924 F.2d 1063
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
Thomas Brian CARTER, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 14, 1991.*
Decided Jan. 31, 1991.
Before TANG, BOOCHEVER and NOONAN, Circuit Judges.
Thomas Brian Carter pleaded guilty to one count of attempted bank fraud. 18 U.S.C. Sec. 1344. The presentence report calculated the loss as $192,000 and, as a result, raised the base offense level six points. United States Sentencing Commission, Guidelines Manual, Sec. 2F1.1(b)(1)(G) (Nov.1989). Carter failed to object at the sentencing hearing, although he did comment that the loss was grossly overstated. The district court sentenced Carter to four months based on the size of the bank's loss. Carter appeals his sentence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Carter submitted two loan applications to two California banks, Great Western Bank and First Deposit Savings Bank, to obtain financing to build a home. Carter had obtained house plans for a 3,100 square foot home. Carter invested $10,000 in his home project. First Deposit Savings was the construction lender and would have disbursed portions of the loan as the specified stages of construction were completed. In his applications, Carter represented that his annual income was $96,198, when in fact it was $56,198. Carter submitted copies of his 1987 federal tax form that he had altered to support his application. Carter also prepared fraudulent verification of employment forms stating that his income matched that shown on his altered return. Carter did not receive any money because the bank loan officer noted discrepancies which led him to call the accounting firm that prepared the tax return.
On June 30, 1989, Carter entered a guilty plea to one count of attempted bank fraud, 18 U.S.C. Sec. 1344, in exchange for the government's agreement to recommend a sentence at the low end of the Guideline range. The presentence report found the base level of the offense to be 6. The probation department made an upward adjustment for the amount of the loss, calculated to be $192,000. The presentence report followed the commentary at section 2F1.1. Application note 7 to section 2F1.1 states: "In keeping with the Commission's policy on attempts, if a probable or intended loss that the defendant was attempting to inflict can be determined, that figure would be used if it was larger than the actual loss." The presentence report stated that the actual loss was zero but Carter qualified for a loan of $184,684 from one bank and $192,000 from the other. Therefore, the loss was between $101,000 and $200,000, resulting in an upward adjustment of 6 points.
The presentence report added two points because the crime involved two victims and deducted two points for acceptance of responsibility for a total offense level of 12. The presentence report recommended a downward adjustment because "the total dollar loss that resulted from the offense may overstate its seriousness. It recommended a three-level downward departure to a total offense level of 9." An offense level of 9 and a criminal history category of I results in a Guidelines Sentence range of four to ten months. U.S.S.G. Chapter 5, Part A, Sentencing Table. The district court accepted the presentence report's recommendation and sentenced Carter to three years probation conditioned on Carter spending four months in jail. Carter appeals the court's determination of the amount of the loss attributable to his attempted bank fraud.
STANDARD OF REVIEW
The government argues that, because Carter failed formally to object to the presentence report, he has waived his opportunity to question it on appeal. The government cites United States v. Burns, 894 F.2d 334, 336 (9th Cir.1990), United States v. Cloud, 872 F.2d 846, 857 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 561 (1989), and United States v. Grewal, 825 F.2d 220, 223 (9th Cir.1987) for this proposition. In each of those cases, however, the defendant presented nothing to the district court. As a result, we declined to rule on the particular issue on appeal. Here, by contrast, Carter brought the discrepancy as to the amount of the loss to the attention of the court, albeit in an informal manner. Therefore, the government's reliance on these cases is misplaced.1
Carter's failure to object formally to the presentence report in compliance with the Eastern District General Order 225(e) limits this court to reviewing for plain error. United States v. Lopez-Cavasos, 915 F.2d 474, 475-76 (9th Cir.1990).
Carter argues that the district court improperly calculated the amount of loss attributable to his attempted bank fraud. He argues that the court should have calculated a worst-case loss of $38,688. Under the guidelines, this would have resulted in a four point increase instead of a six point increase. U.S.S.G. Sec. 2F1.1(b)(1)(E). However, if the district court had counted the loss as Carter argues, there would have been no reason to depart downward from the base offense level because the $38,688 figure would no longer have overstated the seriousness of the crime. As a result, while the defendant would have gained a two level decrease in the sentencing, he would have lost a three level downward departure. Plain error is " 'a highly prejudicial error affecting substantial rights.' " Id. at 479 (citations omitted). Here, Carter's sentence range would have increased if the court had calculated the amount of loss as he argues. Therefore, the district court did not commit plain error. The decision of the district court is
The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
In response to the government's waiver argument, Carter argues that the absence of an objection was due to ineffective assistance of counsel. Because Carter did not waive his right to appeal this issue, we do not address this contention. As a practical matter, counsel's failure to object did not prejudice the defendant as demonstrated below. Consequently, the failure to object did not amount to constitutionally deficient representation. Katz v. United States, No. 89-35797, slip op. at 15,059 (9th Cir. Dec. 11, 1990)