REVISED IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-21002 _____________________
United States of America,
Plaintiff-Appellee,
v.
Danielle Pauline Ravitch,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ November 7, 1997
Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.
PER CURIAM:
Defendant-appellant Danielle Pauline Ravitch appeals the
sentence imposed upon her by the district court after she pled guilty to nine counts of fraud and misuse of social security
numbers. In sentencing Ravitch, the district court determined that
an upward departure was warranted; it is this upward departure that
Ravitch now contests. Finding no plain error in either the
decision to depart upward or in the extent of the upward departure,
we affirm the judgment of conviction and sentence of the district
court. I. FACTUAL & PROCEDURAL BACKGROUND
From July to December 1994, defendant-appellant Danielle
Pauline Ravitch engaged in a pattern of deceptions involving the
use of false and other persons’ Social Security numbers in order
to mask her poor credit history and to secure credit to purchase
automobiles, to qualify for other bank loans, and to obtain an
apartment lease. She also stole funds from her employer by
creating fictitious owners of mineral leases to whom checks were
made payable and by endorsing and depositing those checks in
accounts to which she had access.
Ravitch pled guilty to two counts of wire fraud in violation
of 18 U.S.C. § 1343, three counts of unlawful use of another
person’s social security number in violation of 42 U.S.C.
§ 408(a)(7)(B), one count of filing a false social security card
application in violation of 42 U.S.C. § 408(a)(6), two counts of
unlawful use of a social security account number obtained with
false information in violation of 42 U.S.C. § 408(a)(7)(A), and
one count of bank fraud in violation of 18 U.S.C. § 1344. In her
plea agreement, Ravitch waived her right to appeal her conviction
but retained the right to challenge her sentence.
Prior to sentencing, Ravitch was released on bond on the
condition that she refrain from incurring additional credit
without the prior approval of her pretrial services advisor. In
direct contravention of this agreement, Ravitch purchased a
Mercedes-Benz, leaving the dealership a check for the purchase
price but requesting that it hold the check until she was able to
pay the full amount out of a nonexistent trust fund. In an attempt to pay the dealership, Ravitch then borrowed $29,000 from
a friend under the pretense of needing money to pay her divorce
expenses. As a result of this activity, the district court
revoked Ravitch’s bond and ordered her detained pending
sentencing.
Bank fraud, the most serious offense to which Ravitch pled
guilty, carries a maximum term of imprisonment of 30 years. See
18 U.S.C. § 1344 (Supp. 1997). The applicable Sentencing
Guidelines provision for Ravitch’s offenses is § 2F1.1 which
addresses offenses involving fraud or deceit. U.S. SENTENCING
GUIDELINES MANUAL § 2F1.1 (1995). Section 2F1.1 carries a base
offense level of 6, which can then be increased by the specific
offense characteristics based upon the amount of loss and on
several other factors. Id. Ravitch’s Presentence Investigation
Report (PSR) stated that the intended loss in her fraudulent
scheme was $118,115.63, but this calculation did not include two
GMAC automobile loans which were collateralized, two other
attempts to secure loans for a Lexus automobile and furniture
which also would have been collateralized if the extension of
credit had been approved, and another loan for which the
application was terminated prior to completion. Additionally,
the intended loss calculation did not reflect the six counts of
social security fraud on which Ravitch also was convicted.
Under the Sentencing Guidelines, an intended loss of
$118,115.63 calls for an increase of 6 points above the base
offense level of 6. Id. § 2F1.1(b)(1)(G). On top of this, the
3 district court added 2 points for more than minimal planning
pursuant to § 2F1.1(b)(2), giving Ravitch an offense level of 14,
which, with a Criminal History Category of I, gave her a
sentencing range of 15-21 months of imprisonment. Id. ch. 5, pt.
A (Sentencing Tbl.).
At Ravitch’s sentencing hearing, the Government moved for a
3-point upward departure
because the harm caused by the defendant’s post- conviction conduct and the synergistic effect of the combination of the defendant’s carefully-planned social security fraud offenses with her other offenses of conviction cannot be adequately measured by the “loss” table of USSCGM § 2F1.1(b)(1) and thereby understates the seriousness of her criminal conduct.
