U.S.A. v. Kilkenny, No. 05-6847 (2d Cir. 2007)

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05-6847 U.S.A. v. Kilkenny 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2006 (Submitted October 27, 2006 Decided July 5, 2007) Docket No. 05-6847-cr _______________ United States of America, Appellee, v. Patrick J. Kilkenny, Defendant-Appellant. _______________ Before: CARDAMONE, WALKER, and STRAUB, Circuit Judges. _______________ Defendant Patrick Kilkenny appeals from an amended judgment of conviction entered in the United States District Court for the Northern District of New York (Hurd, J.) on December 8, 2005, after pleading guilty to bank fraud in violation of 18 U.S.C. § 1344(2), mail fraud in violation of 18 U.S.C. §§ 1341, 1342 and structuring a financial transaction to evade currency reporting requirements in violation of 31 U.S.C. § 5324(a)(3). Defendant was sentenced to 216 months in prison, five years of supervised release, restitution of $7,860,321.39, and a special assessment of $300. Remanded for resentencing. _______________ 1 2 3 4 5 6 7 8 9 10 11 12 _______________ Terence L. Kindlon, Kindlon and Shanks, P.C., Albany, New York, filed a brief for Defendant-Appellant. Sara M. Lord, Assistant United States Attorney, (Glenn T. Suddaby, United States Attorney, Assistant United States Attorney, Northern York, Albany, New York, of counsel), filed Appellee. _______________ Albany, New York Brenda K. Sannes, District of New a brief for 1 2 CARDAMONE, Circuit Judge: Patrick Kilkenny (defendant or appellant) appeals from an 3 amended judgment of conviction entered on December 8, 2005 in the 4 United States District Court for the Northern District of New 5 York (Hurd, J.). 6 guilty to three counts of an information charging him with bank 7 fraud in violation of 18 U.S.C. § 1344(2), mail fraud in 8 violation of 18 U.S.C. §§ 1341, 1342, and structuring a financial 9 transaction to evade currency reporting requirements in violation 10 11 The conviction followed Kilkenny's plea of of 31 U.S.C. § 5324(a)(3). Applying the 2002 version of the United States Sentencing 12 Guidelines (Guidelines or U.S.S.G.), the district court sentenced 13 Kilkenny principally to a term of 216 months imprisonment. 14 Kilkenny appeals this judgment alleging, inter alia, that the 15 district court's use of the 2002 version of the Guidelines 16 violated the Ex Post Facto Clause of Article I of the 17 Constitution. 18 application of the 2002 version of the Guidelines was in error 19 and therefore remand the case for resentencing. 20 considered defendant's other arguments and find them to be 21 without merit. 22 U.S. Const. art. 1, § 9, cl. 3. We think that We have BACKGROUND 23 The facts underlying this appeal are largely uncontested. 24 On July 25, 2003 Kilkenny waived indictment and pled guilty to 25 each of three counts in a felony information. 26 that defendant entered into with the government on that date 2 The plea agreement 1 included a detailed set of stipulated facts that formed the 2 factual predicate for the guilty plea. 3 admitted to having fraudulently obtained over a dozen bank loans 4 and to having committed various other crimes, only three criminal 5 counts were charged against him in the information. Although Kilkenny 6 Count One charged him with executing a scheme "[f]rom in or 7 about September 2000 through on or about May 8, 2002" to defraud 8 M&T Bank. 9 on September 19, 2000 he applied for and subsequently received a The government alleged, and defendant admitted, that 10 loan from M&T Bank in the amount of $467,541. 11 application, Kilkenny grossly overstated his assets and income, 12 submitted fraudulent personal and corporate income tax returns, 13 and failed to report more than $1.3 million in debts. 14 result of these misrepresentations, M&T Bank was forced to 15 foreclose on the loan on May 8, 2002 and in so doing suffered a 16 monetary loss of more than $450,000. 17 with defrauding 22 individuals of $910,000 by inducing them to 18 invest in Panamanian bonds which Kilkenny was not authorized to 19 issue and which were not valid instruments. 20 alleged and defendant admitted that this scheme took place from 21 February 2000 through June 2001. 22 information, the government charged defendant with structuring 23 certain cash deposits on July 24, 2001 to avoid currency 24 reporting requirements. 25 26 In his loan As a Count Two charged defendant The government Finally, in Count Three of the Following defendant's guilty plea, the United States Probation Office prepared a presentence investigation report 3 1 (PSR) using the 2002 version of the Guidelines. 2 calculated a base-offense level of six pursuant to U.S.S.G. 3 § 2B1.1(a) (2002) and recommended five enhancements: 4 level enhancement for the amount of loss, id. at 5 § 2B1.1(b)(1)(K); (2) a four-level enhancement for the number of 6 victims, id. at § 2B1.1(b)(2)(B); (3) a two-level enhancement for 7 obtaining more than $1 million from financial institutions, id. 8 at § 2B1.1(b)(12)(A); (4) a two-level enhancement for obstruction 9 of justice, id. at § 3C1.1; and (5) a two-level enhancement for 10 defendant's supervision of a criminally responsible participant, 11 his bookkeeper, Melanie Ramsey, id. at § 3B1.1(c). 12 total offense level was 36, with a Guidelines range between 188 13 and 235 months imprisonment. 14 The PSR (1) a 20- The resulting At a sentencing hearing on December 12, 2003 defense counsel 15 made several objections to the PSR. First, defense counsel took 16 issue with the version of the Guidelines used to calculate 17 defendant's sentence. 18 2002 Guidelines, the 2000 Guidelines should have been applied 19 because all of the conduct relating to the offenses of conviction 20 occurred before November 1, 2001 when the 2001 version of the 21 Guidelines went into effect. 22 the two-level enhancement for Kilkenny's supervision of a 23 criminally responsible participant. 24 a three-level reduction was warranted for acceptance of 25 responsibility. 26 objections. Kilkenny contended that instead of the Second, defense counsel objected to Third, the defense asserted The sentencing court was not persuaded by these Applying the 2002 version of the Guidelines, which 4 1 are in all relevant respects identical to the 2001 version, the 2 court sentenced Kilkenny to 235 months in prison, followed by 3 five years of supervised release, and restitution in the amount 4 of $7,327,854.36. 5 While defendant's first appeal to this Court was pending, 6 the Supreme Court handed down United States v. Booker, 543 U.S. 7 220 (2005), which rendered advisory the sentencing range 8 calculated under the Guidelines. 9 the case for resentencing pursuant to Booker and declined to In a summary order, we remanded 10 reach the other issues defendant raised on appeal. 11 v. Kilkenny, No. 03-1775 (2d Cir. March 15, 2005). 12 United States Defendant was resentenced on November 28, 2005. The 13 district court again applied the 2002 version of the Guidelines, 14 finding that the offense of conviction continued through May 8, 15 2002. 16 applied for and received the M&T bank loan in September 2000, his 17 subsequent failure to make payments on the loan extended the 18 offensive conduct until the bank initiated foreclosure 19 proceedings in 2002. 20 2002 date he was "relying on the entire range of conduct" and 21 that Kilkenny's conduct of fraud and deception extended "actually 22 even into 2003 in relation to additional individual victims which 23 were not specifically charged but detailed in the presentence 24 report." 25 specifically charged in Count One of the Information." 26 the 2002 Guidelines, it resentenced Kilkenny to a total term of In particular, it concluded that, although Kilkenny The trial judge stated that in applying the The court also noted that "the May 8, 2002 date is 5 Applying 1 216 months imprisonment, 19 months less than the sentence it had 2 originally imposed, followed by five years of supervised release, 3 restitution of $7,860,321.39, and a special assessment of $300. 4 From this judgment, Kilkenny appeals. For the reasons set 5 forth below, we remand the case to the district court with 6 instructions to resentence defendant under the 2000 version of 7 the Guidelines. 8 9 10 DISCUSSION I Standard of Review We review a sentencing court's interpretation and 11 application of the Guidelines de novo. 12 464 F.3d 355, 358 (2d Cir. 2006). 