United States v. Strevel , 85 F.3d 501 ( 1996 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-8896
Non-Argument Calendar
D. C. Docket Nos. 1:93-cr-89-1, 1:93-cr-500-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR H. STREVEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Georgia
(May 10, 1996)
Before TJOFLAT, Chief Judge, EDMONDSON and BARKETT, Circuit
Judges.
PER CURIAM:
Appellant challenges his sentences of imprisonment for
structuring transactions to evade IRS reporting requirements on
two grounds. First, appellant contends that the district court
erred in calculating his criminal history category by treating as
a conviction a bond forfeiture in a DUI case brought in a Georgia
court. This contention is meritless; under Georgia law, a bond
forfeiture in a DUI case is considered a conviction. See Cofer
v. Crowell, 247 S.E.2d 152, 154 (Ga. Ct. App. 1978); cf. Haley v.
Hardison, 279 S.E.2d 712, 713 (Ga. 1981).
Second, appellant contends that the district court, prior to
the imposition of sentence, erred in failing to find as a fact
the amount of the loss caused by appellant's fraud. According to
appellant, the court relied solely on the amount stipulated in
the parties' plea agreement.
The commentary to U.S.S.G. § 6B1.4(d) states that
the [sentencing] court cannot rely exclusively upon
stipulations in ascertaining the factors relevant to
the determination of sentence. Rather, in determining
the factual basis for the sentence, the court will
consider the stipulation, together with the results of
the presentence investigation, and any other relevant
information.
At sentencing, the court, as appellant contends, arrived at the
amount of the loss in the case simply by selecting the amount
referred to in the plea agreement. The court relied on nothing
else. This constituted a clear violation of the plain language
of the commentary and requires that we remand the case for a
determination of the amount of the loss in question and,
thereafter, for resentencing.
SO ORDERED.
2