USA. v. Torres

• Decision Date: 10 January 2000
• Docket Number: No. 99-1491,No. 99-1149,99-1149,99-1491
• Citation: 209 F.3d 308
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. JORGE TORRES a/k/a GEORGE BOYD, JR. Jorge Torres, Appellant UNITED STATES OF AMERICA, v. JORGE TORRES a/k/a GEORGE BOYD, JR. Jorge Torres, Appellant Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 308

209 F.3d 308 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. JORGE TORRES a/k/a GEORGE BOYD, JR. Jorge Torres, Appellant UNITED STATES OF AMERICA, v. JORGE TORRES a/k/a GEORGE BOYD, JR. Jorge Torres, Appellant

No. 99-1149 No. 99-1491

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted Under Third Circuit LAR 34.1(a) January 10, 2000

Decided April 6, 2000

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA District Judge: Honorable Eduardo C. Robreno, Jr. D.C. Criminal No. 98-cr-00514

Attorney for Appellant: Salvatore C. Adamo, Esquire 100 South Broad Street Land Title Building, Suite 1351 Philadelphia, PA 19110

Attorney for Appellee: Joel D. Goldstein, Esquire Assistant U.S. Attorney Office of United States Attorney Suite 1250, 615 Chestnut Street Philadelphia, PA 19106

Before: BECKER, Chief Judge, and ALITO and BARRY, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge:

Appellant Jorge Torres was sentenced on his plea of guilty to one count of bank fraud, in violation of 18 U.S.C. S 1344. On appeal, he has raised various challenges to the sentence that was imposed, most bottomed on his contentions that he was sentenced as if the fraud had been successful, when it was not, and there was no actual loss. We have considered the issues he has raised and find them to be without merit. Because, however, two of the issues addressed to Torres' attempted but unsuccessful fraud as well as the issue of how explicit a district court must be regarding a defendant's ability to pay a fine recur with some frequency in the district courts of this Circuit (and, by extension, in this Court), we will discuss them, albeit briefly.¹

I. Background

On September 14, 1997, Jorge Torres, identifying himself as George Boyd, opened a money market account at the Cottman Avenue branch of the Commonwealth Bank in Philadelphia, Pennsylvania. He presented photo identification displaying a picture of himself and a non-issued social security number. Ten days later, Torres, again posing as Boyd, returned to the Cottman Avenue branch and opened a second money market account in the name of Kelly Services, Inc. He presented a license in Boyd's name "c/o Kelly" from the Department of Licenses and Inspection and deposited a subsequently dishonored $240.65 third party check made payable to Kelly Services. On the same day, at the Port Richmond branch of the Commonwealth Bank, another individual using Boyd's name (surveillance cameras indicate that it was not Torres) deposited a stolen U.S. Treasury check in the amount of $66,021.94 and payable to Kelly Services into the Kelly Services account. An investigation subsequently established that Torres' fingerprint was on the deposit slip used in that transaction. The following day, Torres, yet again claiming to be Boyd, appeared at the Castor Avenue branch of the Commonwealth Bank and attempted to withdraw $24,900 from the Kelly Services account. The bank refused to permit the withdrawal, advising Torres that the funds were unavailable. Either shortly before or shortly thereafter, the bank came to suspect that the account was fraudulent. It notified the authorities, and Torres was subsequently arrested.

On September 29, 1998, a grand jury in the Eastern District of Pennsylvania indicted Torres on one count of bank fraud, in violation of 18 U.S.C. S 1344. On November 17, 1998, Torres pled guilty and a Presentence Investigation Report ("PSR") was prepared. The PSR noted that the United States Sentencing Guidelines ("U.S.S.G") called for a base offense level of six for a violation of 18 U.S.C. S 1344. See U.S.S.G. S 2F1.1. Because the attempted loss was $66,262.59, i.e. more than $40,000 but less than $70,000, the base offense level was increased by five levels pursuant to U.S.S.G. S 2F1.1(b)(1)(F). Another two levels were added pursuant to U.S.S.G. S 2F1.1(b)(2)(A) because the offense involved repeated acts over a period of time, and two levels were deducted pursuant to U.S.S.G. S 3E.1.1(a) because Torres accepted responsibility for the offense to which he pled guilty.

Based on a total offense level of eleven and a criminal history category of I, Torres' guideline range was eight to fourteen months imprisonment. At the sentencing hearing on February 8, 1999, Torres objected to the five level increase for loss in the amount of $66,262.59, contending that the correct loss figure should be $24,900 with only a four level increase. He argued, as well, that his actions constituted an attempt warranting only a three level increase pursuant to U.S.S.G. S 2X1.1(b)(1) and did not involve repeated acts over a period of time.

