United States v. Milliken ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21080
Consolidated with
No. 00-21021
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KATHERINE MINEYARD MILLIKEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-445-ALL
--------------------
October 24, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Katherine Mineyard Milliken was convicted on her guilty plea
on one count of fraudulent use of a Social Security number, in
violation of 42 U.S.C. § 408(a)(7)(B), and she appeals. We
AFFIRM the conviction, VACATE the sentence, and REMAND the cause
for resentencing.
Milliken contends that she is entitled to reversal of her
conviction because the district court did not advise her of the
dangers and disadvantages of representing herself, as required by
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Faretta v. California, 422 U.S. 806 (1975). Because there was no
defense objection to the procedure followed by the district
court, this court reviews Milliken’s claim for plain error. See
Burton v. United States, 237 F.3d 490, 501 (5th Cir. 2000).
Milliken’s pro se motion for self-representation, her
statements at the motion hearing, and the fact that she had been
represented by several experienced attorneys who had withdrawn
with her acquiescence support a determination that her waiver of
counsel was knowing, voluntary, and intelligent. See Wiggins v.
Procunier, 753 F.2d 1318, 1320 (5th Cir. 1985). Accordingly, the
district court’s failure to explicitly advise Milliken of the
dangers and disadvantages of proceeding pro se did not constitute
plain error.
Milliken contends that the district court reversibly erred
by denying her motion for leave to withdraw her guilty plea. Her
principal contentions are that her plea was coerced by her
counsel, with whom she had a conflict of interest, and that she
had mistakenly believed that she was guilty. These contentions
are refuted by the record of Milliken’s rearraignment and by the
detailed plea agreement. Accordingly, the district court did not
abuse its discretion by denying leave to withdraw the plea. See
United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997).
Milliken contends that her sentence must be vacated because
the district court erroneously determined the amount of loss
attributable to her pursuant to U.S.S.G. § 2F1.1. Milliken’s
“challenge to the method of calculation used by the district
court implicates an application of the Guidelines and therefore
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is reviewed de novo.” United States v. Randall, 157 F.3d 328,
330 (5th Cir. 1998).
Under § 2F1.1(a) and (b)(1), a defendant who has been
convicted of a fraud offense has a base offense level of 6, with
up to 18 additional levels, depending on the amount of loss. The
presentence report (PSR) states that as a result of the defendant
applying for four separate home mortgages, a loan to refinance a
BMW automobile, and a bank line of credit, the intended loss in
this case is $2,578,500. This is the total of $592,500 +
$532,000 + $650,000 + $740,000 + $51,000 + $13,000, respectively.
(The total for the home-loan applications, none of which was
approved, was $2,514,500.) The probation officer increased
Milliken’s offense level by 13 levels pursuant to
§ 2F1.1(b)(1)(N), on grounds that the intended loss was more than
$2,500,000 but less than $5,000.000. This resulted in a total
offense level of 21. With a criminal history category of I,
Milliken’s guideline imprisonment range was 37 to 46 months. She
received a prison sentence of 41 months.
If the requested home-mortgage loans had not been included,
Milliken’s total offense level would have been 13. This would
consist of the base level of 6, plus 5 levels for loss of more
than $40,000 but less than $70,000 (§ 2F1.1(b)(1)(F)), plus 2
levels for more-than-minimal planning. Without counting the
$51,000 BMW loan, which Milliken paid off, the total offense
level would be 11. This would result in a guideline imprisonment
range of 8 to 14 months.
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In her objections to the PSR, Milliken disputed its factual
allegations concerning the six loans. She asserted that the
$13,000 line-of-credit loan had been paid in full, and she
objected to the calculations based on “intended loss.” The
probation officer responded that the $2,578,500 total was proper
because that was the intended loss.
Commentary (n.8(b)) to § 2F1.1 explains how loss is to be
calculated in fraudulent-loss cases, as follows:
In fraudulent loan application cases[,] . . . the loss
is the actual loss to the victim (or if the loss has
not yet come about, the expected loss). For example,
if a defendant fraudulently obtains a loan by
misrepresenting the value of his assets, the loss is
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.
However, where the intended loss is greater than the
actual loss, the intended loss is to be used.
“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United
States, 508 U.S. 36, 38 (1993).
The district court’s calculation of the loss intended by
Milliken relative to the requested home loans failed to take into
account the value of the assets which would have been pledged to
secure the loans, i.e., the residential property. Accordingly,
Milliken’s sentence must be vacated and the cause remanded for
resentencing. See United States v. Deavours, 219 F.3d 400, 403
(5th Cir. 2000) (“[a] fraudulent borrower who has pledged
collateral to secure a loan has never deprived the lender of more
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than the total of the amount of the loan less the value of the
pledge”).
Milliken contends that her sentence must be vacated because
the district court violated Fed. R. Crim. P. 32(c)(1) at
sentencing. Specifically, she asserts that she was denied an
opportunity to comment on matters having to do with the
appropriate sentence and that the district court failed to make
findings on controverted matters. This court does not need to
rule on the merits of these claims, because Milliken’s sentence
must be vacated as a result of errors in determining the loss
attributable to her pursuant to guideline § 2F 1.1.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.