U.S. v. Anderson, 98-40420

• Decision Date: 26 April 1999
• Docket Number: No. 98-40420,98-40420
• Citation: 174 F.3d 515
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James ANDERSON and Dean Hodge, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 515

174 F.3d 515

UNITED STATES of America, Plaintiff-Appellee, v. James ANDERSON and Dean Hodge, Defendants-Appellants.

No. 98-40420.

United States Court of Appeals, Fifth Circuit.

April 26, 1999.

Alan Reeve Jackson, Tyler, TX, for Plaintiff-Appellee.

Deborah Johnson Race, Ireland, Carroll & Kelley, Tyler, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING, Chief Judge, STEWART, Circuit Judge, and LITTLE, Chief District Judge. ^*

KING, Chief Judge:

Defendants-appellants James Anderson and Dean Hodge appeal their convictions and sentences for conspiracy, transporting and selling stolen goods in interstate commerce, and bank fraud. For the following reasons, we affirm Hodge's conviction and sentence, and Anderson's conviction. We vacate Anderson's sentence and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 9, 1997, a federal grand jury for the Eastern District of Texas returned a seven-count indictment against defendants-appellants James Anderson and Dean Hodge (collectively, defendants) and co-defendant Christopher Garner. Defendants and Garner were arraigned and entered not guilty pleas.

On September 10, 1997, the same grand jury returned a seven-count superseding indictment against defendants and Garner. Defendants and Garner were all named in counts one through three. Count one charged a violation of 18 U.S.C. § 371, conspiracy to transport and sell stolen goods in interstate commerce in violation of 18 U.S.C. §§ 2314 and 2315. Count two charged violations of 18 U.S.C. §§ 2314 and 2, transportation and aiding and abetting the transportation of stolen goods in interstate commerce. Count three charged violations of 18 U.S.C. §§ 2315 and 2, sale and aiding and abetting the sale of stolen goods in interstate commerce. Counts four through seven charged Hodge with bank fraud in violation of 18 U.S.C. § 1344. Defendants were arraigned and entered not guilty pleas. Garner entered into a plea agreement with the government and testified against defendants at trial.

A jury trial began on December 10, 1997. According to the evidence presented at trial, during the period between February 1, 1996 and March 27, 1996, defendants illegally harvested timber from four Louisiana properties owned respectively by Willamette Industries (Willamette), Discus Oil Corporation (Discus) and WLS Corporation (WLS), W.E. Barron, Jr., and Elmer Davies. Pursuant to the scheme, Garner reviewed county or parish tax records in order to obtain the names and addresses of individuals who owned tracts of land with timber. He then sent out a bulk mailing to these individuals in which he offered to provide forest management and timber services. He specifically sought out landowners whose property was adjacent to land owned by non-resident owners. In several instances, Garner entered into a contract with landowners who had responded to his mailing and then assigned the contract to Anderson for a percentage of the profits. Anderson in turn hired Hodge to harvest the timber. However, in addition to, or instead of, harvesting the timber on the land that was the subject of the contract, Hodge and/or his crew harvested the timber on adjoining land owned by non-residents. Defendants transported a portion of the harvested timber from Louisiana to mills in Texas and sold the timber.

More specifically, in February 1996, Garner contracted to harvest timber on land owned by Kelley Barnes. On February 23, 1996, Garner assigned the contract to Anderson. On February 25, 1996, Anderson hired Hodge to harvest the timber. From February 25, 1996 until March 8, 1996, Hodge's crew actually harvested timber on land located north of the Barnes tract that was owned by Willamette, and then transported that timber from the Willamette tract to the Arkansas Forest Products mill located in Shelby County, Texas, where it was sold. Willamette suffered losses amounting to $57,582.12.

In March 1996, Garner contracted to harvest timber from land owned by Roosevelt Boler. On March 13, 1996, Garner assigned the Boler contract to Anderson, who then hired Hodge to harvest the Boler timber. Anderson paid Boler, but never cut his timber. On March 13, 1996, Anderson, Hodge, and crew actually harvested timber on a tract of land adjacent to the Boler tract owned by Discus and WLS. Discus and WLS suffered losses amounting to $38,532.53.

On March 20, 1996, Garner contracted to harvest timber from land owned by the Molly Peoples estate. On March 20, 1996, Garner assigned the contract to Anderson. On March 26, 1996, Anderson hired Hodge to harvest the timber. On March 27, 1996, Hodge's crew actually harvested timber on two neighboring tracts of land owned by Barron and Davies respectively. Barron suffered losses amounting to $3833.38 and Davies suffered losses amounting to $1461.20.

