United States v. Brinsfield ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-6404
(W.D. Oklahoma)
v. (D.Ct. No. 03-CR-15-L)
GARY BRINSFIELD,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
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.
Gary Brinsfield was convicted by a jury of six counts of bank fraud and two
counts of making a false statement in order to influence a bank. He was
*
This order and judgment is not binding precedent except under the doctrines of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.
sentenced to 41 months imprisonment. Brinsfield appeals his convictions and
sentence. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. §
1291, we affirm.
I. Background
Brinsfield owned an automotive repair shop and an auto body shop in
Noble, Oklahoma, and a salvage yard in Slaughterville, Oklahoma. He operated
these businesses under the names Gary’s Auto Sales, Gary’s Auto Repair and
Gary Brinsfield’s Used Cars. He specialized in rebuilding damaged pickup trucks
for resale.
In the 1980’s, Charles Huffman was a loan officer at Norman Bank of
Commerce in Norman, Oklahoma. While there, he met Brinsfield and became his
personal loan officer. During the next fourteen years, Huffman changed bank
employers several times. Each time he did so, Brinsfield followed him.
In October 1994, Huffman began working as a consumer loan officer and
vice president for Republic Bank of Norman (Republic). His lending limits for
secured and unsecured loans were $25,000 and $10,000, respectively. If a loan
exceeded these amounts, it had to be approved by a committee consisting of the
bank’s president, its loan officers and one or two of its directors.
While at Republic, Huffman approved a number of loans to Brinsfield. The
loans ranged in value from $20,000 to $25,000 and were used to purchase
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damaged vehicles for repair and resale. Eventually, Brinsfield encountered
problems re-paying the loans. As a result, Chuck Thompson, the bank’s
president, informed Huffman to cease making loans to Brinsfield.
Huffman informed Brinsfield of Thompson’s decision. However,
Brinsfield still needed money, in part, to pay off his outstanding loans. Huffman
also had a personal incentive to ensure Brinsfield had money. Huffman had
financial troubles as a result of a gambling problem and had borrowed $15,000 to
$20,000 from Brinsfield. He was concerned that if he stopped making loans to
Brinsfield, his own source of funds would “dry up.” (R. Vol. 2 at 28.)
Additionally, Huffman had borrowed money from another bank to purchase
damaged vehicles to be rebuilt and resold by Brinsfield. In order to repay the
bank, Huffman needed Brinsfield to rebuild the vehicles, which required money.
Thus, to keep money flowing to Brinsfield, Huffman and Brinsfield constructed
loans to Brinsfield in the names of third-party borrowers (called nominees).
Under Huffman and Brinsfield’s scheme, Brinsfield would persuade
friends, acquaintances and employees to complete and sign loan documents,
telling them they would not be responsible for repaying the loan. 1 Sometimes he
1
There were five nominees involved in Counts 1-6: James Wiseman (Counts 1
and 2), Earl Curren (Count 3), Linda Sallee (Count 4), Rebecca McCoy (Count 5) and
Amy Burnaman (Count 6). Wiseman, Sallee, McCoy and Burnaman all testified
Brinsfield told them they would not be responsible for repaying the loan. As to Count 2,
Wiseman testified Brinsfield told him there was an error in the previous loan application
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paid them for signing the documents. Brinsfield would then provide these
documents to Huffman, who would process them without ever speaking to the
nominee. Huffman then issued the loan proceeds to either Gary’s Auto Sales or
Gary Brinsfield’s Used Cars. Although the loan was in the nominee’s name, at all
times Huffman understood that Brinsfield was the actual borrower and was
obligated to pay off the loan.
As collateral, Brinsfield would provide Huffman with a vehicle’s make,
model, year and vehicle identification number (VIN). Without observing the
vehicle, Huffman would assign a value to the vehicle using the National
Automotive Dealers Association (NADA) manual. This manual provides three
different values: loan value, trade-in value and retail value. Normally, in making
a loan, a bank uses the lowest value, the loan value. However, in processing
Brinsfield’s loans, Huffman used the highest value—the retail value—in order to
secure Brinsfield the most money.
