United States v. Rader ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10007
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY DON RADER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-191-ALL-T
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June 19, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Terry Don Rader, federal prisoner #08734-078, appeals his
guilty-plea conviction and sentence for computer fraud, in
violation of 18 U.S.C. § 1030(a)(4). Rader avers that (1) his
plea was involuntary and that his sentence of 48 months’
imprisonment was imposed in violation of the plea agreement and
(2) the district court erred in (a) assessing a two-level
increase, pursuant to U.S.S.G. § 3B1.3, based upon its finding
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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that he had abused a position of trust; (b) assessing a four-
level increase, pursuant to U.S.S.G. § 2F1.1, based on its
finding that his fraudulent scheme substantially jeopardized the
safety and soundness of a financial institution and/or his
conduct affected a financial institution and he derived more than
$1 million in gross receipts from the offense; (c) determining
the amount of loss attributable to him for sentencing purposes;
(d) failing to grant his request for a downward departure; and
(e) determining the amount of restitution and in failing to
determine his ability to pay. Rader further avers that counsel
was ineffective for a variety of reasons and that the indictment
was defective in light of Apprendi v. New Jersey, 530 U.S. 466
(2000) because it failed to allege an amount of loss.
Rader has failed to show that the imposition of his 48-month
sentence constituted a breach of the plea agreement. United
States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993). Although,
as part of the plea agreement, the parties entered into a
stipulation of applicable guidelines, which provided that the
parties agreed that the court would not sentence Rader higher
than an offense level of 21, the stipulation specifically
provided, and Rader was advised at his plea hearing, that the
stipulation was not binding on the court.
The district court did not plainly err in assessing a two-
level increase, pursuant to U.S.S.G. § 3B1.3, based upon its
finding that Rader had abused a position of trust. United States
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v. Vonn, 122 S. Ct. 1043, 1043, 1046 (2002). The presentence
report reflected that Rader occupied a position characterized by
professional or managerial discretion. See U.S.S.G. § 3B1.3,
application note 1. He was certainly subject to little, if any,
supervision in his responsibilities. Moreover, Rader’s position
placed him in a superior position to commit the crime, and he
took advantage of that superior position to facilitate and
conceal the crime. United States v. Reeves, 255 F.3d 208, 212
(5th Cir. 2001). Lastly, the presentence report demonstrated
that Rader used his special knowledge of the inventory and
trading accounts and of the data-entry systems to facilitate and
hide his fraudulent activities.
The district court also did not err in assessing a four-
level increase, pursuant to U.S.S.G. § 2F1.1, based on its
finding that Rader’s fraudulent scheme substantially jeopardized
the safety and soundness of a financial institution and/or his
conduct affected a financial institution and he derived more than
$1 million in gross receipts from the offense. The evidence
before the district court showed that Southwest Securities, upon
its discovery of Rader’s fraud, required a payment from Weber
Investment of $2.4 million. Because Weber Investment could not
come up with the funds, Garry Weber, as the company’s guarantor,
paid the $2.4 million to Southwest. If he had not done so, Weber
Investment would have been shut down. Accordingly, there was
evidence on which the district court could find that Rader’s
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scheme put Weber Investment in substantial jeopardy of insolvency
or even dissolution, which was enough, under U.S.S.G.
§ 2F1.1(b)(6)(A) and its commentary, to qualify Rader for the
enhancement.
Moreover, the evidence was sufficient to show that Weber
Investment and Southwest Securities were each “affected” by the
crime under U.S.S.G. § 2F1.1(b)(6)(B). Southwest, although not
financially affected by Rader’s actions, certainly was affected
i.e., Rader’s fraudulent activities caused Southwest to
unknowingly submit false financial reports to the Federal Reserve
Bank and caused it to have inventory accounts which were false
and incorrect. Weber Investment was also affected in that it was
required to repay Southwest, albeit the money coming from Garry
Weber. The affidavit evidence also showed that Rader derived
more than $1 million in gross receipts from the scheme.
Rader avers that the district court erred in a finding that
the amount of loss attributable to him for sentencing purposes
totaled $2.4 million. The district court did not clearly err in
its loss calculation. United States v. Wimbish, 980 F.2d 312,
313 (5th Cir. 1992). The fact that Rader repaid Weber Investment
$1.2 million is of no moment. Payments of restitution may not be
used to reduce the amount of loss. United States v. Cockerham,
919 F.2d 286, 289 (5th Cir. 1990), overruled on other grounds,
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)
(en banc).
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With respect to Rader’s assertion that the district court
erred by denying his motion for a downward departure, we do not
have jurisdiction to review the matter because the district
court’s refusal to depart downward was based on its determination
that departure was not warranted on the facts of the case.
United States v. Guajardo, 950 F.2d 203, 208 (5th Cir. 1991).
Rader avers that the district court erred in ordering
restitution in the amount of $2.4 million. There was ample
evidence before the court supporting the amount of the
restitution. The district court did not abuse its discretion in
requiring Rader to pay restitution in the amount of $2.4 million.
United States v. Myers, 198 F.3d 160, 168 (5th Cir. 1999).
Rader’s contention that the district court erred when it
ordered him to make restitution without considering his ability
to pay is also without merit. Rader’s restitution was based upon
18 U.S.C. § 3663A, which makes restitution mandatory for offenses
involving fraud without consideration of the defendant’s ability
to pay. See 18 U.S.C. § 3663A(a)(1); Myers, 198 F.3d at 168.
With regard to Rader’s ineffective-assistance-of-counsel
claims, the court will not address these claims because the
record is inadequate to enable the court to evaluate the claims
fairly on the merits. United States v. Scott, 159 F.3d 916, 924
(5th Cir. 1998); United States v. Higdon, 832 F.2d 312, 313-14
(5th Cir. 1987). Rader’s argument regarding the application of
Apprendi is also without merit because he was sentenced below the
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statutory maximum. See United States v. Doggett, 230 F.3d 160,
166 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001).
Given the foregoing, Rader’s conviction and sentence are
AFFIRMED. In light of the disposition of the appeal, his motion
for release pending appeal is denied as MOOT.
AFFIRMED; MOTION FOR RELEASE PENDING APPEAL DENIED AS MOOT.