The district court declined to depart based upon Ravitch’s post-
conviction conduct,1 but it did depart upwards 4 points,
yielding a sentencing range of 27-33 months. U.S. SENTENCING
GUIDELINES MANUAL ch. 5, pt. A (Sentencing Tbl.) (1995). The
district court sentenced Ravitch to 33 months of imprisonment
followed by 5 years of supervised release, and it ordered her to
pay restitution totaling $86,309.64 to the victims of her
offenses. At the sentencing hearing, the court justified this 4-
point departure with the following explanation:
I believe that an aggravating factor not adequately considered by the United States Sentencing Commission pursuant to United States Sentencing Commission Section 5K2 is present. Ms. Ravitch was not banking the loans collateralized or the loans initiated by her but discontinued by her prior to completion; and
1 The district court, having been reversed on what it perceived to be a similar issue, see United States v. Lara, 975 F.2d 1120 (5th Cir. 1992), stated that it did not want to risk another reversal and therefore declined to depart on this basis.
4 for that reason, the loss determined in her fraudulent scheme significantly understates the seriousness of her conduct. In other words, she went out to get loans, stopped short of actually getting them, but exposed these lending institutions to a great deal of liability. As an example, I just point to the total liability for not reporting to GMAC or the bank that they were seeking a loan from the risk of loss or the exposure these financial institutions faced is not adequately reflected by the actual loss figures. Pursuant to United States Sentencing Guidelines Section 2F1.1 Application Note 7B [sic], where the loss significantly understates the seriousness of the defendant’s conduct, I am going to find that an upward departure is warranted; and, of course, there is also the factor of her pending sentencing on the theft charge in Harris County when she committed the offense, there would be another avenue, pursuant to the Sentencing Commission Guidelines Section 4A1.3 in that regard. I am going to upwardly depart to a level 18, and with a criminal history category of 1, that would give a guideline provision of 27-33 months.
In its written Judgment, the district court listed the following
reasons for departing upward: “The loss significantly
understates the seriousness of the [defendant’s] conduct.
Furthermore, the Criminal History Category does not adequately
reflect the seriousness of the [defendant’s] past criminal
conduct.”
Although she failed to object before the district court,
Ravitch now argues that the district court’s 4-point upward
departure to level 18 was not permissible under the Sentencing
Guidelines.
II. STANDARD OF REVIEW
We generally review a district court’s decision to depart
from the Sentencing Guidelines for abuse of discretion. Koon v.
United States, 116 S. Ct. 2035, 2047-48 (1996). In this case,
5 however, Ravitch failed to object to the upward departure before
the district court, and our consideration of her appeal is
therefore limited to plain error review. Under Federal Rule
of Criminal Procedure 52(b), this court may correct forfeited
errors only when the appellant shows that (1) there is an error,
(2) the error is plain, and (3) the error affects her substantial
rights. United States v. Olano, 507 U.S. 725, 732-35 (1993);
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)
(en banc), cert. denied, 513 U.S. 1996 (1995). If the appellant
is able to establish these factors, the decision to correct the
forfeited error falls within this court’s sound discretion.
United States v. McDowell, 109 F.3d 214, 216 (5th Cir. 1997).
This court will not exercise its discretion to correct such
errors unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See
Olano, 507 U.S. at 735-36; McDowell, 109 F.3d at 216.
This court has noted that plain error involves “a mistake so
fundamental as to constitute a ‘miscarriage of justice.’” United
States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990). As a
result, where we have concluded that “[i]f the case were remanded
the trial judge could reinstate the same sentence,” we have
upheld the defendant’s sentence although the district court’s
stated reasons for departing evidence a mistaken application of
the Sentencing Guidelines.2 Id.
2 We note, however, that in cases where our consideration of an appeal is not limited to plain error review, “[t]he question is not whether the district court could have chosen the same
6 III. DISCUSSION
At Ravitch’s sentencing hearing, the district court found
that “an aggravating factor not adequately considered” by the
sentencing commission was present in this case. See U.S.
SENTENCING GUIDELINES MANUAL § 5K2.0 (1995). It therefore departed
upwards from level 14 to level 18 and sentenced Ravitch to 33
months of imprisonment. In explaining its departure, the
district court referred to two specific sections of the
Sentencing Guidelines which it found supported an upward
departure, and it alluded to a third reason for departure which
it refused to rely on due to its interpretation of this court’s
precedent. As we must uphold a sentence reviewed for plain error
if the court could lawfully and reasonably reinstate it on
remand, we address each of these bases for departure in turn.
A. § 2F1.1 Application Note 7(b)
The district court first found that departure was warranted
pursuant to § 2F1.1 Application Note 7(b) of the Sentencing
Guidelines because some of the loans that Ravitch fraudulently
attempted to obtain were not included in the intended loss
calculation. Application Note 7(b) provides that an upward
departure may be warranted where the intended monetary loss
significantly understates the seriousness of the defendant’s
conduct. Id. § 2F1.1 Application Note 7(b). Ravitch contends
that because the additional loans were either uncompleted or
sentence, but whether it would have chosen that sentence.” United States v. Rogers, No. 96-31113, 1997 WL 641543, at *6 (5th Cir. Oct. 17, 1997) (emphasis added).
