United States v. Johnson ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 27, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-4066
v. District of Utah
DEAN JOHNSON, (D.C. No. 2:04-CR-00334-TC)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ , SEYMOUR , and McCONNELL , Circuit Judges.
Defendant-appellant Dean Johnson pled guilty to bank fraud and was
sentenced to 41 months’ imprisonment. He appeals his sentence. Our jurisdiction
arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
The district court based Mr. Johnson’s 41-month sentence on a finding that
the United States Sentencing Guidelines (“Guidelines”) required a sixteen level
enhancement for a $2 million loss suffered by the Bank of Ephraim (“the Bank”),
and a four level enhancement for jeopardizing the safety and soundness of a
financial institution. Mr. Johnson now argues that the sentence is unreasonable
because the district court (1) lacked sufficient evidence that he was responsible for
the loss, and (2) lacked sufficient evidence that he jeopardized the safety and
soundness of the Bank. Mr. Johnson does not otherwise challenge the district
court’s sentencing calculation.
Following the Supreme Court’s decision in United States v. Booker , 543
U.S. 220, 125 S.Ct. 738 (2005), the Guidelines are advisory. Because the
sentencing court is required to “consider” the Guidelines range, United States v.
Gonzalez-Huerta , 403 F.3d 727, 748–49 (10th Cir. 2005) (en banc), which means
the correctly calculated Guidelines range, we continue to review the factual
findings for clear error and the legal determinations involved in determining the
range de novo. United States v. Serrata , 425 F.3d 886, 906 (10th Cir. 2005). The
ultimate sentence is then reviewed for reasonableness. Booker , 543 U.S. at __,
125 S.Ct.at 764–66 (Breyer, J.). “[A] sentence that is properly calculated under
the Guidelines is entitled to a rebuttable presumption of reasonableness.” United
States v. Kristl , No. 05–1067, at 5, __ F.3d___, ___ (10th Cir. 2005).
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Under the Guidelines, a defendant is accountable for the entire loss created
by a fraudulent organization if the defendant played a major role in the
organization and the losses were reasonably foreseeable. See United States v.
Osborne , 332 F.3d 1307, 1311 (10th Cir. 2003). Mr. Johnson argues that
regardless of however much money his co-defendant, Randy McArthur, embezzled,
the government failed to introduce evidence at sentencing that Mr. Johnson played
a major role in that embezzlement, or that he reasonably foresaw the amount of
loss to the bank. Therefore, Mr. Johnson argues, the district court’s application of
a sixteen level enhancement was unreasonable.
Although Mr. McArthur assumed a larger role in the fraud, Mr. Johnson’s
contribution was by no means insignificant: he created false documents that were
subsequently submitted to the Bank, independent outside auditors, and state and
federal bank examiners in order to hide millions of dollars in losses. Mr.
Johnson’s false documents enabled the fraud to continue unabated for several
years. Moreover, during that period Mr. Johnson logically would have been able
to foresee the Bank’s losses. After all, he was personally concealing them. We
find no clear error on the part of the district court in attributing the $2 million loss
to Mr. Johnson.
Turning to Mr. Johnson’s second argument, the district court heard
sufficient evidence to determine that he jeopardized the safety and soundness of
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the Bank. After factoring in the loss that had been concealed, the Bank’s net
worth was less than zero and it was declared insolvent. The former president of
the Bank testified that the loss broke the Bank. An accountant hired by the Bank
testified that the missing funds caused the Bank’s failure. In short, there was
evidence that Mr. Johnson’s concealment of the losses not only “seriously
jeopardized” the Bank’s safety and soundness, but effectively destroyed it.
Whether or not Mr. Johnson appreciated the full impact of his conduct is
irrelevant. See United States v. Checora , 175 F.3d 782, 789 (10th Cir. 1999)
(stating that a defendant’s inability to perceive a victim’s vulnerability is not
necessarily a defense). Mr. Johnson knew that he was falsifying bank documents
involving millions of dollars and that those documents were being submitted to a
financial institution over a period of several years. It was foreseeable that such
actions could lead to potentially disastrous results.
The judgment of the United States District Court for the District of Utah
is AFFIRMED .
Entered for the Court,
Michael W. McConnell
Circuit Judge
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