United States v. Loftis ( 1997 )

UNITED STATES COURT OF APPEALS
Filed 1/22/97
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs. No. 95-5241
(D.C. No. 94-CR-39)
JOSEPH BRENT LOFTIS, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, KELLY, and LUCERO, Circuit Judges.**
Faced with a four-count Third Superseding Indictment, Mr. Loftis pleaded guilty
to committing bank fraud (count three), 18 U.S.C. § 1344(1), and making a false
statement to a financial institution in connection with the extension of credit (count four),
18 U.S.C. §§ 2, 1014. Two counts charging interstate transportation of stolen property
(counts one and two), 18 U.S.C. § 2314, were dismissed. He was sentenced to
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
imprisonment for eighteen months on each count to run concurrently, five years of
supervised release, and restitution of $60,000. He now appeals the sentence. Our
jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
In calculating the sentence, the district court determined that the total loss was
$272,745, IV R. 128. See USSG § 2F1.1. Of this amount, Mr. Loftis challenges the
inclusion of $195,250, contending that this amount pertains to the dismissed counts, and
is not properly considered relevant conduct, USSG § 1B1.3, because the losses not did not
result from “the same course of conduct or common scheme or plan as the offense of
conviction.” USSG § 1B1.3(a)(2). He contends that the offenses in counts one and two,
when compared to count three, are not “sufficiently connected or related to each other as
to warrant the conclusion that they are part of a single episode, spree, or ongoing series of
offenses.” Id. comment. (n.9(B)).
We review a district court’s quantification of a loss under USSG § 2F1.1 under the
clearly erroneous standard. 18 U.S.C. § 3742(e); United States v. Moore, 55 F.3d 1500,
1501 (10th Cir. 1995). Claims that the district court misapplied the guidelines by relying
upon incorrect factors in determining a loss are reviewed de novo. 18 U.S.C.
§ 3742(e)(1) & (2); Moore, 55 F.3d at 1501. Here, the district court did not err in
determining that the losses occasioned by the conduct in counts one and two were
sufficiently related to the conduct in count three to warrant inclusion.
Count three resulted from Defendant’s opening a checking account at an
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Oklahoma bank by depositing a $955.21 check drawn on an Arkansas bank where he had
closed his account. The check was credited to Oklahoma checking account and Mr.
Loftis withdrew $600. II R. (PSR at 5). Counts one and two involved the same
Oklahoma checking account, which was a conduit for the interstate transfer of funds
received from fraudulent activity. Specifically, Mr. Loftis purchased three oil leases for
$105,000, with a $10,000 lease draft, and then removed the tubing and valves from the
wells. The proceeds from the salvage operation (which destroyed the wells, IV R. 98-99)
were wired to his Oklahoma account. Mr. Loftis defaulted not only on the balance owed
on the leases (to be paid from production, id. 98, 101), but also on the substantial
obligations incurred in the salvage operation.
An obvious connection between count three and count one is the use of
fraudulently obtained salvage proceeds wired into the Oklahoma account (count one) to
cover the check written on the closed Arkansas account (count three). See United States
v. Sheahan, 31 F.3d 595, 602 (8th Cir. 1994). Relevant conduct includes “all acts . . . in
the course of attempting to avoid detection or responsibility for that offense.” USSG
§ 1B1.3(a)(1). A nexus between all three counts is the use of the Oklahoma checking
account to facilitate the fraudulent purchase and waste of the assets involved. Mr. Loftis
prepared a $10,000 lease draft to be funded by the Oklahoma bank, subsequently opened
the checking account with the bogus check, and then used the salvage proceeds to cover
that check and fund the $10,000 lease payment. Although there was no actual loss in
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connection with count three, the district court was completely justified in looking at the
actual losses in counts one and two which were facilitated by Mr. Loftis’s banking
relationship. See United States v. Sapp, 53 F.3d 1100, 1104 (10th Cir. 1995), cert.
denied, 116 S. Ct. 796 (1996).
Moreover, as part of the plea agreement, Mr. Loftis agreed that all funds derived
from his activities alleged in the indictment were the result of fraud. See II R. (PSR at 3).
The counts in the indictment suggest a pattern of criminal conduct where the offenses are
linked by temporal proximity and fraudulent behavior. See United States v. Taylor, 97
F.3d 1360, 1364-65 (10th Cir. 1996) (citing United States v. Roederer, 11 F.3d 973 (10th
Cir. 1993)). Accordingly, the district court did not err in including the losses contested in
this appeal.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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