United States v. Derrick Ware , 334 F. App'x 49 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3828
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Derrick Ware, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: June 8, 2009
Filed: June 19, 2009
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Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.
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PER CURIAM.
Derrick Ware pleaded guilty to three counts of bank fraud in violation of 18
U.S.C. § 1344. After a contested sentencing hearing, the district court1 determined
that Ware’s offenses resulted in pecuniary loss of greater than $30,000, which
increased his offense level by 6. The district court then calculated Ware’s total
offense level as 17 and his criminal history category as V and sentenced Ware to 41
months’ imprisonment, below the U.S. Sentencing Guidelines (Guidelines) range of
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
46-57 months. Ware’s appeal raises only the district court’s calculation of pecuniary
loss. We affirm.
From about November 2006 to April 2007, Derrick Ware participated in a bank
fraud scheme that involved manufacturing and cashing counterfeit payroll checks.
During that period, nine checks totaling $27,745.52 were cashed. Three additional
checks totaling $8,766.51 were prepared but not cashed. Ware was indicted on three
counts of bank fraud in violation of 18 U.S.C. § 1344, relating to three checks that
were actually cashed on January 18, 2007 and January 22, 2007. He pleaded guilty
to the indictment. The terms of the plea agreement permitted Ware to argue that the
pecuniary loss resulting from his offenses was less than $30,000 and permitted the
government to argue that the loss was greater than $30,000. At sentencing, the court
calculated the total loss by adding the face value of all of the checks, whether cashed
or not, and found it to be greater than $30,000.
Ware contends that the district court erred by including both the $27,745.52 of
actual loss and the $8,766.51 represented by the uncashed checks in her calculation
of intended loss. We review the factual findings of the district court for clear error.
See United States v. Fields, 512 F.3d 1009, 1011 (8th Cir. 2008). We review the
district court’s interpretation of the Guidelines, which includes “[d]etermination of the
method for calculating a loss amount,” de novo. United States v. Hartstein, 500 F.3d
790, 795 (8th Cir. 2007), cert. denied, 128 S. Ct. 939 (2008). United States Sentencing
Guidelines § 2B1.1(b)(1) increases the base offense level by four if the loss was
greater than $10,000 and by six if the loss was greater than $30,000. “[L]oss is the
greater of actual loss or intended loss.” USSG § 2B1.1(b)(1) cmt. (n.3(A)). Actual
loss is defined as “the reasonably foreseeable pecuniary harm that resulted from the
offense.” Id. at (n.3(A)(i)). Intended loss is “the pecuniary harm that was intended
to result from the offense,” even if that loss “would have been impossible or unlikely
to occur.” Id. at (n.3(A)(ii)).
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Ware’s argument assumes that actual and intended loss are mutually exclusive
categories and that it was legal error to include the cashed checks, which represent
actual loss, in a calculation of intended loss. Relying heavily on United States v.
Dolan, 120 F.3d 856, 870 (8th Cir. 1997), Ware argues that actual loss must be
omitted from the intended loss figure.2 However, nothing in Dolan suggests that the
district court omitted the amount of actual loss from the intended loss calculation. In
fact, a review of the court’s method reveals the opposite.3 Dolan instructs that the
focus of the loss calculation “should be on the amount of possible loss the defendant
intended to inflict on the victim.” Id. (internal citation omitted).
Further, the district court’s interpretation is supported by the plain language of
§ 2B1.1. There is nothing in the word “intended” or in the application notes that
suggests that completed intentional losses should not be included. We are persuaded
by the district court’s analysis that intended loss includes both “the checks that were
actually negotiated and . . . the checks that were not negotiated and for which money
was not received but checks that the defendant and the co-conspirators intended to
cash and get money for.”4 We conclude that the district court did not err when it
included the value of the cashed and uncashed checks in its calculation of intended
loss. The face value of all of the checks together, in this case, $36,512.04, represents
the “maximum potential loss” to the victims. Thus, the district court did not err in
2
Dolan dealt with the application of USSG § 2F1.1, which was deleted by
consolidation with § 2B1.1, effective November 1, 2001. Both Ware and the
government agree that cases interpreting § 2F1.1 also control application of § 2B1.1.
3
The district court in Dolan arrived at the intended loss figure “by beginning
with the total liability set forth in [the] bankruptcy petition . . . and subtracting the
amount of property included in the bankruptcy schedules . . . and the total amount paid
or intended to be paid via settlements with creditors . . . .” 120 F.3d at 870-71. The
amount of actual loss was not subtracted in this calculation.
4
Ware does not dispute the district court’s finding of fact that he intended to
cash and get money for the uncashed checks.
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finding that the loss was greater than $30,000. See Dolan, 120 F.3d at 871; see also
United States v. Himler, 355 F.3d 735, 741 (3d Cir. 2004) (total face value of
counterfeit checks, including those already cashed, is sufficient evidence of intended
loss); United States v. Mims, 13 Fed. Appx. 880, 882 (10th Cir. 2001) (unpublished)
(“[T]he loss for sentencing purposes is the total face value of all the counterfeit
checks, regardless of whether they were cashed.”) (interpreting § 2F1.1).
For the foregoing reasons, the judgment of the district court is affirmed.
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