United States v. Evans ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 13 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-5147
v.
(D.C. No. 97-CR-135-K)
(N.D. Okla.)
WILLIAM MICHAEL EVANS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, EBEL, Circuit Judges, and CROW, ** District Judge.
Defendant-Appellant William Michael Evans was convicted of multiple
counts of conspiracy, mail and wire fraud, and money laundering as a result of his
participation in several debt-collection schemes. Evans and co-defendant Gregory
Lorson perpetrated a series of frauds during 1994 and 1995, causing significant
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
**
The Honorable Sam A. Crow, United States Senior District Judge for the
District of Kansas, sitting by designation.
financial losses for their employer, business partner, and individual investors. In
short, Evans and Lorson: collected outstanding debts on behalf of their employer ,
but diverted the proceeds to their personal use (the “CRW conspiracy”);
fraudulently induced investors to purchase a promissory note Evans and Lorson
had no authority to sell or transfer (the “Aronoff conspiracy”); and misreported
and withheld sums collected pursuant to a contract with their business partner (the
“Chilmark conspiracy”). 1
Pursuant to Anders v. California, 386 U.S. 738 (1967), counsel for
Appellant has filed a motion and supporting brief to withdraw from
representation. Counsel identifies only one conceivable basis for appeal, but
certifies to this court that pursuing such action would be frivolous. Specifically,
counsel suggests that the amount of loss attributed to Evans during the sentencing
“could have been found in a different amount,” resulting in a correspondingly
lower sentence. Objecting to his counsel’s characterization of the case, Appellant
was granted permission to file a pro se brief advancing additional grounds for
appeal, listing in excess of thirty such challenges to his conviction and sentence.
We have reviewed the arguments suggested by counsel and Appellant, and
we have conducted an independent review of the case as required by Anders. See
1
The extensive details of these conspiracies are set forth in our disposition
of Lorson’s appeal, see United States v. Lorson, (No. 98-5151).
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Anders, 386 U.S. at 744 (“[T]he court . . . then proceeds, after a full examination
of all the proceedings, to decide whether the case is wholly frivolous.”). In our
view, the issues presented in this appeal can be grouped into three general
categories: (1) ineffective assistance of trial counsel; (2) objection to the amount
of loss attributed to defendant at sentencing; and (3) objection to a two-level
sentence enhancement under U.S.S.G. §2F1.1(b)(3)(A). 2 We find that the
ineffective assistance issue is best reserved for habeas corpus proceedings and
that both of the latter two issues are without merit. Further, we find no other
issues of merit presented by the record. Accordingly, the judgment and sentence
of the district court are affirmed.
Consideration of Appellant’s ineffective assistance claim on direct appeal
would require the development of factual issues not presently within the record.
For this and other reasons, we have often stated that “[i]neffective assistance of
counsel claims should be brought in collateral proceedings, not on direct appeal.
Such claims brought on direct appeal are presumptively dismissible, and virtually
all will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.
1995) (en banc). The present case does not present circumstances warranting a
departure from this well-settled presumption. We therefore dismiss Appellant’s
2
All references in this Order and Judgment are to the 1998 edition of the
Federal Sentencing Guidelines Manual.
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ineffective assistance claim and suggest that he pursue this matter, if at all, on
collateral review.
We next turn to Appellant’s contention that the district court improperly
calculated the losses for which he was responsible. The court ruled that
Appellant was responsible for a loss amount of $483,717.29 and imposed a nine-
level increase pursuant to U.S.S.G. §2F1.1(b)(1)(J). 3 (See Sent. Tr. at 70.)
Appellant argues that this calculation was excessive for several reasons, none of
which is persuasive. First, Appellant asserts the amount should be reduced to
reflect restitution made to his defrauded employer, CRW, in December of 1995.
This portion of the fraud, however, was first discovered in January of that year,
and it is well settled in this circuit that a defendant may not receive credit for
monies reimbursed to a victim after the crime had been discovered. See United
States v. Pappert, 112 F.3d 1073, 1079 (10th Cir. 1997) (“We do not allow
defendants to barter prison time in exchange for restitution.”). Appellant also
appears to assert that the losses attributed to him from the Chilmark conspiracy
should have been reduced by the commissions due Evans and Lorson under their
contract with Chilmark. However, the record clearly indicates that the loss figure
did in fact reflect a deduction for the commissions, (see PSR ¶ 19), and the
3
U.S.S.G. §2F1.1(b)(1)(J) directs a nine-level increase in the base offense
level where the amount of loss exceeds $350,000 but does not exceed $500,000.
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additional reductions Appellant urges would not affect the guideline range.
Appellant further claims he should receive credit for amounts allegedly overpaid
to Chilmark on other collections, but Appellant offers no evidence in support of
this contention. In sum, no reasonable calculation of the amount of loss attributed
to Evans would fall below the $350,000 threshold for imposing a nine-level
increase pursuant to U.S.S.G. §2F1.1(b)(1)(J). We therefore affirm the district
court’s calculation and imposition of the increase.
Finally, our review pursuant to Anders suggests that Appellant might wish
to dispute the two-level increase imposed under U.S.S.G. §2F1.1(b)(3)(A).
Section 2F1.1(b)(3)(A) provides for such an increase “[i]f the offense involved . .
. a misrepresentation that the defendant was acting on behalf of a . . . government
agency.” The sentencing court found that this enhancement was warranted
because Appellant had misrepresented to individual investors that he was
authorized by a government agency to sell a promissory note owned by his
employer. (See Sent. Tr. at 72.) More specifically, Evans showed the investors a
letter from the Resolution Trust Corporation (“RTC”) (a federal agency
overseeing the debts of failed financial institutions) confirming that RTC had
assigned the note in question to CRW. (See GX 9A.) The letter, which appears
to be genuine, explains that the note was assigned to CRW “in keeping with its
partnership agreement” with RTC. (Id.) However, that partnership agreement
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clearly indicates that neither CRW nor its employees had authority to sell notes
such as this one to third parties. (See GX 1 at 14.) Thus, by falsely representing
to the investors that RTC had authorized him to sell the note, Evans furthered his
fraud by relying on the trust individuals associate with the federal government.
Such conduct clearly satisfies the criteria of §2F1.1(b)(3)(A). See United States
v. Frazier, 53 F.3d 1105, 1112 (10th Cir. 1995). The district court therefore
properly imposed this two-level increase.
In sum, we DISMISS Appellant’s ineffective assistance claim and AFFIRM
the district court’s judgment and sentence. 4
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
Counsel’s motion to withdraw as counsel of record in this case is
4
GRANTED.
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