United States v. Lahood , 201 F. App'x 993 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the October 9, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-30271
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GEORGE J. LAHOOD, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 1:05-CR-10011-DDD-JDK
______________________________
Before JONES, Chief Judge, and tion of 18 U.S.C. § 371. He attacks the
SMITH and STEWART, Circuit Judges. amount of loss used to calculate his sentence.
Finding no error, we affirm.
PER CURIAM:*
I.
George Lahood pleaded guilty to one count Lahood and his wife own Eaglevision Com-
of conspiracy to commit bank fraud in viola- munications Products, Inc. (“Eaglevision”).
Lahood had signatoryauthorityon the corpora-
tion’s checking account at Red River Bank.
*
Pursuant to 5TH CIR. R. 47.5, the court has de- Iyad Samara operated several businesses with
termined that this opinion should not be published checking accounts at Cottonport Bank and
and is not precedent except under the limited Union Bank and had signatory authority on the
circumstances set forth in 5TH CIR. R. 47.5.4.
accounts. Samara enlisted Lahood and two The presentence investigation report
others in a check kiting scheme,1 and from (“PSR”) identified a $52,000 loss from the
June 2002 through January 2003 Lahood and conspiracy. Lahood objected to the loss
Samara regularlyexchanged checks and money amount, and the district court received oral
orders to inflate their account balances. Dur- argument and witnesses at sentencing. Testi-
ing this time, Lahood conducted transactions mony was heard from FBI agent Randolph
totaling approximately $1,000,000. Deaton and Beth Pucheu, the internal auditor
of Cottonwood Bank.
The check kiting scheme was discovered in
January 2003, and in February 2003 Red River The district court found that the amount of
Bank filed a Suspicious Activity Report re- loss for sentencing purposes was at least
garding the Eaglevision account. At the time $33,000 because the actual loss by the bank
of the discovery Samara’s account at Cotton- was covered by a $10,000 cash deposit and a
port Bank was overdrawn by $52,000 as a re- $23,000 loan.2 This resulted in an offense lev-
sult of the scheme; Lahood’s account had no el of 12, which was adjusted to 10 for accep-
overdraft. tance of responsibility. The guideline range
was 6 to 12 months’ imprisonment, and La-
A portion of the $52,000 overdraft was col- hood was sentenced to 8 months’ incarceration
lected from Samara’s other accounts at Cot- followed by 3 years’ supervised release, plus a
tonwood Bank; he paid the remainder with $10,000 fine and restitution of $6,200.
$10,000 cash and a $23,000 loan. At the time
of sentencing the balance on the loan was ap- III.
proximately $6,200. Lahood makes three arguments regarding
the loss amount. First, not all the loss was at-
II. tributable to his actions. Second, the court
Lahood was named in three counts of a selected the wrong date on which to calculate
118-count indictment: one count of conspiracy the amount. Finally, even if the correct date
to commit bank fraud in violation of 18 U.S.C. was used, based on the testimony at sentencing
§ 371 and two counts of bank fraud in viola- the amount should be $23,000.
tion of 18 U.S.C. §§ 1344 and 2. He pleaded
guilty to the conspiracy charge. We review de novo the application of the
sentencing guidelines, but we review factual
findings for clear error. United States v. Haas,
171 F.3d 259, 268 (5th Cir. 1999). A finding
1
“Check kiting is a systematic scheme to de- of fact is not clearly erroneous “[a]s long as it
fraud, whereby nonsufficient checks are traded or is plausible in light of the record read as a
cross deposited between two or more checking ac-
counts in order to artificially inflate the bank ac-
2
count balances. This is accomplished by using the Whether the loss amount is $52,000 or
float time in the bank system. Once bank accounts $33,000 is immaterial to Lahood’s sentence, be-
are artificially inflated, checks that would normally cause the guidelines impart an offense level in-
be returned for nonsufficient funds are, in fact, crease of six points if the loss is between $30,000
paid or honored by the issuing banks.” United and $70,000. U.S.S.G. § 2B1.1 (b)(1)(D). Thus,
States v. Abboud, 438 F.3d 554, 563 n.1 (6th Cir. the increase in offense level is the same for each
2006). amount.
2
whole.” United States v. Betancourt, 422 was to defraud banks with a check kiting
F.3d 240, 245 (5th Cir. 2005) (quoting United scheme. The scheme succeeded, and check
States v. Morris, 46 F.3d 410, 419 (5th Cir. kiting by conspiracy members resulted in a loss
1995)). to Cottonport Bank. Even if the particular
loss was entirely on account of the actions of
In calculating the loss caused by fraud, the Samara or other conspiracy members, it can
sentencing court “need only make a reasonable properly be used to sentence Lahood because
estimate.” U.S.S.G. § 2B1.1 comment. the conductSScheck kitingSS was both reason-
(n.3(C)).3 We give the district court wide lati- ably foreseeable and in furtherance of the
tude to determine the amount of loss, United conspiracy.
