997 F.2d 139 (6th Cir. 1993), 92-1823, United States v. Moored

Docket Nº:92-1823.
Citation:997 F.2d 139
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James F. MOORED, Defendant-Appellant.
Case Date:June 14, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 139

997 F.2d 139 (6th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

James F. MOORED, Defendant-Appellant.

No. 92-1823.

United States Court of Appeals, Sixth Circuit

June 14, 1993

Argued Jan. 23, 1993.

Page 140

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.

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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...

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