U.S. v. Cea, 756
| Decision Date | 31 January 1991 |
| Docket Number | D,No. 756,756 |
| Citation | 925 F.2d 56 |
| Parties | UNITED STATES of America, Appellee, v. Stephen CEA, Defendant-Appellant. ocket 90-1245. |
| Court | U.S. Court of Appeals — Second Circuit |
Jeh C. Johnson, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Paul A. Engelmayer, Jonathan Liebman, Asst. U.S. Attys., New York City, on the brief), for appellee.
Kenneth I. Wirfel, New York City (Kurzman Karelsen & Frank, on the brief), for defendant-appellant.
Before KEARSE, PRATT and McLAUGHLIN, Circuit Judges.
Defendant Stephen Cea appeals from a judgment entered in the United States District Court for the Southern District of New York, following his plea of guilty before Mary Johnson Lowe, Judge, convicting him of embezzlement of approximately $756,354 from his employer, Chemical Bank ("Bank"). Cea was sentenced principally to a 25-month term of imprisonment, to be followed by a three-year term of supervised release. On appeal, Cea challenges his sentence, contending that it was based on an erroneous interpretation of "Loss" as that term is used in Sec. 2B1.1 of the United States Sentencing Guidelines ("Guidelines"). We conclude that the entire $756,354 was properly viewed as loss and that the sentence was therefore proper.
From 1986 through 1988, Cea was a vice president of the Bank and was in charge of real estate loan closings. In that position, he was responsible for fixing the legal processing fees charged by the Bank to borrowers. In his plea of guilty, entered after the government had presented its case at trial, Cea admitted having embezzled "approximately $750,000 in processing fees, loan processing fees, from borrowers of Chemical Bank in connection with loan documentation prepared by me." The trial evidence revealed that Cea had effected his thefts totaling $756,354 by instructing loan customers to make checks payable to "C.B. Legal Processing" rather than to "Chemical Bank" or "Chemical Bank Legal Processing." Cea then caused the "C.B. Legal Processing" checks to be deposited into accounts maintained by his wife and himself at another bank.
The district court viewed the entire $756,354 as "Loss" within the meaning of Sec. 2B1.1 of the Guidelines and found that Cea's total offense level was 16. Cea contends that the court erred in considering this entire amount to be a loss because the Bank would not have been entitled to retain the amounts it charged as legal processing fees if the amounts received exceeded the Bank's costs. Cea's argument is meritless.
Section 2B1.1 of the Guidelines provides that in a theft or embezzlement case, the defendant's base offense level is to be set with reference to the amount of the victims' loss. The commentary to that section states that " 'Loss' means the value of the property taken...." Guidelines Sec. 2B1.1 Application Note 2. There is no suggestion in the commentaries that loss was intended...
To continue reading
Request your trial
-
U.S. v. Spiegelman, 97 CRIM. 309(LAK).
...e.g., United States v. Matt, 116 F.3d 971, 975 (2d Cir.1997); United States v. Brach, 942 F.2d 141, 143 (2d Cir.1991); United States v. Cea, 925 F.2d 56, 57 (2d Cir.1991); United States v. Parker, 903 F.2d 91, 104-05 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (199......
-
U.S. v. Brach, 1204
...sentencing adjustments based on the value of what was taken, not on the ultimate harm suffered by the victim. See United States v. Cea, 925 F.2d 56, 57 (2d Cir.1991); United States v. Parker, 903 F.2d 91, 104-05 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). ......
-
U.S. v. Walker
...the defendant's intention to repay and the actual harm ultimately suffered by the victim irrelevant. See id.; see also United States v. Cea, 925 F.2d 56, 57 (2d Cir. 1991) ("There is no suggestion in the commentaries that loss was intended to be limited to the harm done by the defendant whe......
-
U.S. v. Walker
...defendant's intention to repay and the actual harm ultimately suffered by the victim irrelevant. See id.; see also United States v. Cea, 925 F.2d 56, 57 (2d Cir. 1991) ("There is no suggestion in the commentaries that loss was intended to be limited to the harm done by the defendant when, f......