TENTH CIRCUIT DECISIONS

OCTOBER, 2000

Nichols plead guilty to using a false social security number with intent to deceive for purposes of obtaining checking accounts at two Oklahoma banks in violation of 42 U.S.C. § 408(a)(7)(B). He was sentenced to 21 months imprisonment and ordered to pay restitution.

HELD: (1) The court reviews the trial court's application of the sentencing guidelines de novo but reviews findings of fact for clear error. Section 2F1.1 governs crimes involving fraud and deceit like this case. The offense level is calculated based in part on the dollar value of the loss. If an intended loss can be determined and exceeds the actual loss, the court should use the intended loss. The reason for this is to measure the magnitude of the crime at the time it was committed. The fact a victim has recovered part of its loss after discovery of a fraud does not diminish the defendant's culpability. The government bears the burden of proving the amount of loss. The security of a loan is a valid consideration in evaluating a defendant's realistic intent. The fact that the loan was made under circumstances indicating an intent to deceive does not mean Nichols intended to deprive the lender of the full amount of the loan. Nichols provided mostly correct information on his loan application and made a number of payments on the house. The court remanded the case with instructions to recalculate the offense level without including the mortgage amount as an intended loss.

(2) The trial court found Nichols intended to cause a loss in connection with the purchase of a vehicle. As with the house, this finding as to the full value of the vehicle is not supported by the record. The court found similarly with regard to the Empire Funding Corporation loan. As to MasterCard, the district court failed to consider the $1000.00 security deposit given prior to issuance of the card and this is error. The trial court's finding regarding the loss to the Bank of Oklahoma was not error because the fact that Nichols later made restitution does not absolve him.

(3) The court reviews the trial court's refusal to grant the acceptance of responsibility adjustment for clear error and the court could not say the trial court's judgment was clearly erroneous.