United States v. Atkinson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4824
DOUGLAS J. ATKINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CR-96-227)
Submitted: March 31, 1997
Decided: April 25, 1997
Before HALL and MOTZ, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joel Wyman Collins, Jr., Arthur Kerr Aiken, COLLINS & LACY,
P.C., Columbia, South Carolina, for Appellant. J. Rene Josey,
United
States Attorney, Dean A. Eichelberger, Assistant United States
Attor-
ney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Douglas J. Atkinson pled guilty to one count of making
false statements to a financial institution in order to obtain
loans in
violation of 18 U.S.C. § 1014 (1994). On appeal, he challenges the
district court's loss calculation under USSG § 2F1.1* and its
imposi-
tion of an obstruction of justice enhancement pursuant to USSG
§ 3C1.1. Finding no reversible error, we affirm.
Atkinson was a loan officer at a credit union. After being turned
down for a personal loan, he began processing loans in customers'
names and diverting the funds to himself. Bank officials eventually
noticed an irregularity in Atkinson's loan portfolio, suspended
him,
and began an investigation. A few days later, a customer advised a
bank employee, Terri Ashworth, that one of the loans on his account
was not his but that the money had gone to Atkinson. Ashworth con-
fronted Atkinson at his new job, where he admitted to the fraud and
gave Ashworth funds to pay off some of the loans. Atkinson also
con-
vinced Ashworth not to inform bank officials about his activities.
Approximately one month after the bank began its investigation, it
turned the investigation over to the FBI. Agents interviewed
several
of the bank customers identified on the loans, including Ira Joe
Alley,
whose loan was paid off with the money given to Ashworth. Alley
told agents on three separate occasions that the loan was his
before
he finally admitted that the funds went to Atkinson. Ashworth also
lied to agents during her interviews. Atkinson admitted on cross-
examination that he and Alley agreed in advance to lie about the
loan
if anyone should inquire about it. Evidence was presented showing
that Atkinson made similar arrangements with other bank customers.
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2
Evidence was also presented showing that Atkinson paid off addi-
tional loans after the beginning of the FBI investigation.
In a fraudulent loan case, "loss" is defined as "the amount of the
loan not repaid at the time the offense is discovered, reduced by
the
amount the lending institution has recovered (or can expect to
recover) from any assets pledged to secure the loan." USSG § 2F1.1,
comment. (n.7(b)). The circuit reviews "de novo the district
court's
legal interpretation of the term `loss' under the Sentencing Guide-
lines, but `to the extent that the determination of the amount of
loss
is a factual matter, we review only for clear error.'" United
States v.
Castner, 50 F.3d 1267, 1274 (4th Cir. 1995). Only a preponderance
of the evidence need support these factual findings. United States
v.
Engleman, 916 F.2d 182, 184 (4th Cir. 1990).
We find that the district court properly calculated the loss as the
amount of the loans outstanding at the time the fraud was
discovered.
The plain language of USSG § 2F1.1, comment. (n.7(b)), prohibits a
reduction in the amount of the loss for payments made after
discovery
in cases such as this one where the loans were unsecured. We also
find persuasive the reasoning of other circuits which have
addressed
factually similar cases. See United States v. Lucas, 99 F.3d 1290,
1299 (a defendant cannot be permitted under the Guidelines to avoid
an increase for amount of loss in a fraud scheme simply by being
financially capable of repaying the money when discovered); United
States v. Sparks, 88 F.3d 408 (6th Cir. 1996) (bank loan officer
who
made a series of fraudulent loans in the names of various third
parties
for the purpose of benefiting himself not allowed to deduct
payments
made after discovery of the fraud because the bank had no realistic
expectation of immediate recovery at that point); United States v.
Bennett, 37 F.3d 687, 695 (1st Cir. 1994) (error for district court
to
give defendant credit for payments made after the date fraud was
dis-
covered); United States v. Jindra, 7 F.3d 113, 114 (8th Cir. 1993)
(loss was the amount of the loans outstanding when the offense was
discovered because the defendant did not pledge assets to secure
the
loans).
We further find that the district court properly enhanced
Atkinson's
base offense level for obstruction of justice. In the present case,
the
district court found that Atkinson discussed ways to cover up his
3
fraud with Alley and Ashworth, and we find that these conversations
support a finding of unlawful influence pursuant to USSG § 3C1.1.
In addition, both of these individuals eventually lied to FBI
agents,
and it took several interviews before they finally told the truth.
We
find that the record supports the district court's conclusion that
these
lies significantly impeded the investigation. Moreover, evidence
was
presented showing that some of the discussions between Atkinson,
Alley, and Ashworth occurred after the start of the official
investiga-
tion, and we find that this obstructive conduct falls squarely
within
the plain language of the Guidelines.
We therefore affirm the findings and sentence of the district
court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the material before the court and
argument would not aid the decisional process.
AFFIRMED
4