United States v. Gretzinger ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-28-2005
USA v. Gretzinger
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2793
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"USA v. Gretzinger" (2005). 2005 Decisions. Paper 1303.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 04-2793
UNITED STATES OF AMERICA,
v.
HARRY GRETZINGER;
DARLENE BAKKALI
Harry Gretzinger,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 98-cr-00324)
District Judge: Hon. William J. Nealon
No. 04-2833
UNITED STATES OF AMERICA,
v.
HARRY GRETZINGER,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 02-cr-00204)
District Judge: Hon. A. Richard Caputo
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 5, 2005
BEFORE: BARRY, AMBRO and COWEN, Circuit Judges
(Filed: April 28, 2005)
OPINION
COWEN, Circuit Judge.
Harry Gretzinger appeals the District Court’s order (Case No. 04-2793) accepting
his plea of guilty to a bank fraud charge and imposing a sentence of thirty-months
imprisonment. He also appeals the District Court’s order (Case No. # 04-2833) imposing
a sentence of thirty-three months after the Court revoked his supervised release on a
previous conviction and directing it to run consecutive to the thirty-month sentence
imposed for the bank fraud that formed the basis for the revocation. He argues that the
District Court committed the following errors: (1) accepting his involuntary and
unintelligent plea where the Government’s factual basis was insufficient to support each
element of the crime of bank fraud, (2) making his sentence for a supervised release
violation consecutive with the offense giving rise to the violation and (3) imposing
enhancements to his sentence.
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
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jurisdiction pursuant to 28 U.S.C. § 1291. As we write solely for the parties, we only
provide a brief recitation of the facts.
Gretzinger pled guilty to willfully and knowingly defrauding a trust company when
Darlene Bakkali Linares, his domestic partner, deposited two credit card cash advances
drawn on the account of an individual who did not authorize the use of the card. He was
sentenced to a term of thirty months imprisonment, and supervised release for a period of
five years. Because Gretzinger was on supervised release at the time he committed the
crime, he had a violation hearing before the judge who had originally sentenced him.
Finding that Gretzinger’s violation of his supervised release was significant and similar to
the original crime, the District Court sentenced him to a term of thirty-three months to run
consecutive to his sentence for the bank fraud.
We review the District Court's finding of a factual basis for a plea for abuse of
discretion. United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir. 2000).1 Gretzinger
challenges the validity of his plea, arguing that it was involuntary and unintelligent. He
contends that the Government failed to set forth sufficient facts to satisfy the false
representation element required for a conviction under § 1344: “The proffer did not
include any description of any false statement made to the bank and that the check itself
cannot be a false representation.” (Appellant’s Br. at 7.)
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The Government contends that Gretzinger’s failure to raise this issue before the
District Court necessitates plain error review. We need not decide this issue, which is
subject to some disagreement in the courts, in light of our disposition.
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The federal bank statute makes it a crime to “knowingly . . . execute, or attempt to
execute, a scheme or artifice—(1) to defraud a financial institution; or (2) to obtain any of
the moneys, funds, credits, assets, securities, or other property owned by, or under the
custody or control of, a financial institution, by means of false or fraudulent pretenses,
representations, or promises.” United States v. Khorozian, 333 F.3d 498, 503 (3d Cir.
2003) (explaining that the test must be read conjunctively).
The record establishes that during the plea colloquy the Court set forth each
element of the offense. Further, the Government proffered that Gretzinger, directly or
indirectly, made unauthorized use of the identity of Ronald Katner to attempt to gain
access to Katner’s bank accounts. This was done by presenting fraudulent and false
credit card checks drawn on these accounts. The Government specifically stated that
Katner “did not know and never authorized use of his credit card account for cash
advance checks.” (App. at 32.)
Based on this proffer, the District Court did not abuse its discretion by finding that
the Government set forth a sufficient factual basis to support the “false or fraudulent
pretenses, representations, or promises” element of the crime. Accordingly, we will
affirm the District Court’s conclusion and uphold the conviction.
Gretzinger also challenges his sentence under United States v. Booker, 543 U.S.
___, 125 S. Ct. 738 (2005). In light of the determination of the judges in this Court that
the sentencing issues raised are best determined by the District Court in the first instance,
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we vacate the sentences and remand for resentencing in accordance with Booker. The
District Court should consider the sentences imposed for the bank fraud in Case No. 04-
2793 and for violation of supervised release in Case No. 04-2833. The Court should also
consider whether the sentences should be consecutive or concurrent. We express no
opinion as to what the sentences should be, or whether they should run consecutively or
concurrently.
For the foregoing reasons, the judgments of the District Court entered on June 23,
2004, and June 28, 2004, will be affirmed as to the convictions. The sentences will be
vacated and the matters remanded to the District Court for resentencing in accordance
with Booker.
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