U.S. v. Fine, No. 90-50280

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore NORRIS and THOMPSON, Circuit Judges, and KING; WILLIAM A. NORRIS
Citation946 F.2d 650
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert FINE, aka: Anosh Toufigh, aka: Jacob Maarse, aka: Jack Patterson, Defendant-Appellant.
Decision Date01 October 1991
Docket NumberNo. 90-50280

Page 650

946 F.2d 650
4 Fed.Sent.R. 213
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert FINE, aka: Anosh Toufigh, aka: Jacob Maarse, aka:
Jack Patterson, Defendant-Appellant.
No. 90-50280.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Aug. 13, 1991.
Decided Oct. 1, 1991.

Page 651

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

Michael J. Treman, Santa Barbara, Cal., for defendant-appellant.

Stephen A. Mansfield, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before NORRIS and THOMPSON, Circuit Judges, and KING, District Judge. *

WILLIAM A. NORRIS, Circuit Judge:

Fine appeals his sentence of 50 months. We affirm in part, reverse in part, vacate the sentence and remand to the district court for resentencing.

I

Appellant was charged in a multi-count indictment with a mail fraud scheme. According to the indictment, appellant engaged in four distinct fraudulent transactions in which he assumed the identities of various landowners and used their property as collateral to obtain loan proceeds. Appellant pled guilty to one count of mail fraud and one count of use of a fictitious name. These counts referred to an August 7, 1989 transaction in which appellant represented himself as a certain Anosh Toufigh and used property belonging to Toufigh as collateral without the owner's knowledge to receive $113,550.54. In return for appellant's guilty plea, the government agreed to drop the other counts which referred to similar transactions that occurred on different dates.

The Sentencing Guidelines provide for a base offense level of 6 for offenses involving fraud. See U.S.S.G. § 2F1.1(a). The Guidelines require that this base offense level be enhanced proportionately to the amount of the actual or intended monetary loss. See § 2F1.1(b). If the monetary loss exceeds $100,000 but is less than $200,000, the Guidelines in effect at the time of Fine's sentencing required that the base offense level be increased by 6 points. If the monetary loss exceeded $200,000, the Guidelines required an increase of 8 points.

In calculating the total monetary loss for enhancement purposes, U.S.S.G. § 1B1.3(a)(2) (the "Relevant Conduct" provision) requires that a sentencing judge aggregate the losses caused (or intended to be caused) by "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." (emphasis added). At sentencing, the government argued that the fraudulent transactions in the dropped counts were "relevant conduct" within the meaning of section 1B1.3(a)(2) and urged the district court to take into account losses arising from those transactions in determining the total loss. The district court agreed. Although the loss specified in the counts of conviction was less than $200,000, the district court enhanced the base offense level by 8 rather than 6 points because the total loss specified in the indictment was over $600,000.

On appeal, appellant argues that he was deprived of the benefit of his plea bargain when the district court took into consideration loss arising from counts which the government agreed to drop. Appellant's argument is squarely governed by our

Page 652

holding in United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir.1991). In Castro-Cervantes, we held that a court may not rely on dismissed charges in calculating the defendant's sentence. Id. at 1082. In justifying the holding, we reasoned, "[F]or the court to let the defendant plead to certain charges and then be penalized on charges that have, by agreement, been dismissed is not only unfair; it violates the spirit if not the letter of the bargain." Id. In the present case, the district court relied on the dismissed counts to enhance appellant's sentence. Because this reliance is impermissible under our holding in Castro-Cervantes, we reverse the district court's computation of the base offense level.
II

Under U.S.S.G. § 3C1.1, if the "defendant willfully ... attempted to obstruct the administration of justice during the investigation ... of the instant offense," his base offense is enhanced by two points. Relying on the fact that appellant made false statements upon his arrest and generally provided misleading information during the initial interrogation, the government argued that appellant's base offense level should be increased by two points. The district court agreed.

We affirm the district court's enhancement of appellant's base offense level for obstruction of justice. Under United States v. Christman, 894 F.2d 339 (9th Cir.1990), "[t]he court's finding that [defendant] obstructed justice is a factual conclusion which we review for clear error." Id. at 342. Having examined the presentence report, we...

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46 practice notes
  • U.S. v. Wong, No. 90-10356
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 10, 1993
    ...figure described in the plea agreement. Appellant's first argument is that this court's panel decision in United States v. Page 929 Fine, 946 F.2d 650 (9th Cir.1991), prohibits the district court from relying on dismissed counts in determining the applicable guideline range. However, this c......
  • U.S. v. Galloway, No. 90-3034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 17, 1992
    ...it to be unfair for a district court to enhance a sentence based on charges dismissed pursuant to a plea agreement. United States v. Fine, 946 F.2d 650, 652 (9th Cir.1991), reh'g en banc granted, 963 F.2d 1258 (9th Cases from this circuit include United States v. Lawrence, 915 F.2d 402, 406......
  • U.S. v. Butler, Nos. 778
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 23, 1992
    ...414, 416-17 (9th Cir.1990). Whether or not that decision is sound (it has been discarded in the Ninth Circuit, see United States v. Fine, 946 F.2d 650, 653-54 (1991), reh'g in banc granted, 963 F.2d 1258 (9th Cir.1992), following an in banc reversal of its premise that commentary may be dis......
  • Kinder v. United States, No. 91-6658
    • United States
    • United States Supreme Court
    • May 26, 1992
    ...of a plea bargain in order to increase the sentence. United States v. Faulkner, 952 F.2d 1066, 1069-1071 (1991); United States v. Fine, 946 F.2d 650, 651-652 (1991); United States v. Castro-Cervantes, 927 F.2d 1079, 1081-1082 (1991). The issue is of considerable importance. Petitioner plead......
  • Request a trial to view additional results
46 cases
  • U.S. v. Wong, No. 90-10356
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 10, 1993
    ...figure described in the plea agreement. Appellant's first argument is that this court's panel decision in United States v. Page 929 Fine, 946 F.2d 650 (9th Cir.1991), prohibits the district court from relying on dismissed counts in determining the applicable guideline range. However, this c......
  • U.S. v. Galloway, No. 90-3034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 17, 1992
    ...it to be unfair for a district court to enhance a sentence based on charges dismissed pursuant to a plea agreement. United States v. Fine, 946 F.2d 650, 652 (9th Cir.1991), reh'g en banc granted, 963 F.2d 1258 (9th Cases from this circuit include United States v. Lawrence, 915 F.2d 402, 406......
  • U.S. v. Butler, Nos. 778
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 23, 1992
    ...414, 416-17 (9th Cir.1990). Whether or not that decision is sound (it has been discarded in the Ninth Circuit, see United States v. Fine, 946 F.2d 650, 653-54 (1991), reh'g in banc granted, 963 F.2d 1258 (9th Cir.1992), following an in banc reversal of its premise that commentary may be dis......
  • Kinder v. United States, No. 91-6658
    • United States
    • United States Supreme Court
    • May 26, 1992
    ...of a plea bargain in order to increase the sentence. United States v. Faulkner, 952 F.2d 1066, 1069-1071 (1991); United States v. Fine, 946 F.2d 650, 651-652 (1991); United States v. Castro-Cervantes, 927 F.2d 1079, 1081-1082 (1991). The issue is of considerable importance. Petitioner plead......
  • Request a trial to view additional results

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