Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

No. 90-30290.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and LEW,^**  District Judge.

MEMORANDUM^*** 

Russell Dealy appeals his sentence under the United States Sentencing Guidelines upon his guilty plea to bank fraud.

BACKGROUND

Dealy plead guilty to bank fraud, a violation of 18 U.S.C. section 1344, and was sentenced to 14 months incarceration. In computing Dealy's offense level, the court found the loss inflicted was between $10,000 and $20,000 and imposed a three level increase under U.S.S.G. section 2F1.1(b) (1) (D). In addition, the court found Dealy's conduct constituted more than minimal planning and increased the offense level by two under U.S.S.G. section 2F1.1(b) (2) (A).

Dealy now appeals both of these offense level increases, arguing that the district court overvalued the loss inflicted and that Dealy's conduct involved only minimal planning.

STANDARD OF REVIEW

We review de novo the application of the Sentencing Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). We review the court's factual findings for clear error. United State v. McConney, 728 F.2d 1195, 1200 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824 (1984).

MORE THAN MINIMAL PLANNING

Dealy argues that the district court erred in increasing his offense level by two for more than minimal planning.

Under the Sentencing Guidelines, the base offense level for crimes involving fraud and deceit must be increased by two points if the defendant engaged in more than minimal planning. U.S.S.G. Sec. 2F1.1(2). "More than minimal planning" means more planning than is typical with commission of the offense in a simple form. U.S.S.G. Sec. 1B1.1, n. 1(f). It is also "deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune." Id.

Dealy argues that his offense did not involve activity which courts have generally determined to involve more than minimal planning. Dealy asserts that cases finding more than minimal planning fall into three general categories: (1) offenses involving a systematic scheme or repeated acts; (2) offenses using information gained "from the inside"; and (3) offenses committed with assistance of other persons. Dealy argues that his offense, in contrast, involved only a single taking accomplished by supplying false biographical information. Dealy contends that his conduct does not fall within one of recognized categories of activities involving more than minimal planning, because his actions in committing bank fraud were the minimum he could have done to obtain the fraudulent loan.

Although Dealy correctly cites a number of cases holding that certain acts involve more than minimal planning, these cases do not limit a finding of more than minimal planning to the discrete categories which Dealy suggests. These categories do not provide an exhaustive list of the circumstances in which a court may find that a defendant engaged in more than minimal planning.

In the instant case, the district court did not err in finding more than minimal planning. The district court found that Dealy obtained a fraudulent loan by using a false middle name, a false social security number and a driver's license fraudulently obtained by using false biographical information. Dealy's procurement of the loan took several acts which were clearly not "purely opportune." Thus, this is not a case where the defendant acted on the spur of the moment; Dealy provided a chain of false information in order to obtain the loan. The district court's findings that Dealy's conduct involved more than minimal planning were not clearly erroneous. See United States v. Fox, 889 F.2d 357, 361-62 (1st Cir. 1990) (more than minimal planning existed where defendant had to provide a chain of false information to fraudulently obtain a loan).

VALUATION OF LOSS UNDER SENTENCING GUIDELINES

Dealy contends the district court erred in valuing the loss from his fraudulent loan at the principal amount of the loan--approximately $14,000. Dealy argues that the loss should instead have been valued at $5,601.29--the actual loss the bank suffered after the bank had repossessed and sold the collateral for the loan. Dealy asserts that the erroneous valuation resulted in an improper increase of three in his offense level.

Under both the Sentencing Guidelines and Ninth Circuit case law, it is clear that the term "loss" under U.S.S.G. section 2F1.1(b) is not limited to the "actual loss" suffered by the victim. See U.S.S.G. Sec. 2F1.1, n. 7; U.S.S.G. Sec. 2B1.1, n. 2-3; United States v. Wilson, 900 F.2d 1350, 1355-56 (9th Cir. 1990). U.S.S.G. section 2F1.1, Application Note 7 states that "if a probable or intended loss that the defendant was attempting to inflict can be determined, that figure would be used [to value the loss] if it was larger than the actual loss."

Here, the district court relied on the language of U.S.S.G. section 2F1.1, Application Note 7 in valuing the loss from Dealy's offense and determined that the intended loss was the principal amount of the loan. Dealy argues that the court's valuation was improper because there is no evidence that he did not intend to repay the loan or that he failed to comply with the terms of the loan.

In support of his argument, Dealy cites United States v. Whitehead, 912 F.2d 448 (10th Cir. 1990). In Whitehead, the defendant was convicted of using a false social security number to rent a home with an option to purchase. To determine the sentence under U.S.S.G. section 2F1.1, the district court valued the loss at the value of the home Whitehead had rented. The Tenth Circuit reversed, finding that the value of the option was the correct measure of the loss because Whitehead could elect whether or not to exercise the option.

Dealy's reliance on Whitehead is misplaced. Unlike the defendant in Whitehead, the facts here indicate that Dealy intended to inflict a loss for the full amount of the loan. The fact that Dealy defaulted on the loan shortly after it was made is evidence that Dealy did not intend to repay the loan.

United States v. Johnson, 908 F.2d 396 (8th Cir. 1990), presented a factual situation similar to the instant case. There, the defendant was convicted of making false statements in applications for bank loans, in violation of 18 U.S.C. section 1014. Id. at 397. Using a false name, driver's license, and social security number, the defendant applied for and received two bank loans for the purpose of purchasing two automobiles. Id. Upon discovering the defendant had used false information to obtain the loans, the banks were able to mitigate their losses by repossessing and selling one of the vehicles and obtaining an insurance payment for the second. Id. at 398. Although the banks actual losses in Johnson were far less than the principal of the loans, the Eighth Circuit affirmed the district court's determination that the loss should be valued at the full amount of the loans, stating that "the focus for sentencing purposes should be on the amount of possible loss which Johnson attempted to inflict on the banks." Id.

Dealy attempts to distinguish Johnson, but his arguments are unavailing. The court correctly focused on the amount of possible loss which Dealy attempted to inflict on the bank. Although the district court did not make an explicit finding that Dealy intended to inflict on the bank a loss equal to the principal amount of the loan, such a finding is implicit in the court's ruling. This finding was not clearly erroneous and is supported by the evidence.

AFFIRMED.