United States v. Love

F I L E D
United States Court of Appeals
Tenth Circuit
JUN 20 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 00-6083
v.
(D.C. No. 98-CR-164-R)
(W.D. Okla.)
SAMUEL BRUCE LOVE,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO and McKAY, Circuit Judges, and BROWN, ** District Judge.
Appellant Samuel Bruce Love appeals from his convictions for conspiracy,
18 U.S.C. § 371, concealment of the assets of a bankruptcy estate, 18 U.S.C.
§§ 152 & 2, and embezzlement against a bankruptcy estate, 18 U.S.C. §§ 153(1993) & 2. The parties are familiar with the facts, or at least with their
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This Court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Wesley E. Brown, Senior District Judge for the United
States District of Kansas, sitting by designation.
respective competing versions, thus we need not set them forth here. 1 Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I
Love first argues that the district court erred in refusing to dismiss the
indictment or, alternatively, that the court erred in refusing to grant his motion for
judgment of acquittal. 2 In support of this contention, Love asserts that the
evidence was insufficient to prove the alleged offenses were committed or that
Love conspired to commit the offenses, that counts 3 and 4 were barred by the
statute of limitations, and that the evidence was insufficient to support
convictions on counts 5–10 under 18 U.S.C. § 153 (1993).
1
Love acknowledges the “voluminous trial record [that] will be
cumbersome for this Court to review” and expresses a “fear” that it would be
“easy . . . for this Court to make a simple statement that it has reviewed the
evidence and that Mr. Love’s conviction is sustained by the evidence.”
(Appellant’s Reply Br. at 1–2.) Although the record is certainly voluminous, it is
by no means prohibitive of our meaningful review of this appeal. We
painstakingly reviewed the record, as we always do, and although our written
disposition may be brief it does not reflect the amount of judicial time and effort
dedicated to our ultimate determination.
2
The jury found Love guilty, and the district court entered judgment, on
the following counts of the indictment: count 1, conspiracy to commit bankruptcy
fraud in violation of 18 U.S.C. § 371; count 3, aiding and abetting concealment of
$270,000 of the bankruptcy estate in violation of 18 U.S.C. §§ 152 and 2; count 4,
aiding and abetting concealment of $38,000 of the bankruptcy estate in violation
of 18 U.S.C. §§ 152 & 2; and counts 5 ($20,000), 6 ($9519.13), 7 ($32,275.31), 9
($10,000), and 10 ($5000), aiding and abetting embezzlement against the
bankruptcy estate in violation of 18 U.S.C. §§ 153 (1993) & 2.
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Generally, we review the grant or denial of a motion to dismiss an
indictment for an abuse of discretion, United States v. Wood, 6 F.3d 692, 694
(10th Cir. 1993); however, when the sufficiency of a charge is challenged we
review the district court’s decision de novo, United States v. Wood, 958 F.2d 963,
974 (10th Cir. 1992). Similarly, we review the district court’s ruling on a motion
for judgment of acquittal and the sufficiency of the evidence to support such
judgment de novo. United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir.
2000). We inquire “‘only whether taking the evidence—both direct and
circumstantial, together with the reasonable inferences to be drawn therefrom—in
the light most favorable to the government, a reasonable jury could find the
defendant guilty beyond a reasonable doubt.’” Id. (quoting United States v.
Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999)). The scope of our review is
limited; we may “‘neither weigh conflicting evidence nor consider the credibility
of witnesses.’” Id. (quoting United States v. Pappert, 112 F.3d 1073, 1077 (10th
Cir. 1997)). “Defendants challenging a conviction on sufficiency of the evidence
grounds face a difficult standard of review as we reverse only if no rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Spring, 80 F.3d 1450, 1459 (10th Cir. 1996) (citations
and quotations omitted). We will not, however, uphold a conviction “obtained by
nothing more than piling inference upon inference or where the evidence raises no
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more than a mere suspicion of guilt.” United States v. Rahseparian, 231 F.3d
1257, 1262 (10th Cir. 2000) (citations and quotations omitted). Finally, we
review de novo the district court’s determination regarding the applicable statute
of limitations. Laurino v. Tate, 220 F.3d 1213, 1216 (10th Cir. 2000).
