U.S. v. Bullard, 93-1017

• Decision Date: 25 January 1994
• Docket Number: No. 93-1017,93-1017
• Citation: 13 F.3d 154
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Carl BULLARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 154

13 F.3d 154

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Carl BULLARD, Defendant-Appellant.

No. 93-1017.

United States Court of Appeals, Fifth Circuit.

Jan. 25, 1994.

Douglas C. McNabb, Houston, TX, for defendant-appellant.

James T. Jacks, Joe C. Lockhart, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Dallas, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES and DeMOSS, Circuit Judges, and SCHWARTZ ^*, District Judge.

PER CURIAM:

Jerry Carl Bullard appeals his sentence following his plea of guilty and conviction for knowing and willful misapplication of bank funds, in violation of Title 18, U.S.C. Sec. 656. ¹ Bullard contends that the district court erred in calculating the amount of the loss caused by his offense conduct ² and by applying the November 1, 1989 version of U.S.S.G. Sec. 3E1.1 which afforded the opportunity for only a two-level downward adjustment of the sentencing guidelines for acceptance of responsibility. We have jurisdiction under 28 U.S.C. Sec. 1291. Bullard failed to raise the objections urged on appeal at the sentencing hearing. Because we find no plain error, we affirm.

I.

At sentencing, the only controverted issue in the Presentence Investigation Report (PSI) raised by defense counsel was the probation officer's conclusion that Bullard's offense conduct caused the victim bank First National Bank of Rowlett ^B to become insolvent. The district court clearly indicated at the outset that such statement would not be taken into consideration in imposing sentence.

At the sentencing hearing, the district court adopted the factual statements contained in the PSI, the sentencing calculations recommended by the probation department, and determined the applicable guidelines were as follows: Total Offense Level of 19; Criminal History Category of I; Imprisonment Range of 30 to 37 months; Supervised Release Range of 2 to 3 years; a Fine Range of $6,000 to $60,000; and Restitution Amount of $35,113.50.

The PSI applied the rubric for calculation of loss attributable to the defendant's conduct found in U.S.S.G. Sec. 2B1.1, ³ and calculated the "loss" to FNB at $846,058.88. This loss amount warranted a thirteen-point enhancement of Bullard's base offense level. Although no objections were raised with respect to the loss amount, defense counsel did argue at the sentencing hearing that Bullard should receive some credit for certain offsets reported by the bank. Such offsets consisted of interest earned by the bank on some of the fraudulent loans made by the defendant, the seizure of cars by the government which had been purchased by the appellant with fraudulent loan proceeds, and funds supposedly received by the Government from Bullard's in-laws in settlement on the government's attempted forfeiture of a "lake house" in which the appellant had invested fraudulent loan proceeds.

Bullard argues on appeal that because he "objected" at the sentencing hearing based upon the method of calculation of the loss he has preserved the issue for appeal. The government contends that Bullard's failure to suggest an alternative loss calculation scheme at sentencing constitutes waiver. We believe that on this record, Bullard's failure to specify an alternative basis for calculating the loss or an alternative "loss" calculation supported by reliable evidence at the time of the sentencing hearing constitutes waiver.

We will allow sentences to be attacked on grounds raised for the first time on appeal in only the most exceptional cases. ⁴ A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review. This court will not reverse a district court on an issue raised for the first time on appeal unless a gross miscarriage of justice would otherwise result. ⁵

The presentence report calculated the loss pursuant to U.S.S.G. Sec. 2B1.1, the guideline section listed as applicable to Bullard's conduct. Under the loss calculation provided in that guideline, whether the defendant intended to or in fact paid back the loss is wholly irrelevant. Application Note 2 of U.S.S.G. Sec. 2B1.1 provides guidance on how to determine the loss ⁶ and states in pertinent part: " 'Loss' means the value of property taken" and further provides as an example that "[i]n the case of a check or money order, the loss is the loss that would have occurred if the check or money order had been cashed." Application Note 3 of Sec. 2B1.1 further provides that the sentencing court need not determine loss precisely, as long as the estimate is reasonable, and such loss "may be inferred from any reasonably reliable information available, including the scope of the operation." (emphasis added). The PSI prepared on September 16, 1992, which was adopted by the district court without objection, describes with particularity the extended scope of Bullard's operation, as follows:

On November 27, 1990, during a special examination of the First National Bank of Rowlett ^B by the Office of the Comptroller of the Currency (OCC), several transactions involving Bullard were discovered which appeared to be fraudulent. Investigators from the Federal Deposit Insurance Corporation (FDIC) were notified who in turn notified the Federal Bureau of Investigation (FBI). The investigation revealed that during the period of June 1, 1987 through December 7, 1990, Bullard was involved in the theft, embezzlement, and misapplication of FNB funds totalling $846,058.88....

A substantial portion of the losses attributed to the defendant involved transactions between Bullard and William B. Walker, a friend and business associate. These illegal transactions were carried out in a variety of ways. Bullard prepared and forged loan documents in the names of bank customers without their knowledge. He used financial information previously submitted by these customers in order to document loan files, thus deceiving other FNB officers, directors, and federal bank examiners.

Bullard and Walker opened accounts at FNB in the names of individuals without their knowledge and used these accounts to deposit misapplied funds. Bullard made unauthorized withdrawals from customer accounts and later covered up these thefts with proceeds of other fraudulent transactions. Bullard and Walker prepared loan documents listing non-existent collateral. Bullard issued unauthorized letters of credit for a bank customer who was already over-extended and delinquent on loans at FNB. Bullard was responsible for managing FNB loan participation with other financial institutions. On several occasions, Bullard forged checks received in payment from these institutions and diverted the proceeds to accounts at FNB which he controlled....

As long as a factual finding is plausible in light of the record as a whole, it is not clearly erroneous. ⁷ Considering the record in this case as a whole, and particularly the undisputed facts regarding the extended scope of Bullard's operation, we believe that it is clearly plausible that the loss to FNB exceeded $800,000.00.

Bullard contends that his "objections" concerning amounts paid back to the FNB, offsets for interest earned on fraudulent loans, letters of credit which were never funded, inter alia, in effect alerted the district court to the argument he now raises on appeal (i.e., generally, the loss figure contained in the PSI was not supported by accurate and reasonably reliable information). We disagree.

Bullard never gave the district court a basis at the sentencing hearing to believe that his "objections" were either factually or legally relevant. Defense counsel did not even characterize his colloquy as "objections" to any facet of the PSI. His address, rather, was phrased initially as a plea for leniency and evolved into an oral motion for downward departure from the guidelines. For example, defense counsel stated:

There was one issue and one thing that I did want to present to the Court along that line.... I was attempting to find out how much the interest income was.... So basically, I think my contention would have been.... I was trying to get an exact dollar amount to see if it made a difference in the guideline calculation.... But other than that, we have reviewed the Pre-Sentence Report on several occasions and talked about it and--other than what was already mentioned about the reason for the bank's insolvency, we have no objections.

* * * * * *

I think the Court--I'm going to ask the Court to depart downward from the guidelines based on the fact that there are circumstances that are just not adequately considered by the guidelines. And I think in this case the matter of recovery, at least a part of the loss. It would seem to me that a loss, which is at least partially recovered, should not be as serious as a loss, none of which is recovered. They're all bad and I'm not trying to minimize the Defendant's actions here. I'm just asking the Court to take that into consideration.... ⁸

The foregoing remarks of defense counsel are most aptly characterized as a plea of mitigation or for leniency. No evidence, whatsoever, was presented at the time of the sentencing hearing to support counsel's instantaneous, "on the spot" appraisal of the "loss" to FNB being an amount lower than that set forth in the PSI. No alternative calculation was presented at the time of the sentencing hearing supporting defense counsel's speculation relative to the "loss" amount. We refuse to overturn the district court's sentence based upon speculation. More to the point, Bullard's "objections" were, in reality, a motion for downward departure. Distilled to its essence, Bullard would have us review the district court's failure to depart downward from the guidelines. When the district court has imposed a sentence within the guidelines, appellate review is limited to determining whether the guidelines...