United States v. Strevel

85 F.3d 501

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 10, 1996
• Docket: 94-8896
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-8896 Non-Argument Calendar

D. C. Docket Nos. 1:93-cr-89-1, 1:93-cr-500-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR H. STREVEL,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia

(May 10, 1996)

Before TJOFLAT, Chief Judge, EDMONDSON and BARKETT, Circuit Judges.

PER CURIAM:

Appellant challenges his sentences of imprisonment for

structuring transactions to evade IRS reporting requirements on

two grounds. First, appellant contends that the district court

erred in calculating his criminal history category by treating as

a conviction a bond forfeiture in a DUI case brought in a Georgia court. This contention is meritless; under Georgia law, a bond

forfeiture in a DUI case is considered a conviction. See Cofer v. Crowell, 247 S.E.2d 152, 154 (Ga. Ct. App. 1978); cf. Haley v.

Hardison, 279 S.E.2d 712, 713 (Ga. 1981).

Second, appellant contends that the district court, prior to

the imposition of sentence, erred in failing to find as a fact

the amount of the loss caused by appellant's fraud. According to

appellant, the court relied solely on the amount stipulated in

the parties' plea agreement.

The commentary to U.S.S.G. § 6B1.4(d) states that

the [sentencing] court cannot rely exclusively upon stipulations in ascertaining the factors relevant to the determination of sentence. Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information.

At sentencing, the court, as appellant contends, arrived at the

amount of the loss in the case simply by selecting the amount

referred to in the plea agreement. The court relied on nothing

else. This constituted a clear violation of the plain language

of the commentary and requires that we remand the case for a

determination of the amount of the loss in question and,

thereafter, for resentencing.

SO ORDERED.