonable.

## Legal Principles

- A sentencing court may depart upward when an aggravating circumstance exists “of a kind, or to a degree,” not adequately taken into account by the Sentencing Commission.  
- Under *Koon v. United States*, appellate review of a departure decision is for abuse of discretion, with deference to the district court’s fact-bound determination that a case is outside the guideline “heartland.”
- In fraud and identity-theft conduct, substantial non-monetary victim harms (extended administrative burdens, enduring credit damage, and significant disruptions to daily life) may support an upward departure when guideline enhancements for loss amount and number of victims do not adequately reflect those harms.
- A departure is not impermissible double counting where the departure targets a distinct type or exceptional degree of harm not captured by the guideline’s standard offense characteristics.

## Conclusion

The Fifth Circuit upheld a three-month upward departure in a mail-fraud identity-theft case because the district court reasonably found that severe, enduring non-monetary victim burdens were not adequately reflected in the guideline calculation, and the court’s departure decision and its extent were within its discretion under *Koon*.


United States v. Wells, 101 F.3d 370 (5th Cir. 1996)