U.S. v. Moser, 98-2429

• Decision Date: 25 February 1999
• Docket Number: No. 98-2429,98-2429
• Citation: 168 F.3d 1130
• Parties: UNITED STATES of America, Appellee, v. Jeffrey Paul MOSER, a/k/a Harry N. Moser, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1130

168 F.3d 1130

UNITED STATES of America, Appellee, v. Jeffrey Paul MOSER, a/k/a Harry N. Moser, Appellant.

No. 98-2429.

United States Court of Appeals, Eighth Circuit Submitted Nov. 17, 1998.

Decided Feb. 25, 1999.

Jeff A. Bredahl, Fargo, ND, argued, for appellant.

Shon Hastings, Asst. U.S. Atty., Fargo, ND, argued (John Schneider and Lynn C. Jordheim, on the brief), for appellee.

BEFORE: LOKEN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Jeffrey Paul Moser opened a bank checking account using the name and birthdate of his brother Harry, a social security number that was later determined to belong to a deceased individual, and a North Dakota identity card that Mr. Moser had acquired in his brother's name that listed the latter's birthdate but contained Mr. Moser's own height, approximate weight, and hair color. Mr. Moser subsequently deposited a stolen check for $5,000 that had been made payable to "Harry Moser." Mr. Moser wrote twelve checks on the account with "starter" checks and, later, preprinted checks with the name of "Harry Moser." Ten of those checks were honored by the bank but two were refused. The bank suffered a total loss of almost $4,000; the two merchants to whom Mr. Moser's checks were returned lost approximately $670.

Mr. Moser pleaded guilty to a single count of bank fraud, see 18 U.S.C. § 1344, and the district court ¹ sentenced him to 20 months of imprisonment and a three-year term of supervised release. Mr. Moser appeals his sentence, disputing the application of a two-level enhancement for "more than minimal planning" pursuant to U.S.S.G. § 2F1.1(b)(2)(A). We affirm.

I.

Before his sentencing hearing, Mr. Moser submitted a memorandum to the district court, challenging the conclusion of the presentence report (PSR) that his crime involved "more than minimal planning" and was thus subject to a two-level enhancement under U.S.S.G. § 2F1.1(b)(2)(A). In the memorandum, Mr. Moser asserted generally that he had taken no significant affirmative steps to plan the crime or to conceal the offense, that there was no repetition or series of crimes, and that there was no elaborate scheme to commit the fraud; he did not contest any of the allegations of fact on which the PSR relied in suggesting that the enhancement was warranted.

Mr. Moser maintains on appeal, however, that the district court erred when it used the facts as represented in the PSR as the basis for imposing a two-level enhancement, because he says, the effect of his memorandum was to challenge the allegations contained in the PSR. He contends, therefore, that the government was required to produce evidence to support those allegations. In addition, Mr. Moser asserts that his counsel challenged the allegations of fact upon which the PSR relied when his counsel stated at the sentencing hearing that the government's brief supporting the PSR contained "a lot of facts" that were "highly speculative." Mr. Moser argues that once he had made these challenges, the court could no longer rely on the PSR as the basis for imposing the enhancement.

Fed.R.Crim.P. 32(c)(1) requires a sentencing court to rule on any unresolved objections to a PSR. We have held on numerous occasions, however, that unless a defendant objects to a specific factual allegation contained in the PSR, the court may accept that fact as true for sentencing purposes. See, e.g., United States v. Coleman, 132 F.3d 440, 441 (8th Cir.1998) (per curiam ), cert. denied, --- U.S. ----, 118 S.Ct. 1821, 140 L.Ed.2d 958 and --- U.S. ----, 119 S.Ct. 116, 142 L.Ed.2d 93 (1998); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 394, 139 L.Ed.2d 308 (1997); and United States v. LaRoche, 83 F.3d 958, 959 (8th Cir.1996) (per curiam ). Because Mr. Moser objected not to the facts themselves but to the PSR's recommendation based on those facts, we conclude that the district court did not err in relying on the PSR's allegations of fact in sentencing Mr. Moser. See, e.g., United States v. Goodwin, 72 F.3d 88, 90 (8th Cir.1995), and United States v. Flores, 9 F.3d 54, 56 (8th Cir.1993). His vague complaint about a "lot of facts" in the government's brief is insufficient to entitle him to a hearing because it lacks specificity and because it is not directed at the PSR in any event.

II.

Mr. Moser further asserts that the district court erred in assessing the two-level enhancement pursuant to U.S.S.G. § 2F1.1(b)(2)(A) for "more than minimal planning," even if the facts were as the PSR indicated. Application note 1(f) to U.S.S.G. § 1B1.1 defines "more than minimal planning" as present if the crime involved "more planning than is typical for commission of the offense in a simple form," if the defendant took "significant affirmative steps" to conceal the offense, or if the case involved...