U.S. v. Berridge

• Decision Date: 25 January 1996
• Docket Number: No. 94-3845,94-3845
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael L. BERRIDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 113

74 F.3d 113

UNITED STATES of America, Plaintiff-Appellee, v. Michael L. BERRIDGE, Defendant-Appellant.

No. 94-3845.

United States Court of Appeals Sixth Circuit.

Argued May 18, 1995.

Decided Jan. 25, 1996.

Randall E. Yontz (argued and briefed), Office of the U.S. Atty., Columbus, OH, for U.S.

G. Rand Smith (argued and briefed), G. Rand Smith Co., Columbus, OH, for Michael L. Berridge.

Before MILBURN and SILER, Circuit Judges; COOK, ^* Chief District Judge.

JULIAN ABELE COOK, Jr., Chief Judge.

The Defendant/Appellant, Michael Berridge, appeals the sentence by the district court following the acceptance of his guilty plea to violating 18 U.S.C. Sec. 1014 (to wit, making false statements on a loan application). On appeal, he contends that the district court erroneously (1) calculated the amount in controversy, (2) increased his offense level under the United States Sentencing Guidelines (USSG) for a violation of a position of trust and engaging in more than minimal planning, (3) failed to reduce the offense level for his acceptance of responsibility, and (4) prohibited him from further employment in the banking industry. For the reasons that follow, we affirm.

I

In 1980, Berridge began his employment with the Ohio Valley Bank in Gallipolis, Ohio, as a collections manager. He was rapidly promoted within the loan department and eventually became the vice president of the Bank's retail lending division. During his employment, Berridge had access to loan application information and other bank records relating to loans.

The Government contends that Berridge began his clandestine criminal activity in August 1982 when he authorized a "loan" to a fictitious customer, William R. Walters, for $3,000 without any collateral. ¹ This single payment loan, which was ostensibly obtained to purchase farm equipment, was due on November 23, 1982 in the amount of $3,128.75. Prior to the date when the Walters debt was due, Berridge wrote a second loan in Walters' name, which paid off the initial $3,000 indebtedness plus interest and service charges, with a due date of February 22, 1983. This loan enabled the Bank to secure its loan with Walters' farm equipment.

On March 7, 1983, Berridge wrote a third loan to Walters which became due on July 7, 1983 and, once again, listed the farm machinery as collateral. This pattern continued until February 5, 1985 when a seventh loan to Walters in the amount of $4,756.01 was used to satisfy the obligations under the sixth loan. This final loan was never repaid. On August 5, 1985, the Bank conceded that the loan was uncollectible and wrote it off as a bad debt.

At a later time, the Bank learned that the social security number on Walters' loan applications belonged to a woman from Beaver Creek, Ohio, and the phone number had been assigned to an individual who had never heard of him. Correspondence that had been sent to Walters' listed address was returned to the Bank without delivery. According to the Government, Berridge illegally received $3,400 as a direct result of the Walters' loan, with a loss to the Bank of $5,477.73.

The Government asserts that Berridge applied this same repetitive unlawful scheme against the Bank on several other occasions when he used the names of Charles R. Tims (1982-1985; $5,586.65 Bank loss), Gregory Harvey (1983-1985; $4,269.23 Bank loss), Steven Myers (1984-1988; $6,787.49 Bank loss), and Eric Roberts (1984-1985; $3,173.45 Bank loss).

In addition, the Government maintains that Berridge authorized loans, all of which were used to pay off other fraudulent loans in the names of real and fictional Bank customers. As an example, the Government cites an August 30, 1985 loan to George R. Robinson in the amount of $1,750 which was allegedly used to purchase an automobile. Although this loan was paid off in June 1986, the Government contends that this was another fraudulent loan by Berridge because (1) the social security number on the loan security agreement belonged to a woman in Canton, Ohio, (2) the address was not valid, (3) the serial number of the vehicle was not listed on the loan agreement, and (4) no title was ever received by the Bank.

Utilizing the same technique that he had used with the Walters account, Berridge issued a loan to Henry L. Johnson, Jr. in May 1986. In August 1987, Berridge issued a third single payment loan in the amount of $8,877.20 with a due date of January 18, 1988. Although the loan had been delinquent for approximately 27 months, Berridge recorded it as having been "paid" on his report to the Bank's executive board. A fourth loan in Johnson's name was issued on April 21, 1990 for $11,886.79. When this account became delinquent for more than 120 days, the Bank's loan administration and collections officers questioned Berridge about some apparent irregularities on the account (i.e., Johnson's social security number belonged to a woman in Cleveland Ohio, and his "employer" denied that he had ever been an employee of the company). This loan was later repaid (in the amount of $13,257.39) by Berridge by using a blank security agreement without the knowledge of the legitimate Bank customer, Jack Swain, who had signed the document.

On August 13, 1986, Berridge issued a loan to Raymond L. Strait which was due to be paid in full on February 13, 1987. However the debt was fully satisfied on August 18, 1987 with a payment of $2,823.14. On the same day, Berridge extended a loan to Johnson in the amount of $4,823.14, a transaction which the Government asserts was used to pay off the Strait loan. ²

Finally, Berridge is accused of inserting amounts onto legitimate loans by Bank customers and utilizing blank signed security agreements for purposes that were not authorized by the signatories. The funds from these transactions were deposited directly into Berridge's account. However, Berridge only acknowledges that he forged the loan application for Swain and added additional amounts to a loan with authorization of one of the Bank's legitimate customers, Fred Phillips.

On January 21, 1993, a federal grand jury returned a twenty-one count indictment against Berridge, charging him with bank fraud and specific instances of misapplication or embezzlement, false statements on loan applications, and misuse of a social security number. On August 9, 1993, the parties entered into an agreement in which Berridge consented to plead guilty to Counts 1 and 21. ³ However, the district court rejected their settlement proposal because Berridge did not accept full criminal responsibility for the material allegations within the two counts. Thereafter, the plea agreement was revised by the parties to substitute Counts 16-19 (i.e., making false statements on a loan application in violation of 18 U.S.C. Sec. 1014) for Counts 1 and 21. Thereafter, the district court accepted his guilty plea and, thereafter, sentenced him to serve a period of 24 months in a federal correctional facility and, among other things, barred him from employment in the banking industry during his term of probation.

II

In reviewing federal guideline sentences, the factual findings of the district court are reviewed on the basis of a clearly erroneous standard. United States v. Garner, 940 F.2d 172, 174 (6th Cir.1991). Where the applicability of an enhancement provision is contested, the Government bears the burden of establishing the enhancement factors by a preponderance of the evidence. United States v. Feinman, 930 F.2d 495, 500 (6th Cir.1991). Moreover, in reviewing the issue of a defendant's acceptance of responsibility, the determination of the sentencing judge is entitled to great deference upon appellate review and should not be disturbed unless it is without foundation. Id. (citing U.S.S.G. Sec. 3E1.1, Application Note 5).

A

Berridge contends that the amount of loss for his relevant conduct should be limited to the four counts to which he pled guilty. Moreover, he submits that this amount should have been reduced by the district court to reflect the loan to Swain in the amount of $13,257.39 which had been used to pay off another loan. ⁴ Thus, Berridge submits that $30,000 is the more appropriate figure to be used.

Berridge's assertions are without merit. Under U.S.S.G. Sec. 1B1.3(a)(2), the sentencing court may properly include "all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction." Moreover, "conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guidelines sentencing range." U.S.S.G. Sec. 1B1.3 Comment (Background). See also, United States v. Velez, 1 F.3d 386, 389 (6th Cir.1993) (court is not constrained by parties' stipulation to limit relevant conduct); United States v. Smith, 887 F.2d 104, 106-08 (6th Cir.1989). Notwithstanding Berridge's argument, the allegedly fraudulent loans, to which he neither acknowledged nor admitted culpability, were clearly a part of the same course of conduct. Accordingly, the amount used in the Presentence Report (to wit, $78,331.42 which represents the actual dollars for which the Bank could not account), was a permissible amount for the district court to consider at the time of the sentencing. See J.A. Vol. II (Under Seal) at 263-64. ⁵ However, the district court determined that the total loss to the Bank was $65,074.03 as the result of an erroneous deletion of the Swain loan which had already been excluded from the calculated amount. The Guidelines dictate that a court should add five levels for a loss between $40,001 and $70,000. U.S.S.G. Sec. 2F1.1(b)(1). Because this amount falls within that range, the Guidelines mandate an increase of five levels. ⁶ Even if the district court had utilized the amount of Bank loss to which Berridge admits, the base offense level would have been the same. Thus, despite these incorrect calculations, the conclusions of the district court...