United States v. McKelvey

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-29-2003
USA v. McKelvey
Precedential or Non-Precedential: Non-Precedential
Docket 02-2295
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2295
_________________________________
UNITED STATES OF AMERICA
v.
RUSSELL A. MCKELVEY,
Appellant
__________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(Crim. No. 01-522)
District Judge: Honorable Berle M. Schiller
_________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 13, 2003
Before: SCIRICA, BARRY and SMITH, Circuit Judges
(Opinion Filed: January 28, 2003)
OPINION OF THE COURT
SMITH, Circuit Judge:
This appeal challenges the District Court’s calculation of loss under Section 2B1.1
of the 2002 United States Sentencing Guidelines Manual (“Guidelines”). We conclude that
the loss amount computed by the District Court was proper as either actual or intended
loss. We will, therefore, affirm.
I. FACTS
Appellant Russell A. McKelvey was injured in an automobile accident when he was a
minor. McKelvey settled a claim for those injuries, pursuant to which he was to receive the
following payments: $24,750 in September of 1982, $30,000 on June 25, 1985, $40,000
on June 25, 1992, $50,000 on June 15, 1997, and $64,000 on June 25, 2002. Instead of
waiting to receive his 1997 payment, McKelvey sold that payment to Settlement Capital
Corporation (“Settlement”) for $36,100 on May 25, 1995. In September, 1995, McKelvey
assigned $30,000 of the same 1997 payment to Scott McKinstry in settlement of a lawsuit
that McKinstry had filed against him. Then on September 16, 1996, unbeknownst to
Settlement or McKinstry, McKelvey again sold his 1997 payment to J.G. Wentworth for a
total consideration of $41,728. Wentworth wire transferred his payment to McKelvey on
October 8, 1996. Finally, in 1996, McKelvey sold his 2002 payment to Settlement for
$11,000.
When CIGNA, the administrator of McKelvey’s annuity, received letters from all
three claimants shortly before the due date of the 1997 payment, it filed an action in
interpleader. The result of that civil action was that the court distributed the 1997 and 2002
payments as follows: Settlement received $22,125 from the 1997 payment and $37,760
from the 2002 payment; McKinstry received $12,500 from the 1997 payment and
Wentworth received $15,375 from the 1997 payment and $26,230 from the 2002 payment.
Thereafter, McKelvey pled guilty to one count of wire fraud arising out of
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Wentworth’s October 8, 1996 wire transfer, in violation of 18 U.S.C § 1343. The
government asserted that the loss for Guidelines purposes should be $71,728.26, which
was derived by adding the $30,000 assigned to McKinstry together with the $41,728
expended by Wentworth for the 1997 annuity. However, the Pre-sentence Investigation
Report (“PSI”) calculated the loss at $57,828. That sum resulted from adding the amounts
paid by Settlement and Wentworth for the 1997 annuity together with the amount assigned
to McKinstry for a total of $107,828, and then crediting the $50,000 annuity payment from
1997 as collateral against the total amount. At sentencing on April 30, 2002, the District
Court adopted the PSI finding as to the loss, and calculated the offense level as 10 (12
minus 2 for acceptance of responsibility) and the criminal history category as II. The
resulting Guidelines range was eight to fourteen months. The Court then sentenced
appellant to fourteen months incarceration.
II. JURISDICTION
The District Court had jurisdiction over the criminal prosecution and sentencing of
McKelvey under 18 U.S.C. § 3231. We have jurisdiction over the appeal from the final
judgment under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
III. STANDARD OF REVIEW
Errors of law in applying the sentencing guidelines, such as what constitutes loss,
are subject to plenary review. See, e.g., United States v. Napier, 273 F.3d 276, 278 (3d
Cir. 2001), cert. denied, 122 S.Ct. 1937 (2002). Factual findings, such as the amount of
the loss, are reviewed for clear error. See id.3
IV. LEGAL ANALYSIS
Note 2(E)(ii) to Section 2B1.1 of the Guidelines states:
In a case involving collateral pledged or otherwise provided by the defendant,
[loss shall be reduced by] the amount the victim has recovered at the time of
sentencing from disposition of the collateral, or if the collateral has not been
disposed of by that time, the fair market value of the collateral at the time of
sentencing.
