United States v. Weidner

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 20, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-3204
v. D. Kansas
CLINTON ODELL W EIDNER, II, (D.C. No. 02-cr-40140-JAR)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before HA RTZ, M cW ILLIAM S, and M cCO NNELL, Circuit Judges.
This is Clinton Odell Weidner II’s second appeal of his sentence on six
convictions arising out of a fraudulent bank transaction. On his first appeal we
reversed his sentence of 78 months’ incarceration and remanded for resentencing
because the district court had committed an error under the United States
Sentencing Guidelines (USSG ) and because the Supreme Court’s intervening
decision in United States v. Booker, 543 U.S. 220 (2005), had rendered the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Guidelines advisory. See United States v. Weidner, 437 F.3d 1023, 1047-50 (10th
Cir. 2006). On remand the district court imposed a 60 months’ sentence.
M r. W eidner appeals, contending that the district court violated our instructions
from the first appeal. W e disagree and affirm.
At the time of his offense in 2001, M r. W eidner was president, chief
executive officer (CEO), and general counsel of Capital City Bank in Topeka,
Kansas; David C. W ittig was a Bank customer and president, chairman of the
board, and CEO of the state’s largest utility company. M r. W eidner w anted to
invest $1.5 million in a real-estate project in Arizona. He needed to borrow the
money but the Bank did not allow such large loans to employees. He therefore
sought and obtained M r. W ittig’s assistance. He arranged for an increase to
M r. W ittig’s line of credit, ostensibly for renovations to M r. W ittig’s Topeka
home. M r. W ittig accepted the credit-line increase at an interest rate of 5.39% .
The sum of $1.5 million was posted to his account, and on the same day $1.5
million was withdrawn and deposited with a title company in Arizona as
M r. W eidner’s investment in the real-estate project. The next day M r. W eidner
signed a promissory note in which he agreed to repay M r. W ittig $1.5 million
within a year at an interest rate of 7% . Both men failed to disclose this loan on
various Bank documents. W hen the improper loan was discovered a few months
later, M r. W eidner had a friend transfer $1.5 million to his partner in the real-
estate project, who in turn transferred $1.5 million to M r. W ittig, who then paid
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down his line of credit at the Bank. M r. W eidner resigned from the Bank in April
2002, and M r. W ittig paid off his line of credit in June 2002.
M r. W eidner and M r. W ittig were each charged with one count of
conspiracy, four counts of making a false bank entry, and one count of money
laundering. Before trial M r. W eidner pleaded guilty to two counts of making a
false bank entry. A jury convicted M r. W eidner on the remaining four counts and
M r. W ittig on all counts.
To determine the appropriate sentence under the then-mandatory
Guidelines, the district court applied the 2002 version of the Guidelines. Under
USSG § 2B1.1(a) (2002) the base offense level was 6. Section 2B1.1(b)(1)
increases the offense level for large pecuniary losses, regardless of whether the
loss was actual or merely intended. See id. cmt. 2(A). The court determined that
M r. W eidner and M r. W ittig had each intended a loss to the Bank of $1.5 million,
which added 16 to the offense level, see id. § 2B1.1(b)(1), raising it to 22. It then
applied the Guidelines gross-receipts enhancement, which provides, “If the
defendant derived more than $1,000,000 in gross receipts from one or more
financial institutions as a result of the offense, increase by 2 levels. . . . If the
resulting offense level . . . is less than level 24, increase to level 24.” Id.
§ 2B1.1(b)(12)(A) & (B) (2002) (renumbered as § 2B1.1(b)(13)(A) & (D) in the
2006 version). The court determined that each defendant had gross receipts of
$1.5 million, leading to an offense level of 24. (Because the gross-receipts
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enhancem ent by itself would raise the offense level to 24, the intended-loss
enhancement did not affect the ultimate offense level.) The court then increased
M r. W eidner’s offense level by four, adding two levels for obstruction of justice,
see id. § 3C1.1, and two for abusing a position of trust, see id. § 3B1.3, resulting
in a total offense level of 28. Both defendants were in criminal-history category I,
so M r. W eidner’s Guidelines sentencing range was 78 to 97 months and
M r. W ittig’s range was 51 to 63 months. The court sentenced M r. W eidner to 78
months’ imprisonment and M r. W ittig to 51 months.
