United States v. Wasson , 251 F. App'x 580 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 19, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 07-5038
v. (N.D. Oklahoma)
K A REN K . WA SSO N , (D.C. No. 06-CR-171-01-CV E)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O'BRIEN, 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(f); 10th Cir. R. 34.1(G). The court, therefore,
honors the parties’ requests and orders the case submitted without oral argument.
I. Introduction
Defendant Karen W asson pleaded guilty to three counts of theft,
embezzlement, or misapplication by a bank employee in violation of 18 U.S.C.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 656, arising out of her employment with Bank of America. Considering only
the conduct to which W asson pleaded guilty, Bank of America suffered a $60,000
loss. Nevertheless, considering both charged and related conduct, the Presentence
Report (“PSR”) concluded the actual loss to Bank of America was $339,809.88.
W asson filed a written objection to the PSR, arguing it incorrectly included
uncharged conduct which did not result in an actual loss to the bank. The district
court denied the objection. W asson made a timely appeal to this court.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this
court affirm s.
II. Background
W asson was employed by Bank of America for fourteen years in
W ellington, Florida. 1 In her capacity as senior personal banker, W asson was
authorized to directly submit loans for bank customers and access customer
Certificates of Deposits. She also had access to the General Ledger (“GL”)
account, which consists of the bank’s funds and is routinely used to cover loan
disbursements when customers need immediate funds.
In August of 2004 W asson embezzled, stole or misapplied Bank of America
funds which resulted in this conviction. W asson previously sold her house but
discovered that her home equity line of credit w ith the bank had not been closed.
1
This case was transferred from the Southern District of Florida to the
Northern District of Oklahoma pursuant to Fed. R. Crim. P. 20(a).
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She borrowed $50,000 against the line of credit to consolidate her personal debts.
W hen the title company involved in the sale of her home discovered this loan, she
was advised that the account must be closed. To do so, W asson cashed in a Bank
of America customer’s $50,000 CD. To cover the depleted CD, W asson
transferred funds from the GL account to replenish the CD account. In addition
to the $50,000, W asson stole $10,000 from Bank of A merica; $7,000 in the form
of a cashier’s check which she used to pay off her American Express account and
$3,000 in cash. To hide this transaction, she used GL funds and misappropriated
a customer’s CD to clear the GL account.
The PSR also took into account two other, uncharged incidents in which
W asson misappropriated funds. As a result of unauthorized loans, the PSR
calculated an additional loss of $279,809.88. Specifically, W asson issued a
cashier’s check to Todd M inikus on July 29, 2004, for $150,197.57. The funds
for this loan came from the GL account. However, Bank of America had not yet
approved the loan. W hen, after a hurricane-related delay, the loan application
materials came through, W asson realized M inikus’ collateral was only sufficient
to support a $97,500 loan. In order to clear the GL account, W asson used a
$200,030.80 CD belonging to a Bank of America customer, transferring the
money into the GL account.
W asson objected to the use of the M inikus loan to calculate the total loss,
claiming it was not relevant conduct under the sentencing guidelines because
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there was no actual or intended loss. 2 M inikus has since signed loan documents
and has agreed to pay the entire $150,197.57. In rejecting this argument, the
district court found that at the time W asson’s offense was detected, the bank had
not recovered any of its loss. Further, the defendant did not mitigate the loss.
Only through Bank of America’s efforts and M inikus’ cooperation is the bank
expected to recoup its losses.
III. Discussion
A. Standard of Review
Post-Booker, this Court reviews sentencing decisions for abuse of
discretion, asking whether it is reasonable under the 18 U.S.C. § 3553(a) factors.
United States v. Garcia-Lara, No. 06-3054, 2007 W L 2380991, at *1 (10th Cir.
Aug. 22, 2007). Reasonableness has procedural and substantive components.
United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). For a sentence to
be procedurally reasonable, the district court must consider, inter alia, a properly
calculated guideline range. Id. W asson challenges only the method by which the
district court calculated her advisory guidelines range; she makes no argument
that the length of the sentence imposed was unreasonable. Thus, she alleges only
procedural unreasonableness. See, e.g., United States v. Rom ero, 491 F.3d 1173,
2
W asson does not challenge the PSR’s consideration of a similar “loan” she
issued to Delories Yin in which the bank sustained a loss of $129,112.31.