13 under the clearly erroneous standard. 14 erroneous if, "although there is evidence to support it, the 15 reviewing court on the entire evidence is left with the definite 16 and firm conviction that a mistake has been committed." 17 v. Bessemer City, 470 U.S. 564, 573 (1985). 18 19 II United States v. Sloley, Findings of fact are reviewed Id. A finding is clearly Anderson Ex Post Facto Laws The premise of this opinion rests on an application of that 20 provision in Article I of the United States Constitution that 21 prohibits Congress from passing any "ex post facto Law." 22 U.S. Const. art. I, § 9, cl. 3; see also art. I, § 10, cl. 1 23 (prohibiting states from passing any ex post facto law). 24 that reason it is helpful to state first our understanding of 25 what that constitutional clause means. 26 the definition of the Ex Post Facto Clause set out in an early 6 See For It is hard to improve on 1 Supreme Court case, Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). 2 In that case Justice Chase described the following kind of 3 legislation as prohibited 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Id. at 390. 23 The reason for the clause's adoption in the Constitution 24 was, as the Supreme Court has explained, to restrain Congress 25 from enacting "arbitrary or vindictive" laws. 26 Florida, 482 U.S. 423, 429 (1987). 27 individuals are given "fair warning" of a law's effect. 28 430. 29 these dual functions. 30 vindictive law unconstrained by any ex post facto prohibition 31 occurred in pre-World War II Germany. 32 the Reichstag in Berlin in February 1933, the newly empowered 33 Nazi government authorized increasing the punishment for arson 34 from imprisonment to death. 35 Criminal Law 70-71 (1939). See Miller v. The clause also ensures that Id. at Examples from history vividly illustrate the importance of Perhaps the most dramatic example of a After an arsonist burned See 2 Morris Ploscowe, Crime and The arsonist was duly executed. 7 Id. 1 Blackstone illustrates the second purpose of the Ex Post Facto 2 Clause, providing fair warning, by looking to the policies of the 3 Roman despot Caligula. 4 the Laws of England 46 (1765). 5 print and hung them high up on pillars so that they were not 6 available to nor readable by the Roman citizens affected by such 7 laws. 8 ex post facto, they would not have provided citizens fair notice 9 to refrain from the criminalized conduct. Id. See 1 William Blackstone, Commentaries on Caligula had laws written in fine They provided no fair warning and so, like laws made Sash v. Zenk, 439 F.3d 10 61, 64 (2d Cir. 2006) (notice problems arise when retrospective 11 changes are made in laws upon which citizens are entitled to 12 rely). 13 Thus, the Ex Post Facto Clause enshrines in the Constitution 14 a basic presumption of our law, that is, legislation in the 15 criminal law "is not to be applied retroactively." 16 v. United States, 529 U.S. 694, 701 (2000). 17 18 III See Johnson Which Version of the Guidelines Applies? A. General Principles 19 With that background, we turn to the case at hand. 20 Ordinarily a sentencing court must apply the version of the 21 Guidelines in effect on the date of the defendant's sentencing. 22 United States v. Keller, 58 F.3d 884, 889 (2d Cir. 1995); see 23 also United States v. Keigue, 318 F.3d 437, 442 (2d Cir. 2003) 24 (remanding because district court applied expired version of 25 Guidelines when no ex post facto problem was raised by 26 application of Guidelines in effect at time of sentencing). 8 At 1 the same time we have recognized an exception to this general 2 rule. 3 time of sentencing would result in a more severe penalty than 4 would application of the Guidelines in effect at the time the 5 offense was committed, the Ex Post Facto Clause requires the use 6 of the earlier version of the Guidelines. 7 889. 8 9 B. When the application of the Guidelines in effect at the Keller, 58 F.3d at Is This an Ex Post Facto Application of the Guidelines? To decide whether a criminal law is ex post facto, we apply 10 a two-part test: 11 to events that occurred before its enactment; second, the law 12 must be disadvantageous to the individual affected by it. 13 Miller, 482 U.S. at 430; Keller, 58 F.3d at 889. 