United States v. Buckley ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40421
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROXANNE BUCKLEY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:95-CR-4)
_________________________________________________________________
November 6, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Roxanne Buckley pled guilty to one count of bank fraud in
violation of 18 U.S.C. § 1344, and she was sentenced to fifteen
months imprisonment, three years supervised release, a $2,000
fine and restitution in the amount of $17,656.59. Buckley
appeals her sentence. We affirm.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
I. BACKGROUND
Roxanne Buckley ("Buckley") and her husband operate a
plumbing contracting company named Liberty Mechanical. Between
February and March 1994, Buckley altered eight checks issued by
Alliance Construction, Inc., each made payable to Liberty
Mechanical and a subcontractor as co-payees. In all, four
different subcontractors had been designated as co-payees on the
checks. These checks were payment for services rendered by the
subcontractors. Buckley was supposed to endorse the checks and
forward them to the subcontractors. Instead, she removed the
names of the subcontractors and deposited the checks into the
account of Liberty Mechanical at First Bank and Trust in
Cleveland, Texas. At the sentencing hearing, Buckley explained
that she altered the checks because Liberty Mechanical was having
financial problems due to large amounts of money owed to them by
general contractors.
When Alliance Construction discovered the alterations, it
notified its bank, Compass Bank, which then notified First Bank
and Trust. Buckley admitted making the alterations at a meeting
with an official of First Bank and Trust, and made arrangements
for restitution. First Bank and Trust credited the checks back
to Compass Bank, and Alliance Construction then paid the
subcontractors. The total amount of the checks was $62,680.45,
and as of February 9, 1995, Buckley had repaid $45,023.86 to
First Bank and Trust, leaving a balance of $17,656.59.
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On January 11, 1995, Buckley was charged with one count of
bank fraud, to which she pled guilty pursuant to a written plea
agreement on January 26, 1995. On May 12, 1995, following a
hearing, Buckley was sentenced. The notice of appeal was timely
filed on May 16, 1995.
II. STANDARD OF REVIEW
A sentencing court's factual findings must be supported by
a preponderance of the evidence, and we review such findings
under the clearly erroneous standard. United States v. McCaskey,
9 F.3d 368, 372 (5th Cir. 1993), cert. denied, 114 S. Ct. 1565
(1994). The sentencing court's interpretations of the
guidelines, being conclusions of law, are reviewed de novo. Id.
III. DISCUSSION
The Presentence Report ("PSR"), which was adopted by the
district court, established a base offense level of 6 pursuant to
U.S.S.G. § 2F1.1, the applicable guideline for fraud. The PSR
then gave Buckley a five-point upward adjustment because the loss
was greater than $40,000 (U.S.S.G. § 2F1.1(b)(1)(F)), a two-point
upward adjustment because the scheme to defraud involved more
than one victim (U.S.S.G. § 2F1.1(b)(2)(B)), and a two-point
upward adjustment for obstruction of justice for failing to
disclose ownership of real property and two prior criminal
convictions (U.S.S.G. § 3C1.1). Buckley's total offense level,
after the district court reduced the PSR's total offense level by
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two points for acceptance of responsibility, was 13. Based on a
total offense level of 13 and a criminal history category of I,
the guideline range for imprisonment was twelve to eighteen
months. The district court sentenced Buckley to fifteen months
imprisonment, three years supervised release, a $2,000 fine, and
$17,656.59 restitution. On appeal, Buckley challenges the upward
adjustments for obstruction of justice and for a scheme to
defraud more than one victim.
A. Obstruction of Justice
The sentencing court's determination of whether a defendant
obstructed justice is a factual finding which we review for clear
error. United States v. Tello, 9 F.3d 1119, 1122 (5th Cir.
1993); United States v. Ainsworth, 932 F.2d 358, 362 (5th Cir.),
cert. denied, 502 U.S. 918 (1991). "A finding is clearly
erroneous when, although some evidence supports the decision, we
are left with the definite and firm conviction that a mistake has
been committed." Tello, 9 F.3d at 362.
Section 3C1.1 provides for a two-level enhancement "[i]f the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant
offense." U.S.S.G. § 3C1.1. The obstruction of justice
enhancement applies when a defendant "provid[es] a materially
false statement to a probation officer in respect to a
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presentence or other investigation for the court." U.S.S.G. §
3C1.1, cmt., n.3(h).
The probation officer recommended application of § 3C1.1
because Buckley failed to disclose her ownership with her husband
of six parcels of real estate valued at a total of $35,330, and
failed to inform the probation officer of two prior misdemeanor
convictions for theft by check. Buckley objected to the PSR's
enhancement for obstruction of justice, arguing that her failure
to disclose these facts was not a material falsehood. She
claimed that three of the parcels of real estate were involved in
a bankruptcy proceeding, the title to a fourth was in dispute,
and a fifth property, on which she had monthly rental income of
$75, was forgotten until the probation officer mentioned it, at
which time she fully disclosed ownership. As to the prior
convictions, Buckley claimed that the probation officer asked her
if she had ever been arrested, which she had not, and thus she
did not lie. Furthermore, because no criminal history points
were awarded for these offenses, their omission was not material
because it did not affect the outcome of the case.
