U.S. v. Smith

• Decision Date: 15 November 1991
• Docket Number: No. 91-6096,91-6096
• Citation: 951 F.2d 1164
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred James SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1164

951 F.2d 1164

60 USLW 2403

UNITED STATES of America, Plaintiff-Appellee, v. Alfred James SMITH, Defendant-Appellant.

No. 91-6096.

United States Court of Appeals Tenth Circuit.

Nov. 15, 1991.

Jerry S. Duncan, Oklahoma City, Okl., for defendant-appellant.

Timothy D. Leonard, U.S. Atty. and Barbara E. Poarch, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Before McKAY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Defendant Alfred James Smith appeals his twenty-four month sentence for violation of 18 U.S.C. §§ 2 and 1014 (1988) (aiding and abetting and false statements to a federally insured lending institution). Mr. Smith's sentence was imposed pursuant to the United States Sentencing Commission Guidelines Manual (Nov. 1, 1990) (hereinafter Guidelines). The district court adopted the probation officer's offense level calculation under section 2F1.1 of the Guidelines, which governs offenses involving fraud and deceit. The calculation of nineteen reflects a base offense level of six, a nine level enhancement for a loss value of $440,896, and a four level enhancement for Mr. Smith's role as an organizer pursuant to section 3B1.1(a) of the Guidelines. ¹ Appendix for Appellant, vol. II, Presentence Report. His sentence was reduced from a guideline range of thirty to thirty-seven months to the statutory maximum of two years. Mr. Smith challenges the district court's calculation of total loss, and the enhancement of his sentence for his role in the offense. We reverse as to both matters and remand for immediate release because Mr. Smith has served his sentence under the proper guideline range.

I.

Because Mr. Smith's appeal goes only to the propriety of his sentence, we need not restate the facts in great detail. Briefly, from 1986 to 1989, Mr. Smith operated Handcraft Homes, which constructed and marketed single family residences. In the one count on which he pled guilty, Mr. Smith represented to a federally insured institution that a buyer had made a five hundred dollar earnest money payment on a new home, when in fact he had not. On six different occasions, Mr. Smith represented to federally insured institutions that his customers had made down payments of specified amounts when they had either made substantially smaller down payments or no down payments at all. The cumulative value of the loans advanced on the basis of these misrepresentations was $440,896. Not a single loan was in default at the time of sentencing.

II.

In its application of Guideline § 2F1.1, the district court adopted the probation officer's position that the appropriate loss valuation for computation of the specific offense characteristic was $440,896. Under section 2F1.1(b)(1)(J), this resulted in a nine level addition to the base offense level of six. To support the increase, the probation officer, and by inference the district court, relied on Guideline Application Note 7 to section 2F1.1, which provides:

"Valuation of loss is discussed in the Commentary to § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft). In keeping with the Commission's policy on attempts, if a probable or intended loss that the defendant was attempting to inflict can be determined, that figure would be used if it was larger than the actual loss."

(Emphasis added). ² The district court apparently found that there was no actual loss and that the defendant intended and attempted to inflict a loss of $440,896.

We review factual findings supporting a district court's offense level calculation under the "clearly erroneous" standard. United States v. Poole, 929 F.2d 1476, 1483 (10th Cir.1991) (calculation of drug quantity). Other circuits have applied this standard to a district court's calculation of loss under section 2F1.1. United States v. Haddon, 927 F.2d 942, 952 (7th Cir.1991); United States v. Davis, 922 F.2d 1385, 1388 (9th Cir.1991). Because we find no support in the record for the district court's finding that Smith attempted to inflict a loss in the amount for which he was sentenced, we must reverse the calculation.

The Guidelines increase a defendant's base offense level sentence for either actual or intended loss, whichever is greater. ³ United States v. Palinkas, 938 F.2d 456, 465 n. 19 (4th Cir.1991) ("if a probable or intended loss was greater than the actual loss, the larger figure will be used"); United States v. Schneider, 930 F.2d 555, 556 (7th Cir.1991). Where the fraud results in actual loss within the definition provided by the commentary to Guidelines § 2B1.1, that value will be considered for purposes of enhancement under section 2F1.1. Where there is no such loss, or where actual loss is less than the loss the defendant intended to inflict, intended or probable loss may be considered. Application Note 7, Guidelines § 2F1.1; see, e.g., United States v. Lohan, 945 F.2d 1214, 1219 (2d Cir.1991) ("Under the Guidelines 'loss' 'may consist of the "probable" loss resulting from the fraud' " (quoting United States v. Brach, 942 F.2d 141, 143 (2d Cir.1991)); Haddon, 927 F.2d at 951-52; United States v. Wills, 881 F.2d 823, 827 (9th Cir.1989) (affirmed enhancement in credit card fraud case on basis of intended loss where intended loss was greater than actual loss).