In order to prevent committee review, all of the nominee loans made to
Brinsfield were at or below Huffman’s lending limit ($25,000). Because the
Wiseman had signed. Thus, Wiseman signed another loan application, believing he was
doing so to correct the previous application. In fact, the application was for a separate
loan. Curren testified he told Brinsfield he was interested in purchasing a new truck but
doubted he could obtain financing. Brinsfield informed Curren he could help him obtain
a loan and brought Curren loan documents from Republic. Curren completed the forms,
signed them and gave them to Brinsfield. Later, Brinsfield told Curren the loan had not
been approved.
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loans were processed under third-party names, Republic was unaware that
Brinsfield was the true borrower. In fact, Huffman often doctored the loans to
make it appear that he spoke with the nominee and that the nominee was the
actual borrower.
Eventually, the loans became delinquent. Huffman contacted Brinsfield
who stated he was short on cash but would “get it taken care of.” (R. Vol. 2 at
111.) It was not. In late 1997 or early 1998, Huffman finally informed Republic
of the true nature of the loans. Huffman was fired but was retained temporarily to
assist Republic in identifying the loans, as they were processed under the
nominees’ names. In all, Huffman had made approximately fifty-eight nominee
loans to Brinsfield, totaling a little over one million dollars.
After Huffman confessed, Republic attempted to locate the collateral
securing the loans. It made a list of the vehicles and their respective VINS; over
100 vehicles were involved. Bank officials found fifty to seventy-five vehicles
during a visit to Brinsfield’s salvage yard. When they located a vehicle, they took
a picture of it. Several weeks later, Brinsfield provided Republic with several
more of the vehicles. The vast majority of the vehicles pledged as collateral were
actually parts of a pickup truck, i.e., the bed, chassis or cab.
On February 5, 2003, Brinsfield was indicted for one count of bank fraud in
violation of 18 U.S.C. § 1344(1) and two counts of making a false statement in
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violation of 18 U.S.C. § 1014. On July 2, 2003, a superseding indictment was
filed, charging Brinsfield with six counts of bank fraud in violation of 18 U.S.C.
§ 1344(1) (Counts 1-6) and two counts of making a false statement in violation of
18 U.S.C. § 1014 (Counts 7-8). 2 Brinsfield proceeded to trial. On September 16,
2003, the jury returned a guilty verdict on all eight counts.
Sentencing was originally scheduled for November 19, 2004. Because
Brinsfield failed to appear, the district court issued a warrant for his arrest.
Sentencing was re-scheduled for December 9, 2004. This time, Brinsfield
appeared. He was sentenced to 41 months imprisonment and ordered to pay
restitution in the amount of $893,979.66.
II. Discussion
On appeal, Brinsfield attacks both his conviction and sentence, arguing (1)
the government presented insufficient evidence at trial to support his convictions
and (2) he was sentenced in violation of the Sixth Amendment under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). We address each argument
in turn.
A. Sufficiency of the Evidence
Brinsfield argues the evidence presented at trial was insufficient to prove
beyond a reasonable doubt that he committed any of the offenses charged. He
2
All but Count 8 also alleged aiding and abetting in violation of 18 U.S.C. § 2.
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contends the evidence showed he asked family and friends to help him by taking
out loans. He alleged these individuals applied for these loans “with their eyes
open.” (Appellant’s Br. at 14.) Although the nominees believed Brinsfield would
pay off the loans, which he did for a long time, Brinsfield contends the loans to
them were valid. Indeed, he states he worked directly with Republic’s vice
president, Huffman. Brinsfield argues he was merely running a business and
never intended to defraud the bank.
“We review de novo whether the prosecution presented sufficient evidence
to support a conviction.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.
2002). “In conducting this review . . . we ask whether, taking the evidence--both
direct and circumstantial, together with the reasonable inferences to be drawn
therefrom--in the light most favorable to the government, a reasonable jury could
find the defendant guilty beyond a reasonable doubt.” Id. (quotations omitted).
