United States v. Danny Ax

966 F.2d 1459, 1992 U.S. App. LEXIS 20038, 1992 WL 120388

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 8, 1992
• Docket: 92-1415
• Status: Unpublished

Opinion

966 F.2d 1459

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
UNITED STATES OF AMERICA, Appellee,
v.
Danny AX, Appellant.

No. 92-1415EM.

United States Court of Appeals,
Eighth Circuit.

Submitted: May 14, 1992.
Filed: June 8, 1992.

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and LARSON,* Senior District Judge.

PER CURIAM.

Danny Ax pleaded guilty to a one-count indictment charging him with forging the endorsement on five United States Treasury checks, in violation of 18 U.S.C. § 510(a)(1). The District Court1 sentenced him to four months in prison, and he appeals. We affirm.

Ax objects to the District Court's consideration of two checks not charged in the indictment, checks allegedly fraudulently endorsed by Ax and cashed by his wife. Without these checks, the total loss would have been less than $2,000.00, Ax's base offense level would have been six instead of seven, and the sentencing range would have been one to seven months, instead of two to eight months. Ax agrees that the sentence was properly computed under the Sentencing Guidelines, but argues that the Sentencing Commission exceeded its authority in promulgating the section of the Guidelines defining relevant conduct for sentencing purposes, U.S.S.G. § 1B1.3(a)(2).

Appellant's argument closely parallels the proposition accepted by a panel of this Court in United States v. Galloway, 943 F.2d 897, 905 (8th Cir. 1991). The panel opinion, however, was vacated when rehearing en banc was granted, and Galloway is now pending before the Court en banc.

Whichever way Galloway goes, we believe, Ax cannot prevail. All of his forgeries targeted the same victim, involved the same merchandise, and occurred in the same place. They would be properly considered for sentencing purposes even under the narrowest interpretation of the Sentencing Commission's power.

Ax also makes certain constitutional arguments, but they were not raised in the District Court, and we therefore decline to reach them.

Affirmed.

* The Hon. Earl R. Larson, Senior United States District Judge for the District of Minnesota, sitting by designation

1 The Hon. Jean C. Hamilton, United States District Judge for the Eastern District of Missouri