United States v. Murphy ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4727
DAVID L. MURPHY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-98-227)
Submitted: July 20, 1999
Decided: August 9, 1999
Before WILKINS, HAMILTON, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Melisa White Gay, Charleston, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Scott N. Schools, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
David Murphy was charged with eleven counts of bank fraud, see
18 U.S.C. § 1344 (1994), and pled guilty to Count One of the indict-
ment. He appeals the 92-month sentence of imprisonment imposed by
the district court, contending that the court erred in considering both
actual loss and intended loss for sentencing purposes, see U.S. Sen-
tencing Guidelines Manual § 2F1.1 (1997), and erred in departing
upward by fourteen offense levels pursuant to USSG§ 4A1.3, p.s. We
affirm.
Murphy opened a checking account and a business account at First
Union bank in North Charleston, South Carolina, using a false Social
Security number. He deposited $150 in cash and nine checks drawn
on a closed account in Texas, then withdrew $2345, resulting in a loss
in that amount to the bank. Murphy subsequently opened a checking
account at First Federal of Charleston using his real Social Security
number, deposited $60 in cash and a check for $550 drawn on the
Texas account, and then cashed a series of checks drawn on the now
closed First Union account. This resulted in a loss to First Federal of
$4625. Murphy also wrote worthless checks drawn on the First Fed-
eral account to local merchants, resulting in losses to them of $7800.
The district court combined these losses to calculate a total loss of
$14,770, and a three-level increase under USSG § 2F1.1(b)(1)(D).
Murphy objected unsuccessfully that the loss to the merchants should
not be included because his plea agreement called only for restitution
of $6970 to the two banks and because his attorney had not been
aware of other losses when the plea agreement was formulated. The
court departed upward from offense level 9 to offense level 23 under
USSG § 4A1.3, finding that criminal history category VI did not ade-
quately reflect Murphy's past criminal conduct.
We first consider the district court's finding concerning the amount
of loss. "Loss" is generally defined in USSG§ 2B1.1, comment. (n.2)
as "the value of the property taken, damaged, or destroyed." In deter-
mining the loss caused by a fraud offense, the district court should
consider actual losses and also intended loss "if it is greater than the
actual loss." USSG § 2F1.1, comment. (n.7).
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Murphy argues that, because his conviction was for bank fraud,
only the losses to the banks should be considered. He further contends
that the court may consider either actual loss or intended loss, but not
both, and that the losses to the merchants were intended loss to the
banks. Because Murphy objected to the inclusion of the $7800 loss
to the merchants on different grounds in the district court, the issue
is reviewed for plain error. See United States v. Olano, 507 U.S. 725,
732 (1993) (appellant must show that error occurred which was plain,
affected his substantial rights, and requires correction to protect fair-
ness, integrity, or public reputation of judicial proceedings). The argu-
ment fails because, as the district court correctly found, the losses to
the merchants were relevant conduct under § 1B1.3(a)(2). Moreover,
all the losses considered were actual losses. Therefore, the district
court did not plainly err in counting the merchants' losses.
Departures are reviewed under the test set out in Koon v. United
States, 518 U.S. 81, 96-100 (1996). A criminal history category which
inadequately reflects the defendant's past criminal conduct is an
encouraged factor for departure. See USSG§ 4A1.3. Murphy objects
to the extent of the departure, which we review for abuse of discre-
tion, see United States v. Gary, 18 F.3d 1123, 1130 (4th Cir. 1994),
and to the court's method of structuring the departure. The district
court noted that category VI accounted for only 15 of Murphy's 63
criminal history points. The court removed two minor offenses from
consideration and determined that 44 criminal history points
remained. The court divided that number by three (the number of
criminal history points in most criminal history categories), for a
result of 14. The court then added 14 offense levels, arriving at a final
offense level of 23 and a guideline range of 92-115 months.
In adding offense levels rather than new criminal history categories
to structure its departure above category VI, the district court fol-
lowed a procedure that we have approved. See United States v. Cash,
983 F.2d 558, 561 n.6 (4th Cir. 1992). Murphy argues that the district
court used a mechanical approach to determine the extent of the
departure, failed to consider the seriousness of the unaccounted-for
offenses, and failed to make the level-by-level findings required under
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). We find
that the district court considered the nature of the uncounted offenses,
as evidenced by its removal of two less serious offenses from consid-
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eration. The rest were properly considered because they were offenses
similar to the instant offense and were serious in nature. Murphy
received substantial sentences for many of them. The court's "me-
chanical" approach incorporated the necessary level-by-level findings.
Therefore, we find that the district court did not abuse its discretion
in departing by 14 levels.
We therefore affirm the sentence. 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.
AFFIRMED
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