U.S. v. Burns, 89-50255

• Decision Date: 23 January 1990
• Docket Number: No. 89-50255,89-50255
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney Eugene BURNS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 334

894 F.2d 334

UNITED STATES of America, Plaintiff-Appellee, v. Rodney Eugene BURNS, Defendant-Appellant.

No. 89-50255.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 10, 1990.

Decided Jan. 23, 1990.

Knut Johnson, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Judith S. Feigin and Shane Harrigan, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN, Chief Circuit Judge; FARRIS and NOONAN, Circuit Judges.

PER CURIAM:

Rodney Burns pled guilty to one count of violating 18 U.S.C. Sec. 1029(a)(2) (fraudulent use of access device) and appeals from the resulting 30-month sentence.

Using fraudulently obtained credit card numbers, Burns ordered computer equipment. Before he was apprehended, he had obtained goods for which billings exceeded $107,423. He contends inter alia that his peculations were improperly calculated because sales tax and shipping charges should not have been included in the "loss" column. He says the victim seller did not "lose" these amounts. His other attacks on the sentence are equally ingenious and equally unpersuasive.

The presentence report prepared in Burns's case calculated his base level as six and, pursuant to Sentencing Guideline Sec. 2F1.1(b)(1)(G), added six more points because the loss was between $100,001 and $200,000. Another two points were added because Burns's scheme defrauded more than one victim and involved more than minimal planning, and two points were deducted for acceptance of responsibility. The total offense level was therefore twelve. As an ex-convict, Burns had a criminal history category of VI. The applicable guideline sentence range was therefore 30-37 months.

Burns challenged the probation report, claiming that the loss involved was no more than $50,000. He also asked that his sentence be made concurrent to the one he was serving after violating probation for the state offenses of which he had previously been convicted.

A. Inclusion of Sales Tax and Shipping Costs under 2F1.1

18 U.S.C. Sec. 3742(a)(2) provides for review of sentences imposed as a result of an incorrect application of the Sentencing Guidelines ("the Guidelines"). The interpretation of "loss" under Sec. 2B1.1 of the Guidelines is a question of law.

Offenses involving fraud or deceit are covered under Guideline Sec. 2F1.1. The base offense level assessed for crimes under this section varies with the amount of the loss occasioned by the offender. Under 2F1.1(b)(1)(G), if the loss incurred is between $100,001 and $200,000, six points are added to the offense level; if between $50,001-$100,000, five points are added.

Loss under Sec. 2F1.1 incorporates the definition of loss discussed in the Commentary to Sec. 2B1.1. The Commentary to 2B1.1 defines "loss" as "the value of the property taken, damaged, or destroyed." It goes on to say that, "[o]rdinarily, when property is taken or destroyed, the loss is the fair market value of the particular property at issue." Burns argues that the common understanding of fair market value is "the amount a willing buyer will pay for an item." By this definition, he says, sales tax and shipping costs must be excluded because those portions of the buyer's payment go to a third party, not to the seller.

Burns fails to recognize that in ordinary retail trade the amount that a willing buyer is prepared to pay includes the tax and shipping costs, regardless of who ultimately receives that fraction of the purchase price. Moreover, other parts of the Commentary to Sec. 2B1.1 contradict the suggestion that the Sentencing Commission meant to exclude tax and shipping charges in the calculation of loss. Application Note 4 of the Commentary to 2B1.1 states that "[t]he loss includes any unauthorized charges made with stolen credit cards" (emphasis added), and Application Note 3 provides that "[t]he loss need not be determined with precision, and may be determined from any reasonably reliable information available." See also Application Note 7, Commentary to Sec. 2F1.1 (the probable or intended loss that the defendant meant to inflict should be used if it is larger than the actual loss). There is no indication from the Commission's commentaries that it intended the district judge to engage in the kind of parsing of the loss figure that Burns's position would require.

In addition, as the government points out, Burns failed to present the district court with any calculation of the applicable shipping costs. This court will not allow a pleader to make his first presentation of material figures to this court, when he had ample opportunity to do so in the trial court. See United States v. Monaco, 852 F.2d 1143, 1150 (9th Cir.1988).

B. Evidence of Burns's Attempt to Order Additional Computer Equipment

As noted in the preceding section, the district court is directed under the Sentencing Guidelines to use the amount of the probable or intended loss that the defendant was attempting to inflict for sentencing purposes, if that amount can be determined and it is larger than the actual loss. Application Note 7, Commentary to Sec. 2F1.1. See also United States v. Wills, 881 F.2d 823, 827 (9th Cir.1989). In this case, the government presented evidence that Burns had attempted to order $25,000 of additional equipment from a seller who did not send the goods because of dawning suspicion about Burns. Burns argued to the district court, and contends again here, that the evidence was insufficient to conclude that the additional orders had been placed by him. He claims that because the district court relied upon uncorroborated evidence in making its sentencing determination, his sentence is defective.

This court reviews a finding of fact underlying a sentence determination for clear error. Wills, 881 F.2d at 825. The evidence supporting the government's claim about the additional $25,000 worth of equipment was contained in an investigative report prepared by Secret Service agents detailing the losses suffered by a seller called CompuAdd. The company had informed the agents that it had shipped over $25,000 worth of computer equipment to San Diego and that about $30,000 more had been ordered but not sent. The orders and shipments all involved three addresses in San Diego which Burns admitted using to receive the equipment he ordered...