We conclude that a reasonable trier of fact could have found the essential
elements of the offenses and could have found that Love conspired to commit the
alleged offenses beyond a reasonable doubt. With regard to the conspiracy
charges, there was direct evidence that Love was aware of the plan to commit
bankruptcy fraud and willingly agreed to participate in that plan. Cf.
Rahseparian, 231 F.3d at 1262–64 (reversing appellant’s convictions for
conspiracy to commit mail and wire fraud because there was no direct evidence of
appellant’s knowledge of the fraud and the circumstantial evidence of knowledge
presented was not sufficient for a reasonable jury to find knowledge beyond a
reasonable doubt). James Ray testified at trial that Love participated in the
meeting at which the First Assurance & Casualty Company (“FACC”) principals
discussed what to do with the Sphere Drake refund and determined to transfer the
$270,000 refund to a Panamanian account. He further testified that the meeting
participants were explicitly made aware of the possibility that such a transfer may
be bankruptcy fraud. We can not second-guess the jury’s assessment of Ray’s
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credibility. His testimony was direct evidence of Love’s knowledge of and
participation in the conspiracy to commit bankruptcy fraud.
Similarly, the evidence at trial was sufficient to support the charges of and
convictions for concealment of the assets of a bankruptcy estate under 18 U.S.C.
§ 152 and for embezzlement or transfer of the assets of a bankruptcy estate under
18 U.S.C. § 153 (1993). Section 152 makes it unlawful for any person to
“knowingly and fraudulently conceal[] . . . in connection with a case under title
11, from creditors . . . any property belonging to the estate of a debtor.” 18
U.S.C. § 152(1) (emphasis added). Section 153 makes it unlawful for certain
individuals to “knowingly and fraudulently . . . embezzle[] . . . or transfer[] any
property . . . belonging to the estate of a debtor.” 18 U.S.C. § 153 (1993). 3 The
counts of concealment and embezzlement were supported by, among many other
facts, the following: Ray’s testimony that the participants in the meeting
discussing the Sphere Drake refund voiced their intent to conceal the $270,000
from the bankruptcy estate, the odd method in which the $270,000 refund was
received from Sphere Drake, 4 the substantial evidence presented at trial that Love
3
The Court is aware of the amendments to 18 U.S.C. § 153 that occurred
in October 1994, and of the fact that Love was charged under the earlier version
of that statute. The effect of those amendments is discussed later in this order
and judgment.
4
The refund was first sent to Maynard’s Kansas home payable to his
company, “Advisor Associates, Inc.,” then to an account of “Asset Protection
Services Corporation” in Panama, then finally to an Impact III (“Impact”) account
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was a principal of FACC (specifically the chief financial officer), testimony that
Love helped prepare the bankruptcy reports by providing relevant information
(see, e.g., VII Trial Tr. at 1159, 1172, 1184, 1214 (Testimony of John Patterson,
FACC’s Bankruptcy attorney)), testimony that Love was directly informed by
FACC’s bankruptcy attorney of the operating requirements of the bankruptcy
court (id. at 1167), the delayed reporting to the bankruptcy court of the transfers
of FACC funds to Impact accounts, the fact that the transferred FACC funds were
almost entirely depleted by the time the Impact “assets” were consolidated into
the bankruptcy estate, and the misrepresentations to the bankruptcy court of the
nature of the transfers of FACC funds (e.g., deeming transfers of funds as
“reimbursements” or “reimbursements” as “consulting fees”). A reasonable jury
could have concluded, beyond a reasonable doubt, that the principals of FACC,
and specifically Love, transferred money to accounts of FACC’s alter ego,
Impact, in order to conceal FACC’s property from its creditors and/or that such
transfers were fraudulent. 5
in Oklahoma.
5
Love cites United States v. Turner, 725 F.2d 1154 (8th Cir. 1984), in
support of the assertion that the “mere transfer of assets is insufficient to sustain a
conviction for bankruptcy fraud” and that the government must prove “intent to
conceal.” (Appellant’s Br. at 22.) Turner, however, supports Love’s conviction
because it upholds a broad interpretation of “concealment.” In Turner, the Eighth
Circuit affirmed the district court’s instruction on the meaning of “concealment,”
concluding that “concealment means more than ‘secreting’; . . . [i]t is enough that
one withholds knowledge, or prevents disclosure or recognition.” Id. at 1156
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We also affirm the district court’s conclusion that counts 3 and 4 involved
concealments and were “continuing offenses for which the limitation period does
not begin to run until the final discharge or denial of discharge.” 18 U.S.C.