M r. W eidner and M r. W ittig appealed. W e affirmed their convictions but
reversed and remanded both sentences. W e stated that the “district court erred in
attributing the $1.5 million in gross receipts to both M r. W ittig and M r. W eidner”
in light of Guidelines language stating that the sentencing court should consider
“‘gross receipts to the defendant individually, rather than to all participants’.”
Weidner, 437 F.3d at 1046 (quoting USSG § 2B1.1(b)(12) cmt. n.9). W e held that
the § 2B1.1(b)(12) enhancement could be applied to M r. W eidner but not to
M r. W ittig. W e also held that the district court had erred because it “did not
adequately consider the amount of collateral provided by M r. W ittig [for his line
of credit] in determining the amount of loss under an intended loss theory.” Id. at
1048. Disregard of all collateral pledged was appropriate only after a court “first
determine[d] that the defendant intended to deprive the lender of its collateral”;
but the district court had made no such finding. Id.
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On remand the district court imposed sentences of 60 months’
imprisonment on both defendants, increasing M r. W ittig’s sentence from 51 to 60
months, and low ering M r. W eidner’s sentence by 18 months. At the resentencing
the court, misconstruing our prior ruling on the gross-receipts enhancement, again
applied the enhancement to each defendant; it reasoned that M r. W ittig had
received a line-of-credit increase of $1.5 million at an interest rate of 5.39% ,
while M r. W eidner had received $1.5 million from M r. W ittig at 7% interest and
then had used the funds to invest in the A rizona real-estate project. The court
stated that M r. W eidner’s total offense level was 28 (w ithout detailing how it
arrived at that figure, though it was the same offense level as at the prior
sentencing) and “tentative[ly]” sentenced him to 60 months’ imprisonment. Next
it addressed the 18 U.S.C. § 3553(a) factors, supporting its downward variance by
noting that M r. W eidner had suffered the loss of his license to practice law, that
the sentence provided adequate deterrence to both M r. W eidner and others, and
that a sentence of 60 months w as “just and reasonable.” Aplt. App. at 11. It did
not address intended loss, stating that the court of appeals had not put that issue
before it for consideration on remand.
M r. W eidner now argues that the district court erred in again attributing the
same $1.5 million in gross receipts to both him and M r. W ittig, and in failing to
credit in its gross-receipts calculation the collateral M r. W ittig had pledged. W e
reject both arguments.
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First, the district court did not err in finding that M r. W eidner had gross
receipts of $1.5 million. Indeed, on the first appeal we affirmed the application
of U SSG § 2B1.1(b)(12) to M r. W eidner because he clearly had received more
than $1 million in receipts from the unlawful bank loan. See Weidner, 437 F.3d
at 1047. To be sure, the district court erred on remand when it applied the same
$1.5 million gross-receipts enhancement to both M r. W ittig and M r. W eidner, but
the remedy for this error was to reverse and remand M r. W ittig’s sentence again,
which we have done. See United States v. Wittig, No. 06-3166, 2006 W L
3378451, at *8 (10th Cir. Nov. 22, 2006). There was no error in applying the
enhancement to M r. W eidner.
As for M r. W eidner’s complaint that the gross-receipts calculation failed to
account for the value of the collateral pledged by M r. W ittig, the collateral is
relevant only to an intended-loss calculation. Our discussion of collateral on
M r. W eidner’s first appeal related only to the intended-loss Guideline, USSG
§ 2B1.1(b)(1). But on remand the district court did not apply that provision. The
gross-receipts Guideline, § 2B1.1(b)(12), is not affected by the actual or intended
loss. It looks to the gross receipts, not the net receipts or net loss. Therefore,
collateral pledged plays no role in the calculation. The district court did not err
in disregarding collateral in sentencing M r. W eidner on remand.
M r. W eidner’s sentence is A FFIRM ED. His motion to expedite the appeal
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is D ISM ISSED as moot.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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