United States of America, Plaintiff-appellee, v. Craig Dean Butts, Defendant-appellant, 65 F.3d 178 (10th Cir. 1995)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Craig Dean Butts appeals from the sentence imposed after he pleaded guilty to one count of bank fraud in violation of 18 U.S.C. 1344(1). He was sentenced to twenty five months imprisonment, five years of supervised release, and restitution of $10,282.22. Defendant asserts the district court erred in (1) calculating the amount of "loss" used to determine his offense level under U.S.S.G. 2F1.1(b) (1); (2) refusing to order that $1,582.00 of the cash recovered when defendant was arrested be paid over to his fiancé, Suzie Dennis; (3) increasing his offense level by two points for "more than minimal planning" under U.S.S.G. 2B1.1(b) (5); (4) increasing his criminal history by two points based on a finding that two state criminal cases were not "related" under U.S.S.G. 4A1.2, and (5) imposing a sentence on the higher end of the sentencing range.

Defendant pleaded guilty to a scheme in which he opened a checking and savings account in the Credit Union of America [Credit Union] under a false social security number. He deposited worthless checks in the account and then withdrew funds before the checks could "clear." I R. Supp. 4, p 9. Defendant withdrew money from the account "virtually every night from February 3, 1994 through February 25, 1994," id. at 5, p 1 4, when he was arrested in possession of $3,693.50 in cash.

Defendant was indicted and agreed to plead guilty to one count of bank fraud, in violation of 18 U.S.C. 1344(1), and to make restitution. In exchange the government agreed not to bring further criminal charges based on these activities and to recommend a two-level reduction for acceptance of responsibility and "a sentence at the low end of the guideline range." I R. doc. 19, p 2.

The Presentence Report [PSR] calculated a total offense level of 9 and criminal history of VI with a sentencing range of imprisonment from 21 to 27 months. After hearing objections, the district court found the sentencing range to have been calculated correctly, and sentenced defendant to 25 months.

We review factual findings supporting a district court's Guidelines calculations for clear error, and give deference to the district court's application of the Guidelines to the facts. United States v. Santiago, 977 F.2d 517, 524 (10th Cir. 1992). We review de novo asserted errors of law in applying the Guidelines. Id.

Defendant first asserts that the district court improperly included a $2,000 cashiers check that he had obtained from the Credit Union in the "loss" calculation of the specific offense characteristics, thus increasing his offense level.²  See U.S.S.G. 2F1.1(b) (1) (D). Defendant points out that the check was turned over to the Secret Service and was never negotiated or deposited. He argues that because the funds "remained safely in the vaults of the financial institution," Brief of Appellant at 7, the check should not be included in the calculation of "loss" under U.S.S.G. 2F1.1. We disagree. " [I]f conduct is partially completed, such as the theft of a government check or money order, 'loss refers to the loss that would have occurred if the check or money order had been cashed.' " United States v. Westmoreland, 911 F.2d 398, 399 (10th Cir. 1990) (quoting U.S.S.G. 2B1.1, comment. (n. 2)). Further, " [i]f there was no actual loss or if a probable or intended loss was greater than the actual loss, the larger figure will be used." United States v. Santiago 977 F.2d at 524 (citing U.S.S.G. 2F1.1, comment. (n. 7) (emphasis added). Even though the check was never negotiated, it was part of defendant's scheme to defraud the Credit Union; as such it constituted an "intended loss" and was properly included in loss under 2F1.1.

Defendant also asserts that the district court should have returned $1,582 of the currency seized when he was arrested to Suzie Dennis, defendant's finance. The PSR did not contain any evidence that these funds belonged to Ms. Dennis except defendant's own statement. The district court rejected the claim. Defendant was the only person who contended that the funds belonged to Ms. Dennis, and he could not be considered a reliable source. We will not disturb the court's finding.

Defendant next argues that the trial court erred in adding two points to his offense level for "more than minimal planning" under U.S.S.G. 2F1.1(b) (2). " 'More than minimal planning' is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.' " U.S.S.G. 1B1.1, comment. (n. 1(f)). Thus, in United States v. Lee, 973 F.2d 832, 833 (10th Cir. 1992), we upheld the district court's finding of more than minimal planning when a bank employee wrongfully deposited customers' funds into her own account on five different dates.

In the instant case, defendant made more than twenty fraudulent withdrawals on more than twenty different dates, deposited five fraudulent checks, and obtained a $2,000 cashier's check based on fraudulent deposits. Defendant asserts that his repeated withdrawals of cash were "opportune" because he used automated teller machines [ATM's] that are widely available and very quick and easy to use. This argument is frivolous, and ignores the substantial planning involved in depositing numerous fraudulent checks and making numerous cash withdrawals. The district court properly applied the two level enhancement for more than minimal planning.

Defendant asserts that the district court erred when it increased his criminal history category by finding that two state cases (91-CR-342) and 91-CR-347) were not related under U.S.S.G. 4A1.2(a) (2), which provides that prior sentences in unrelated cases will be counted separately, but prior sentences in related cases are treated as one sentence. " [P]rior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing." U.S.S.G. 4A1.2, comment. (n. 3).

The PSR stated that case number 91-CR-342 involved the submission of four fraudulent credit applications between April 1, 1991 and June 30, 1991, and case number 91-CR-347 involved the forgery of three checks during November and December 1991. Although these two crimes did not occur on the same occasion and were not part of a common scheme, defendant asserts that because he was sentenced for each case on the same day in the same court, the cases were "consolidated for ... sentencing," and thus were related.

We have not required that a defendant be sentenced in separate proceedings on separate days to establish the convictions as "unrelated cases" for purposes of 4A1.2(a) (2). See United States v. Villarreal, 960 F.2d 117, 121 (10th Cir.), cert. denied, 113 S. Ct. 166 (1992). In the cases at issue here there were separate plea agreements, and the sentences were ordered to run consecutive to each other. The cases were not consolidated for sentencing purposes, and the district court correctly treated the offenses as unrelated in calculating defendant's criminal history category.

Finally, defendant argues that the district court abused its discretion by failing to follow the recommendation of the government to sentence him at the lower end of the guideline range. The government's recommendation is not binding upon the court. We will not review the reasons underlying a district court's decision to impose a sentence within a proper guideline range. United States v. Hollis, 971 F.2d 1441, 1461 (10th Cir. 1992), cert. denied, 113 S. Ct. 1580 (1993).

AFFIRMED.