United States v. Patrick , 88 F. App'x 32 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 17, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-50098 c/w
No. 03-50109
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANNETTE FRANCES PATRICK and
GWENDOLYN A. WHEELER-McCAMMON,
Defendants - Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
Austin Division
_________________________________________________________________
Before JOLLY and WIENER, Circuit Judges, and WALTER, District
Judge.*
PER CURIAM:**
Annette Frances Patrick (“Patrick”) and Gwendolyn A. Wheeler-
McCammon (“Wheeler-McCammon”) each appeal 70-month sentences
imposed following guilty-plea convictions on a one-count bill of
information for theft, embezzlement, and misapplication of money
and funds of the Bank of America, in violation of 18 U.S.C. § 656*District Judge for the Western District of Louisiana, sitting
by designation.
**Pursuant to Fifth Circuit Rule 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determined that this opinion should not be published and is not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 Fifth
Circuit Rule 47.5.4.
and 18 U.S.C. § 2. Specifically, Patrick and Wheeler-McCammon
challenge the district court’s application of a two-level
enhancement under U.S.S.G. § 2B1.1(b)(12)(A) for deriving $1
million or more in gross receipts from a financial institution as
a result of the offense.
A sentence will be upheld unless it was imposed in violation
of law, was an incorrect application of the sentencing guidelines,
or is outside the range of the applicable sentencing guideline.
United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). This
court reviews the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. Id.Under U.S.S.G. § 2B1.1(b)(12)(A), the offense level is to be
increased by two levels if “the defendant derived more than
$1,000,000 in gross receipts from one or more financial
institutions as a result of the offense.” The sentencing
guideline’s application notes make clear that, “[f]or the purpose
of subsection (b)(12)(A), the defendant shall be considered to have
derived more than $1,000,000 in gross receipts if the gross
receipts to the defendant individually, rather than to all
participants, exceeded $1,000,000." U.S.S.G. § 2B1.1(b)(12)(A) n.
9(A) (emphasis added). This commentary is authoritative “unless it
violates the Constitution, or a federal statute, or is inconsistent
with or a plainly erroneous reading of the guidelines.” United
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States v. Frazier, 53 F.3d 1105, 1112 (10th Cir. 1995) (citing
Stinson v. United States, 508 U.S. 36, 42-45 (1993)).
The burden of persuasion of enhancement is not a stringent
one. “The government must prove factors for enhancement of
sentencing by a preponderance of the evidence.” United States v.
Hill, 258 F.3d 355, 357 (5th Cir. 2001). This simply means that the
trier of fact must believe that the existence of a fact is more
probable than its nonexistence. Metropolitan Stevedore Co. v.
Rambo, 521 U.S. 121, 137 n. 9 (1997) (citing Concrete Pipe &
Products of Cal., Inc. v. Construction Laborers Pension Trust for
Southern Cal., 508 U.S. 602, 622 (1993)). As earlier indicated, we
review findings of fact for clear error.
The defendants argue that the district court misapplied the
guidelines because there was insufficient evidence that each
defendant derived $1 million as a result of the offense.
Considering that the nature and complexity of the defendants’
scheme required the cooperation and joint efforts of both
defendants and that the defendants took equal risks, the district
court could reasonably believe that it was more likely than not
that each defendant derived more than $1 million as a result of the
offense. Over the course of the scheme $2,638,702 was taken from
the vaults of Bank of America. Wheeler-McCammon’s vault was
missing approximately $1,300,000, Patrick’s was missing
approximately $450,000, and the origin of approximately $850,000 is
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unknown. As we have noted, the scheme required the knowledge and
cooperation of both defendants to be successful.
Although the audit of the conspiracy showed that most of the
money was missing from Wheeler-McCammon’s vault, Patrick, who was
Wheeler-McCammon’s supervisor, used her position as customer
service manager to cover Wheeler-McCammon’s thefts. Moreover, at
times when Patrick did not control a vault -- and was unable
personally to steal money -- Wheeler-McCammon would provide her
with a division of the money stolen by Wheeler-McCammon. In
schemes such as this, where the right hand necessarily knows what
the left is doing and the parties encounter equal risk, we cannot
say that the district court was clearly erroneous in concluding
that it was more likely than not that the proceeds were split on a
fairly equal basis.
Accordingly, we find that the government sufficiently proved,
by a preponderance of the evidence, that both defendants derived at
least $1 million as a result of the offense. The district court’s
enhancement of the defendants’ sentences is, therefore, AFFIRMED.
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