14 it is not disputed that defendant was disadvantaged by the 15 application of the 2002 Guidelines. 16 sentenced under the 2000 Guidelines, he would have been subject 17 to a recommended Guidelines range of 97 to 121 months 18 imprisonment. 19 recommended range of 188 to 235 months. 20 years compared to 16 to 20 years. 21 first, the law must be retrospective, applying In this case, If appellant had been Under the 2002 Guidelines, he was subject to a That is roughly 8 to 10 Our inquiry is thus focused on the first prong of the ex 22 post facto test: Was the application of the 2002 Guidelines to 23 Kilkenny's crimes retrospective? 24 version of the Guidelines is retrospective if the version went 25 into effect after the last date of the offense of conviction. 26 See United States v. Fitzgerald, 232 F.3d 315, 318-19 (2d Cir. The application of a particular 9 1 2000) (per curiam). 2 of offensive conduct in this case was May 8, 2002. 3 rested on the following bases: 4 information that the M&T Bank fraud scheme lasted "[f]rom in or 5 about September 2000 through on or about May 8, 2002;" (2) 6 Kilkenny's failure to make payments on the M&T Bank loan until 7 the loan was foreclosed on May 8, 2002; and (3) the "entire range 8 of conduct" which extended into 2003. 9 bases in turn. 10 11 1. The district court determined the last date This finding (1) the statement in the We address each of these The Statement in the Indictment To determine the last date of the offense of conviction, a 12 sentencing court looks at the conduct charged in the information 13 or indictment. 14 (2d Cir. 1995); U.S.S.G. § 1B1.11 cmt. n.2. 15 factual determination made by a sentencing court, the finding of 16 the last date of the offense of conviction must withstand clear 17 error review. 18 1027 (8th Cir. 2005); United States v. Nash, 115 F.3d 1431, 1441 19 (9th Cir. 1997). 20 See United States v. Broderson, 67 F.3d 452, 456 Like any other See, e.g., United States v. Carter, 410 F.3d 1017, Because a sentencing court may not consider uncharged or 21 acquitted conduct in determining the last date of the offense of 22 conviction, see United States v. Zagari, 111 F.3d 307, 324-25 (2d 23 Cir. 1997), the dates alleged in the charging instrument will 24 generally be determinative for ex post facto purposes, see 25 Broderson, 67 F.3d at 456. 26 where a date in the charging instrument clearly exceeds the However, circumstances may arise 10 1 offensive conduct. 2 1240, 1250 & n.6 (10th Cir. 2005) (finding that "uncontradicted 3 evidence" established that offense ended on December 7, 1998 4 despite statement in indictment that conspiracy continued until 5 October 2000). 6 for a sentencing court to rely on the date charged in the 7 indictment to determine the last date of the offense of 8 conviction. 9 before it in which the indictment charged that the defendant's 10 fraudulent scheme continued until 1988, but all of the specific 11 incidents described in the indictment occurred before November 1, 12 1987. 13 court's determination that, contrary to the statement in the 14 indictment, the offense was completed prior to November 1, 1987. 15 Id. 16 See, e.g., United States v. Foote, 413 F.3d In such circumstances, it is clearly erroneous For example, in Nash, the Ninth Circuit had a case 115 F.3d at 1441. The Nash court upheld the district Admittedly, we have not always made perfectly clear that 17 dates in an indictment are not necessarily dispositive. 18 Broderson, for example, we stated, "[t]he last date of the 19 offense, as alleged in the indictment, is the controlling date 20 for ex post facto purposes." 21 however, this language only stands for the unsurprising 22 proposition that a sentencing court must look to the conduct 23 alleged in the count of the charging instrument under which the 24 defendant was convicted to determine the last date of offensive 25 conduct. 26 transmitting an interstate wire communication on October 1, 1990. 