U.S. v. Moored, 92-1823

• Citation: 997 F.2d 139
• Decision Date: 14 June 1993
• Docket Number: No. 92-1823,92-1823
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James F. MOORED, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 139

997 F.2d 139

UNITED STATES of America, Plaintiff-Appellee, v. James F. MOORED, Defendant-Appellant.

No. 92-1823.

United States Court of Appeals Sixth Circuit.

Argued Jan. 23, 1993.

Decided June 14, 1993.

Julie Ann Woods, Asst. U.S. Atty. (argued and briefed), Grand Rapids, MI, for plaintiff-appellee.

David A. Dodge (argued and briefed), Grand Rapids, MI, for defendant-appellant.

Before: KENNEDY and BATCHELDER, Circuit Judges; and BECKWITH, District Judge. ^*

BECKWITH, District Judge.

Defendant, James Moored, appeals the June 24, 1992 judgment of the United States District Court for the Western District of Michigan, pursuant to which that court sentenced Defendant to a term of 27 months imprisonment. Specifically, Defendant appeals the district court's consideration of certain uncharged conduct in the calculation of his sentence. Defendant also challenges two enhancements to the sentence and the refusal of the court to reduce the offense level for acceptance of responsibility. Finally, Defendant appeals the court's failure to depart downwardly for his recent efforts to pay off his debts.

I.

In early 1990, Defendant applied for loans in the total amount of $1,750,332 from various private lenders. Defendant indicated to the lenders that $400,000 of the loan proceeds would be used to pay a debt owed to Jordan College, a small institution in Grand Rapids, Michigan. Defendant had an active history with the college, including a term on its board of trustees. He had engaged in various financial transactions with the college, including loans, donations, and real property transactions, based in part on promises that he failed to keep and representations that proved untrue.

The debt to Jordan College was comprised of a $100,000 loan that the college made to Defendant, a $50,000 undisclosed lien on property that Defendant sold to the college, and a $175,000 downpayment on that same property that Appellant had promised to return to the college.

In order to entice the lenders, Defendant falsified an offer to purchase stock that Defendant had pledged as security for the loan. Defendant transmitted the falsified offer from outside the state of Michigan by facsimile to the lenders' counsel in Michigan. Defendant also falsified a letter of credit from Northwest Bank.

Immediately after the two checks comprising the loan were transferred to Defendant, the lenders learned of the fraud and stopped payment. The lenders suffered no actual loss.

Defendant pled guilty to a one-count information pursuant to a plea agreement. The government agreed that the potential loss to the lenders was less than $350,000, which would result in an offense level enhancement of eight levels, according to § 2F1.1(b)(1)(I) of the United States Sentencing Guidelines ("U.S.S.G."). The basis for that calculation was the actual value of the stock pledged as security compared to the value fraudulently attributed to the stock by Defendant when applying for the loans. The parties to the agreement further stated that Defendant had accepted responsibility for the offense and that a two-level decrease in the offense level was appropriate pursuant to U.S.S.G. § 3E1.1. The government agreed not to seek any additional increases in the offense level. Accordingly, Defendant asserted that his total offense level should be twelve, and the government agreed not to oppose that position.

The probation officer agreed that the base offense level was six, pursuant to U.S.S.G. § 2F1.1. In addition, the officer recommended an enhancement of twelve levels, pursuant to U.S.S.G. § 2F1.1(b)(1)(M), finding the potential or intended loss to be $1,500,000 to $2,000,000. That calculation was purportedly based on the amount of the loans added to the amount owed to Jordan College. ¹

The probation officer further recommended a two-level increase, pursuant to U.S.S.G. § 3B1.3, for the abuse of Defendant's position of trust with Jordan College, and a two-level enhancement for more than minimal planning, pursuant to U.S.S.G. § 2F1.1(b)(2)(A). Thus, the probation officer calculated the total offense level to be 22, which, when coupled with Defendant's criminal history category of I, yielded a sentencing range of 41 to 51 months.