§ 3284. Love’s argument that the counts involved transfers, not concealments,
fails because FACC did not relinquish control of the assets transferred to Impact
accounts, or at least there was sufficient evidence for a reasonable jury to arrive
at that conclusion. See In re Brown, 108 F.3d 1290, 1293 (10th Cir. 1997)
(“There is little question that if an individual transfers title of an item but
continues to exercise dominion over it, that fraud could be inferred.”). As the
bankruptcy court concluded in its July 29, 1994, order holding that FACC and
Impact were alter egos, “Impact . . . had no source of income other than monies
received from [FACC], . . . the finances of the two entities were commingled, . . .
(quotations omitted).
In this case, the fact that the transfer of FACC funds to Impact was
disclosed does not overcome the finding that assets were concealed. Disclosure
of the transfers was incomplete and the purposes of the transfers were falsely
identified. As such, the bankruptcy reports Love cites as listing the transfers
actually worked to “prevent disclosure” to the bankruptcy court and to the
creditors of the fact that Impact was an alter ego of FACC and that any Impact
assets should have been property of the bankruptcy estate. Along the same lines,
mere disclosure of the transfers of FACC assets to Impact does not prevent such
transfers from being deemed “concealments” for purposes of § 152. Section 152
prohibits concealing “from creditors . . . any property belonging to the estate of a
debtor.” 18 U.S.C. § 152(1) (emphasis added). The disclosure of the transfers to
Impact did not somehow make legal the removals of FACC assets from the
bankruptcy estate. Those removals worked to “conceal” assets of the bankruptcy
estate from creditors in violation of § 152.
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the principals of both entities were essentially identical, and . . . Impact . . .
essentially functioned as a conduit to facilitate the transfer of funds from [FACC]
to insiders and other entities.” In re First Assurance & Cas. Co., No. 93-16187-
TS (Bankr. W.D. Okla. July 29, 1994).
We further conclude that the evidence was sufficient to support convictions
for counts 5–10 under 18 U.S.C. § 153 (1993) and 18 U.S.C. § 2. 6 Although Love
correctly observes that the version of § 153 in effect in 1993, when the alleged
offenses occurred, required appropriation, embezzlement, spending, or
transferring of property that came into one’s charge as trustee or other officer of
the court, he omits that he was indicted under 18 U.S.C. § 2 as well. Under § 2,
whoever “aids, abets, counsels, commands, induces or procures” commission of
an offense “is punishable as a principal.” As Love concedes, Maynard was in the
class envisioned by the prior version of § 153. (See, e.g., Appellant’s Br. at 26
(“The government’s evidence clearly demonstrated that Mr. Maynard may have
occupied such a position with the court . . . .”).) Moreover, we do not read the
prior version of § 153 to require appropriation of funds to one’s own use; the
plain language of the statute prohibits knowing and fraudulent embezzlement,
6
18 U.S.C. § 153 (1993) states “[W]hoever knowingly and fraudulently
appropriates to his own use, embezzles, spends, or transfers any property or
secrets or destroys any document belonging to the estate of a debtor which came
into his charge as trustee, custodian, marshal, or other officer of the court, shall
be fined . . . or imprisoned . . . .”
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spending, transference, etc., whether or not such activity is occasioned toward the
offender’s own use.
II
Love argues that the district court abused its discretion by admitting into
evidence tape recordings of conversations between an FBI agent and Love
involving an unrelated investigation. We review the district court’s admission of
evidence for abuse of discretion, United States v. McIntosh, 124 F.3d 1330, 1338
(10th Cir. 1997), and we affirm. The district court considered the parties’
arguments regarding relevance before admitting the tapes or the agent’s testimony
regarding the recorded conversations. The court concluded that the conversations
were “very probative of Mr. Love’s involvement in [FACC] o[r] . . . at least [of
his] asserted position of control . . . . [His position in the company is] obviously
a serious question, . . . and [in the conversations] he’s offering to do some pretty
big things for the company.” (VII Trial Tr. at 1119–20.) 7 Accordingly, the court
issued a cautionary instruction to the jury limiting their consideration of the tapes
only as it pertained to Love’s “position and authority with [FACC].” (Id. at
7
Indeed, on appeal Love asserts he “had no influence over the affairs of
the failed insurance company nor over any matters that were reported or not
reported to the Bankruptcy Court” and that he was only “an independent
contractor for a failed insurance company.” (Appellant’s Br. at 3, 4.)
