UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40334 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD SPRING,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (9:00-CR-29-ALL) _________________________________________________________________ November 5, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Richard Spring appeals the sentence imposed following his

guilty-plea conviction of mail fraud, in violation of

and 1346. The offense involved several fraudulent loans

totaling $185,000 which Spring made and obtained while a senior

vice president at Commercial Bank of Texas. He challenges the

district court’s imposition of a five-level upward departure,

adjustment for obstruction of justice, and denial of a reduction

for acceptance of responsibility.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. A district court may depart upward from the applicable

guideline range if the court finds that an aggravating circumstance

exists that was not adequately taken into consideration by the

Sentencing Commission. See

(b). The departure-

decision is reviewed for abuse of discretion. United States v.

Ashburn,

(5th Cir. 1994) (en banc), cert. denied,

(1995). The district court imposed the upward

departure because the amount of loss significantly understated the

seriousness of Spring’s conduct, see U.S.S.G. § 2F1.1, cmt. n.8(b).

While Spring paid back all of the fraudulent loans, he gained the

use of $185,000 through his fraudulent activity. The gain to the

defendant should be used to calculate losses under § 2F1.1 when the

actual loss from fraud is zero. United States v. Haas,

(5th Cir. 1999); see U.S.S.G. § 2F1.1, cmt. n.9.

Accordingly, the district court did not abuse its discretion by

increasing the offense level based on the loan amounts.

Next, Spring maintains the district court erred by assessing

under U.S.S.G. § 3C1.1 a two-level adjustment for obstruction of

justice. A district court’s finding that a defendant has

obstructed justice under § 3C1.1 is a finding of fact reviewed only

for clear error. See United States v. Storm,

(5th Cir. 1994). Section 3C1.1 provides for a two-level increase

“[i]f the defendant willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice during the

course of the investigation, prosecution, or sentencing of the

instant offense”. See Storm,

(quoting U.S.S.G. §

2 3C1.1). Conduct which constitutes obstruction of justice includes

“providing a materially false statement to a law enforcement

officer that significantly obstructed or impeded the official

investigation or prosecution of the instant offense”. § 3C1.1,

cmt. n.4(g).

According to Spring, his statements to investigators denying

the fraudulent loan activity were mere denials of guilt; however,

Spring untruthfully told investigators that he used another bank

loan to repay a $40,000 bank loan obtained in his grandfather’s

name. The $40,000 was actually repaid with a $680,000 private loan

Spring obtained from a family friend, which would have been almost

impossible to detect through conventional means. By stating that

he had repaid his grandfather’s loan with another bank loan, Spring

attempted to prevent the investigator from uncovering his largest

loan, thereby concealing the remaining fraudulent loans. The

district court did not clearly err by imposing the obstruction of

justice adjustment.

For his final claim, Spring asserts he is entitled to a

reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility.

The district court’s determination under this section is entitled

to great deference on review. See U.S.S.G. § 3E1.1, cmt. n. 5.

Spring contends that, if the obstruction of justice adjustment is

removed, he would then be entitled to the acceptance of

responsibility reduction. As discussed above, the district court

did not err by imposing the former adjustment; therefore,

concerning the latter, Spring’s position necessarily fails. Also,

3 Spring’s case does not present an extraordinary circumstance where

both adjustments should be applied. See U.S.S.G. § 3E1.1, cmt.

n.4.

AFFIRMED

4