United States v. Eubanks

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-10110 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN EUBANKS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:96-CR-84-2-Y - - - - - - - - - - October 21, 1997 Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

John Eubanks appeals his sentence for bank theft, see 18

U.S.C. §§ 2, 2113(b), by arguing that the district court erred in

determining the amount of loss which established his base offense

level. He contends that the court erred by measuring the loss

from the total amount of bogus checks deposited into the various

bank accounts, and he alternatively argues, for the first time on

appeal, that the amount of loss should be determined using the

total-deposits figure qualified by application of U.S.S.G.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-10110 -2-

§ 2X1.1, the guideline for attempt offenses.

We have carefully reviewed the arguments and the appellate

record. We conclude that the district court did not err in

measuring the amount of loss based on the total of the bogus

checks. See United States v. Sowels, 998 F.2d 249, 250-52 (5th

Cir. 1993); United States v. Wimbish, 980 F.2d 312, 314-16 (5th

Cir. 1992). Because Eubanks and his codefendants completed the

necessary acts for all of the offense, plain error did not ensue

from the failure to utilize § 2X1.1. See United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).

AFFIRMED.