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1133.) Under these circumstances, we can not conclude that the district court
abused its discretion by admitting the tapes into evidence.
III
The district court denied Love’s motion for severance, and Love challenges
that decision as an abuse of discretion. United States v. Eads, 191 F.3d 1206,
1209 (10th Cir. 1999), cert. denied, 530 U.S. 1231 (2000). In order to prevail,
Love must show that actual prejudice resulted from the denial of his motion. Id.Because “severance is a matter of discretion and not of right, the defendant must
bear a heavy burden of showing real prejudice to his case.” United States v.
Petersen, 611 F.2d 1313, 1331 (10th Cir. 1979). Love has not met this burden;
after reviewing the parties’ arguments and the relevant authorities, we conclude
the district court did not abuse its discretion in denying his request for severance.
Our conclusion is based upon, among other facts, the district court’s issuance of
cautionary jury instructions to consider each count and each defendant separately
(II Appellee’s Supp. App. at 120–21), and the jury’s ability to compartmentalize
evidence as demonstrated by the acquittal of Jones on the only count charged
against her and the acquittal of Love and Maynard on counts 2 and 8. See, e.g.,
Zafiro v. United States, 506 U.S. 534, 541 (1993); United States v. Wacker, 72
F.3d 1453, 1468 (10th Cir. 1995); United States v. Cardall, 885 F.2d 656, 668
(10th Cir. 1989).
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IV
Love claims the evidence was insufficient to support a verdict as to any
count of the indictment. We review de novo the issue of whether there was a fatal
variance between the allegations of the indictment and the evidence presented at
trial. United States v. Williamson, 53 F.3d 1500, 1512 (10th Cir. 1995). “A
variance is fatal only when the defendant is prejudiced in his defense because he
cannot anticipate from the indictment what evidence will be presented against him
or is exposed to the risk of double jeopardy.” Id. at 1513 (quotation omitted).
“[T]he prohibition against variances is designed to insure notice of the charges”
and derives from the Sixth Amendment right that an accused “be informed of the
nature and cause of the accusation.” Id. at 1513, 1512 n.4.
As requested by appellant, we have reviewed the closing arguments of the
government’s counsel; we have also reviewed the indictment 8 and the trial record
in general. The indictment made clear that the government intended to offer, as
proof of the conspiracy to commit bankruptcy fraud, evidence of the management
or mismanagement of FACC. (See, e.g., I Appellee’s Supp. App. at 42,
Superseding Indictment ¶ 18 (“It was part of the conspiracy that the defendants
acquired money through the sale of insurance policies to individuals in the United
8
Despite raising this variance claim, appellant did not provide us with a
copy of the indictment. Under 10th Cir. R. 10.3(B) we may therefore decline to
consider the issue. To assure ourselves, we nevertheless consider the claim.
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States through FACC without maintaining sufficient funds necessary to pay
claims of its policyholders.”).) The trial transcript reveals that there was no fatal
variance between the indictment and trial. Appellant had notice that evidence of
FACC’s mismanagement would be admitted at trial, and accordingly his defense
was not prejudiced.
V
During sentencing, the district court applied several upward adjustments
under the Sentencing Guidelines to increase Love’s base offense level. 9 Love
challenges the application of the adjustments for loss under U.S.S.G.
§ 2F1.1(b)(1), violation of the automatic stay in bankruptcy under U.S.S.G.
§ 2F1.1(b)(3)(B), and abuse of a position of trust or use of a special skill under
U.S.S.G. § 3B1.3. We review de novo the district court’s interpretation and
application of the Sentencing Guidelines. United States v. Burridge, 191 F.3d
1297, 1301 (10th Cir. 1999). We review for clear error the factual findings
supporting a district court’s offense level calculation and will reverse “only if we
have a definite and firm conviction that a mistake has been made.” United States
v. Messner, 107 F.3d 1448, 1456 (10th Cir. 1997) (quotation omitted).
