United States v. Strevel , 85 F.3d 501 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-8896
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Victor H. STREVEL, Defendant-Appellant.
May 10, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (Nos. 1:93-cr-89-1 and 1:93-cr-500-1), G.
Ernest Tidwell, Chief Judge.
Before TJOFLAT, Chief Judge, and EDMONDSON and BARKETT, Circuit
Judges.
PER CURIAM:
Appellant challenges his sentences of imprisonment for
structuring transactions to evade IRS reporting requirements on two
grounds. First, appellant contends that the district court erred
in calculating his criminal history category by treating as a
conviction a bond forfeiture in a DUI case brought in a Georgia
court. This contention is meritless; under Georgia law, a bond
forfeiture in a DUI case is considered a conviction. See Cofer v.
Crowell, 146 Ga.App. 639, 247 S.E.2d 152, 154 (1978); cf. Haley v.
Hardison, 247 Ga. 750, 279 S.E.2d 712, 713 (1981).
Second, appellant contends that the district court, prior to
the imposition of sentence, erred in failing to find as a fact the
amount of the loss caused by appellant's fraud. According to
appellant, the court relied solely on the amount stipulated in the
parties' plea agreement.
The commentary to U.S.S.G. § 6B1.4(d) states that
the [sentencing] court cannot rely exclusively upon
stipulations in ascertaining the factors relevant to the
determination of sentence. Rather, in determining the factual
basis for the sentence, the court will consider the
stipulation, together with the results of the presentence
investigation, and any other relevant information.
At sentencing, the court, as appellant contends, arrived at the
amount of the loss in the case simply by selecting the amount
referred to in the plea agreement. The court relied on nothing
else. This constituted a clear violation of the plain language of
the commentary and requires that we remand the case for a
determination of the amount of the loss in question and,
thereafter, for resentencing.
SO ORDERED.