67 F.3d at 456. In Read in context, The defendant in Broderson was charged with illegally 11 1 Id. On appeal, Broderson asserted the government could have 2 charged the crime differently, but he did not contest that he had 3 transmitted the wire communication on that date. 4 We ruled that the district court had correctly determined the 5 last date of offensive conduct was October 1, 1990, as charged in 6 the indictment. 7 decide the question of whether a district court should rely on a 8 date in a charging instrument that clearly exceeds the offensive 9 conduct. 10 Id. at 457. Id. at 456-57. Broderson thus did not consider or We now hold that it may not. The time period provided for in the charging instrument in 11 this case clearly exceeds the offensive conduct. Although the 12 information states that Kilkenny executed the M&T bank fraud 13 scheme from "in or about September 2000 through on or about May 14 8, 2002," neither the information nor the stipulated facts 15 accompanying the plea agreement describe any offensive conduct 16 taken by Kilkenny with respect to the M&T bank fraud scheme after 17 2000. 18 for and received by Kilkenny in September 2000 and that he took 19 no further action with respect to that loan -- apart from failing 20 to repay it -- after September 2000. 21 any offensive conduct regarding the M&T bank fraud scheme 22 occurred after 2000. 23 district court to rely on the May 8, 2002 date. It is instead uncontested that the M&T loan was applied There is no evidence that It was therefore clear error for the 24 2. 25 The district court's finding that Kilkenny failed to repay 26 Failure to Repay the Fraudulently Obtained Bank Loan the bank loan in 2002 does not change this result. 12 Failure to 1 repay a fraudulently obtained bank loan does not constitute 2 conduct for the offense of bank fraud. 3 fraud statute, it is a crime to "knowingly execute[ ], or 4 attempt[ ] to execute, a scheme or artifice . . . to obtain any 5 of the moneys, funds, credits, assets, securities, or other 6 property owned by, or under the custody or control of, a 7 financial institution, by means of false or fraudulent pretenses, 8 representations, or promises." 9 of § 1344 punishes each execution of a fraudulent scheme, not Under the federal bank 18 U.S.C. § 1344. The language 10 each act in furtherance of such a plan. United States v. Harris, 11 79 F.3d 223, 232 (2d Cir. 1996). 12 does not define "execution," there is helpful case law 13 interpreting that term. 14 was executed, courts look to a number of factors, including the 15 overall contours of the fraudulent scheme and -- perhaps most 16 importantly -- the point at which the financial institution was 17 put at risk of financial loss. 18 266 F.3d 1275, 1287-88 (11th Cir. 2001) ("[A] bank fraud offense 19 is complete upon the 'execution,' or attempted execution of the 20 scheme. . . . [E]ach part of the scheme that creates a separate 21 financial risk for the financial institution constitutes a 22 separate execution."); United States v. Anderson, 188 F.3d 886, 23 888 (7th Cir. 1999) ("[T]he crime of bank fraud is complete when 24 the defendant places the bank at a risk of financial loss, and 25 not necessarily when the loss itself occurs."); United States v. 26 Rimell, 21 F.3d 281, 287 (8th Cir. 1994) (stating that to Although the statutory text In analyzing when a fraudulent scheme See United States v. De La Mata, 13 1 determine what constitutes an execution of a bank fraud scheme 2 one must first "ascertain the contours of the scheme"); United 3 States v. Hord, 6 F.3d 276, 282 (5th Cir. 1993) (finding that 4 bank fraud plan was executed with each deposit of a bogus check 5 in part because "it was the deposits that put the bank at risk"); 6 see also United States v. Reitmeyer, 356 F.3d 1313, 1318 (10th 7 Cir. 2004) (holding, in the context of the Major Fraud Act, that 8 determining when a scheme is executed will depend on factors 9 including the goal of the plan, its nature, the benefits 10 intended, and whether the conduct created a new and independent 11 financial risk.). 12 There are of course situations where conduct for the offense 13 of bank fraud occurs after the point at which the bank is first 14 put at risk of financial loss. 15 Duncan, 42 F.3d 97 (2d Cir. 1994), provides a useful illustration 16 of such a situation. 