We will not evaluate witness credibility or re-weigh the evidence. Id. We will
only reverse a conviction if no rational trier of fact could have reached the
disputed verdict. United States v. Wilson, 182 F.3d 737, 742 (10th Cir. 1999).
“The evidence necessary to support a verdict need not conclusively exclude every
other reasonable hypothesis and need not negate all possibilities except guilt.
Instead, the evidence only has to reasonably support the jury’s finding of guilt
beyond a reasonable doubt.” Id. (citation and quotations omitted).
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1. Bank Fraud (Counts 1 through 6)
“To prove bank fraud [under 18 U.S.C. § 1344(1)], the government must
show that (1) the defendant knowingly executed or attempted to execute a scheme
or artiface to defraud a financial institution, (2) the defendant had the intent to
defraud a financial institution and (3) the bank involved was federally insured.”
United States v. Waldroop, 431 F.3d 736, 741 (10th Cir. 2005). “[T]he phrase
‘scheme or artiface to defraud’ simply requires a design, plan, or ingenious
contrivance or device to defraud.” United States v. Hill, 197 F.3d 436, 444 (10th
Cir. 1999). “[A] scheme can involve fraudulent misrepresentations to deceive a
bank to obtain money.” United States v. Young, 952 F.2d 1252, 1257 (10th Cir.
1991).
Brinsfield does not challenge the third element and rightly so. At trial,
Brett Sullivan, a loan review and compliance officer for Republic, testified
Republic was FDIC insured. As to the first and second elements, the government
clearly met its burden at trial.
Nominee loans are not illegal per se. Waldroop, 431 F.3d at 741.
However, they are unlawful if used to deceive a bank about the true identity of
the borrower. Id. “[A] borrower who receives funds from a nominee loan is
guilty of bank fraud if he intends to conceal the fact that he will receive the funds
(and knows that such information is being concealed).” Id. (citing United States
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v. Bonnett, 877 F.2d 1450 (10th Cir. 1989)). That the nominee is aware of the
terms of the loan or has the ability to repay the loan is not a defense. Id.Here, although all of the loans at issue in Counts 1 through 6 were in the
name of a third party, the evidence showed that Brinsfield was the actual
borrower. All of the nominees testified to this effect, stating they only agreed to
sign for the loan with the understanding that they would not be responsible for
repaying it (Counts 1, 4, 5 and 6) or they never knew a loan had been taken out in
their name (Counts 2 and 3). Although Brinsfield paid a few of the nominees for
signing the loan papers, none of them received any of the loan proceeds. All of
the proceeds were given to Brinsfield. Huffman also testified that Brinsfield was
the actual borrower. He stated that under normal circumstances, he would not
have made the loans to the nominees, given their financial condition or the lack of
information regarding their financial condition. However, Huffman testified he
approved the loans anyway because he knew Brinsfield was the true borrower and
needed the money.
The evidence also showed that the loan documents did not reveal Brinsfield
was the actual borrower. Huffman testified all of the loans were in the nominees’
names and Republic would not know from looking at the loan documents that
Brinsfield was the actual borrower. Huffman also testified Republic needed his
assistance in identifying the loans as they were processed under the nominees’
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names.
Additionally, Huffman testified that Thompson had instructed him not to
make any further loans to Brinsfield. Huffman told Brinsfield he could no longer
extend credit to him. However, because Brinsfield needed money and Huffman
had a personal incentive to ensure that Brinsfield had money, Huffman and
Brinsfield circumvented Thompson’s directive by processing loans to Brinsfield
in the names of third parties. Thus, the jury could reasonably conclude that
Huffman and Brinsfield constructed the nominee loans in order to deceive
Republic.
