Rehearing granted, July 28, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4018
TIMOTHY LLOYD JEFFERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-03-209)
Submitted: August 30, 2004
Decided: September 17, 2004
Before WIDENER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States Attorney,
L. Patrick Auld, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JEFFERS
OPINION
PER CURIAM:
Timothy Lloyd Jeffers pled guilty to embezzlement by a bank
employee in violation of 18 U.S.C. § 656 (2000), and was sentenced
to a term of twenty-four months imprisonment. Jeffers appeals his
sentencing, contending that the district court erred in determining the
amount of loss, U.S. Sentencing Guidelines Manual § 2B1.1 (2003),
and that the district court failed to recognize its authority to depart
downward. We affirm.
Jeffers, a loan officer at Central Carolina Bank, made a number of
unauthorized loans to customers without their knowledge. The disbur-
sal checks were made out to Jeffers’ account at Mid-Carolina Bank.
An inquiry began after a Central Carolina Bank customer discovered
at the end of January 2002 that the bank system showed that he had
two loans, not one, as he believed. Jeffers met with bank auditors on
February 26, 2002, and admitted making three fraudulent loans total-
ling $63,600. By April 10, 2002, the auditors had determined that Jef-
fers made nine unauthorized loans totaling $105,164.04. In addition,
a relative of Jeffers told a bank employee that Jeffers had a teller
check for over $200,000. The bank determined that a teller check was
missing. On March 12, 2002, Jeffers returned to the bank a teller
check made payable to Mid-Carolina Bank for $215,000. The check
had been completed on February 2, 2002, but was never cashed.
At sentencing, Jeffers argued that the $215,000 teller check should
not be included in the amount of loss for sentencing purposes,
because he returned it to the bank before negotiating it and the bank
did not suffer any actual loss in that amount. The district court, how-
ever, determined that the check was properly treated as an intended
loss because the bank was exposed to a loss in that amount and
because Jeffers’ theft of the check was part of the same course of con-
duct as his fraudulent loans.
Jeffers first argues on appeal that the teller check should not have
been included in the loss calculation because (1) he did not negotiate
the check and did not intend to use it; (2) it was not part of the series
of unauthorized loans he made, which he states occurred between
UNITED STATES v. JEFFERS 3
June 22, 2001, and December 12, 2001. The district court’s interpreta-
tion of the term "intended loss" is a legal issue reviewed de novo.
United States v. Wells, 163 F.3d 889, 900 (4th Cir. 1998). However,
the defendant’s intent to cause a particular loss is a factual question
reviewed for clear error. Id. at 900-01.
Enhancements under § 2B1.1(b) are determined by the amount of
loss suffered as a result of the fraud. The amount of loss is the greater
of the actual loss or the intended loss. USSG § 2B1.1, comment.
(n.2(A)). "Intended loss" is defined as "the pecuniary harm that was
intended to result from the offense . . . and . . . includes intended
pecuniary harm that would have been impossible or unlikely to occur.
. . ." USSG § 2B1.1, comment. (n.2(A)(ii)). Consequently, the
intended loss amount may be used, "even if this exceeds the amount
of loss actually possible, or likely to occur, as a result of the defen-
dant’s conduct." United States v. Miller, 316 F.3d 495, 502 (4th Cir.
2003).
Finally, Application Note 3(E)(i) to § 2B1.1 provides that credit
against a loss amount may be given when money is returned to the
victim "before the offense is detected." The application note further
defines the "time of detection" as "the earlier of (I) the time the
offense was discovered by a victim or a government agency; or (II)
the time the defendant knew or reasonably should have known that
the offense was detected or about to be detected by a victim or gov-
ernment agency." Id.
Jeffers offered no evidence at sentencing to support his position
that he did not intend to use the check. Therefore, the district court
did not clearly err in finding that Jeffers intended to use the check
when he created it and removed it from the bank. Moreover, his theft
of the teller check was relevant conduct because it was, if not part of
a common scheme or plan to defraud the bank, at least part of the
same course of conduct. See USSG § 1B1.3(a)(2), comment. (n.9(A)-
(B)) (defining both terms). To be part of the same course of conduct,
offenses must be "sufficiently connected or related to each other as
to warrant the conclusion that they are part of a single episode, spree,
or ongoing series of offenses." Id. at (n.9(B)). Jeffers’ theft of the
check was a further attempt to embezzle money from the bank, even
though he did not cash it and ultimately returned it. Because Jeffers
4 UNITED STATES v. JEFFERS
did not return the check until well after the offense had been detected,
he was not entitled to have it credited against the intended loss
amount.
Jeffers next maintains that, because the district court did not depart
below the guideline range, the court may have believed that it lacked
authority to do so. The sentencing court’s decision not to depart is not
reviewable on appeal unless its decision results from a mistaken belief
that it lacks the legal authority to depart. United States v. Shaw, 313
F.3d 219, 222 (4th Cir. 2002). Jeffers did not request a departure. In
light of this fact and the absence of any statement on the part of the
district court indicating its belief that it lacked authority to depart, Jef-
fers’ request for resentencing on this ground is without merit.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED