United States v. Taylor

41 F. App'x 380
Court of Appeals for the Tenth Circuit·Decided June 4, 2002·No. No. 01-4207·Published·Cited by 2 cases

Opinion

ORDER AND JUDGMENT*

Sheila Taylor appeals the sentence imposed by the district court following her plea of guilty to one count of embezzlement by a bank employee in violation of 18 U.S.C. § 656. She contends that the district court erred in its determination that the conduct of her codefendant was fully attributable to her, and that the court abused its discretion in its determination that she must pay restitution to her victim. We exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm.

I

Taylor was employed as a bank teller by Community First National Bank of Rich-field, Utah, for nearly eight years prior to engaging in the activities that eventually led to her arrest. Sometime between April 1998 and October 1998, Taylor and another teller — codefendant DonNetta Jorgenson — began embezzling cash from the bank. The unsophisticated scheme worked by having Taylor write out a personal check and then give it to Jorgenson, who in turn would deliver cash from the bank in payment of the check. Instead of sending the check through the clearing process to be debited from Taylor’s account, however, Jorgenson would simply hold onto it. Taylor performed the same service for Jorgenson. To conceal their diversions, the codefendants would tear the notations of their suspect transactions from the teller tapes and then reconnect the tapes. An FBI investigation determined that Jorgenson had diverted a total of $27,200 from her teller drawer, and that Taylor had diverted $14,398 from her drawer. In a “Stipulated Statement of Facts” appended to the “Statement by Defendant in Advance of Plea of Guilty,” Taylor “admitted] to embezzling monies from Community First National Bank,” and “agree[d] that the sum not to exceed of $41,398 is an appropriate sum to be ordered as restitution.”1 (R. Doc. 14 Attach. at 1).

Prior to sentencing, a presentence report (“PSR”) was prepared. The PSR recommended that, pursuant to § 2B1.1(b)(1)(H) of the United States Sen-[382] fencing Guidelines,2 seven points should be added to Taylor’s base offense level because the bank’s loss exceeded $40,000 but was less than $70,000. Although Taylor conceded that up to $41,398 would be appropriate for restitution, she nevertheless contested the PSR’s conclusion that she was criminally responsible for the full amount of the bank’s loss.

Taylor pled guilty to the one-count indictment, was sentenced to four months’ imprisonment, four months’ home detention,3 and thirty-two months’ supervised release. She was also ordered to pay $41,398 in restitution at a minimum rate of $100 per month. As part of her plea agreement, she reserved the right to appeal her sentence if it was imposed as a result of an incorrect application of the sentencing guidelines or in violation of the law. She has now done so.

II

“We review the trial court’s application of the Sentencing Guidelines de novo, but review its underlying findings of fact for clear error.” United States v. Nichols, 229 F.3d 975, 978 (10th Cir.2000).

Taylor contends that the district court erred in its determination that the full $41,398 loss incurred by the bank was a result of jointly undertaken criminal activity for which she was responsible. She argues that she is responsible only for the $10,800 that she admits to having misappropriated, along with the $10,000 she contends represents the total amount her eodefendant misappropriated prior to June 30, 1998 — the date Taylor voluntarily terminated her employment at the bank. Because these figures total only $20,800, if Taylor is correct then under U.S.S.G. § 2B1.1 her base offense level would be increased by only six points, rather than the seven points that are required where the victim’s loss exceeds $40,000. If the district court did err in this manner, Taylor should have faced a sentencing range of six-to-twelve months rather than the eight-to-fourteen-month range pursuant to which she was actually sentenced. Because she received an eight-month sentence, such error would not have been harmless. United States v. Jones, 235 F.3d 1231, 1238 (10th Cir.2000) (“We will not permit our result to be guided by idle speculation as to the sentence that might be imposed by the district court on remand.”).

We conclude that the district court committed no error. The guidelines instruct that a defendant’s relevant conduct shall include

(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in further[383] anee of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.

U.S.S.G. § 1B1.3(a)(1). The district court, addressing Taylor’s argument that she could not have reasonably foreseen that codefendant Jorgenson would continue embezzling money after Taylor left the bank’s employment, determined that the continuation of the criminal enterprise was reasonably foreseeable. Not only do we conclude that this finding is not clearly erroneous, but we further note that even if Jorgenson’s continuation of the criminal conduct were not reasonably foreseeable, Taylor would still be responsible for the full amount of the bank’s loss because she personally “committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused” the acts that led to the loss of the full $41,398. § 1B1.3(a)(1)(A). On June 30, 1998 — the day she left her job at the bank — $14,398 was missing from Taylor’s drawer; on April 17, 1998, Jorgenson’s teller tape showed a loss of $27,000. (Appellant’s Br. at 6.) Taylor was therefore directly involved in the embezzlement from both her own and Jorgenson’s teller drawers of the $41,398 before she left her job. Even without recourse to the district court’s factual determination made pursuant to § 1B1.3(a)(1)(B), therefore, it is evident that Taylor is responsible for her codefendant’s criminal conduct pursuant to § 1B1.3(a)(1)(A).

III

We review a district court’s factual findings underlying a restitution order for clear error. United States v. Olson, 104 F.3d 1234, 1237 (10th Cir.1997). We review the amount of a district court’s restitution order for an abuse of discretion. Id.

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United States v. Taylor, 41 F. App'x 380 (10th Cir. 2002).

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