United States v. Lang , 38 F. App'x 130 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4654
ANTONY LANG, a/k/a Tyric,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-00-51-T)
Submitted: February 28, 2002
Decided: March 19, 2002
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Eric A. Bach, Charlotte, North Carolina, for Appellant. Robert J. Con-
rad, Jr., United States Attorney, Brian L. Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LANG
OPINION
PER CURIAM:
Antony Lang pled guilty to four counts of bank fraud, 18 U.S.C.
§ 1344 (1994), and received a sentence of one year and one day. He
appeals his sentence, alleging that the district court erred in finding
that the offense was a completed fraud and refusing to decrease his
offense level pursuant to U.S. Sentencing Guidelines Manual § 2X1.1
(2000). We affirm.
Lang and several co-defendants defrauded a number of banks in
Charlotte, North Carolina, by having young women acquaintances
open bank accounts in their own names and deposit fraudulent checks
totaling $139,477 into these accounts. Under the direction of Lang
and the others, the women withdrew over $49,000 before the fraud
was detected. Lang was charged in a federal indictment with four
counts of bank fraud. The indictment’s thirteen introductory para-
graphs described in detail how Lang and his co-defendants "recruited
young women that they met at Charlotte-area college campuses and
nightclubs to assist them in depositing fraudulent checks at Charlotte-
area banks and then withdrawing the money before fraud was discov-
ered." The introductory paragraphs were incorporated by reference
into Counts One through Four, which each charged that the defen-
dants "executed and attempted to execute a scheme and artifice to
defraud" the banks specified in each count "and to obtain monies and
funds owned by and under the custody and control of said banks . . .
by means of false and fraudulent pretenses, representations, and
promises." Each count further charged that "[i]t was part of the
scheme and artifice that the defendants committed acts as set forth in
the introductory paragraphs." Lang pled guilty to all four counts.
Lang asserted at sentencing that the actual loss of $49,000 should
be used to compute his sentence, rather than the intended loss of
$139,477, as recommended in the presentence report. He also argued
that, if the intended loss was used, a 3-level decrease for an attempt
should be applied under Application Note 8 to § 2F1.1,1 Application
1
Application Note 8 to § 2F1.1 provides that, "[c]onsistent with the
provisions of § 2X1.1 (Attempt, Solicitation, or Conspiracy), if an
intended loss that the defendant was attempting to inflict can be deter-
mined, this figure will be used if it is greater than the actual loss."
UNITED STATES v. LANG 3
Note 2 to USSG § 2B1.1 (Theft), and USSG § 2X1.1 (Attempt).3
2
Lang argued that, because the full amount of fraudulent deposits was
not withdrawn, the fraud was not completed and the offense was only
an attempt. The district court denied Lang’s request for a 3-level
decrease in the offense level, thus finding in effect that the offense
was a completed fraud.
On appeal, Lang argues that the district court erred in refusing to
award him a 3-level decrease under USSG § 2X1.1. Because the facts
are undisputed, this court’s review of the district court’s application
of the sentencing guidelines is de novo. United States v. Daughtrey,
874 F.2d 213, 217-18 (4th Cir. 1989). Lang contends that his offense
was an attempt because not all the deposited funds were withdrawn.
He relies on United States v. Mancuso, 42 F.3d 836, 848-50 (4th Cir.
1994), and United States v. Watkins, 994 F.2d 1192, 1196 (6th Cir.
1993). In Mancuso, this court held that the district court should have
applied § 2X1.1 because the offense of conviction was part of a
larger, uncompleted fraud that comprised the defendants’ relevant
conduct. Mancuso, 42 F.3d at 848-50. In Watkins, the Sixth Circuit
set out three factors that the district court must consider before using
the intended loss: (1) whether the defendant intended to inflict the
loss viewed as the intended loss; (2) whether the defendant was capa-
ble of inflicting the intended loss; and (3) whether the defendant had
completed all acts necessary to complete the offense, see
§ 2X1.1(b)(1). Because the district court had not considered all three
factors, the appeals court remanded for further proceedings. Watkins,
994 F.2d at 195-97.
2
Application Note 2 to § 2B1.1 provides that "[i]n the case of a par-
tially completed offense (e.g., an offense involving a completed theft that
is part of a larger, attempted theft), the offense level is to be determined
in accordance with the provisions of § 2X1.1 (Attempt, Solicitation, or
Conspiracy) whether the conviction is for the substantive offense, the
inchoate offense (attempt, solicitation, or conspiracy), or both; see Appli-
cation Note 4 in the Commentary to § 2X1.1."
3
Under § 2X1.1(b), if the offense is an attempt, a three-level decrease
applies unless the defendant completed all acts believed necessary to
complete the offense, or was about to do so when he was apprehended
or interrupted by an event beyond his control.
4 UNITED STATES v. LANG
However, the bank fraud committed by Lang and his co-defendants
was not part of a larger uncompleted offense. All Lang’s criminal
activity was accounted for in the counts to which he pled guilty.
Moreover, in United States v. Williams, 81 F.3d 1321, 1327 (4th Cir.
1996), a case factually similar to Lang’s case, we held that the offense
of bank fraud is complete when the defendant "fraudulently obtained
credit from . . . [the bank] in the form of a balance in a bank account."
Id. at 1328. Under Williams, the district court properly found that
Lang’s offense was a completed fraud, and used the intended amount
of loss to compute the offense level.
Lang attempts to distinguish Williams by repeating the argument he
made in the district court, that the defendant in Williams was charged
with fraud by depositing fraudulent funds while the indictment in his
case charged that he fraudulently attempted to obtain money, that is,
withdraw money, from the banks involved. His argument is baseless
because the indictment charged a broad scheme or artifice to defraud
the banks and obtain money from them "by means of false and fraud-
ulent pretenses, representations, and promises." The indictment sim-
ply tracked the language of § 1344 and did not limit the charged
offense to fraudulent withdrawals.
In his reply brief, Lang argues that the government shifted from a
focus on fraudulent withdrawals in the indictment to fraudulent
deposits at sentencing and thereby constructively amended the indict-
ment. He relies on United States v. Floresca, 38 F.3d 706, 710 (4th
Cir. 1994) (constructive amendment occurs when jury instructions
expose defendant to criminal charge not made in indictment). An
issue first raised in a reply brief is not properly before a court of
appeals. United States v. Lewis, 235 F.3d 215, 218 n.3 (4th Cir. 2000)
(quoting Cavallo v. Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir.
1996)), cert. denied, 122 S. Ct. 39 (2001). Therefore, we need not
address this issue.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED