U.S. v. Wimbish, 92-1060
| Decision Date | 17 December 1992 |
| Docket Number | No. 92-1060,92-1060 |
| Citation | 980 F.2d 312 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bobby Glen WIMBISH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ira R. Kirkendoll, Federal Public Defender and Timothy W. Crooks, Asst. Federal Public Defender, Ft. Worth, Tex., for defendant-appellant.
David Jarvis, Asst. U.S. Atty. and Marvin Collins, U.S. Atty., Ft. Worth, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before WILLIAMS, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
Bobby Glen Wimbish pleaded guilty to one count of bank fraud and to one count of possession of stolen mail. From stolen mail, Wimbish had obtained personalized checks and bank statements. He deposited forged checks with several banks and then received as cash back a portion of each deposit. At sentencing, Wimbish objected to the district court's use of the face value of the forged checks to determine loss under the Sentencing Guidelines. The court overruled Wimbish's objection and imposed sentence of two concurrent terms of 30 months in prison followed by five years of supervised release. Wimbish challenges the district court's calculation of his sentence under the guidelines. We affirm.
In June and July 1991, Bobby Glen Wimbish purchased personalized blank checks and bank statements. They had been stolen from the mail. Wimbish used these checks to commit fraud on several banks in the Dallas-Fort Worth area. Generally, Wimbish and a female companion would forge a stolen check drawn on one account, use a stolen deposit slip to deposit the check into another account, and request cash back from the deposit. The presentence report (PSR) calculated the face value of the fraudulently deposited checks as $100,944 and the actual loss to the banks as $14,731, which was the amount Wimbish received.
On November 1, 1991, Wimbish pleaded guilty to one count of bank fraud under 18 U.S.C. § 1344 and to one count of possession of stolen mail under 18 U.S.C. § 1708. The PSR then calculated the offense levels pursuant to the Sentencing Guidelines, U.S.S.G. § 2F1.1 for fraud and U.S.S.G. § 2B1.2 for possession of stolen mail. Although a different sentencing guideline applies to each count, the grouping rule of U.S.S.G. §§ 3D1.2(d) and 3D1.3 calls for the sentencing court to calculate both guidelines and to apply the one that produces the highest offense level. Therefore, the PSR calculated both offense levels in order to determine which was higher.
Both guidelines enhance the base offense level on a graduated scale according to the amount of the victims' loss. The PSR used the $100,944 face value of the checks, not the $14,731 actually obtained, to determine the amount of loss. For the bank fraud count, the face value of the checks led to enhancing the base offense level of six by six levels, resulting in a total offense level of twelve. U.S.S.G. § 2F1.1(b)(1)(G). For the possession of stolen mail count, the face value caused the PSR to enhance the base offense level of four by eight, also reaching a total offense level of twelve. U.S.S.G. §§ 2B1.2(b)(1) and 2B1.1(b)(1)(I). Because both total offense levels were the same, the PSR simply used the offense level of twelve, coupled with a criminal history category of V. The resulting sentencing guideline range was 27-33 months.
At the sentencing hearing Wimbish objected to the PSR's recommendations. He argued that he intended to defraud the banks only in the amount of cash he actually received. Under his contention, the loss of $14,731 would produce a total base offense level of nine and a sentencing range of 18-24 months. Despite Wimbish's objection, however, the district court adopted the PSR's calculations and sentenced Wimbish to two concurrent terms of 30 months' imprisonment; a two-year and a five-year term of supervised release, to run concurrently; and a $100 mandatory special assessment.
Wimbish argues on appeal that the district court erred in using the face value of the checks to calculate the loss. He asserts that for bank fraud he did not intend a loss of $100,944. Wimbish also urges that for possession of stolen mail the district court should have fixed the amount of loss at the value of the items stolen. Because he possessed only blank checks, the loss should have been merely the replacement value of the checks, a de minimis amount. His assertions, therefore, would result at most in a total offense level of nine, producing a sentencing range of 18-24 months.
We review the application of the Sentencing Guidelines de novo and the district court's findings of fact for clear error. United States v. Sanders, 942 F.2d 894, 897 (5th Cir.1991). Because the calculation of amount of loss is a factual finding, we review that determination for clear error. As long as a factual finding is plausible in light of the record as a whole, it is not clearly erroneous. United States v. Watson, 966 F.2d 161, 162 (5th Cir.1992).
The Sentencing Guidelines' grouping rule directs the court to apply the highest offense level. U.S.S.G. §§ 3D1.2 and 3D1.3. Consequently, if the court erred in calculating one offense, but not the other, the higher offense level of twelve would still stand, rendering the error harmless. Since we have analyzed both offenses, we give our analysis although we find no error in the calculation of loss for either count.
Application Note 7 of U.S.S.G. § 2F1.1 provides guidance on how to determine loss and also incorporates the discussion of loss valuation found in the commentary for § 2B1.1. Application Note 8 of § 2F1.1 further provides that the sentencing court need not determine loss precisely, as long as its estimate is reasonable.
Note 7, however, changed between Wimbish's commission of the offense and the sentencing. Pursuant to 18 U.S.C. § 3553(a)(4), district courts should apply the Sentencing Guidelines in effect on the date of sentencing, unless the guideline in effect on the date of the offense is substantially more favorable to the defendant. United States v. Suarez, 911 F.2d 1016, 1021-22 (5th Cir.1990). Because there is no ex post facto problem here, the guideline effective at Wimbish's sentencing applies.
Before November 1, 1991, Note 7 provided that "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." U.S.S.G.App.C., 393 (emphasis added). Effective November 1, 1991 (and therefore effective when Wimbish was sentenced in January 1992), the Commission deleted the reference to probable loss. Therefore, amended Application Note 7 directs the sentencing court to substitute "intended loss that the defendant was attempting to inflict" for the actual loss. U.S.S.G. § 2F1.1 comment. (n. 7) (emphasis added). Both versions of Note 7 included the following example: "[I]f the fraud consisted of ... representing that a forged check for $40,000 was genuine, the loss would be $40,000."
Wimbish first argues that the district court erred because the amendment of Note 7 authorizes a district court to consider only the intended loss, not the probable loss. To support his argument, Wimbish refers to United States v. Brigman, 953 F.2d 906, 908 (5th Cir.), petition for cert. filed, --- U.S.L.W. ---- (U.S. Aug. 4, 1992) (No. 92-5417). In Brigman, we considered U.S.S.G. § 1B1.7, which directs courts to treat the commentary to the guidelines "as the legal equivalent of a policy statement." Section 1B1.7 warns that "[f]ailure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal." Wimbish further contends that amendments to a commentary can effectively repudiate prior decisions that were grounded on the former commentary. United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir.1992). Wimbish also notes that the guideline itself has never defined loss; the commentary has always been the source for the definition and method of calculation.
Congress clearly authorized the Sentencing Commission to promulgate policy statements. 28 U.S.C. § 994(a)(2) (Supp.1992). The Sentencing Commission in turn promulgated its commentaries, giving them the force of policy statements. U.S.S.G. § 1B1.7. Congress then provided that courts must consider the Sentencing Commission's policy statements when imposing sentence. 18 U.S.C. § 3553(a)(5) (Supp.1992).
Nevertheless, at issue is the weight that a policy statement should carry. Congress has mandated that courts sentence within the guidelines. 18 U.S.C. § 3553(b) (Supp.1992). No such mandate exists regarding policy statements. Therefore, although courts must consider the commentary, they are not bound by them as they are by the guidelines. THOMAS W. HUTCHISON & DAVID YELLEN, FEDERAL SENTENCING LAW AND PRACTICE 46 (1989). In Brigman, 953 F.2d at 908, we held:
[T]hese amendments to the commentary were intended by the Sentencing Commission to clarify the operation of § 3E1.1 ... [I]f Congress sought to create a "rebuttable presumption" surely it would have amended the guideline itself rather than simply the accompanying commentary.... [T]he changes in the commentary are plainly more a matter of emphasis than of substantive applicability.
The guidelines themselves limit the binding effect of the commentary. Section 1B1.7 states that the application notes serve both to interpret and explain the guidelines and to detail circumstances that justify departing from them. U.S.S.G. § 1B1.7. Although U.S.S.G. § 1B1.7 states that a court's failure to follow a commentary could result in reversal, the commentary to U.S.S.G. § 1B1.7 undermines the force of that statement. The commentary explains:
In stating that failure to follow certain commentary "could constitute an...
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