States v. Cothran, 302 F.3d 279, 287 (5th Cir.
2002), because “the sentencing judge is in a B.
unique position to assess the evidence and es- Lahood argues that the loss amount must
timate the loss based upon that evidence.” be calculated on the date he withdrew from the
U.S.S.G. § 2B1.1 comment. (n.3(C)). The de- conspiracy, which he claims is January 30,
termination of the loss amount is a factual 2003. This argument is unavailing.
finding and thus is shielded by the clearly er-
roneous rule on appeal. United States v. Glin- The amount of loss resulting from a check
sey, 209 F.3d 386, 393 (5th Cir. 2000).4 kiting scheme is measured at the time the
scheme is discovered. United States v. Fry-
A. denlund, 990 F.2d 822, 825-26 (5th Cir.
Lahood contends that of the loss amount in 1993). Restitution following the scheme’s dis-
the PSR, only $16,000 is directly attributable covery does not warrant a decrease in the loss
to his actions. We disagree. amount. Id. at 826.
Lahood pleaded guilty of conspiracy to Deaton, who investigated the case for the
commit bank fraud. Under the sentencing FBI, testified that at the time of the scheme’s
guidelines the conduct of others can be used to discovery the overdraft on Sarama’s account
determine the sentencing range if such conduct was approximately $52,000, which was par-
is reasonably foreseeable and in furtherance of tially recovered from other accounts. The re-
jointly undertaken criminal activity. U.S.S.G. maining overage was paid with a $10,000 cash
§ 1B1.3(a)(1)(B). The goal of the conspiracy deposit and a loan for “20,000 and change.”
Pucheu testified that the check kite was dis-
covered at the end of January 2003 and that on
3
“[C]ommentary in the Guidelines Manual that January 28 Samara’s account had a shortfall of
interprets or explains a guideline is authoritative $33,000 based on the check-kiting scheme.
unless it violates the Constitution or a federal The shortfall was repaid with a $10,000 cash
statute, or is inconsistent with, or a plainly errone- deposit and $23,000 loan. Lahood did not
ous reading of, that guideline.” Stinson v. United present testimonycontradicting these facts, but
States, 508 U.S. 36, 38 (1993). on cross-examination he elicited responses
4 showing that the amount of overdraft on Janu-
Glinsey dealt with a loss amount resulting
ary 30 was never measured.
from fraudulent conduct under U.S.S.G. § 2F1.1.
That section, however, was consolidated with
§ 2B1.1 in November 2001. The correct time to measure the loss is not
3
the date on which Lahood withdrew from the D.
conspiracy, but the date when the kite is dis- The government asks us to hold that the
covered. Also, we have never held that the loss amount for sentencing purposes is the
loss must be calculated as of the exact date of float at its highest point during the course of
the discovery.5 Viewing the record as a the check kite.7 Because it is not squarely be-
whole, one will conclude that it is plausible fore us in this case, we need not, and do not,
that a reasonable estimate of the loss at the decide that question.
time of the scheme’s discovery was $33,000,
so there is no clear error. The judgment of sentence is AFFIRMED.8
C.
Lahood argues that even if the district court
calculated the loss as of the proper date, the
loss amount should be $23,000, because Pu-
cheu testified that “it is fair to say that the
bank was only out $23,000.” This attempt to
alter the meaning of the testimony by removing
it from context fails: Pucheu maintained
throughout her testimony that the loss amount
was $33,000, which was recovered after the
scheme’s discovery by Samara’s $10,000 cash
deposit and $23,000 loan.6
5
See United States v. Akbani, 151 F.3d 774,
778 (8th Cir. 1998) (“It would make little sense,
therefore, to fashion a rule that requires a sentenc-
ing court to look only at the exact date on which
the scheme is discovered.”).
6
The full testimony is as follows:
Q: So I guess it would be fair to say that on that
date, in using the government’s snapshot, the
bank was out $23,000. 7
“Float” is the amount of money in checks that
have not cleared because of the time delay between
A: That would be fair, yes. when a check is written and when funds to cover it
are deducted from an account.
Q: Be a fair statement, right?
8
Lahood also appeals the denial of his motion
A: Well, other than the only other thing is the to remain on bond during appeal. Because we af-
$10,000 that he deposited. firm, this claim is denied as moot.
4