Moreover, Brinsfield pledged the collateral for these loans. Using the
information provided by Brinsfield, Huffman valued the collateral using its retail
value rather than its loan value. Although this practice was contrary to bank
policy, Huffman testified he did so to secure Brinsfield the most money. While
Huffman believed Brinsfield was pledging whole vehicles, in actuality, most of
the collateral consisted of parts of vehicles with little value. 3 Both Huffman and
Sullivan testified banks rely on collateral to mitigate their risk in making a loan.
3
For example, the nominee loan involved in Count 3 (the Curren loan) was
secured by a 1995 Chevrolet extended cab pickup truck and a 1993 Chevrolet pickup
truck. Huffman assigned these vehicles loan values of $15,600 and $11,400, respectively.
The 1995 pickup had extensive fire damage, was missing its bed and could not be rebuilt.
Its value was estimated at $20-$25. The 1993 pickup consisted solely of the cab, could
not be rebuilt and was worth $5. Sullivan testified he would not have approved a loan
secured by this collateral.
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Both stated that under normal circumstances, a bank seeks collateral with a value
similar to the amount of the loan so if the loan goes into default, the bank can sell
the collateral and recoup most of the loan amount. By pledging collateral which
appeared to be whole vehicles, Brinsfield deceived Republic and exposed it to
substantial risk in the event the loans became delinquent.
That Huffman, a bank officer, was aware of the fraudulent scheme and
worked with Brinsfield is irrelevant. Waldroop, 431 F.3d at 742; United States v.
Rackley, 986 F.2d 1357, 1361 (10th Cir. 1993). Section 1344 prohibits
defrauding a financial institution, not its directors or agents. Id. “It follows that
bank customers who collude with bank officers to defraud banks may also be held
criminally accountable either as principals or as aiders and abettors.” Waldroop,
431 F.3d at 742 (quotations omitted). There was no evidence that Huffman
tricked Brinsfield into securing false nominee loans. In fact, the evidence showed
Brinsfield provided the loan documents to the nominees, secured their signatures
and delivered the signed documents to Huffman. Therefore, even if Huffman was
aware of the misrepresentations Brinsfield made to the nominees, Republic could
still be defrauded.
Based on the above, there was more than sufficient evidence to support the
jury’s verdicts on Counts 1 through 6.
2. False Statement (Counts 7 through 8)
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Brinsfield alleges, without any legal or factual argument, that the
government provided insufficient evidence supporting his convictions on Counts
7 through 8. While normally such a perfunctory argument is insufficient to
invoke our review, we consider it anyway because we can readily dispose of it.
LaFevers v. Gibson, 182 F.3d 705, 725 (10th Cir. 1999) (“We have repeatedly
warned litigants that issues adverted to in a perfunctory manner and without
developed argumentation are deemed waived on appeal.”).
To convict Brinsfield for making a false statement under 18 U.S.C. § 1014, the
government had to prove beyond a reasonable doubt that he “made a false statement
to a federally insured bank knowing the statement was false and intending to
influence the bank.” United States v. Copus, 110 F.3d 1529, 1534-35 (10th Cir.
1997). The government clearly met its burden. Huffman testified Brinsfield brought
him a personal loan application in the name of David Ryan Kill (Count 7). Kill
testified he never filled out a Republic loan application, did not sign it and did not
give anyone permission to sign it. Huffman testified he was not aware that Kill’s
signature had been forged. Brinsfield used the false application to influence
Republic to make a $11,640.26 loan to Kill with the proceeds payable to Gary’s Auto
Sales. As to Count 8, Huffman testified Brinsfield secured a $10,589.00 loan with a
1992 Chevrolet pickup truck and obtained the loan proceeds. Huffman stated he
believed the truck was a full vehicle. However, it was actually a severely damaged
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truck cab worth $10-$15.
Based on the above, there was sufficient evidence to support the jury’s
verdicts on Counts 7 and 8.
