United States v. Fisher ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 12, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-4065
(D.C. Nos. 2:00-CV-912-S and
RONALD D. FISHER, 2:96-CR-103-S)
(D. Utah)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, KELLY, and MURPHY 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.
Ronald Fisher, a federal prisoner appearing pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion. We affirm.
*
This order and judgment is not binding precedent, except under the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.
Fisher “concocted and executed a scheme to obtain money from various
federally insured financial institutions and private lenders by making false
representations about his past earning history, the amount of assets he currently
held, and his ability to repay loans made to him or his companies.” United States
v. Fisher, No. 99-4001, 1999 WL 622903, at **1 (10th Cir. Aug. 17, 1999). He
pled guilty to four counts, including making a false statement to a financial
institution in violation of 18 U.S.C. § 1344(1) and wire fraud in violation of 18
U.S.C. § 1343. Fisher was sentenced to 137 months imprisonment based in part
on the district court finding that the loss to Fisher’s victims totaled between $2.5
and 5 million. See U.S. Sentencing Guidelines Manual § 2F1.1(b)(1)(N) (1997)
(hereafter USSG). We affirmed. Fisher, 1999 WL 622903, at **5.
Fisher claims in his § 2255 motion that his plea was involuntary because
his trial and appellate counsels were constitutionally ineffective. The district
court denied his motion. We granted COA with respect to counsels’ investigation
of the facts relating to the losses suffered by two financial institutions, Provo
Finance, LLC (Provo), and Universal Campus Credit Union (UCCU).
To determine the loss amount used to calculate a sentence for a fraud
offense, courts use either the actual loss or the intended loss, whichever is
greater. USSG § 2F1.1, cmt. n. 7(b). Courts should, however, consider “the
contemporaneous exchange of security . . . in considering the economic reality of
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the transaction and any intended loss in excess of the actual loss.” United States.
v. Nichols, 229 F.3d 975, 980 (10th Cir. 2000) (emphasis added); see also USSG.
§ 2F1.1, cmt. n. 7(b) (stating that amount of loss should be reduced by “any assets
pledged to secure the loan.” (emphasis added)).
Fisher claims the losses incurred by Provo and UCCU were “backed by
collateral,” Aplt. Br. at 10, and that the loss amounts determined at sentencing
should have been offset by the amounts recovered through the sale of this
collateral. He contends that his trial and appellate attorneys were constitutionally
ineffective for not investigating and informing the trial court of the true nature of
these losses, and that the total loss to his victims would be less than $2.5 million
if both the Provo and UCCU losses were properly determined. We have reviewed
“the district court’s legal rulings de novo and its findings of fact for clear error,”
United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001), and conclude
there is no factual or legal basis for Fisher’s claims.
The UCCU Fraud. Fisher deposited $1,657,722.85 in worthless checks
into his UCCU account to induce UCCU to issue him cashier’s checks totaling at
least $1,500,435.80. Fisher used the cashier’s checks to pay off loans at other
institutions, some of which were backed by collateral pledged as security. After
UCCU discovered Fisher’s fraud, it obtained assignments of this collateral from
the other lenders and recouped some losses by selling these assets. Fisher’s own
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expert admitted at the sentencing hearing that there was never any loan, pledge or
security agreement between Fisher and UCCU, and that all of these collateral
assignments and recoveries occurred after Fisher had already defrauded UCCU
and only because of UCCU’s post-fraud litigation and other efforts. See Aplt.
App. at 256-60; see also Fisher, 1999 WL 622903, at **3 n.5 & n.6.
Fisher argued at sentencing and on direct appeal that the loss to UCCU
should be offset by these asset sales, but both the trial court and this court
rejected this argument because it ignores the clear requirement to use the higher,
intended loss of $1,657,722.85, rather than any lower actual loss. Fisher, 1999
WL 622903, at **3 (explaining that even if UCCU’s actual losses were zero, the
intended loss amount of $1,657,722.85 governs).
Fisher now argues that the UCCU “loan” was “backed by various pieces of
collateral,” Aplt. Br. at 14. Citing Nichols, 229 F.3d at 980, he claims UCCU’s
loss should be offset by this “liquidated collateral.” Aplt. App. at 13. His
evidence, however, is nothing more than the same asset sales that UCCU
recouped through the post-fraud collateral assignments. Compare id. at 200-01,
with id. at 243-44. Fisher presents no evidence that this collateral was
contemporaneously pledged to secure his indebtedness at the time UCCU issued
the cashier’s checks. See USSG 2F1.1, cmt. n. 7(b). Indeed, his § 2255 evidence
simply confirms that all of these collateral assignments and sales occurred after
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UCCU discovered the fraud. Moreover, both his trial and appellate counsel did
argue that these asset sales should be used to offset the loss, and we rejected this
argument. Fisher, 1999 WL 622903, at **3, n.6. We also rejected his renewed
argument that UCCU’s loss should be its actual loss. Id. at **3. “The fact that a
victim has recovered part of its loss after discovery of a fraud does not diminish a
defendant’s culpability for purposes of sentencing.” Nichols, 229 F.3d at 979. In
short, Fisher has presented no new evidence, and his attorneys have already
asserted this same, flawed legal argument.
Provo. Fisher obtained a loan from Provo based on his false representation
that he had paid off the outstanding lien on the property he pledged to Provo as
security. The presentence report noted that Provo was in litigation at the time of
sentencing seeking to obtain rights in the fraudulently-pledged collateral. Fisher
presents evidence that Provo later succeeded in its litigation and recovered
proceeds from the sale of the pledged assets. He argues his attorneys were
ineffective for not seeking to offset Provo’s losses by these amounts. There is no
merit to Fisher’s claim that this impaired collateral should have been deducted
from the amount of loss. Where as here, a defendant provides false information
to a lender about the value of its pledged collateral, the defendant is properly held
liable for the higher intended loss. United States v. Schild, 269 F.3d 1198, 1202
(10th Cir. 2001) (citing United States v. Banta, 127 F.3d 982 (10th Cir. 1997)).
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“[T]he mere presence of collateral securing an item that was fraudulently obtained
does not automatically reduce the loss calculation under § 2F1.1 where it can be
shown that the defendant intended to permanently deprive the creditor of the
collateral through concealment.” Nichols, 229 F.3d at 979. Provo was forced to
recover its impaired collateral through expensive litigation and had not recovered
any of it at the time of sentencing. Fisher’s trial and appellate attorneys were not
ineffective for failing to assert the meritless argument that Provo’s losses should
have been offset by this fraudulently-pledged collateral.
Because Fisher did not present any evidence that any collateral was validly
pledged to secure the indebtedness to Provo or UCCU, the district court did not
err in denying his § 2255 motion without an evidentiary hearing, and Fisher
cannot show that his counsels’ conduct was objectively unreasonable or that he
suffered the prejudice required to establish an ineffective assistance of counsel
claim under Strickland v. Washington, 466 U.S. 668, 687-89 (1984).
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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