The district court overruled Buckley's objection, reasoning
that Buckley's failure to disclose real estate that could be
liquidated to satisfy restitution was a material falsehood.
Additionally, the district court found that, although the
probation officer had asked Buckley if she had ever been
arrested, he had also told her that her criminal history revealed
no prior record, to which she agreed, thus failing to disclose
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her prior convictions. The district court found that Buckley
"was well aware of the context of the question regarding her
prior criminal activity." Further, the district court found
that, even though the convictions resulted in no criminal history
points, a complete description of her criminal history was
material to the sentencing process.
On appeal, Buckley again argues that her omissions were
neither material nor willful. "Material" is defined in the
guideline as "evidence, fact, statement, or information that, if
believed, would tend to influence or affect the issue under
determination." U.S.S.G. § 3C1.1, cmt., n.5. If the information
withheld is not material, the obstruction of justice enhancement
does not apply. Id. n.4(c). "Willfully" has been defined as
requiring deliberate action with the intent to hinder justice.
United States v. Lister, 53 F.3d 66, 69 (5th Cir. 1995).
The district court's finding that Buckley's omissions
regarding her ownership of real estate were material to her
ability to pay a fine or restitution is not clearly erroneous.
United States v. Beard, 913 F.2d 193, 199 (5th Cir. 1990)
(affirming the application of § 3C1.1 where defendant refused to
supply financial information necessary to determining a fine or
restitution). Although Buckley argues that the omission was not
material because she had no real financial interest in the
property because of the bankruptcy and the title dispute, the
district court found that her misrepresentation was material
because only two properties, and not three as Buckley had
6
represented, were involved in the bankruptcy, and one property
that Buckley had failed to disclose provided rental income of $75
a month. See United States v. Smaw, 993 F.2d 902, 904 (D.C. Cir.
1993) (holding that defendant's failure to disclose a real estate
interest, even if she had no equity in the property, was still
material). Although Buckley denied that she intended to deceive
the probation officer about her property ownership, the officer
felt that she had willfully withheld the information. The
district court may properly rely on the PSR's construction of the
evidence rather than the defendant's version of the facts.
Beard, 913 F.2d at 199.
Additionally, Buckley defends her failure to inform the
probation officer of her prior convictions by claiming that she
did not consider them to be "criminal history" because she was
not arrested. Although this explanation is plausible, the
district court's finding, based on a credibility determination,
that her misrepresentation was willful because she did understand
the context of the probation officer's criminal history question,
is not clearly erroneous. Buckley argues that her failure to
disclose the prior misdemeanor convictions is not material
because they resulted in no criminal history points. However,
prior convictions are material even if they cannot be counted in
the criminal history, because they could influence the district
court's determination of the sentence within the guideline range.
United States v. Dedeker, 961 F.2d 164, 167 (11th Cir. 1992); see
Tello, 9 F.3d at 1119 (affirming an obstruction of justice
7
enhancement when defendant failed to inform his probation officer
of a prior criminal conviction for marijuana possession); United
States v. Garcia, 902 F.2d 324, 325-26 (5th Cir. 1990) (upholding
an obstruction of justice enhancement for failure to disclose a
dismissed marijuana possession charge, even though it could not
be counted in the criminal history).
Because the district court's finding that Buckley's
misrepresentations about her property ownership and prior
convictions were willful, material falsehoods was not clearly
erroneous, we affirm the application of a two-level enhancement
for obstruction of justice under U.S.S.G. § 3C1.1.
B. Was There More than One Victim?
Under the sentencing guideline for fraud, a two-level
increase is provided if an offense involves a scheme to defraud
more than one victim. U.S.S.G. § 2F1.1(b)(2)(B). "``Scheme to
defraud more than one victim' . . . refers to a design or plan to
obtain something of value from more than one person." U.S.S.G. §
2F1.1, cmt., n.3. "``Victim' refers to the person or entity from
which the funds are to come directly." Id.
The probation officer recommended application of this
enhancement because Buckley diverted funds from four different
subcontractors and illegally deposited the proceeds into her own
account. Buckley objected, specifically referring to Guidelines
section 2F1.1, commentary, note 3. This note provides that
"passing a fraudulently endorsed check would not [involve a
8
scheme to defraud more than one victim], even though the maker,
payee and/or payor all might be considered victims for other
purposes." U.S.S.G. § 2F1.1, cmt., n.3. The district court
overruled the objection, finding that Buckley defrauded four
subcontractors on five different occasions, and concluding that
each subcontractor is a victim. The district court acknowledged
that passing a single fraudulently-endorsed check would not
result in three victims--the maker, payee or payor. However, the
court noted that, in this case, Buckley fraudulently altered
eight checks, made out to four subcontractors. Further, the
court recognized that the probation officer did not include the
maker or payor on those checks as victims in applying this
section. We conclude that the district court's finding that the
four subcontractors were victims of Buckley's offense, resulting
in a two-level enhancement under § 2F1.1(b)(2)(b), was a proper
application of the Guidelines.
IV. CONCLUSION
For the foregoing reasons, we affirm the sentence imposed by
the district court.
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