9
The district court used the 1993 Sentencing Guidelines. Therefore, all
references to the Guidelines in this order and judgment are to the 1993 version.
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A. Loss: § 2F1.1(b)(1)
Sentencing Guideline § 2F1.1 provides for an increase in the base offense
level dependent on the amount of loss in a crime of fraud. Application note 7
states that “loss is the value of the money [or] property . . . unlawfully taken” and
that “if an intended loss that the defendant was attempting to inflict can be
determined, this figure will be used if it is greater than the actual loss.” U.S.S.G.
§ 2F1.1, cmt. 7. The application notes also state that “the loss need not be
determined with precision. The court need only make a reasonable estimate of the
loss, given the available information.” Id. cmt. 8. Accordingly, in Messner we
concluded that where the “intended loss is greater than the actual loss resulting
from [defendant’s] conduct, a court will use the greater, intended loss amount for
the purpose of sentencing.” 107 F.3d at 1456. The district court heard testimony
that the intended loss was more than $81 million.
Were we to apply Love’s valuation method, taking the lesser of the value of
the assets concealed or the value of the debtor’s liabilities, we would nevertheless
affirm the district court’s application of § 2F1.1. The court heard testimony that
the amount concealed in bankruptcy, including the amount associated with the
conspiracy count, was upwards of $7 million. The court concluded that the $7
million figure was less than FACC’s liabilities and used that number to calculate
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loss for purposes of § 2F1.1. We do not conclude that the court’s estimate of loss
was unreasonable or clearly erroneous. 10
B. Abuse of Process: § 2F1.1(b)(3)(B)
Love also challenges the district court’s imposition of a two-level upward
adjustment to his base offense level for “violation of any judicial or
administrative order, injunction, decree or process” under U.S.S.G.
§ 2F1.1(b)(3)(B). In Messner, this Court joined the Seventh, Eighth, and
Eleventh Circuits and held that an enhancement under § 2F1.1(b) “is proper for
defendants convicted of bankruptcy fraud.” 107 F.3d at 1457. We reasoned that
bankruptcy fraud involves “abus[ing] the bankruptcy process by concealing estate
assets.” Id. (quotation omitted). Although our holding in Messner connected the
abuse of process rationale to defendant’s action in seeking “protection from his
[or her] creditors under the shelter of bankruptcy,” id. (emphasis added), we
decline to limit application of the abuse of process adjustment for bankruptcy
fraud to the debtor or debtor-in-possession. The jury found that Love conspired
to commit bankruptcy fraud and convicted him for concealment and
10
The court was not required to use the intended loss projections here
because it reasonably determined that those projections were unreliable. (XVII
Trial Tr. at 2688 (court stating “I just don’t buy the $84 [sic] million figure”).)
U.S.S.G. § 2F1.1, cmt. 7 (“if an intended loss that the defendant was attempting
to inflict can be determined, this figure will be used if it is greater than the actual
loss.”) (emphasis added).
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embezzlement of the assets of the bankruptcy estate. See 18 U.S.C. § 2(“whoever . . . aids [or] abets . . . is punishable as a principal.”). Thus, at the
very least, Love aided Maynard in violating the automatic stay and thereby abused
the bankruptcy process. As such, the Messner rationale applies and the district
court did not err in applying a two-level upward adjustment to Love’s sentence
under § 2F1.1(b)(3)(B).
C. Abuse of Position of Trust: § 3B1.3
The final challenge Love makes is to the court’s adjustment for abuse of
position of trust under Sentencing Guideline § 3B1.3. “Abuse of position of trust
is a sophisticated factual determination that will be affirmed unless clearly
erroneous.” United States v. Williams, 966 F.2d 555, 557 (10th Cir. 1992)
(quotation omitted).
Application note 1 to § 3B1.3 explains that “‘[p]ublic or private trust’
refers to a position of public or private trust characterized by professional or
managerial discretion (i.e., substantial discretionary judgment that is ordinarily
given considerable deference). Persons holding such positions ordinarily are
subject to significantly less supervision than employees whose responsibilities are
primarily non-discretionary in nature.” In Williams we set forth a number of
factors that can be considered in determining whether a defendant was in a
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“position of trust.” 966 F.2d at 557. Those factors include, but are not limited to:
the extent to which the position provides the freedom to commit a
difficult-to-detect wrong, and whether an abuse could be simply or
readily noticed; defendant’s duties as compared to those of other
employees; defendant’s level of specialized knowledge; defendant’s
level of authority in the position; and the level of public trust.
