UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4791
GERALD CECIL HOOKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-99-39)
Submitted: June 15, 2001
Decided: July 3, 2001
Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, J. W. Hernandez-
Cuebas, Assistant Federal Public Defender, Raleigh, North Carolina,
for Appellant. Janice McKenzie Cole, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Dennis M. Duffy, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. HOOKS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gerald Cecil Hooks appeals from the sentence of sixty-three
months imprisonment imposed by the district court upon resentenc-
ing. We previously remanded Hooks’ case for resentencing because
the district court failed to give him adequate notice before departing
based on probable losses to five banks, as required under Burns v.
United States, 501 U.S. 129, 138 (1991). Hooks had photographed
stolen checks issued by each bank and stored the images on computer
disks.1 He had created and negotiated counterfeit checks issued by
nine other banks. See United States v. Hooks, No. 99-4754 (4th Cir.
Sept. 14, 2000). On remand, the district court again departed upward
by one level, estimating that each of the five banks suffered a loss of
$15,020 (the average loss to the nine banks that reported losses due
to Hooks’ criminal activity). We affirm.
A sentencing court may depart for a factor that is an encouraged
basis for departure under the guidelines unless the factor is taken into
account in the applicable guideline. Koon v. United States, 518 U.S.
81, 94 (1996); United States v. Brock, 108 F.3d 31, 34 (4th Cir. 1997).
In this case, the guideline applicable to fraud offenses, U.S. Sentenc-
ing Guidelines Manual § 2F1.1 (2000), takes into account the possi-
bility that the ascertainable monetary loss may not "fully capture the
harmfulness and seriousness of the conduct," in which case "an
upward departure may be warranted." USSG § 2F1.1, comment.
(n.11(c)). Therefore, the district court’s decision to depart upward for
probable additional monetary losses and for non-monetary harm may
be affirmed, providing that its factual determinations supporting the
departure are not clearly erroneous, United States v. Rybicki, 96 F.3d
754, 757 (4th Cir. 1996), and the extent of the departure is reasonable
under the circumstances. United States v. Terry, 142 F.3d 702, 707
(4th Cir. 1998).
1
The government never located Hooks’ computer.
UNITED STATES v. HOOKS 3
In this appeal, Hooks challenges not only the one-level departure
that he contested in his first appeal, but a two-level departure for non-
monetary harm and emotional trauma to individuals whose checks he
stole and whose identities he appropriated. Hooks did not raise this
issue in his first appeal, nor did he contest this ground for departure
at the resentencing. Consequently, he has forfeited appellate review
of this departure. United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)
(mandate rule forecloses relitigation of issues foregone on appeal or
otherwise waived).
With respect to the one-level departure for harm to the five banks
whose logos were found on Hooks’ computer disks, Hooks argues
that, because the government produced no evidence of actual harm to
these banks, the departure may have been based on factors already
taken into account. He also maintains that there was no factual basis
for the extrapolation of a $75,000 total loss to these banks.2 However,
the government presented testimony that established that Hooks’ pho-
tographing of stolen checks issued by the five banks was a prelimi-
nary step in the process of creating counterfeit checks bearing the
bank logos, and that such checks could have been created and used
even though the loss was neither reported nor otherwise discoverable
by the government. Therefore, the district court’s determination that
harm probably resulted did not lack a factual basis.
Hooks argues that the district court could have accounted for unre-
ported losses without departing because Application 9 to § 2F1.1 per-
mits the court to estimate loss if the actual loss amount cannot be
determined with precision. We find no error. Had the court added a
one-level enhancement under Application Note 9 instead of departing,
the result would have been the same. But in departing, the court also
relied on a non-monetary harm to the five banks, which it described
as a loss in customer confidence in the bank logo. This harm was not
2
The court decided on a one-level departure by first determining that
the average loss to each of the nine banks that had reported losses was
$15,022. The court then multiplied that number by five and determined
that an additional loss of $75,100 might have occurred, making the possi-
ble total loss $210,309. That amount of loss would have supported an
eight-level enhancement under § 2F1.1, instead of the seven-level
enhancement recommended in the presentence report.
4 UNITED STATES v. HOOKS
accounted for in Application Note 9, which does not account for non-
monetary harm.
Finally, the district court gave a "principled justification" for the
extent of the departure, looking to the increase that would be due for
a proven loss equal to the estimated loss under § 2F1.1. United States
v. Terry, 142 F.3d 702, 707 (4th Cir. 1998) (district court must con-
sider rationale and methodology of guidelines in determining reason-
able departure). We find that the one-level departure was not
unreasonable.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED