United States v. Buckley

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 27, 1995
• Docket: 95-40421
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40421 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROXANNE BUCKLEY,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:95-CR-4) _________________________________________________________________ November 6, 1995 Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Roxanne Buckley pled guilty to one count of bank fraud in

violation of 18 U.S.C. § 1344, and she was sentenced to fifteen

months imprisonment, three years supervised release, a $2,000

fine and restitution in the amount of $17,656.59. Buckley

appeals her sentence. We affirm.

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. I. BACKGROUND

Roxanne Buckley ("Buckley") and her husband operate a

plumbing contracting company named Liberty Mechanical. Between

February and March 1994, Buckley altered eight checks issued by

Alliance Construction, Inc., each made payable to Liberty

Mechanical and a subcontractor as co-payees. In all, four

different subcontractors had been designated as co-payees on the

checks. These checks were payment for services rendered by the

subcontractors. Buckley was supposed to endorse the checks and

forward them to the subcontractors. Instead, she removed the

names of the subcontractors and deposited the checks into the

account of Liberty Mechanical at First Bank and Trust in

Cleveland, Texas. At the sentencing hearing, Buckley explained

that she altered the checks because Liberty Mechanical was having

financial problems due to large amounts of money owed to them by

general contractors.

When Alliance Construction discovered the alterations, it

notified its bank, Compass Bank, which then notified First Bank

and Trust. Buckley admitted making the alterations at a meeting

with an official of First Bank and Trust, and made arrangements

for restitution. First Bank and Trust credited the checks back

to Compass Bank, and Alliance Construction then paid the

subcontractors. The total amount of the checks was $62,680.45,

and as of February 9, 1995, Buckley had repaid $45,023.86 to

First Bank and Trust, leaving a balance of $17,656.59.

2 On January 11, 1995, Buckley was charged with one count of

bank fraud, to which she pled guilty pursuant to a written plea

agreement on January 26, 1995. On May 12, 1995, following a

hearing, Buckley was sentenced. The notice of appeal was timely

filed on May 16, 1995.

II. STANDARD OF REVIEW

A sentencing court's factual findings must be supported by

a preponderance of the evidence, and we review such findings

under the clearly erroneous standard. United States v. McCaskey,

9 F.3d 368, 372 (5th Cir. 1993), cert. denied, 114 S. Ct. 1565

(1994). The sentencing court's interpretations of the

guidelines, being conclusions of law, are reviewed de novo. Id.

III. DISCUSSION

The Presentence Report ("PSR"), which was adopted by the

district court, established a base offense level of 6 pursuant to

U.S.S.G. § 2F1.1, the applicable guideline for fraud. The PSR

then gave Buckley a five-point upward adjustment because the loss

was greater than $40,000 (U.S.S.G. § 2F1.1(b)(1)(F)), a two-point

upward adjustment because the scheme to defraud involved more

than one victim (U.S.S.G. § 2F1.1(b)(2)(B)), and a two-point

upward adjustment for obstruction of justice for failing to

disclose ownership of real property and two prior criminal

convictions (U.S.S.G. § 3C1.1). Buckley's total offense level,

after the district court reduced the PSR's total offense level by

3 two points for acceptance of responsibility, was 13. Based on a

total offense level of 13 and a criminal history category of I,

the guideline range for imprisonment was twelve to eighteen

months. The district court sentenced Buckley to fifteen months

imprisonment, three years supervised release, a $2,000 fine, and

$17,656.59 restitution. On appeal, Buckley challenges the upward

adjustments for obstruction of justice and for a scheme to

defraud more than one victim.

A. Obstruction of Justice

The sentencing court's determination of whether a defendant

obstructed justice is a factual finding which we review for clear

error. United States v. Tello, 9 F.3d 1119, 1122 (5th Cir.

1993); United States v. Ainsworth, 932 F.2d 358, 362 (5th Cir.),

cert. denied, 502 U.S. 918 (1991). "A finding is clearly

erroneous when, although some evidence supports the decision, we

are left with the definite and firm conviction that a mistake has

been committed." Tello, 9 F.3d at 362.

Section 3C1.1 provides for a two-level enhancement "[i]f the

defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant

offense." U.S.S.G. § 3C1.1. The obstruction of justice

enhancement applies when a defendant "provid[es] a materially

false statement to a probation officer in respect to a

4 presentence or other investigation for the court." U.S.S.G. §

3C1.1, cmt., n.3(h).

The probation officer recommended application of § 3C1.1

because Buckley failed to disclose her ownership with her husband

of six parcels of real estate valued at a total of $35,330, and

failed to inform the probation officer of two prior misdemeanor

convictions for theft by check. Buckley objected to the PSR's

enhancement for obstruction of justice, arguing that her failure

to disclose these facts was not a material falsehood. She

claimed that three of the parcels of real estate were involved in

a bankruptcy proceeding, the title to a fourth was in dispute,

and a fifth property, on which she had monthly rental income of

$75, was forgotten until the probation officer mentioned it, at

which time she fully disclosed ownership. As to the prior

convictions, Buckley claimed that the probation officer asked her

if she had ever been arrested, which she had not, and thus she

did not lie. Furthermore, because no criminal history points

were awarded for these offenses, their omission was not material

because it did not affect the outcome of the case.

