United States v. Wilson , 203 F. App'x 541 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4579
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LISA WILSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph Robert Goodwin,
District Judge. (6:05-cr-00254-ALL)
Submitted: September 29, 2006 Decided: October 27, 2006
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Joanne Vella Kirby, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lisa Wilson pled guilty to embezzlement of bank funds by
a bank employee. On appeal, she challenges the district court’s
loss calculation under the Sentencing Guidelines. She also asserts
that her sentence was unreasonably harsh. We vacate the loss
determination and remand for further proceedings.
Wilson was employed by Branch Banking and Trust (“BB&T”)
as a relationship banker who assisted customers with Certificate of
Deposit (“CD”) accounts. After two customers complained that money
had been removed from their CD accounts without permission, BB&T
conducted an investigation which showed that Wilson had conducted
twenty-eight improper transactions with customers’ CD accounts,
involving a total of $58,760.39. Of that amount, $40,560.39 came
from withdrawals, while $18,200 constituted deposits into customer
accounts. The amount of money Wilson actually removed from the
accounts for her personal use was $22,360.59. Wilson stated that,
after embezzling that amount of money, she made fraudulent
transfers from one CD account to another in order to “fix” the
problem.
At sentencing, Wilson argued for a loss amount of
$22,360.59, representing the amount removed from BB&T. The
district court overruled the objection, stating that “the money was
used to perpetrate the fraud. It was part of the money that was
put at risk . . . I think we ought to measure this by the entire
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sum of money that was misappropriated, regardless of whether some
of it was placed in another depositor’s account in an attempt to
cover it up.” Thus, the court calculated the loss to be
$40,560.39, representing all of the withdrawals, including the
withdrawals that were transferred into other customers’ accounts.
The court imposed a sentence of eight months.1 Wilson timely
appeals.
Because there are no factual disputes in this case, we
review the district court’s interpretation of the term “loss” de
novo. See United States v. Hughes, 401 F.3d 540, 557 (4th Cir.
2005). “Loss” is defined as “the greater of actual loss or
intended loss.” USSG § 2B1.1, cmt. (n.3(A)). Defendants’
sentences should reflect “the nature and magnitude of the loss
caused or intended . . . [L]oss serves as a measure of the
seriousness of the offense and the defendant’s relative
culpability.” USSG § 2B1.1, cmt. (backg’d).
The district court correctly determined that Wilson
should be responsible for all funds she “put at risk.” See United
States v. Johnson, 993 F.2d 1358, 1359 (8th Cir. 1993); United
States v. Brach, 942 F.2d 141, 143 (2d Cir. 1991). However,
contrary to the district court’s conclusions, the funds transferred
1
The district court sentenced Wilson at the low end of the
guideline range. Had the court adopted Wilson’s argument regarding
the loss amount, the guideline range would have been four to ten
months imprisonment.
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from one account to another were never “at risk.” There is no
evidence that any of Wilson’s deposits gave a customer access to
more money than had been in their accounts originally. Thus, even
if every customer who had benefitted from Wilson’s deposits
withdrew all the funds in their accounts, BB&T would still have
only suffered a loss of $22,360.59.2 Because Wilson never removed
more than $22,360.59 from BB&T and because she never intended to
remove more than that amount,3 the district court erred in
determining that she placed over $40,000 “at risk.” See Johnson,
993 F.2d at 1359 (holding that “misapplied funds” which were never
removed from the credit union were never “at risk” and should have
been excluded from loss calculation).4
2
Wilson essentially removed $22,360.59 from CD accounts for
her own use. She then moved $18,200 from other accounts into the
pilfered accounts. Thus, the only loss to BB&T was $22,360.59.
The remaining withdrawals and deposits merely changed the accounts
from which this money was missing, not the amount missing.
3
The Government argues that, even if Wilson did not remove
$40,560.39 from BB&T, she intended to do so. There is no evidence
to support this conclusion. The PSR states that, after
fraudulently obtaining funds that she used for personal expenses,
Wilson “realized she had to ‘fix’ the situation and began making
other fraudulent withdrawals from other customer accounts to
replace that which she had taken.” In addition, she voluntarily
left her employment with BB&T prior to her crimes being discovered,
so there was no intent to inflict any future harm. The Government
presented no evidence at the sentencing hearing to contradict these
conclusions.
4
The Government argues that Johnson is no longer good law in
light of United States v. Hulshof, 23 F.3d 1470 (8th Cir. 1994).
However, in Hulshof, the funds that were misapplied were actually
put at risk. The defendant “improperly indebted the line of credit
of a bank customer . . . and improperly credited that amount to the
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Accordingly, we vacate Wilson’s sentence and remand for
further proceedings consistent with this opinion. We decline to
address her second argument concerning the reasonableness of her
sentence at this time. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
loan accounts of two other bank customers.” Although the bank
suffered no actual loss in the end, that was only “because of the
recovery of the farm economy in 1998, which enabled the defendant
to reverse the entries which he had previously made.” Id. at
1471-73.
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