With respect to the bank fraud counts alleged in the indictment, the evidence at trial established that on July 24, 1995, Hodge entered into a loan agreement with the First National Bank of Hughes Springs (First National). As part of the agreement, Hodge assigned his company's (Circle H Timber's) interest in two timber deeds to First National as collateral for a loan. Thereafter, on January 29, 1996, Hodge executed a renewal of this loan in the amount of $26,092. Hodge falsely represented to First National that he would repay the loan from proceeds of the sale of timber from the collateral property when, in fact, Hodge knew that prior to the execution of the loan renewal he had harvested and sold the timber in question.

Similarly, on September 7, 1995, Hodge assigned Circle H Timber's interest in another timber deed to First National as collateral for a second loan. On March 25, 1996, Hodge renewed this loan in the amount of $41,067, and again falsely informed First National that he would repay the loan from the proceeds of the sale of timber from the aforementioned property, but had already harvested and sold the timber without giving any of the proceeds to First National.

As collateral for a third loan, Hodge assigned his interest in another timber deed on September 25, 1995. On March 25, 1996, Hodge renewed this loan in the amount of $15,554 by falsely representing to First National that this loan would be repaid from the proceeds of the sale of timber taken from the property. At the time Hodge renewed the loan, he knew that he had already harvested and sold all the timber from the property and had provided none of the proceeds to First National.

Finally, on November 14, 1995, Hodge assigned Circle H Timber's interest in a timber deed from another property to First National as collateral for a fourth loan. On March 25, 1996, Hodge renewed this loan in the amount of $8854 by falsely representing to First National that he would repay the loan with the proceeds of the sale of timber taken from the property. In fact, Hodge had already harvested and sold the timber from the property and had not provided the proceeds to First National.

The combined value of the four fraudulently renewed loans was $91,567. First National auctioned other collateral substituted by Hodge worth $49,257.42, and applied that amount to Hodge's four outstanding loans. Thereafter, a balance of $42,309.58 remained.

At the close of the government's case, defendants moved for judgments of acquittal. The court denied the motions. At the close of all evidence, defendants renewed their motions for judgments of acquittal. The district court again denied the motions. On December 15, 1997, the jury found defendants guilty on all counts with which they were charged.

Anderson appeared for sentencing on March 20, 1998. Anderson's presentence report (PSR) had added eleven levels to his initial base offense level of four pursuant to United States Sentencing Guideline (U.S.S.G.) § 2B1.1(b)(1)(L) because the loss Anderson had caused was more than $350,000, and two levels pursuant to U.S.S.G. § 2B1.1(b)(4) because the offense involved more than minimal planning. Based on a final base offense level of seventeen and a criminal history category of II, the sentencing guidelines suggested a range of twenty-seven to thirty-three months of imprisonment. Anderson received a sentence of twenty-seven months of imprisonment to be followed by three years of supervised release. The district court also ordered Anderson to pay restitution in the amount of $354,905.30 and a $50 special assessment for each count of conviction. Anderson timely appealed, and the district court granted Anderson's motion for release pending appeal.

Hodge appeared for sentencing on March 26, 1998. His PSR calculated his base offense level with regard to counts one through three by adding ten levels to the initial base level of four pursuant to U.S.S.G. § 2B1.1(b)(1)(K) because the loss caused by Hodge was more than $200,000 but less than $350,000, and by adding two levels pursuant to U.S.S.G. § 2B1.1(b)(4) because the offense involved more than minimal planning. The PSR's calculations further increased Hodge's base offense level by four levels pursuant to U.S.S.G. § 3B1.1(a) for his role as an organizer or leader, resulting in an adjusted base offense level of twenty. With regard to counts four through seven, the PSR calculated Hodge's base offense level by increasing the initial base level of six by six levels because the loss was more than $70,000 but less than $120,000, and by increasing that total by two levels for more than minimal planning, resulting in a total adjusted offense level of fourteen. Pursuant to U.S.S.G. § 3D1.4, the multiple-count adjustment, Hodge's combined adjusted base offense level was twenty-one. Based on this base offense level and a criminal history category of I, the guidelines suggested a range of thirty-seven to forty-six months of imprisonment. Hodge received a sentence of thirty-seven months of imprisonment to be followed by five years of...