United States v. Davis , 26 F. App'x 100 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4558
ALAN MARTIN DAVIS,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4745
ALAN MARTIN DAVIS,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-00-238-AMD)
Submitted: June 29, 2001
Decided: October 29, 2001
Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
2 UNITED STATES v. DAVIS
COUNSEL
Randolph O. Gregory, Sr., Baltimore, Maryland, for Appellant. Ste-
phen M. Schenning, United States Attorney, Joyce K. McDonald,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Alan Martin Davis challenges his 21-month sentence imposed for
forgery of a judicial signature, see 18 U.S.C.A. § 505 (West 2000),
and bankruptcy fraud, see 18 U.S.C.A. § 157 (West 2000). Davis
alleges that the district court erred in finding that U.S. Sentencing
Guidelines Manual § 2J1.2 (1998), the obstruction of justice guide-
line, applied to forgery of a judicial signature on a fictitious court
order; and in refusing to group the counts under USSG § 3D1.2
because there were two separate victims. We have reviewed the
record and conclude that the court erred in applying USSG § 2J1.2 for
the forgery offense and remand for resentencing on this issue. We
also conclude that the court did not err in declining to group the
offenses, and therefore affirm that part of the judgment.
Davis argues that the district court erred by applying USSG
§ 2J1.2, the obstruction of justice guideline, for the judicial forgery
conviction under 18 U.S.C.A. § 505. This Court reviews the district
court’s guideline selection de novo. See United States v. Lambert, 994
F.2d 1088, 1091 (4th Cir. 1993).
The Sentencing Guidelines direct a sentencing court to use the
Chapter Two guideline that is "most applicable to the offense of con-
viction," USSG § 1B1.2(a), and provide a statutory index of crimes
and applicable guidelines to assist in that determination, see USSG
UNITED STATES v. DAVIS 3
§ 1B1.2 comment. (n.1); USSG App. A. Appendix A of the Guide-
lines provides that for a violation of 18 U.S.C. § 505, the applicable
guideline sections are § 2F1.1, which applies to offenses involving
fraud or deceit, specifically forgery or altered or counterfeit instru-
ments other than counterfeit currency, and § 2J1.2, which applies to
obstruction of justice offenses. When more than one guideline is ref-
erenced in Appendix A, the sentencing court must "use the guideline
most appropriate for the nature of the offense conduct charged in the
count of which the defendant was convicted." USSG App. A, intro.
comment.
The district court determined that obstruction of justice was the
most applicable guideline for the offense conduct of creating a ficti-
tious court order and affixing the judge’s name to it. We disagree. By
selecting both the fraud guideline and the obstruction of justice guide-
line as potentially applicable to a violation of 18 U.S.C.A. § 505, the
Guidelines clearly contemplate that some violations of section 505
will not involve obstruction of justice. This approach is consistent
with that of section 505, which, broadly speaking, proscribes two
types of conduct: the use of a false or counterfeit judicial signature
to authenticate a document, and the "tender[ing] in evidence" of a
document with a forged or counterfeit judicial signature. 18 U.S.C.A.
§ 505. In our view, the fraud guideline generally will be the most
applicable guideline when the section 505 violation involves only the
authentication of a document for purposes of defrauding a third party.
This conclusion is supported by the Tenth Circuit’s decision in
United States v. Cowan, 116 F.3d 1360 (10th Cir. 1997). In Cowan,
the court noted that the defendant’s action of forging a judicial signa-
ture affected the victim’s right to have his claims heard and was not
an attempt to defraud the victim of property. The court therefore
found that the obstruction of justice guideline was more applicable
than the fraud guideline. See id. at 1364 n.5. In this case, Davis’s con-
duct did not interfere with any judicial proceedings, but rather was an
attempt to use the document with the forged judicial signature to
defraud the creditor of its property. We therefore conclude that USSG
§ 2F1.1, the fraud guideline, should have been applied to the forgery
offense. We remand the case to the district court for resentencing for
the limited purpose of sentencing Davis on the 18 U.S.C.A. § 505conviction using USSG § 2F1.1.
4 UNITED STATES v. DAVIS
Davis also asserts that the forgery and bankruptcy fraud counts
should have been grouped together under USSG § 3D1.2, which
requires counts involving substantially the same harm to be grouped
together. Under USSG § 3D1.2(b), counts involve substantially the
same harm if they "involve the same victim and two or more acts or
transactions connected by a common criminal objective or constitut-
ing part of a common scheme or plan." Davis argues that the creditor
was the victim of both offenses and that both offenses were part of
a common scheme, so that the judicial forgery and bankruptcy fraud
counts should have been grouped together. Whether the district court
properly applied the grouping provisions is a question involving inter-
pretation of the guidelines and is reviewed de novo. See United States
v. Toler, 901 F.2d 399, 402 (4th Cir. 1990).
Although the judicial forgery was part of the same scheme to
defraud Davis’s creditor, the primary victims were not the same. As
the district court concluded, the primary victim of the judicial forgery
count was the judicial system itself. Cf. Cowan, 116 F.3d at 1363("The purpose of § 505 is to protect the reputation and integrity of the
federal courts, their officials documents and proceedings. . . ."). The
primary victim of the other counts, however, was Davis’s creditor.
We therefore conclude that the district court properly declined to
group the counts under USSG § 3D1.2(b). See Toler, 901 F.2d at 403(explaining that "the grouping determination looks only to the pri-
mary victim of the offenses" and affirming the district court’s refusal
to group offenses where the primary victim of one offense was the
exploited minor and "society in general" was the primary victim of
the other offenses); see also United States v. Kunzman, 54 F.3d 1522,
1531 (10th Cir. 1995) (affirming district court’s refusal to group fraud
and money laundering counts, because fraud victim is the individual
defrauded, but society is the victim of money laundering).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART; VACATED AND
REMANDED IN PART