W asson acknowledges Bank of America incurred an actual loss as Yin has refused
to return the funds or make any payments.
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1175–76 (10th Cir. 2007). In reviewing the district court’s application of the
Sentencing Guidelines, this court reviews factual findings for clear error and legal
determinations de novo. United States v. Serrata, 425 F.3d 886, 906 (10th Cir.
2005).
B. Amount of Loss
Pursuant to United States Sentencing Guideline § 2B1.1(b)(1), W asson’s
offense level was affected by the value of loss caused by her criminal conduct.
Under the guidelines, “loss” constitutes both actual and intended loss and is
calculated as the greater of the two. U.S.S.G. § 2B1.1, cmt. n.3(A). Actual loss,
which is the only loss relevant here, is defined as “the reasonably foreseeable
pecuniary harm that resulted from the offense.” Id. § 2B1.1, cmt. n.3(A )(i).
“Reasonably foreseeable pecuniary harm” is defined as “pecuniary harm that the
defendant knew or, under the circumstances, reasonably should have known, was
a potential result of the offense.” Id. § 2B1.1 cmt. n.3(A)(iv).
The base offense level for convictions under 18 U.S.C. § 656 is based on
the amount of loss. Twelve points are added to the base offense level for losses
in excess of $200,000, as was the case here. U.S.S.G. § 2B1.1(b)(1)(G). Loss
can be reduced by “the money returned, and the fair market value of the property
returned and the services rendered, by the defendant or other persons acting
jointly with the defendant, to the victim before the offense was detected.” Id.
§ 2B1.1, cmt. n.3(E)(i).
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On appeal, W asson renews her claim that the district court erred in using
the M inikus loan to calculate the loss Bank of America incurred. She argues the
M inikus loan cannot constitute actual loss because she did not know, nor should
she have known, the bank would sustain a loss of $150,197.57 as the result of her
actions. W asson contends that because M inikus’ loan was later approved for a
lesser amount, the loan application appeared viable to W asson’s “trained eye.”
She was therefore advancing a loan based on a reasonable assumption that it
would be approved. W asson further claims that because the bank did not, in fact,
lose money from the transaction, the district court’s finding of actual loss is
clearly erroneous.
W asson’s arguments are unavailing. First, at the time her theft was
discovered, Bank of America was exposed to the full loss of the $150,197.57
W asson advanced to M inikus. No loan documents had been signed and M inikus
was under no obligation to pay back the “loan.” W asson’s argument is further
belied by her actions; upon realizing that M inikus’ collateral was insufficient she
cashed a CD , belonging to a Bank of America customer, worth over $200,000 and
transferred the money into the GL account from which the M inikus “loan” was
funded. As a trained banker, W asson should have known she was subjecting her
employer to a loss by advancing funds on a loan which had not yet been approved
and then attempting to cover her tracks by shifting funds.
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W asson’s contentions that M inikus’ agreement to pay his loan resulted in
no loss to Bank of A merica must also fail. W asson cannot benefit from a third
party’s cooperation and willingness to pay the loss. Under § 2B1.1, cmt. n.3(E)(i)
the loss can only be reduced if the defendant herself, not some third party, paid
the loss before the crime was detected. M inikus only began paying the loan after
W asson’s misapplication of bank funds was detected. As this court has held,
there is no credit against a loss when payments are made after the detection of the
offense. United States v. Swanson, 360 F.3d 1155, 1169 (10th Cir. 2004); see
also United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998) (“[T]he
purpose of the loss calculation under the Sentencing Guidelines is to measure the
magnitude of a crime at the time it was committed.”). M inikus’ subsequent loan
payments, therefore, are irrelevant to the calculation of loss.
IV. Conclusion
The Bank of America was exposed to actual loss on the M inikus “loan” at
the time W asson’s crimes w ere detected. Accordingly, the district court properly
considered the M inikus loan in calculating the actual loss to Bank of America and
properly calculated W asson’s advisory guidelines range. The sentence imposed
by the district court is hereby affirm ed.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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