B. Booker
After the jury returned its verdicts, a presentence investigation report (PSR)
was prepared. 4 Applying USSG §2F1.1, the guideline applicable for violations of 18
U.S.C. §§ 1014 and 1344, the probation officer determined Brinsfield’s base offense
level was 6. Relying on Republic’s declaration of victim loss, the officer determined
Republic’s loss was $893,979.66 5 and increased the base offense level by 11
pursuant to USSG §2F1.1(b)(1)(L) (requiring an 11-level increase to the base offense
level if the amount of loss is between $800,000 and $1,500,000). The officer also
added 2 levels because the offense involved more than minimal planning. See USSG
§2F1.1(b)(2). Because Brinsfield failed to appear at sentencing, the officer applied a
2-level upward adjustment for obstruction of justice. See USSG §3C1.1. Based on a
total offense level of 21 and a criminal history category of I, the probation officer
calculated the guideline range as 37-46 months imprisonment. He also recommended
4
Brinsfield was sentenced pursuant to the 1997 edition of the United States
Sentencing Guidelines Manual. All citations to the guidelines herein refer to the 1997
guidelines unless otherwise indicated.
5
According to Republic’s declaration, it made loans to Brinsfield totaling
$989,475.21, of which only $95,495.55 was repaid, resulting in a loss of $893,979.66.
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Brinsfield be ordered to make restitution in the amount of $893,979.66. 6
Brinsfield raised several objections to the PSR under Blakely v. Washington,
542 U.S. 296 (2004). First, he argued the amount of loss alleged in the indictment
and proven at trial was only $146,175.26, the total amount of the loans at issue in
Counts 1 through 8. 7 Thus, he contended his base offense level should only be
increased by 7 levels. See USSG §2F1.1(b)(1)(H) (authorizing a 7-level increase if
the amount of loss falls between $120,000 and $200,000). Brinsfield also objected
to the 2-level enhancement for more than minimal planning and the 2-level upward
adjustment for obstruction of justice because the facts supporting them were not
charged in the indictment, proven at trial or stipulated to. As such, Brinsfield argued
his total offense level was 13, resulting in a guideline range of 12-18 months
imprisonment.
The district court rejected Brinsfield’s arguments. Adopting the
recommendations in the PSR, the court sentenced Brinsfield to 41 months
imprisonment, the middle of the guideline range. It also ordered Brinsfield to pay
restitution in the amount of $893,979.66, to be paid jointly and severally with
6
Of this amount, $143,979.66 was owed to Republic. The remainder, $750,000, was to
be paid to Republic’s insurer, St. Paul Insurance Company.
7
In his written objections, Brinsfield erroneously stated the amount of the loans
involved in Counts 1-8 totaled $116,175.26. At sentencing, Brinsfield corrected the error.
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Huffman. 8
On appeal, Brinsfield asserts his sentence, imposed pursuant to the mandatory
federal sentencing guidelines and enhanced pursuant to judicial fact-finding by a
preponderance of the evidence, violates the Sixth Amendment under Booker. In
Booker, the Supreme Court extended its holding in Blakely to the federal sentencing
guidelines, holding that the Sixth Amendment requires “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict [to] be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker,
125 S. Ct. at 756. To remedy the constitutional infirmity of the guidelines, Booker
invalidated their mandatory nature, requiring the district court to consult them in an
advisory fashion. Id. at 756-57 (severing and excising 18 U.S.C. §§ 3553(b)(1),
3742(e)).
In United States v. Gonzalez-Huerta, we determined there were two types of
error a district court could commit prior to Booker:
First, a court could err by relying upon judge-found facts, other than those
of prior convictions, to enhance a defendant’s sentence mandatorily. As
Booker makes clear, the Sixth Amendment prohibits this practice. As a
matter of convenience, we will refer to such an error as a constitutional
Booker error. Second, a sentencing court could err by applying the
Guidelines in a mandatory fashion, as opposed to a discretionary fashion,
8
In November 2002, Huffman pled guilty to conspiracy to commit bank fraud. On
October 21, 2003, he was sentenced to 48 months probation.
