UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 96-50007
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Cross-Appellee,
versus
YECHIEL BART,
Defendant-Appellee,
Cross-Appellant,
ARTHUR STEWART,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(SA-94-CR-244)
May 29, 1997
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The United States appeals the sentence of two men convicted of
money laundering and underlying fraud offenses; defendant Yechiel
Bart cross appeals his sentence for sufficiency of the evidence.
Because the district court misapplied the sentencing guidelines, we
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
vacate and remand for resentencing. Finding sufficient evidence of
guilt in the record, we affirm Bart’s conviction.
A jury convicted Yechiel Bart and Arthur Stewart of mail
fraud, in violation of 18 U.S.C. § 1341; wire fraud, in violation
of 18 U.S.C. § 1343; interstate transportation of property taken by
fraud, in violation of 18 U.S.C. § 2314; and of engaging in
monetary transactions in property derived from specified unlawful
activity (money laundering), in violation of 18 U.S.C. § 1957.
Because these offenses are closely related, the United States
Sentencing Guidelines groups them together for purposes of
sentencing and provides that the greatest base offense level for
any of the grouped offenses should be used for sentencing. In this
case the base offense level for money laundering, U.S.S.G. § 2S1.2,
was the greatest, with a base offense level of 17. However, the
district court held that the sentencing guideline for money
laundering overstated the seriousness of the offense in this case.
The court described the case as “atypical” of money laundering
cases, but did not indicate how the financial transactions involved
were any different from the conduct Congress targeted with the
broad language of section 1957 or U.S.S.G. § 2S1.2.
The court then decided that the underlying conduct was more
akin to fraud involving the deprivation of the intangible right to
the honest services of appointed officials and fraud involving the
interference of governmental functions, even though the defendants
were neither indicted nor convicted under that statute. The judge
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computed Bart’s and Stewart’s sentences using the guideline for
fraud involving deprivation of right to honest services under
U.S.S.G. § 2C1.7, with a base offense level of 10 and issued a
sentence less than half of the minimum sentencing range under the
money laundering guideline.
Although the district court at different points characterized
the decreased sentence as a downward departure, we find that its
computation of the sentences using U.S.S.G. § 2C1.7 was a
misapplication of the Guidelines as a matter of law, not a downward
departure from a sentence properly computed under U.S.S.G. § 2S1.2.
Therefore, we review the sentences de novo. Koon v. United States,
___ U.S. ___, ___, 116 S. Ct. 2035, 2046-48, 135 L. Ed. 2d (1996).
Because the district court committed an error of law in computing
the sentences using the wrong guideline, we vacate and remand the
case for resentencing as to both defendants consistent with
U.S.S.G. § 2S1.2.
On remand, district court has broad discretion to depart
downward from a properly computed sentence if it finds that the
case is atypical or outside the “heartland” of circumstances
foreseen by the relevant guideline. Koon, 116 S. Ct. at 2046.
However, it must consider only valid departure factors under the
Guidelines, spell these factors out, and explain why it believes
that these factors make the individual case exceptional. Id. at
2045-46; see also U.S.S.G. § 5K2.0 (sentencing court may depart if
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it finds “that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission . . . .”). On remand,
if the district court decides that the case is atypical of money
laundering, it should reconsider the vague factors it cited to
justify departure, in light of the Guidelines, the Supreme Court’s
opinion in Koon, and this opinion.
As to Bart’s challenge for sufficiency of the evidence, we
review the record to determine, whether, after viewing the evidence
and all inferences that may reasonably be drawn from it in the
light most favorable to the prosecution, any reasonable-minded jury
could have found that the defendant was guilty beyond a reasonable
doubt.” United States v. Krenning, 93 F.3d 1257, 1262 (5th Cir.
1996). After carefully reviewing the record, we determine that a
reasonable jury could have found that Bart planned and fully
anticipated the mail fraud, interstate transportation of fraud
proceeds, and money laundering that arose from his conduct.
Therefore we AFFIRM Bart’s conviction, VACATE the sentences of
Bart and Stewart, and REMAND for resentencing consistent with the
convictions and the Sentencing Guidelines.
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