At sentencing, the district court found the amount of the loss to be $325,000, which represented only Defendant's debt to Jordan College. The court found as follows:

... that the losses as that loss is commonly understood for purposes only of specific offense characteristics should not include the whole deduct amount of $1,700,000. That may in fact have a bearing upon the nature and the scope of the offense, but as a loss characteristic, this Court finds that the loss characteristic that should be used for purposes of calculation is the loss in the relevant conduct, which is the loss to Jordan College that was so intertwined in this particular transaction as to find great difficulty in segregating it or separating it. I find they were all part of the scheme and plan of this Defendant to aggrandize himself and his enterprises at the expense of other persons and other entities.

Joint Appendix at pages 90-91. On that basis, the court enhanced the offense level by eight.

The district court added two two-level enhancements. The first two-level enhancement was for abuse of a position of trust. The court stated as follows:

This Court finds that replete throughout this entire Presentence Report, beginning in Paragraph 13 all the way through Paragraph, virtually, 27, all the way through the paragraphs setting forth the factual basis, that the Defendant's position as a trustee of Jordan College and as an intimate of Jordan College was used for the purposes of bolstering the Defendant's credibility with the investors. I'm using my own words rather than the legal terminology that is required to be used, but it is basically the same thing, and that is he used his position as a trustee for Jordan College to assist in obtaining the credit and money, part of which he was to use for his own personal use or--let me say it another way.

Mr. Moored's affiliation with Jordan College as an officer, trustee, and/or affiliate was used to facilitate the commission of the fraudulent documents that were sent through the wire, and therefore, the two-point addition under 3B1.3 is clearly in order in this particular matter. This isn't even a close call in this particular matter.

Joint Appendix at page 95.

The second two-level enhancement was for more than minimal planning, pursuant to U.S.S.G. § 2F1.1(b)(2)(A). No discussion of this enhancement was made upon the record, and it appears that the district court merely adopted the recommendation of the probation officer.

The district court determined that a two-level reduction in the offense level for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, was not warranted. The court stated as follows:

I have an associate who looks at contrition and says unless there's real contrition, moral contrition, he will not accept it. I'm not sure I define it that way, but I saw at the time the plea was entered on the 15th of April and I see in the Presentence Report here an attempt to, and I heard a lot of it this afternoon, an attempt to paint this particular matter as a business transaction that went awry and nobody intended to commit any fraud on anybody else, everybody got their money back, what happened was things just didn't fall into place, things just didn't come together.

I see an individual before me here, and gathering from the reports, I have before me an individual before me who's very sorry what happened happened. He's very sorry that he got into this trouble and caused an embarrassment to himself and his family, and he's entered a guilty plea for it. But that stops short of being the acceptance of responsibility standard which the federal courts require.

Joint Appendix at page 100.

Finally, the district court refused to depart from the Sentencing Guidelines range based on Defendant's extraordinary efforts to repay creditors. The record reflects that those efforts included the sale of most of Defendant's assets and the pledging of most of his future income. The district court stated as follows:

The Court is called upon at this time to impose sentence. The so-called guidelines here give the Court a framework. A departure therefrom is only under unique circumstances that fall outside the subject matters of the guidelines, and frankly, there aren't any in this particular case. This Court was searching for them and there aren't any.

Joint Appendix at pages 107-108.

The issues on appeal are best summarized and separated as follows:

A. Was the district court precluded by the plea agreement from making a different calculation of the offense level from that agreed upon by the parties?

B. Did the district court err in concluding that Defendant's transactions with Jordan College should be considered relevant conduct for purposes of determining the amount of loss?

C. Did the district court err by enhancing the offense level for abuse of a position of trust?

D. Did the district court err by enhancing the offense level for more than minimal planning?

E. Did the district court err by failing to grant a two-level reduction for acceptance of responsibility?

F. Did the district court err by concluding that it could not depart from the Guidelines range on the basis of Defendant's extraordinary efforts to repay creditors?

II.

Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure provides that the parties in a criminal action may make agreements that will be binding in effect upon the government but "with the understanding that such recommendation or request shall not be binding upon the court." Rule 11 further provides in (e)(4) that if the court rejects the plea agreement in a manner that is detrimental to the defendant, the defendant may withdraw his plea. Defendant does not argue in this matter that the...