The district court overruled Buckley's objection, reasoning

that Buckley's failure to disclose real estate that could be

liquidated to satisfy restitution was a material falsehood.

Additionally, the district court found that, although the

probation officer had asked Buckley if she had ever been

arrested, he had also told her that her criminal history revealed

no prior record, to which she agreed, thus failing to disclose

5 her prior convictions. The district court found that Buckley

"was well aware of the context of the question regarding her

prior criminal activity." Further, the district court found

that, even though the convictions resulted in no criminal history

points, a complete description of her criminal history was

material to the sentencing process.

On appeal, Buckley again argues that her omissions were

neither material nor willful. "Material" is defined in the

guideline as "evidence, fact, statement, or information that, if

believed, would tend to influence or affect the issue under

determination." U.S.S.G. § 3C1.1, cmt., n.5. If the information

withheld is not material, the obstruction of justice enhancement

does not apply. Id. n.4(c). "Willfully" has been defined as

requiring deliberate action with the intent to hinder justice.

United States v. Lister, 53 F.3d 66, 69 (5th Cir. 1995).

The district court's finding that Buckley's omissions

regarding her ownership of real estate were material to her

ability to pay a fine or restitution is not clearly erroneous.

United States v. Beard, 913 F.2d 193, 199 (5th Cir. 1990)

(affirming the application of § 3C1.1 where defendant refused to

supply financial information necessary to determining a fine or

restitution). Although Buckley argues that the omission was not

material because she had no real financial interest in the

property because of the bankruptcy and the title dispute, the

district court found that her misrepresentation was material

because only two properties, and not three as Buckley had

6 represented, were involved in the bankruptcy, and one property

that Buckley had failed to disclose provided rental income of $75

a month. See United States v. Smaw, 993 F.2d 902, 904 (D.C. Cir.

1993) (holding that defendant's failure to disclose a real estate

interest, even if she had no equity in the property, was still

material). Although Buckley denied that she intended to deceive

the probation officer about her property ownership, the officer

felt that she had willfully withheld the information. The

district court may properly rely on the PSR's construction of the

evidence rather than the defendant's version of the facts.

Beard, 913 F.2d at 199.

Additionally, Buckley defends her failure to inform the

probation officer of her prior convictions by claiming that she

did not consider them to be "criminal history" because she was

not arrested. Although this explanation is plausible, the

district court's finding, based on a credibility determination,

that her misrepresentation was willful because she did understand

the context of the probation officer's criminal history question,

is not clearly erroneous. Buckley argues that her failure to

disclose the prior misdemeanor convictions is not material

because they resulted in no criminal history points. However,

prior convictions are material even if they cannot be counted in

the criminal history, because they could influence the district

court's determination of the sentence within the guideline range.

United States v. Dedeker, 961 F.2d 164, 167 (11th Cir. 1992); see

Tello, 9 F.3d at 1119 (affirming an obstruction of justice

7 enhancement when defendant failed to inform his probation officer

of a prior criminal conviction for marijuana possession); United

States v. Garcia, 902 F.2d 324, 325-26 (5th Cir. 1990) (upholding

an obstruction of justice enhancement for failure to disclose a

dismissed marijuana possession charge, even though it could not

be counted in the criminal history).

Because the district court's finding that Buckley's

misrepresentations about her property ownership and prior

convictions were willful, material falsehoods was not clearly

erroneous, we affirm the application of a two-level enhancement

for obstruction of justice under U.S.S.G. § 3C1.1.

B. Was There More than One Victim?

Under the sentencing guideline for fraud, a two-level

increase is provided if an offense involves a scheme to defraud

more than one victim. U.S.S.G. § 2F1.1(b)(2)(B). "`Scheme to

defraud more than one victim' . . . refers to a design or plan to

obtain something of value from more than one person." U.S.S.G. §

2F1.1, cmt., n.3. "`Victim' refers to the person or entity from

which the funds are to come directly." Id.

The probation officer recommended application of this

enhancement because Buckley diverted funds from four different

subcontractors and illegally deposited the proceeds into her own

account. Buckley objected, specifically referring to Guidelines

section 2F1.1, commentary, note 3. This note provides that

"passing a fraudulently endorsed check would not [involve a

8 scheme to defraud more than one victim], even though the maker,

payee and/or payor all might be considered victims for other

purposes." U.S.S.G. § 2F1.1, cmt., n.3. The district court

overruled the objection, finding that Buckley defrauded four

subcontractors on five different occasions, and concluding that

each subcontractor is a victim. The district court acknowledged

that passing a single fraudulently-endorsed check would not

result in three victims--the maker, payee or payor. However, the

court noted that, in this case, Buckley fraudulently altered

eight checks, made out to four subcontractors. Further, the

court recognized that the probation officer did not include the

maker or payor on those checks as victims in applying this

section. We conclude that the district court's finding that the

four subcontractors were victims of Buckley's offense, resulting

in a two-level enhancement under § 2F1.1(b)(2)(b), was a proper

application of the Guidelines.

IV. CONCLUSION

For the foregoing reasons, we affirm the sentence imposed by

the district court.