United States v. Garrett ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
JUN 23 1998
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6407
(D.C. No. CR-97-13-A)
WILLIAM L. GARRETT, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , BARRETT , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered 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This order and judgment is not binding precedent, except under the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.
Defendant William L. Garrett appeals from the sentence imposed under
U.S.S.G. § 2F1.1 after he entered a plea of nolo contendere to ten counts of mail
fraud in violation of 18 U.S.C. §§ 1341 and 2. We dismiss the appeal as moot.
Defendant argues on appeal that a $120,000 loan should not have been
included as relevant conduct under U.S.S.G. § 1B1.3(a)(2) or in the total amount
of loss under § 2F1.1(b). Because the district court included the $120,000 in the
amount of loss, defendant’s offense level was calculated to be thirteen, which
called for a guideline range of 12-18 months’ imprisonment. Without the loan
amount, his offense level would have been ten, which would have resulted in a
guideline range of 6-12 months’ imprisonment. The district court sentenced
defendant to twelve months’ imprisonment to be followed by three years’
supervised release, and restitution in the amount of $24,500. 1
See R. Vol. 4,
at 80-81. It stated:
The reason I imposed confinement for a period of twelve months is
[because] that is the overlapping quantum as between levels 13 and
level ten. And Mr. Garrett has every right to pursue, of course, if he
. . . decide[s] to appeal, the question of the amount of loss. And the
only significant aspect of that now is the $120,000 component of
that. And should he prevail on that issue, which certainly can
happen, then he would be at a Guideline level in which twelve
months was the maximum permitted.
1
The amount of restitution ordered is not disputed on appeal, and does not
include any portion of the $120,000 that is disputed on appeal.
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Id. at 82-83. We believe this is a clear indication that defendant’s sentence would
be the same even if the loan amount were subtracted from relevant conduct, and
the appeal is therefore moot. Cf. United States v. Mondaine , 956 F.2d 939, 943
(10th Cir. 1992) (holding that appeal was not moot where district court did not
clearly state that sentence would be the same under either of two arguably
applicable guideline ranges); United States v. Urbanek , 930 F.2d 1512, 1515-16
(10th Cir. 1991) (same).
DISMISSED as MOOT.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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