United States v. Coghill , 204 F. App'x 328 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4354
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS E. COGHILL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00089-nkm)
Submitted: October 27, 2006 Decided: November 15, 2006
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Curtis S. Fallgatter, FALLGATTER FARMAND & ROELKE, P.A.,
Jacksonville, Florida; Murray J. Janus, BREMMER JANUS COOK &
MARCUS, Richmond, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Jean B. Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas E. Coghill, Jr., pled guilty, pursuant to a plea
agreement, to one count of wire fraud, in violation of 18 U.S.C.
§ 1343 (2000) and one count of bank fraud, in violation of 18
U.S.C. § 1344 (2000). In the presentence report (PSR), the
probation officer recommended a base offense level of six pursuant
to U.S. Sentencing Guidelines Manual (USSG) § 2F1.1(a) (2000). The
probation officer determined that Coghill’s offense involved at
least $3,080,520 in actual loss and, pursuant to USSG
§ 2F1.1(b)(1)(N), increased the base offense level by thirteen.
Additionally, pursuant to USSG § 2F1.1(b)(2), because Coghill’s
offense involved a scheme to defraud more than one person,
Coghill’s offense level was increased an additional two levels.
After a three-level adjustment for acceptance of responsibility,
the PSR recommended a total offense level of eighteen. Coghill’s
prior criminal conduct yielded a criminal history category of I.
The total offense level of eighteen and criminal history category
of I resulted in a sentencing range of twenty-seven to thirty-three
months.
The district court adopted the recommendations in the
PSR, sentenced Coghill to thirty months in prison, and ordered
restitution in the total amount of $2,909,520. On appeal, Coghill
raises four issues. For the reasons that follow, we affirm.
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Coghill first asserts that the district court improperly
included interest as a component of loss, and thus improperly added
thirteen levels to Coghill’s sentence. This court reviews the
determination of the amount of loss, to the extent it is a factual
matter, for clear error, and reviews de novo the district court’s
legal interpretation of the term “loss” under the Sentencing
Guidelines. United States v. West, 2 F.3d 66, 71 (4th Cir. 1993).
The relationship of payment of fees, interest and penalties to
principal in calculating loss is a question of law, and is thus
reviewed de novo.
Valuation of “loss” under USSG § 2F1.1 is discussed in
the commentary to USSG § 2B1.1. Application note 3(D)(i) to USSG
§ 2B1.1 states that “[l]oss shall not include . . . [i]nterest of
any kind, finance charges, late fees, penalties, amounts based on
an agreed-upon return or rate of return, or other similar costs.”
Coghill cites this language in support of his contention that the
district court’s sentencing decision is erroneous. Coghill argues
that loss should have been calculated by subtracting all payments
made on his fraudulently obtained loan directly from the amount of
principal borrowed.
The exclusion of interest from the calculation of loss
under the Guidelines serves to prevent victims from recovering all
interest they could have earned had the fraud never occurred. See
United States v. Morgan, 376 F.3d 1002, 1014 (9th Cir. 2004). It
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does not follow, as Coghill suggests, that payments already made
that both parties understood would be applied in part to interest
due and the remainder to principal ought to instead be applied
solely to principal for purposes of calculating loss. Rather, the
district court properly calculated loss by determining the
outstanding principal balance of the loan less the amount the
victims were able to recover through liquidation of the collateral
provided to secure the loan. See United States v. Abbey, 288 F.3d
515, 518 (2d Cir. 2002).
Coghill next argues that the district court failed to
restrict loss calculations to the houses on which the fraudulent
loans were obtained. The district court’s findings at sentencing
as to the amount of loss suffered by a party are findings of fact
reviewed for clear error. United States v. Daughtrey, 874 F.2d
213, 217-18 (4th Cir. 1989). The amount of loss should be
calculated based on the value of the loans procured through fraud,
not including outstanding legitimate loans. See United States v.
Wilson, 980 F.2d 259, 262 (4th Cir. 1992) (limiting amount of loss
under § 2F1.1 in fraudulent loan application case to the amount of
loss related to the false statement, rather than the total loan
amount.) Our review of the record reveals that the district court
did not clearly err in determining the amount of loss suffered by
each party. Therefore, Coghill’s argument is without merit.
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Third, Coghill asserts that the district court erred in
failing to subtract $712,040 in alleged losses attributable to
accounting errors. Again, this is purely a question of fact, and
will be reviewed for clear error. Daughtrey, 874 F.2d at 217. The
district court made a proper determination of loss by taking the
total amount of the loan principal associated with the fraud
outstanding at the time that the fraud was discovered, and
subtracting the amount the lenders were able to recover through the
liquidation of collateral. The court based these figures on the
victims’ testimony, records provided by the victims, and the
presentence report. Thus, the district court’s determination that
the victims’ records were reliable and correctly established their
loss is not clearly erroneous.
Finally, Coghill asserts that the district court failed
to comply with mandatory statutory requirements necessary to depart
upward thirteen levels. This argument is without merit as the
district court did not depart from the Guidelines. Rather, the
district court merely rejected Coghill’s proposed method of loss
calculation. Because the district court did not depart, it was not
required to state a reason for a departure sentence.
For the reasons stated herein, we affirm the district
court’s judgment. 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
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