Id. (footnotes omitted). We evaluate whether one has abused a position of trust
from the point of view of the victim. United States v. Trammel, 133 F.3d 1343,
1355 (10th Cir. 1998).
Love argues that he did not occupy a position of trust with either the
insurance policy holders or the bankruptcy court and thus the enhancement for
abuse of position of trust was improperly applied to him. In support of his
contention that he occupied no position of trust with the policyholders he states
that he never “had a single conversation or communication with a single
policyholder.” (Appellant’s Br. at 38.) Under Williams and the application notes
to § 3B1.3, such interaction is not required so long as defendant has sufficient
managerial discretion. After listening to the parties’ arguments both at trial and
sentencing, the court explicitly found that Love occupied such a role, and we do
not conclude that its finding was clearly erroneous. 11
11
In overruling Love’s objection to the adjustment the court found that
both Maynard and Love “were officers in insurance companies or related entities
and they had certainly — I can’t imagine a more significant trust relationship than
the officer of an insurance company with their policyholders, and the ultimate
loser in this was the policyholders.” (XVII R. at 2728). The court also found that
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We emphasize that the relevant trust relationship here could be either that
between Love and the policyholders or Love and the bankruptcy court. Love
erroneously states that the “pertinent relationship involved in the alleged crime
was the relationship between the defendants and the Bankruptcy Court.”
(Appellant’s Br. at 37.) His reading of the scope of the Guidelines is too narrow.
“The determination of a defendant’s role in the offense is to be made on the basis
of all conduct within the scope of § 1B1.3 . . . and not solely on the basis of
elements and acts cited in the count of conviction.” U.S.S.G. Ch. 3, pt. B,
introductory cmt. Guideline § 1B1.3(a) states that enhancements “shall be
determined on the basis of . . . all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the defendant
. . . that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense.” See also United States v. Guidry, 199 F.3d 1150,
1159 (10th Cir. 1999). Thus, regardless of whether Love assumed a position of
authority with the bankruptcy court, the court’s finding that Love abused his
position of trust with the insurance policy holders was sufficient to justify
application of the § 3B1.3 adjustment. Although the bankruptcy court certainly
Maynard and Love held “positions of trust in regard to the work they were doing
post-bankruptcy, and they violated that trust.” (Id.)
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was a “victim” of the bankruptcy fraud, the real victims were the creditors, and
the creditors were the insurance policyholders.
VI
Finally, Love challenges his sentence on the basis of the Supreme Court’s
decision in Apprendi v. New Jersey, holding that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt.” 530 U.S. 466, 490 (2000). There is simply no ground for his argument
because he was not sentenced in excess of any of the statutory maximums for the
eight counts on which he was convicted. A district court has “broad discretion”
in choosing whether to run multiple terms of imprisonment concurrently or
consecutively. United States v. Johnson, 40 F.3d 1079, 1082 (10th Cir. 1994); 18
U.S.C. §§ 3584(b), 3553. Sentencing Guideline § 5G1.2(d), however, dictates
that in cases where multiple terms of imprisonment are imposed, “[i]f the
sentence imposed on the count carrying the highest statutory maximum is less
than the total punishment, then the sentence imposed on one or more of the other
counts shall run consecutively, but only to the extent necessary to produce a
combined sentence equal to the total punishment.”
In Love’s case, the district court calculated a total offense level under the
Sentencing Guidelines of 26 and a Criminal History Category of I to arrive at an
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imprisonment range of sixty-three to seventy-eight months. The longest statutory
maximum for any of the eight counts on which Love was convicted was five years
(i.e., sixty months). Sixty months was three months short of the lower end of the
range provided by the Sentencing Guidelines. Thus, the district court sentenced
Love to serve seven concurrent terms of sixty months and one consecutive term of
seven months for a term near the low end provided by the Guidelines. This
sentence does not run afoul of Apprendi because Love was not sentenced in
excess of the statutory maximum term for any of the eight counts on which he was
convicted.
VII
For the reasons set forth above, we AFFIRM.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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