17 and loan association conspired to purchase two parcels of real 18 estate in order to lease or sell the property back to the bank at 19 a profit. 20 as to hide the conspirators' interest in the real estate from the 21 other bank directors. 22 Duncan raised an ex post facto challenge on appeal. 23 the bank fraud was complete once the conspirators agreed to 24 secretly purchase the property. 25 characterization, holding instead that the offensive conduct was 26 not complete until the real estate was sold back to the bank. Our decision in United States v. In Duncan, several directors of a savings Id. at 99-100. Id. The transactions were orchestrated so After his conviction for bank fraud, Id. at 103-04. 14 He contended We rejected that 1 Id. at 104. 2 sale of these properties to the bank was the "central object of 3 the charged criminal conduct." 4 the resale of the properties to the bank in Duncan posed a risk 5 of financial loss that was separate and independent from the 6 defendant's initial usurpation of the corporate opportunity. 7 id. (stating that conspirators intended to both "seize for 8 themselves two pieces of property at a bargain" and "sell the 9 properties to the bank at a premium"). 10 Key to the result in Duncan was the fact that the Id. (emphasis added). Notably, See There are no facts in the case presently before us analogous 11 to those at issue in Duncan. 12 of Kilkenny's bank fraud scheme was to obtain the M&T bank loan 13 on false pretenses. 14 as soon as Kilkenny had submitted the fraudulent loan application 15 and obtained the funds. 16 conduct on Kilkenny's part that created a new or additional risk 17 of loss. 18 It is clear that the main purpose The bank was put at risk of financial loss The information alleges no further The government insists that, by failing to make payments on 19 the fraudulently obtained loan, appellant extended the life of 20 the illegal plan through his enjoyment of the proceeds. 21 this approach would go too far, potentially extending the offense 22 of bank fraud indefinitely. 23 fraud schemes entail not only obtaining but also retaining the 24 ill-gotten gains. 25 are spent may not be viewed as part of a plan to defraud. 26 Anderson, 188 F.3d at 891. Adopting No doubt, the vast majority of bank But when the proceeds of a criminal venture To rule otherwise and hold that 15 See 1 failure to repay a fraudulently obtained bank loan constitutes 2 conduct for the offense of bank fraud would extend the life of 3 the offense so indefinitely as to render the ex post facto 4 prohibition ineffective. 5 such a result in other contexts. 6 353 U.S. 391, 402 (1957) (holding a conspiracy to conceal should 7 not be inferred from acts of concealment because "every 8 conspiracy will inevitably be followed by actions taken to cover 9 the conspirators' traces" and the opposite result would "extend 10 The Supreme Court has cautioned against See Grunewald v. United States, the life of a conspiracy indefinitely"). 11 Kilkenny's M&T bank fraud scheme was executed no later than 12 when he received the funds from his fraudulent loan application. 13 Consequently, it was error for the district court to treat 14 defendant's subsequent failure to repay the fraudulently obtained 15 bank loan as conduct that was part of the offense of bank fraud. 16 3. 17 The Relevance of the Entire Range of Conduct Finally, the district court based its decision to apply the 18 2002 Guidelines on the entire range of conduct committed in the 19 case that continued "actually even into 2003 in relation to 20 additional individual victims which were not specifically charged 21 but detailed in the presentence report." 22 this Circuit is plain that uncharged conduct occurring after the 23 conduct of conviction cannot be considered when determining which 24 version of the Guidelines to apply. 25 25. However, the law in See Zagari, 111 F.3d at 324- Commentary to the Guidelines, which we have found to be 16 1 highly persuasive evidence of the Sentencing Commission's intent, 2 addresses this precise issue 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 U.S.S.G. § 1B1.11 cmt. n.2. 21 conduct in 2002 and 2003 was accordingly in error. 