U.S. v. Snover, s. 89-1614

• Citation: 900 F.2d 1207
• Decision Date: 09 April 1990
• Docket Number: 89-1615,Nos. 89-1614,s. 89-1614
• Parties: UNITED STATES of America, Appellee, v. W. Dale SNOVER, a/k/a Dale Wayne Snover, James Dale Star and James D. Star, Appellant. UNITED STATES of America, Appellee, v. Mary A. SNOVER, a/k/a Marianne Star and Mary Ann Star, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1207

900 F.2d 1207

UNITED STATES of America, Appellee, v. W. Dale SNOVER, a/k/a Dale Wayne Snover, James Dale Star and James D. Star, Appellant.

UNITED STATES of America, Appellee, v. Mary A. SNOVER, a/k/a Marianne Star and Mary Ann Star, Appellant.

Nos. 89-1614, 89-1615.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1989.

Decided April 9, 1990.

William G. Line, Fremont, Neb., for appellants.

Alan L. Everett, Lincoln, Neb., for appellee.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BRIGHT, Senior Circuit Judge.

WOLLMAN, Circuit Judge.

W. Dale Snover and his wife, Mary A. Snover, appeal from the district court's ¹ sentences imposed upon them following their plea of guilty on a charge of concealment of assets in bankruptcy. We affirm.

The Snovers were jointly indicted on three counts of bankruptcy fraud. They pleaded guilty to Count I of the indictment in exchange for dismissal of the other counts.

Count I of the indictment charged the Snovers with concealing the following property from the bankruptcy trustee, in violation of 18 U.S.C. Sec. 152: (1) an interest in Lincoln, Nebraska, residence property; (2) an interest in a $20,000 savings certificate; ² (3) cash surrender value of three life insurance policies; (4) farm property consisting of two grain wagons, three stock water tanks, 100 steel and wood fence posts, one grain auger, and two feed bunks; (5) a 1983 Lincoln Continental automobile; (6) livestock of an unknown quantity; and (7) money of an unknown amount.

Initially, Mr. and Mrs. Snover were sentenced to 48 and 24 months, respectively, with three years of supervised release following incarceration and joint and several restitution of $151,379. The Snovers appealed these sentences, arguing that the district court had viewed the Guidelines as unconstitutional and thus not binding. We remanded for resentencing under the Guidelines in light of Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), which upheld the constitutionality of the Guidelines.

On remand, Dale Snover received a 46-month sentence; Mary Snover received a 20-month term. Both sentences are above the range set by the Guidelines.

The Snovers raise two principal issues on appeal: (1) the district court erred in finding aggravating factors justifying an increase in the sentence under 18 U.S.C. Sec. 3553(b); and (2) the district court misapplied or failed to follow the Guidelines.

The Snovers, who are in their sixties, were extensive landowners in Eastern Nebraska. They attempted a rapid expansion of their holdings in the early 1980's when land prices were high. When land prices fell, they were unable to meet the payments. They sought the advice of an attorney regarding filing for bankruptcy. Not satisfied with this attorney's advice, they employed a second attorney, who filed the petition for bankruptcy for them.

At the sentencing hearing on remand, the district court noted that the Snovers had taken steps to keep the property from their creditors. Before filing bankruptcy the Snovers: (1) purchased a home in Lincoln, Nebraska, with about $140,000 cash, representing slightly over half the cost of the home; (2) moved to Kansas, where bankruptcy laws were considered more favorable; and (3) used an alias in purchasing the real estate.

The district court noted the Snovers' activities after filing bankruptcy: (1) signing, under penalty of perjury, a statement of financial affairs containing false information about property; (2) cashing in three life insurance policies not mentioned in the bankruptcy petition; (3) selling farm machinery and equipment under aliases not listed in the petition; (4) selling livestock not reported to the bankruptcy court; (5) lying in an examination conducted pursuant to Bankruptcy Rule 2004 regarding the use of aliases and regarding ownership of property; and (6) renting a house and receiving rental payments through a numbered bank account. The district court also noted that a very substantial length of time elapsed from the first of these events until the Snovers' arrest, which occurred in July 1988.

The sentence range under the Guidelines for a conviction under 18 U.S.C. Sec. 152 was 14 to 21 months for Dale Snover, based on an offense level of 14, and 10 to 16 months for Mary Snover, based on an offense level of 12. See Guidelines Sec. 2F1.1. The district court determined that Dale Snover's offense level was higher because of his greater role in the offense.

The district court may depart from the Guidelines if it finds aggravating or mitigating circumstances which are not adequately taken into consideration by the Guidelines. 18 U.S.C. Sec. 3553(b). When departing from the Guideline range, however, the district court must provide "the specific reason for the imposition of a sentence different from that described [in the Guidelines]." 18 U.S.C. Sec. 3553(c). The district court's decision to depart upward is reviewed under an abuse of discretion standard, United States v. Carey, 898 F.2d 642 (8th Cir.1990); United States v. Drew, 894 F.2d 965 (8th Cir.1990), and "[t]he court's discretion to depart from the Guidelines is broad." United States v. Roberson, 872 F.2d 597, 601 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989).

We review sentences which are outside the applicable range for reasonableness. See 18 U.S.C. Sec. 3742(e)(3). We are commanded to accept the district court's findings of fact unless they are clearly erroneous and to give due deference to the district court's application of the Guidelines to the facts. Id. Sec. 3742(e).

The district court listed the aggravating factors which it found justified an upward departure. These factors included the Snovers' acts of concealment before and after filing bankruptcy, as well as "activity of a somewhat similar nature, though not resulting in criminal charges but intimating a deep attachment to the obtaining of money or property at the expense of others, thereby signaling the unlikelihood of rehabilitation without strong measures." The district court then listed three such activities: (1) The long course of buying property on contract, paying a portion of the price, but then stopping payments and making a profit on the property while the legal proceedings for recovery of the property were pending; (2) the long course of not paying bills for farming needs, even though financially able to do so; (3) Dale Snover's history of selling or using for his own purposes mortgaged property. The district court also pointed to "a lack of any genuine remorse over depriving the creditors by fraudulent means."

The Snovers contend that the factors cited by the district court do not justify upward departure because the factors were merged by the government in Count I of the indictment. The Snovers also assert that several factors were not violations of law, were acts advised by bankruptcy counsel, or were not established by reliable information, as required by the Guidelines. Likewise, they contend that selling farm equipment under aliases which are not listed in the petition is inherent in the offense to which they pleaded guilty and thus should not be considered as a factor not adequately taken...