The District Court rejected each of Torres' objections and denied his motion for a downward departure. Having ruled on the objections, the Court "adopted the recommended findings of facts in the presentence investigation report as the findings of facts of the Court."

Sentence was thereafter imposed as follows:

[T]he defendant, Jorge Torres, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 12 months. That sentence shall be a split sentence, pursuant to Section 5(c)1.1 of the sentencing guidelines. The defendant shall spend six months in custody and the balance of the sentence shall be spent in a community confinement institution to be designated by the Bureau of Prisons.

Torres was also sentenced to a five year term of supervised release and a $5,000 fine. He appealed.

Torres, still in prison after having served more than seven months, filed a "Motion for Clarification of Split Sentence and Immediate Release on Home Confinement." He argued, not surprisingly and with considerable force, that the District Court's remarks at sentencing and the sentence imposed clearly indicated that he serve six months in jail and six months in community confinement. If that was the sentence the Court intended to impose, we note, it did it wrong by not sentencing Torres to the custody of the Bureau of Prisons for six months rather than twelve, with the remaining six months in community confinement as a condition of supervised release. Be that as it may, the Court denied Torres' motion, stating that it sentenced Torres to twelve months imprisonment and only recommended to the Bureau of Prisons that the last six months be served in a community confinement facility. Torres again appealed and, in little more than a passing comment, suggests only that he disagrees with the Court's decision not to have immediately released him on home confinement. Whatever the District Court's intent at sentencing may have been, however, the fact remains, and fact it be, that both orally and in the written Judgment, the Court sentenced Torres to the custody of the Bureau of Prisons for twelve months, not six. Given that sentence, we will affirm without further discussion the denial of Torres' motion and will address only Torres' appeal from the Judgment of February 8, 1999.²

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18 U.S.C. S 3231. We have jurisdiction pursuant 18 U.S.C. S 3742(a) and (e) and 28 U.S.C. S 1291. We exercise plenary review of the District Court's legal construction of the Sentencing Guidelines. See United States v. Medeiros, 884 F.2d 75, 78 (3d Cir. 1989). Factual determinations and offense level calculations are reviewed under the clearly erroneous standard. See United States v. Demes, 941 F.2d 220 (3d Cir.) cert. denied, 502 U.S. 949 (1991); United States v. Cianscewski, 894 F.2d 74, 82 (3d Cir. 1990). Where a defendant has not raised an issue at sentencing, the standard of review is plain error. See Fed. R. Crim. P. 52(b).

III. Discussion

A. Amount of Loss

The District Court found, as had the PSR, that the loss was $66,262.59, i.e. the amount of the stolen check deposited into the Kelly Services account -$66,021.94 -plus the amount of the bad check used to open the account -$240.65. Torres contends that the loss was $24,900, i.e. the amount of the attempted withdrawal. Torres is wrong. As this Court has stated on numerous occasions, and as the Commentary to U.S.S.G. S 2F1.1 at note 8 provides, the Guidelines sweep in not only actual loss but intended loss, if that amount can be determined and is higher than actual loss:

This Court's precedents establish that `fraud loss is, in the first instance, the amount of money the victim has actually lost.' However, `if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than actual loss.'

United States v. Yeaman, 194 F.3d 442, 456 (3d Cir. 1999)(emphasis added) (quoting United States v. Coyle, 63 F.3d 1239, 1250-51 (3d Cir. 1995) & Application Note 7 (now Application Note 8) to S U.S.S.G. 2F1.1); see also United States v. Holloman, 981 F.2d 690, 693 (3d Cir. 1992), cert. denied, 509 U.S. 907 (1993); United States v. Schneider, 930 F.2d 555, 558 (7th Cir. 1991)(" `loss' within the meaning of the Guidelines includes intended, probable, or otherwise expected loss, a qualification of vital importance in a case such as this where the fraud is discovered or otherwise interrupted before the victim has been fleeced").

Torres' activities in connection with the accounts leave little or no doubt that the "intended, probable, or otherwise expected loss" here was for the full amount fraudulently deposited. Within a two week period of time, in two accounts neither of which was in Torres' name or the name of a company he had anything to do with, three branches of the same bank were hit by Torres and a cohort with a rubber check, a stolen check, and an attempted withdrawal of more than one-third of those fraudulent deposits. It was eminently reasonable for the District Court to infer that Torres intended to withdraw the balance of the deposits before the stolen check surfaced as stolen and would have done so had he not been arrested. As the Seventh...