Appellant argues that the District Court erroneously failed to consider $53,0001 of the
2002 annuity payment as collateral “otherwise provided by defendant” which was divided
among the victims in the civil action. Subtracting $53,000 from the $57,828 loss figure
used by the District Court would result in a total loss of $4,828. If this were the correct
loss for Guidelines purposes, it would result in a base offense level of six. Affording
defendant the two-level reduction for acceptance of responsibility would yield a Guidelines
range of probation to six months incarceration.
Under § 2B1.1, Note 2(A) of the Guidelines, the loss is the greater of the actual loss
or intended loss. The appellant suggests that both the actual and intended loss should be
reduced by the $53,000 remaining from his 2002 annuity payment.
One way that appellant might be entitled to a credit for the 2002 annuity payment is
if actual loss were calculated at the time of sentencing, after the 2002 payment was
distributed in the interpleader action. Depending on the nature of the underlying crime, we
1
This number represents the $64,000 annuity payment minus the $11,000 paid by Settlement for the
rights to that payment.
4
have calculated actual loss either as it existed at the time the crime was detected, or as it
existed at the time of sentencing. Compare United States v. Shaffer, 35 F.3d 110 (3d Cir.
1994) (in check kiting scheme where no loss was intended, actual loss should be calculated
at time crime was detected), with United States v. Kopp, 951 F.2d 521, 536 (3d Cir. 1991)
(where defendant procures a secured bank loan through fraudulent misrepresentation, actual
loss is estimated at time of sentencing and incorporates current value of collateral).
Appellant’s argument presumes that his situation is more akin to Kopp. However, unlike
Kopp, where an estimate of actual loss at the time of detection would have been unfair
because it would undervalue the security pledged for the loan, the 2002 annuity was divided
up as restitution and was not security for the underlying transactions. Incorporating the
restitution amount would improperly minimize the appellant’s culpability. As this Court
has recognized, a “defendant in a fraud case should not be able to reduce the amount of loss
for sentencing purposes by offering to make restitution after being caught.” United States
v. Mummert, 34 F.3d 201, 204 (3d Cir. 1994) (where defendant falsified and forged bank
loan application, actual loss is the loss to the bank minus current value of pledged collateral
and a gratuitous offer to transfer property cannot be considered); see also Shaffer, 35 F.3d
at 115 (calculating actual loss at the time of detection because reducing the defendant’s
sentence based on “a last minute payment of restitution would unfairly discriminate in favor
of those with greater financial resources”). Therefore, the actual loss should be calculated
at the time the crime was detected and the 2002 annuity payment divided up in the civil suit
should not be considered “collateral otherwise provided” by the appellant.
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Moreover, even if appellant were correct that the actual loss should be reduced by
the $53,000 divided up in the civil action, such a reduction would not be applicable in
determining the intended loss – which would remain at $57,828. Cf. United States v.
Geevers, 226 F.3d 186, 193 (3d Cir. 2000) (in check kiting scheme, government can make
prima facie case that intended loss is full value of checks, and defendant has burden to
introduce evidence to the contrary); see also United States v. McCormac, 309 F.3d 623,
628-29 (9th Cir. 2002) (reading note 2E(ii) to Guideline § 2B1.1 as only applicable to
calculation of actual loss unless defendant anticipated collateral would be seized and
holding that where defendant obtained fraudulent loan that she did not intend to repay, loss
is based on gross amount of loan regardless of whether victim was able to recoup part of
the loss by selling collateral pledged to secure loan); United States v. Nichols, 229 F.3d
975, 979 (10th Cir. 2000) (“It is not error for a district court to count the full amount taken
through fraud as an intended loss, where the victim recovers the loss through a civil suit, as
opposed to through any voluntary action on the part of the defendant”); United States v.
Parsons, 141 F.3d 386, 392-93 (1st Cir. 1998) (settlement in civil suit does not affect
loss calculation). Therefore, because the appellant did not introduce any evidence
suggesting that he did not intend to cause the loss of $57,828, and this would be the larger
of the actual and intended loss amounts even if actual loss incorporated the $53,000
payment, the District Court did not commit clear error in setting the loss at $57,828.
V. CONCLUSION
Appellant’s sentence will be affirmed.
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/s/ D. Brooks Smith
Circuit Judge