United States v. Spring ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40334
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD SPRING,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(9:00-CR-29-ALL)
_________________________________________________________________
November 5, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Richard Spring appeals the sentence imposed following his
guilty-plea conviction of mail fraud, in violation of 18 U.S.C.
§§ 1341 and 1346. The offense involved several fraudulent loans
totaling $185,000 which Spring made and obtained while a senior
vice president at Commercial Bank of Texas. He challenges the
district court’s imposition of a five-level upward departure,
adjustment for obstruction of justice, and denial of a reduction
for acceptance of responsibility.
*
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this opinion should not be published and is not precedent except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.
A district court may depart upward from the applicable
guideline range if the court finds that an aggravating circumstance
exists that was not adequately taken into consideration by the
Sentencing Commission. See 18 U.S.C. § 3553(b). The departure-
decision is reviewed for abuse of discretion. United States v.
Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc), cert. denied,
514 U.S. 1113 (1995). The district court imposed the upward
departure because the amount of loss significantly understated the
seriousness of Spring’s conduct, see U.S.S.G. § 2F1.1, cmt. n.8(b).
While Spring paid back all of the fraudulent loans, he gained the
use of $185,000 through his fraudulent activity. The gain to the
defendant should be used to calculate losses under § 2F1.1 when the
actual loss from fraud is zero. United States v. Haas, 171 F.3d
259, 269-70 (5th Cir. 1999); see U.S.S.G. § 2F1.1, cmt. n.9.
Accordingly, the district court did not abuse its discretion by
increasing the offense level based on the loan amounts.
Next, Spring maintains the district court erred by assessing
under U.S.S.G. § 3C1.1 a two-level adjustment for obstruction of
justice. A district court’s finding that a defendant has
obstructed justice under § 3C1.1 is a finding of fact reviewed only
for clear error. See United States v. Storm, 36 F.3d 1289, 1295
(5th Cir. 1994). Section 3C1.1 provides for a two-level increase
“[i]f the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during the
course of the investigation, prosecution, or sentencing of the
instant offense”. See Storm, 36 F.3d at 1295 (quoting U.S.S.G. §
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3C1.1). Conduct which constitutes obstruction of justice includes
“providing a materially false statement to a law enforcement
officer that significantly obstructed or impeded the official
investigation or prosecution of the instant offense”. § 3C1.1,
cmt. n.4(g).
According to Spring, his statements to investigators denying
the fraudulent loan activity were mere denials of guilt; however,
Spring untruthfully told investigators that he used another bank
loan to repay a $40,000 bank loan obtained in his grandfather’s
name. The $40,000 was actually repaid with a $680,000 private loan
Spring obtained from a family friend, which would have been almost
impossible to detect through conventional means. By stating that
he had repaid his grandfather’s loan with another bank loan, Spring
attempted to prevent the investigator from uncovering his largest
loan, thereby concealing the remaining fraudulent loans. The
district court did not clearly err by imposing the obstruction of
justice adjustment.
For his final claim, Spring asserts he is entitled to a
reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility.
The district court’s determination under this section is entitled
to great deference on review. See U.S.S.G. § 3E1.1, cmt. n. 5.
Spring contends that, if the obstruction of justice adjustment is
removed, he would then be entitled to the acceptance of
responsibility reduction. As discussed above, the district court
did not err by imposing the former adjustment; therefore,
concerning the latter, Spring’s position necessarily fails. Also,
3
Spring’s case does not present an extraordinary circumstance where
both adjustments should be applied. See U.S.S.G. § 3E1.1, cmt.
n.4.
AFFIRMED
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