7 fully collateralized, a departure on that basis is not warranted.
The government responds that an upward departure was warranted
because the base sentence would have failed to account for many
of the fraudulent transactions in which Ravitch engaged.
When reviewing a sentence imposed under § 2F1.1 of the
Sentencing Guidelines, we grant great latitude to a district
court’s determination of the amount of loss caused or risked by
fraudulent conduct. United States v. Brewer, 60 F.3d 1142, 1145
(5th Cir. 1995). In addition, Application Note 7(b) expressly
states that there may be situations in which “the loss determined
above significantly understates or overstates the seriousness of
the defendant’s conduct.” U.S. SENTENCING GUIDELINES MANUAL § 2F1.1,
Application Note 7(b) (1995). In the instant case, the district
court adopted the PSR’s finding that the intended loss for which
Ravitch must be held accountable amounted to $118,115.63. In
addition, the court concurred with the PSR’s finding that that
amount failed to account for the monetary seriousness of
Ravitch’s actions, which involved an additional $140,366.37.
In United States v. Bobowick, 113 F.3d 1302 (2d Cir. 1997),
the Second Circuit affirmed a 7-point upward departure in the
defendant’s sentence for wire fraud despite the fact that both
sides agreed that the intended loss was zero. Id. at 1303-04.
In Bobowick, the pledged collateral would have adequately secured
the loan, and the bank discovered the fraud prior to issuing the
loan. Id. Nevertheless, the appellate court affirmed the
departure pursuant to Application Note 7(b), reasoning that
8 although there was never any actual risk to the lender’s money,
“the bank was being sucked into a transaction with a person
insensitive to his credit obligations and skilled in the
extraction of multiple loans from unsuspecting lenders.” Id. at
1304. We think that this reasoning applies in the instant case
as well. The fact that there was no intended loss from the
additional loans does not mean that Ravitch’s actions did not
constitute serious conduct warranting greater punishment than if
she had fraudulently attempted to obtain loans worth only
$118,115.63. Thus, in light of the serious and repetitive nature
of Ravitch’s fraudulent conduct, we cannot say that using this
added potential loss as a basis for an upward departure pursuant
to Application Note 7(b) constituted plain error.3
Ravitch next argues that even if the greater amount of
potential loss does provide a basis for an upward departure, it
does not warrant a 4-point departure. She relies on
3 Ravitch also argues that the district court failed to consider Application Note 10 in addition to Application Note 7(b). U.S. SENTENCING GUIDELINES MANUAL § 2F1.1 Application Note 7 (b), 10 (1995). She argues that the district court erred in departing upward because none of the factors relied upon by the district court rise to the level of the factors listed in Application Note 10. Ravitch’s argument is without merit. Application Note 10 applies to situations in which “the loss determined under subsection (b)(1) does not fully capture the harmfulness and seriousness of the conduct” and contemplates departure based on harm that is not financial in nature. Id. § 2F1.1 Application Note 10. In contrast, Application Note 7(b) provides for an increase in the sentence when the intended loss calculation understates the monetary seriousness of the defendant’s conduct. Id. § 2F1.1 Application Note 7(b). The two provisions are independent of one another, and the district court need not find that one of the factors listed under Application Note 10, or a similarly serious non-monetary factor, is present in order to justify an upward departure pursuant to Application Note 7(b).
9 § 2F1.1(b)(1)(I), which permits the addition of 8 points to the
defendant’s base offense level where the intended loss is between
$200,000 and $350,000. U.S. SENTENCING GUIDELINES MANUAL
§ 2F1.1(b)(1)(I) (1995). Ravitch argues that even if she had
actually put the entire $258,482.00 at risk, her total sentence
would be increased by only 2 points because a 6-point increase
for the $118,115.63 already had been included. Id.
§ 2F1.1(b)(1)(G). Because we conclude that the district court
also was entitled to depart on other bases, we need not determine
whether a departure of more than 2 points under Application Note
7(b) would constitute plain error. Instead, we assume for
purposes of this review that the district court departed upwards
by only 2 points as permitted by § 2F1.1(b)(1)(I), leading to an
offense level of 16.
B. § 4A1.3(d)
In addition to § 2F1.1 Application Note 7(b), the district
court noted that departure also was permissible pursuant to
§ 4A1.3 because Ravitch committed the charged conduct while
awaiting sentencing for a state theft conviction. Id.
