U.S. v. Blanchett, (10th Cir. 2002)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHANE M. BLANCHETT,

Defendant - Appellant.

No.
name="1">01-3285

(D.C. No. 01-CR-10009-01-WEB)

(D. Kansas)

ORDER AND JUDGMENT
name="txt*">(*)

Before TACHA, Chief Judge, PORFILIO, Circuit

Judge, and BRORBY, Senior

Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Shane M. Blanchett pleaded guilty to conspiring to commit wire fraud and

to committing wire fraud by use of an Internet auction site in violation of

18 U.S.C. 1343. He challenges the district court's application of a two-level

mass-marketing enhancement to his base offense level. See United States

Sentencing Guidelines ("USSG") § 2F1.1(b)(3) (1998). Our jurisdiction arises

under 28 U.S.C. § 1291, and we affirm.

The facts surrounding application of the enhancement are undisputed.

During the summer and fall of 2000, Mr. Blanchett and co-defendant Derek

Fermin placed several advertisements offering computer equipment to the highest

bidder on eBay, an Internet auction site. After a victim became the highest bidder

and "won" the auction, the defendants contacted him or her by e-mail with

payment instructions and a promise that the equipment would be shipped after

receipt of payment. In fact, the defendants never intended to send the advertised

equipment to the highest bidder. After they fraudulently received over $34,000

through this scheme, Mr. Blanchett was indicted on eight counts of wire fraud and

one count of conspiracy to commit wire fraud. He pleaded guilty to the

conspiracy count and to one count of wire fraud.

The district court increased Mr. Blanchett's base offense level under three

sentencing provisions, including a two-level enhancement because the offenses of

conviction involved a scheme to defraud more than one victim, see USSG

§ 2F1.1(b)(2)(B), and a two-level enhancement because the offenses were

committed through mass-marketing, see USSG § 2F1.1(b)(3). Mr. Blanchett

challenges only the mass-marketing enhancement. We review de novo the district

court's interpretation and application of the sentencing guidelines. United States

v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir. 1999).

Section 2F1.1(b)(3) provides a two-level enhancement "[i]f the offense was

committed through mass-marketing." The sentencing guidelines define

mass-marketing as "a plan, program, promotion, or campaign that is conducted

through solicitation by telephone, mail, the Internet, or other means to induce a

large number of persons to . . . purchase goods or services." Mr. Blanchett argues

that "mere passive advertising" on the Internet does not satisfy the "solicitation"

requirement of the guideline because an eBay auction advertisement is aimed at

obtaining only one buyer and each advertisement resulted in only one victim.

The district court found United States v. Pirello, 255 F.3d 728 (9th Cir.),

cert. denied, 122 S. Ct. 577 (2001), to be on point. Pirello held that the

mass-marketing enhancement was appropriate when a defendant defrauded people

by placing a classified advertisement for computers on an Internet bulletin board.

Id. at 732. As in Pirello, Mr. Blanchett never intended to provide

computers to

prospective buyers, and thus did not feel bound to accept only the highest offer,

leaving every Internet user who bid on the computers potentially vulnerable.

"[O]n at least one occasion [Mr. Blanchett] notified more than one person in an

auction that 'they' had the winning bid." PSR at 24; see also PSR at 6

("[Mr. Blanchett] would then notify one or more individuals that they had the

winning bid."). We decline Mr. Blanchett's invitation to adopt the Pirello

dissent, which reasons that advertising on the Internet does not constitute

"solicitation" under the guideline because of the dissent's view that the term

"solicitation" "denotes one-on-one importuning." Pirello, 255 F.3d at 733.

Nonetheless, we note that, even if we did accept this logic, we would uphold

application of the enhancement under the facts before us. Mr. Blanchett

successfully solicited a large number of people to send him money through

e-mails to individuals who responded to his marketing on the Internet. Thus, we

hold that the mass-marketing enhancement is applicable to Mr. Blanchett's

offense of conspiring to commit wire fraud.

The judgment of the United States District Court for the District of

Kansas

is AFFIRMED.

Entered for the Court

Wade Brorby

Senior Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not

binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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