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even though the resulting sentence was calculated solely upon facts that
were admitted by the defendant, found by the jury, or based upon the fact
of a prior conviction. While this type of sentence does not violate the
Sixth Amendment, such a sentence is nonetheless impermissible because
the Court severed the portion of the Sentencing Reform Act that required
the mandatory application of the Guidelines. We will refer to this second
type of error as a non-constitutional Booker error.
403 F.3d 727, 731-32 (10th Cir.) (quotations and citations omitted), cert. denied, 126
S.Ct. 495 (2005). Here, the district court clearly committed constitutional Booker
error at sentencing because it relied upon facts neither found by the jury nor admitted
by Brinsfield to enhance his sentence mandatorily.
Because Brinsfield objected in the district court under Blakely, we review his
sentence for harmless error. United States v. Corchado, 427 F.3d 815, 820 (10th Cir.
2005). Thus, our inquiry is whether the court’s constitutional error at sentencing was
harmless under Rule 52(a) of the Federal Rules of Criminal Procedure. United States
v. Lang, 405 F.3d 1060, 1064 (10th Cir. 2005). Rule 52(a) states: “Any error, defect,
irregularity, or variance that does not affect substantial rights must be disregarded.”
The government bears the burden of demonstrating the error was harmless and in
cases involving constitutional error, it must do so beyond a reasonable doubt. Lang,
405 F.3d at 1065.
The government argues the constitutional error at sentencing was harmless in
this case because the amount of loss and more than minimal planning enhancements
were overwhelmingly supported by the evidence at trial and did not affect
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Brinsfield’s substantial rights. It also asserts Brinsfield’s willful failure to appear
for sentencing supports the obstruction of justice adjustment. Lastly, the government
contends there is no indication in the record that the district court was dissatisfied
with the mandatory guidelines or that the court would be inclined to impose a lower
sentence under an advisory guideline scheme. Indeed, it points out that the court
imposed a sentence in the middle of the guideline range. We agree.
Section 2F1.1(b)(2) of the guidelines requires a 2-level enhancement to the
base offense level if “the offense involved [] more than minimal planning . . . .” The
Commentary to §2F1.1 refers to the Commentary to §1B1.1 for the definition of
“[m]ore than minimal planning.” USSG §2F1.1 comment. (n.2). The Commentary to
§1B1.1 states:
“More than minimal planning” means more planning than is typical for
commission of the offense in a simple form. “More than minimal
planning” also exists if significant affirmative steps were taken to
conceal the offense, other than conduct to which § 3C1.1 (Obstructing
or Impeding the Administration of Justice) applies. “More than minimal
planning” is deemed present in any case involving repeated acts over a
period of time, unless it is clear that each instance was purely
opportune. Consequently, this adjustment will apply especially
frequently in property offenses.
USSG §1B1.1, comment. (n.1(f)). “[T]he notion of repeated acts refers to a series of
acts each of which would be criminal standing alone, rather than referring to a crime
that requires the completion of a series of steps.” United States v. Proffit, 304 F.3d
1001, 1005 (10th Cir. 2002). In order to have “repeated acts,” “there must have been
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more than two instances of the behavior in question.” United States v. Bridges, 50
F.3d 789, 793 (10th Cir. 1994). By finding Brinsfield guilty on Counts 1 through 6,
the jury necessarily found that his offense involved more than minimal planning
because Counts 1 through 6 involved six acts of bank fraud over the course of two
and a half years (May 1995 to December 1997) and each act was not “purely
opportune.”
Section 3C1.1 of the guidelines requires a 2-level upward adjustment to the
offense level if “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the . . . sentencing of the
instant offense . . . .” The Commentary to §3C1.1 provides a non-exhaustive list of
examples of conduct to which the adjustment applies. USSG §3C1.1, comment.