22 Under subsection (b)(1), the last date of the offense of conviction is the controlling date for ex post facto purposes. For example, if the offense of conviction (i.e., the conduct charged in the count of the indictment or information of which the defendant was convicted) was determined by the court to have been committed between October 15, 1991 and October 28, 1991, the date of October 28, 1991 is the controlling date for ex post facto purposes. This is true even if the defendant's conduct relevant to the determination of the guideline range under § 1B1.3 (Relevant Conduct) included an act that occurred on November 2, 1991 (after a revised Guideline Manual took effect). Reliance on defendant's uncharged Application of the 2002 version of the Guidelines was both 23 retrospective and disadvantageous to the defendant. 24 consequence, we remand to the district court for resentencing 25 under the 2000 Guidelines. 26 27 IV As a Defendant's Objections to Sentence Enhancements Appellant raises two final objections to his sentence, 28 neither of which have merit. First, Kilkenny maintains the 29 district court erred in imposing a two-level enhancement for his 30 supervision of a criminally responsible participant. 31 U.S.S.G. § 3B1.1(c), a two-level enhancement may be applied if 32 the "defendant was an organizer, leader, manager, or supervisor 33 in any criminal activity." 34 finding that Kilkenny acted as the supervisor of a criminally Under We review the district court's 17 1 responsible participant under the clearly erroneous standard. 2 See United States v. Brinkworth, 68 F.3d 633, 641 (2d Cir. 1995). 3 Defendant declares there was no evidence his bookkeeper, 4 Melanie Ramsey, was a criminally responsible participant. To the 5 contrary, the uncontested evidence is that Ramsey, under 6 Kilkenny's supervision and at his direction, prepared fraudulent 7 tax forms and other documents that were used in the bank fraud 8 scheme. 9 writing a letter to a bank misrepresenting herself as the Ramsey also assisted Kilkenny's bank fraud plan by 10 regional manager of a financial group and falsely stating that 11 Kilkenny earned a monthly average of $115,000 in commissions. 12 The deliberate deception entailed in drafting such a letter to a 13 financial institution supports the trial court's finding that 14 Ramsey was not an unwitting participant in Kilkenny's fraudulent 15 activities. 16 accountant who knowingly prepared fraudulent tax returns was a 17 criminally responsible participant). 18 appellant was the supervisor of a criminally responsible 19 participant is not clearly erroneous. 20 See Brinkworth, 68 F.3d at 641-42 (finding that an Thus, the finding that Kilkenny's final point is that the two-level enhancement he 21 received for having derived more than $1 million dollars from a 22 financial institution, U.S.S.G. § 2B1.1(b)(12)(A) (2002) (now 23 codified at U.S.S.G. § 2B1.1(b)(13)(A)), constituted 24 impermissible double-counting because the amount of loss had 25 already been taken into account in determining the offense level 26 under U.S.S.G. § 2B1.1(b)(1)(K). 18 We have previously ruled that 1 the cumulation of the dollar amount enhancement and the financial 2 institution enhancement do not constitute impermissible double- 3 counting because the two enhancements serve different purposes. 4 See United States v. Lauersen, 348 F.3d 329, 343 (2d Cir. 2003), 5 vacated on other grounds by 543 U.S. 1097, 125 S. Ct. 1109, 160 6 L. Ed. 2d 988 (2005); see also United States v. Campbell, 967 7 F.2d 20, 25 (2d Cir. 1992) ("[D]ouble counting is legitimate 8 where a single act is relevant to two dimensions of the 9 Guidelines analysis."). Although we noted in Lauersen that there 10 is a substantial overlap between the two enhancements that might 11 justify a downward departure in some circumstances, Lauersen, 348 12 F.3d at 344, any such departure would be discretionary. 13 district court was well within its discretion in finding that no 14 downward departure was warranted here. 15 CONCLUSION 16 Accordingly, for the reasons stated above, this case is The 17 remanded to the district court for resentencing in accordance 18 with this opinion. 19

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