§ 4A1.3(d). Section 4A1.3(d) allows for an increase in the
defendant’s sentence where the assigned criminal history category
does not adequately reflect the seriousness of the defendant’s
conduct. Id. Ravitch claims that any departure that the
district court made on this basis constituted plain error because
the district court implemented its departure by increasing
Ravitch’s offense level rather than her criminal history
10 category.
A district court may depart from the range provided by the
Sentencing Guidelines “[i]f reliable information indicates that
the criminal history category does not adequately reflect the
seriousness of the defendant’s past criminal conduct or the
likelihood that the defendant will commit other crimes,”
including “whether the defendant was pending trial or sentencing
on another charge at the time of the instant offense.” Id.
§ 4A1.3. In contemplating a departure on this basis, § 4A1.3
explicitly notes that adjustments should be made by increasing
the defendant’s criminal history category. See id. (“In
considering a departure under this provision, the Commission
intends that the court use, as a reference, the sentencing range
for a defendant with a higher or lower criminal history category,
as applicable.” ).
According to § 4A1.1, which addresses the defendant’s
baseline criminal history category, Ravitch’s criminal history
score would have been increased by 2 points if she had already
been sentenced in the theft case when she committed the instant
offenses. Id. § 4A1.1. Analogizing to that section, the
district court could reasonably add 2 points to her criminal
history score pursuant to § 4A1.3(d). Such a departure would
have raised Ravitch’s criminal history category to II, which, in
addition to an offense level of 16 discussed above, would have
resulted in a sentencing range of 24-30 months of imprisonment.
Id. ch. 5 pt. A (Sentencing Tbl.).
11 Thus, the factors explicitly relied upon by the district
court do not adequately account for the 33-month sentence that
the defendant received. Nevertheless, as we noted above, where
an issue is not raised in the court below, we review the claim on
appeal only for plain error. See McDowell, 109 F.3d at 216.
Reviewing for plain error, we will uphold a defendant’s sentence
if on remand the district court could reinstate the same sentence
by relying on a reasonable application of the Sentencing
Guidelines. See Brunson, 915 F.2d at 944. We therefore turn to
the Government’s argument that Ravitch’s conduct while released
on bond supplies another ground for departure.
C. Ravitch’s Conduct While Released on Bond
Although the Government requested a departure on the basis
of Ravitch’s post-conviction conduct while released on bond, the
district court refused to depart on that basis because it
interpreted this court’s decision in United States v. Lara, 975
F.2d 1120 (5th Cir. 1992), to preclude upward departures based on
a defendant’s post-conviction conduct. In Lara, we held that a
district court may not enhance a sentence based on a defendant’s
conviction for another offense while released on bond for the
first offense because that would lead to the anomalous result of
“subjecting an offender to risk of enhancement of her sentence
for the first offense simply because it happens to be adjudicated
after the second conviction.” Id. at 1129.
In the instant case, the Government moved for enhancement on
the basis of Ravitch’s uncharged post-conviction conduct that was
12 expressly forbidden by her bond agreement. This court has
approved of enhancements pursuant to § 5K2.0 of the Sentencing
Guidelines based on the defendant’s “continuing unlawful
behavior” while released on bond. United States v. Sanchez, 893
F.2d 679, 681 (5th Cir. 1990); see also United States v. George
911 F.2d 1028, 1031 (5th Cir. 1990) (affirming upward departure
based on defendant’s unauthorized travel out of state between
sentencing and conviction).
In approving upward departures based on a defendant’s
conduct while released on bond, this court has noted that
[m]aking an upward adjustment to account for acts committed while on bond is similar to making an upward adjustment because the criminal history category does not “adequately reflect . . . the likelihood that the defendant will commit other crimes” or due to “prior similar adult conduct not resulting in criminal conviction.”
Sanchez, 893 F.2d at 681. Thus, a district court should use the
next higher criminal history category when it determines that the
applicable category does not adequately reflect a defendant’s
criminal history. On this basis, the district court reasonably
could have determined that Ravitch’s criminal history category
should be increased to III. A criminal history category of III,
paired with an offense level of 16, yields a sentencing range of
27-33 months of imprisonment. Noting that “[t]he only remedy for
this defendant is to remove her from society for as long as
possible” and thus remove her from the temptation of engaging in
fraudulent conduct, the district court sentenced Ravitch to 33
months of imprisonment.
13 Although the district court may have been mistaken in its
method of departure, the departure did not substantially affect
Ravitch’s rights because, had the district court departed in the
correct manner, the same sentence could have been imposed. We
therefore conclude that any error committed by the district court
does not rise to the level of plain error. See Olano, 501 U.S.
at 732-35. As a result, we are without discretion to remand the
case for resentencing.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
conviction and sentence of the district court.