United States v. Chamblee

F I L E D United States Court of Appeals Tenth Circuit JUL 22 1998 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 97-5144 v. (D.C. No. 97-CR-32-K) (N.D. Okla.) JACK WESLEY CHAMBLEE, Defendant-Appellant.

ORDER AND JUDGMENT*

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant-appellant, Jack Wesley Chamblee, was convicted on a plea of guilty

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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. entered April 15, 1997, to a one count indictment charging conspiracy to make, utter, and possess counterfeit and forged securities. 18 U.S.C. § 371; 18 U.S.C. § 513(a). Chamblee was sentenced on July 14, 1997, to thirteen months’ imprisonment, three years of supervised release, and he was ordered to make restitution totaling $13,350.96 to the several victims.

Vol. I Tab 46.1 Chamblee was permitted to remain free on bond following sentencing and ordered to report to prison on August 15, 1997. Id.; Vol. III at 14.

Chamblee timely filed a notice of appeal on July 21, 1997, and he presents the following issues: (1) whether the district judge erred in calculating the amount of loss under the Guidelines, and (2) whether the judge erred in adding six levels to the base offense level.

Corrected Brief for Defendant-Appellant at 2, 10. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I The indictment to which Chamblee pled guilty charged that he and others conspired to make, utter, and possess counterfeit and forged payroll and personal checks. Vol. I Tab 1.

With the aid of a computer, Chamblee managed to manufacture counterfeit checks in the likeness of legitimate checks issued by several businesses in the Tulsa area. Presentence Report (PSR) at ¶ 8-9. The counterfeit checks were then cashed or used to purchase goods and services by Chamblee and the other coconspirators. Id. During the conspiracy, the coconspirators successfully cashed or used counterfeit checks totaling $13,350.96. Id. at ¶ 19. The PSR further states that members of the conspiracy were found to be in possession of an additional $66,070.65 in completed, uncashed checks,2 and that the combined loss and attempted loss resulting from the conspiracy totaled $80,330.61. Id. After starting from a base offense level of six for offenses involving altered or counterfeit instruments, the PSR used the full intended loss in recommending a six level increase under Guidelines § 2F1.1(b)(1)(G), which provides for such an increase when the total loss exceeds $70,000, up to $120,000. PSR at ¶ 24. The district judge adopted this sentencing recommendation, reasoning that since the intended loss can be determined, it will be used in the sentencing calculation. Vol. III at 6.

Chamblee argued below, and he now argues on appeal, that only the actual loss and the “specifically intended loss” should be used in calculating his sentence, rather than the loss associated with those completed counterfeit checks that the conspirators neither used nor attempted to use. Chamblee agrees that the actual loss totaled $13,350.96, and that this figure is properly included in his sentencing calculation. Aplt. Opening Brief at 3, 10.

However, with respect to the use of intended loss, he maintains that only those counterfeit checks which the conspirators actually attempted to cash or use should be counted in his sentencing calculation.

The PSR reveals that conspirator Melissa Cooke was arrested while attempting to cash a counterfeit check in the amount of $298.05, Chamblee was arrested while attempting to pass a counterfeit check in the amount of $335.88, and conspirator Donald Coltharp was arrested for attempting to cash a counterfeit check in the amount of $250.00. PSR at ¶ 11, 13, 17. These checks total $883.93. The conspirators neither used nor attempted to use the remaining counterfeit checks totaling $66,095.72. Hence, Chamblee argues that, under a proper interpretation of the Guidelines, the full intended loss should only include the $13,350.96 in actual loss plus $883.93 in the “specifically intended loss,” or $14,234.89, which represents the counterfeit checks which the conspirators actually used or attempted to use. He contends that it was error to include in the sentencing calculation the completed counterfeit checks which were merely possessed by members of the conspiracy.

II We “review a district court’s determination of a U.S.S.G. § 2F1.1 loss under the clearly erroneous standard, but the factors a district court properly may consider are reviewed de novo.” United States v. Yarnell, 129 F.3d 1127, 1136 (10th Cir. 1997) (quotations and citations omitted). Section 2F1.1(a) mandates a base offense level of six for crimes involving the forgery or counterfeiting of instruments of the kind involved in this case. Subsection (b)(1) then provides an incremental scale when the loss exceeds $2,000. Chamblee contends that using only the actual loss and “specifically intended loss,” totaling $14,234.89, places him within § 2F1.1(b)(1)(D), which results in a three level increase. The government, however, argues that the full intended loss of $80,330.61 places him within subsection (b)(1)(G), resulting in a six level increase. Hence, the precise issue is whether the full intended loss properly includes those amounts associated with the counterfeit checks that the conspirators neither used nor attempted to use.

Comment 7 to § 2F1.1 provides guidance on this issue.3 The comment states 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.” Relying on this comment, the district judge dismissed Chamblee’s contention that the intended loss was too speculative, and he concluded that the entire amount of the completed, uncashed checks, along with the amount of the checks which the conspirators actually cashed or attempted to cash, should be included in the full intended loss because the intended loss can be readily determined and the conspirators possessed the ability to cash the unused checks had they not been apprehended.

Vol. III at 6. This finding is not clearly erroneous.

The district court’s calculation of loss need only be supported by a preponderance of the evidence, United States v. Hargus, 128 F.3d 1358, 1364-65 (10th Cir. 1997), cert. denied, 118 S. Ct. 1526 (1998), but “the record must support the conclusion that the defendant intended the loss or that a loss in that amount was probable.” United States v. Jaramillo, 98 F.3d 521, 525 (10th Cir.), cert. denied, 117 S. Ct. 499 (1996). Further, Comment 8 to § 2F1.1 states that the loss need not be determined with precision but that the court need only make a reasonable estimate of the loss, based on the available information.

Here, Chamblee was involved in a conspiracy to manufacture and pass counterfeit checks. The members of the conspiracy, as well as Chamblee himself, passed and attempted to pass the counterfeit checks prior to being apprehended. There is absolutely no indication

States, 508 U.S. 36, 44-45 (1993). See also United States v. Smith, 133 F.3d 737, 745 (10th Cir. 1997) (“We . . . follow the commentary in the guidelines that interprets or explains how a guideline is to be applied.”). from the record that, absent their apprehension, the conspirators would have destroyed the completed, uncashed checks or that they would have abandoned their unlawful endeavor.

Moreover, considering the fact that the conspirators were “extensively involved in the use of methamphetamine” and that the “[p]roceeds from the cashing of the counterfeit checks were used primarily to support their drug habit,” PSR at ¶ 8, it is probable that the remaining uncashed checks would have been used to this end. The government also points out that Chamblee had a vested interest in seeing all counterfeit checks cashed since he, as the conspiracy’s organizer and the manufacturer of the counterfeit checks, received a percentage of the proceeds from most of the checks which the other conspirators cashed. PSR at ¶ 8-10.

Furthermore, the precise amount of intended loss is plain from the face of the counterfeit checks.4 As such, the amount of the full intended loss was not too speculative to be determined. Hence, the record provides ample support for the conclusion that it is probable that the conspirators would have used or attempted to use all of the completed counterfeit checks, with the resulting intended loss totaling $80,330.61. Accordingly, the district court did not err when it increased Chamblee’s base offense level by six levels under § 2F1.1(b)(1)(G).

AFFIRMED.

Entered for the Court

William J. Holloway, Jr. Circuit Judge their apprehension that averted the actual infliction of further loss.