(n.3). One such example is “willfully failing to appear, as ordered, for a judicial
proceeding.” Id. at (n.3(e)). Here, Brinsfield admitted at sentencing that he did not
appear at the original sentencing hearing. While he stated he was “real sick” and his
vehicle was “broke[n] down,” he conceded his attorney had told him the hearing
could not be re-scheduled. (R. Vol. 4 at 5.) He also failed to provide the district
court with the medical documentation it requested. It is also clear that Brinsfield did
not attempt to self-surrender after the district court issued a bench warrant for his
arrest, apparently because he “got scared and didn’t know what to do.” (Id.) We
conclude the jury, had it been presented with these facts, would have found that the
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obstruction of justice adjustment was warranted. 9
As to the amount of loss enhancement, by finding Brinsfield guilty on Counts
1 through 8, the jury necessarily found that Republic suffered loss in the amount of
$146,175.26, the total amount of the loans at issue in Counts 1 through 8. Indeed,
Brinsfield stipulated to this amount at sentencing. However, there was also
testimony supporting the district court’s finding that the total amount of loss was
$893,979.66. Huffman testified approximately fifty-eight loans were involved in the
scheme to defraud and Republic lost approximately $900,000 on these loans. Sullivan
testified the aggregate amount of the fifty-eight loans involved was a little over $1
million and when confronted, Brinsfield signed two new promissory notes to the
9
Indeed, these admissions appear to render the application of the obstruction of
justice adjustment non-constitutional Booker error. Moreover, we are confident the
district court would impose the obstruction of justice adjustment even under a purely
discretionary sentencing guideline scheme. At sentencing, the court stated:
Well, Mr. Brinsfield, you certainly did not help yourself by not appearing
when you were supposed to at sentencing and of course it created a
situation where the guidelines are now higher and you are going to end up
serving, under the best of circumstances, probably a year longer than you
would have served if you had appeared at sentencing. And the Court
became somewhat concerned earlier when I made several requests for some
medical documentation and asked [your attorney] on several occasions if he
had received that and why it had not been forwarded [to] the Court. He
informed me that he had requested of you to furnish that to the Court and
that he had not been provided a copy, so it appears that the Court’s request
or orders meant very little.
(R. Vol. 4 at 7.)
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bank, one covering the principal balance ($842,000) and one covering interest
($146,000). Sullivan further testified that Brinsfield made $95,000 in payments on
these notes, leaving a loss of approximately $900,000. By signing the two
promissory notes and making payments on them, Brinsfield essentially admitted that
the amount of loss to Republic as a result of his actions was about $900,000, which
supports an 11-level enhancement under USSG §2F1.1(b)(1)(L). However, we need
not decide whether the signing of the promissory notes constituted a sufficient
admission for purposes of Booker. Even if insufficient, the promissary notes are
potent evidence of the amount of loss. Further, both Huffman and Sullivan testified
the approximate loss to Republic was $900,000. There was no evidence
contradicting their testimony and both were intimately familiar with the nominee
loans and their amounts. It also appears based on the verdicts that the jury found
Huffman and Sullivan credible. Therefore, we can comfortably conclude that had
this factual issue been presented to the jury, it would have found as the district court
did.
The district judge expressed no dissatisfaction with the guideline sentence. In
fact, although Brinsfield requested a sentence at the bottom of the guideline range
and the court had the discretion to impose such a sentence, it chose not to do so and
sentenced Brinsfield to the middle of the guideline range. Thus, there is no reason to
believe the court would impose a lower sentence on remand under a post-Booker
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sentencing scheme. See United States v. Riccardi, 405 F.3d 852, 876 (10th Cir.)
(“Having exercised his limited discretion under the pre-Booker system to give Mr.
Riccardi the highest permissible sentence, there is no reason to think the judge would
exercise his now-greater discretion to reduce the sentence.”), cert. denied, 126 S.Ct.
299 (2005); see also Waldroop, 431 F.3d at 743 (same); United States v. Dowell, 430
F.3d 1100, 1112-13 (10th Cir. 2005) (finding non-constitutional Booker error
harmless where the district court exercised its discretion to impose a sentence in the
middle of the guideline range, thereby giving us no reason to think the court would
impose a different sentence on remand).
The district court’s constitutional Booker error at sentencing was harmless
beyond a reasonable doubt in that it did not affect Brinsfield’s substantial rights.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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