A. Actual Loss

There is no evidence of any actual loss in the record. Neither the probation officer nor the government contended below, nor does the government contend here, that the $440,896 figure represented the amount of property "taken" by Mr. Smith through his misrepresentations. See Application Note 2, Guidelines § 2B1.1. Moreover, the district court made no such finding. Nevertheless, because enhancement could properly be based on actual loss, we review the record to see if the district court's enhancement of Mr. Smith's sentence is justified on the basis of actual loss.

Under the circumstances of this case, we conclude that actual loss should be measured by the net value, not the gross value, of what was taken. Although Mr. Smith did receive all the proceeds from the loans, ⁴ he delivered to the lenders something in return: the security interest in the houses and the promises of the individual borrowers to repay the loans. Under the Guidelines, net loss must reflect the value of the property securing the loans. The government has the burden of proving the amount of actual loss. Because the government has failed to prove any actual loss in this case, Mr. Smith's sentence may not be enhanced on the basis of actual loss. ⁵

This net concept of actual loss comports with common law valuation of fraud. Under the common law, if a defendant deceitfully persuaded a victim to give up something of value, the calculation of loss takes into account any value given to the victim by the defrauder. See Dan B. Dobbs, Remedies § 9.2 at 594-98 (1973) (various damage formulae for civil fraud based on net rather than gross value); Guidelines § 2F1.1, Application Note 7(a) (Nov. 1, 1991).

Our approach thus distinguishes between naked fraudulent takings, and exchanges of property where the wrongdoer merely misrepresents the value of the consideration advanced. If a fraud is a naked taking of property, the net and gross loss are the same since the victim got nothing of value in return for the property given up. However, if the fraud consists of an unequal exchange of property, the loss or taking consists only of the difference in value between what was given and what was obtained. In any event, it is a net value that must be used to measure loss. Any other approach ignores reality. See Schneider, 930 F.2d at 559; cf. United States v. Whitehead, 912 F.2d 448, 452 (10th Cir.1990) (economic loss overvalued). A thief who steals $100,000 is more culpable than a salesman who obtains $100,000 by selling a victim an $80,000 house he fraudulently represents as being worth $100,000. In the latter case, it makes no sense to suggest that $100,000 is the accurate measure of the victim's loss.

United States v. Johnson, 941 F.2d 1102 (10th Cir.1991), is not to the contrary. In that case we upheld, on the basis of the indictment, a sentence based on the value of several houses that were fraudulently acquired by the defendant. Id. at 1113. Although Mr. Johnson lied about his intention to repay the loans on the houses, the indictment alleged that he fraudulently took the houses, rather than the value of the loans. That indictment made sense in Johnson, where the loans at issue were assumed, and were not the target of the defendant's fraud. Thus, the seller in Johnson gave the defendant title to the houses in exchange for a fraudulent promise that the defendant would assume the seller's obligation. In this sense, Johnson involved a naked taking in which the seller received nothing in return because the only consideration offered by the defendant was a worthless promise to assume the loans.

Here there is no actual loss. Mr. Smith's misrepresentations resulted in an exchange for value, not a net loss to the lending institutions. The government does not contest Mr. Smith's assertion that the loans were "fully secured by the property involved." Corrected Brief for Appellant at 5. In order to justify enhancement on the basis of actual loss, the government simply must do more.

Our approach is consistent with the new commentary to Guidelines § 2F1.1, promulgated by the Sentencing Commission to "provide[ ] additional guidance with respect to the determination of loss." Guidelines, App. C, at 224 (Nov. 1, 1991). The commentary provides:

"In fraudulent loan application cases and contract procurement cases where the defendant's capabilities are fraudulently represented, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss). For example, if a defendant fraudulently obtains a loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced...