United States v. Ravitch

REVISED
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-21002
_____________________

United States of America,

Plaintiff-Appellee,

v.

Danielle Pauline Ravitch,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
November 7, 1997

Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.

PER CURIAM:

Defendant-appellant Danielle Pauline Ravitch appeals the

sentence imposed upon her by the district court after she pled
guilty to nine counts of fraud and misuse of social security

numbers. In sentencing Ravitch, the district court determined that

an upward departure was warranted; it is this upward departure that

Ravitch now contests. Finding no plain error in either the

decision to depart upward or in the extent of the upward departure,

we affirm the judgment of conviction and sentence of the district

court.
 I. FACTUAL & PROCEDURAL BACKGROUND

From July to December 1994, defendant-appellant Danielle

Pauline Ravitch engaged in a pattern of deceptions involving the

use of false and other persons’ Social Security numbers in order

to mask her poor credit history and to secure credit to purchase

automobiles, to qualify for other bank loans, and to obtain an

apartment lease. She also stole funds from her employer by

creating fictitious owners of mineral leases to whom checks were

made payable and by endorsing and depositing those checks in

accounts to which she had access.

Ravitch pled guilty to two counts of wire fraud in violation

of 18 U.S.C. § 1343, three counts of unlawful use of another

person’s social security number in violation of 42 U.S.C.

§ 408(a)(7)(B), one count of filing a false social security card

application in violation of 42 U.S.C. § 408(a)(6), two counts of

unlawful use of a social security account number obtained with

false information in violation of 42 U.S.C. § 408(a)(7)(A), and

one count of bank fraud in violation of 18 U.S.C. § 1344. In her

plea agreement, Ravitch waived her right to appeal her conviction

but retained the right to challenge her sentence.

Prior to sentencing, Ravitch was released on bond on the

condition that she refrain from incurring additional credit

without the prior approval of her pretrial services advisor. In

direct contravention of this agreement, Ravitch purchased a

Mercedes-Benz, leaving the dealership a check for the purchase

price but requesting that it hold the check until she was able to

pay the full amount out of a nonexistent trust fund. In an
attempt to pay the dealership, Ravitch then borrowed $29,000 from

a friend under the pretense of needing money to pay her divorce

expenses. As a result of this activity, the district court

revoked Ravitch’s bond and ordered her detained pending

sentencing.

Bank fraud, the most serious offense to which Ravitch pled

guilty, carries a maximum term of imprisonment of 30 years. See

18 U.S.C. § 1344 (Supp. 1997). The applicable Sentencing

Guidelines provision for Ravitch’s offenses is § 2F1.1 which

addresses offenses involving fraud or deceit. U.S. SENTENCING

GUIDELINES MANUAL § 2F1.1 (1995). Section 2F1.1 carries a base

offense level of 6, which can then be increased by the specific

offense characteristics based upon the amount of loss and on

several other factors. Id. Ravitch’s Presentence Investigation

Report (PSR) stated that the intended loss in her fraudulent

scheme was $118,115.63, but this calculation did not include two

GMAC automobile loans which were collateralized, two other

attempts to secure loans for a Lexus automobile and furniture

which also would have been collateralized if the extension of

credit had been approved, and another loan for which the

application was terminated prior to completion. Additionally,

the intended loss calculation did not reflect the six counts of

social security fraud on which Ravitch also was convicted.

Under the Sentencing Guidelines, an intended loss of

$118,115.63 calls for an increase of 6 points above the base

offense level of 6. Id. § 2F1.1(b)(1)(G). On top of this, the

3
district court added 2 points for more than minimal planning

pursuant to § 2F1.1(b)(2), giving Ravitch an offense level of 14,

which, with a Criminal History Category of I, gave her a

sentencing range of 15-21 months of imprisonment. Id. ch. 5, pt.

A (Sentencing Tbl.).

At Ravitch’s sentencing hearing, the Government moved for a

3-point upward departure

because the harm caused by the defendant’s post-
conviction conduct and the synergistic effect of the
combination of the defendant’s carefully-planned social
security fraud offenses with her other offenses of
conviction cannot be adequately measured by the “loss”
table of USSCGM § 2F1.1(b)(1) and thereby understates
the seriousness of her criminal conduct.

The district court declined to depart based upon Ravitch’s post-

conviction conduct,1 but it did depart upwards 4 points,

yielding a sentencing range of 27-33 months. U.S. SENTENCING

GUIDELINES MANUAL ch. 5, pt. A (Sentencing Tbl.) (1995). The

district court sentenced Ravitch to 33 months of imprisonment

followed by 5 years of supervised release, and it ordered her to

pay restitution totaling $86,309.64 to the victims of her

offenses. At the sentencing hearing, the court justified this 4-

point departure with the following explanation:

I believe that an aggravating factor not
adequately considered by the United States Sentencing
Commission pursuant to United States Sentencing
Commission Section 5K2 is present. Ms. Ravitch was not
banking the loans collateralized or the loans initiated
by her but discontinued by her prior to completion; and

1
The district court, having been reversed on what it
perceived to be a similar issue, see United States v. Lara, 975
F.2d 1120 (5th Cir. 1992), stated that it did not want to risk
another reversal and therefore declined to depart on this basis.

4
 for that reason, the loss determined in her fraudulent
scheme significantly understates the seriousness of her
conduct.
In other words, she went out to get loans, stopped
short of actually getting them, but exposed these
lending institutions to a great deal of liability. As
an example, I just point to the total liability for not
reporting to GMAC or the bank that they were seeking a
loan from the risk of loss or the exposure these
financial institutions faced is not adequately
reflected by the actual loss figures.
Pursuant to United States Sentencing Guidelines
Section 2F1.1 Application Note 7B [sic], where the loss
significantly understates the seriousness of the
defendant’s conduct, I am going to find that an upward
departure is warranted; and, of course, there is also
the factor of her pending sentencing on the theft
charge in Harris County when she committed the offense,
there would be another avenue, pursuant to the
Sentencing Commission Guidelines Section 4A1.3 in that
regard.
I am going to upwardly depart to a level 18, and
with a criminal history category of 1, that would give
a guideline provision of 27-33 months.

In its written Judgment, the district court listed the following

reasons for departing upward: “The loss significantly

understates the seriousness of the [defendant’s] conduct.

Furthermore, the Criminal History Category does not adequately

reflect the seriousness of the [defendant’s] past criminal

conduct.”

Although she failed to object before the district court,

Ravitch now argues that the district court’s 4-point upward

departure to level 18 was not permissible under the Sentencing

Guidelines.

II. STANDARD OF REVIEW

We generally review a district court’s decision to depart

from the Sentencing Guidelines for abuse of discretion. Koon v.

United States, 116 S. Ct. 2035, 2047-48 (1996). In this case,

5
however, Ravitch failed to object to the upward departure before

the district court, and our consideration of her appeal is

therefore limited to plain error review. Under Federal Rule

of Criminal Procedure 52(b), this court may correct forfeited

errors only when the appellant shows that (1) there is an error,

(2) the error is plain, and (3) the error affects her substantial

rights. United States v. Olano, 507 U.S. 725, 732-35 (1993);

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)

(en banc), cert. denied, 513 U.S. 1996 (1995). If the appellant

is able to establish these factors, the decision to correct the

forfeited error falls within this court’s sound discretion.

United States v. McDowell, 109 F.3d 214, 216 (5th Cir. 1997).

This court will not exercise its discretion to correct such

errors unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See

Olano, 507 U.S. at 735-36; McDowell, 109 F.3d at 216.

This court has noted that plain error involves “a mistake so

fundamental as to constitute a ‘miscarriage of justice.’” United

States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990). As a

result, where we have concluded that “[i]f the case were remanded

the trial judge could reinstate the same sentence,” we have

upheld the defendant’s sentence although the district court’s

stated reasons for departing evidence a mistaken application of

the Sentencing Guidelines.2 Id.

2
We note, however, that in cases where our consideration
of an appeal is not limited to plain error review, “[t]he question
is not whether the district court could have chosen the same

6
 III. DISCUSSION

At Ravitch’s sentencing hearing, the district court found

that “an aggravating factor not adequately considered” by the

sentencing commission was present in this case. See U.S.

SENTENCING GUIDELINES MANUAL § 5K2.0 (1995). It therefore departed

upwards from level 14 to level 18 and sentenced Ravitch to 33

months of imprisonment. In explaining its departure, the

district court referred to two specific sections of the

Sentencing Guidelines which it found supported an upward

departure, and it alluded to a third reason for departure which

it refused to rely on due to its interpretation of this court’s

precedent. As we must uphold a sentence reviewed for plain error

if the court could lawfully and reasonably reinstate it on

remand, we address each of these bases for departure in turn.

A. § 2F1.1 Application Note 7(b)

The district court first found that departure was warranted

pursuant to § 2F1.1 Application Note 7(b) of the Sentencing

Guidelines because some of the loans that Ravitch fraudulently

attempted to obtain were not included in the intended loss

calculation. Application Note 7(b) provides that an upward

departure may be warranted where the intended monetary loss

significantly understates the seriousness of the defendant’s

conduct. Id. § 2F1.1 Application Note 7(b). Ravitch contends

that because the additional loans were either uncompleted or

sentence, but whether it would have chosen that sentence.” United
States v. Rogers, No. 96-31113, 1997 WL 641543, at *6 (5th Cir.
Oct. 17, 1997) (emphasis added).

7
fully collateralized, a departure on that basis is not warranted.

The government responds that an upward departure was warranted

because the base sentence would have failed to account for many

of the fraudulent transactions in which Ravitch engaged.

When reviewing a sentence imposed under § 2F1.1 of the

Sentencing Guidelines, we grant great latitude to a district

court’s determination of the amount of loss caused or risked by

fraudulent conduct. United States v. Brewer, 60 F.3d 1142, 1145

(5th Cir. 1995). In addition, Application Note 7(b) expressly

states that there may be situations in which “the loss determined

above significantly understates or overstates the seriousness of

the defendant’s conduct.” U.S. SENTENCING GUIDELINES MANUAL § 2F1.1,

Application Note 7(b) (1995). In the instant case, the district

court adopted the PSR’s finding that the intended loss for which

Ravitch must be held accountable amounted to $118,115.63. In

addition, the court concurred with the PSR’s finding that that

amount failed to account for the monetary seriousness of

Ravitch’s actions, which involved an additional $140,366.37.

In United States v. Bobowick, 113 F.3d 1302 (2d Cir. 1997),

the Second Circuit affirmed a 7-point upward departure in the

defendant’s sentence for wire fraud despite the fact that both

sides agreed that the intended loss was zero. Id. at 1303-04.

In Bobowick, the pledged collateral would have adequately secured

the loan, and the bank discovered the fraud prior to issuing the

loan. Id. Nevertheless, the appellate court affirmed the

departure pursuant to Application Note 7(b), reasoning that

8
although there was never any actual risk to the lender’s money,

“the bank was being sucked into a transaction with a person

insensitive to his credit obligations and skilled in the

extraction of multiple loans from unsuspecting lenders.” Id. at

1304. We think that this reasoning applies in the instant case

as well. The fact that there was no intended loss from the

additional loans does not mean that Ravitch’s actions did not

constitute serious conduct warranting greater punishment than if

she had fraudulently attempted to obtain loans worth only

$118,115.63. Thus, in light of the serious and repetitive nature

of Ravitch’s fraudulent conduct, we cannot say that using this

added potential loss as a basis for an upward departure pursuant

to Application Note 7(b) constituted plain error.3

Ravitch next argues that even if the greater amount of

potential loss does provide a basis for an upward departure, it

does not warrant a 4-point departure. She relies on

3
Ravitch also argues that the district court failed to
consider Application Note 10 in addition to Application Note 7(b).
U.S. SENTENCING GUIDELINES MANUAL § 2F1.1 Application Note 7 (b), 10
(1995). She argues that the district court erred in departing
upward because none of the factors relied upon by the district
court rise to the level of the factors listed in Application Note
10. Ravitch’s argument is without merit.
Application Note 10 applies to situations in which “the loss
determined under subsection (b)(1) does not fully capture the
harmfulness and seriousness of the conduct” and contemplates
departure based on harm that is not financial in nature. Id.
§ 2F1.1 Application Note 10. In contrast, Application Note 7(b)
provides for an increase in the sentence when the intended loss
calculation understates the monetary seriousness of the defendant’s
conduct. Id. § 2F1.1 Application Note 7(b). The two provisions
are independent of one another, and the district court need not
find that one of the factors listed under Application Note 10, or
a similarly serious non-monetary factor, is present in order to
justify an upward departure pursuant to Application Note 7(b).

9
§ 2F1.1(b)(1)(I), which permits the addition of 8 points to the

defendant’s base offense level where the intended loss is between

$200,000 and $350,000. U.S. SENTENCING GUIDELINES MANUAL

§ 2F1.1(b)(1)(I) (1995). Ravitch argues that even if she had

actually put the entire $258,482.00 at risk, her total sentence

would be increased by only 2 points because a 6-point increase

for the $118,115.63 already had been included. Id.

§ 2F1.1(b)(1)(G). Because we conclude that the district court

also was entitled to depart on other bases, we need not determine

whether a departure of more than 2 points under Application Note

7(b) would constitute plain error. Instead, we assume for

purposes of this review that the district court departed upwards

by only 2 points as permitted by § 2F1.1(b)(1)(I), leading to an

offense level of 16.

B. § 4A1.3(d)

In addition to § 2F1.1 Application Note 7(b), the district

court noted that departure also was permissible pursuant to

§ 4A1.3 because Ravitch committed the charged conduct while

awaiting sentencing for a state theft conviction. Id.

§ 4A1.3(d). Section 4A1.3(d) allows for an increase in the

defendant’s sentence where the assigned criminal history category

does not adequately reflect the seriousness of the defendant’s

conduct. Id. Ravitch claims that any departure that the

district court made on this basis constituted plain error because

the district court implemented its departure by increasing

Ravitch’s offense level rather than her criminal history

10
category.

A district court may depart from the range provided by the

Sentencing Guidelines “[i]f reliable information indicates that

the criminal history category does not adequately reflect the

seriousness of the defendant’s past criminal conduct or the

likelihood that the defendant will commit other crimes,”

including “whether the defendant was pending trial or sentencing

on another charge at the time of the instant offense.” Id.

§ 4A1.3. In contemplating a departure on this basis, § 4A1.3

explicitly notes that adjustments should be made by increasing

the defendant’s criminal history category. See id. (“In

considering a departure under this provision, the Commission

intends that the court use, as a reference, the sentencing range

for a defendant with a higher or lower criminal history category,

as applicable.” ).

According to § 4A1.1, which addresses the defendant’s

baseline criminal history category, Ravitch’s criminal history

score would have been increased by 2 points if she had already

been sentenced in the theft case when she committed the instant

offenses. Id. § 4A1.1. Analogizing to that section, the

district court could reasonably add 2 points to her criminal

history score pursuant to § 4A1.3(d). Such a departure would

have raised Ravitch’s criminal history category to II, which, in

addition to an offense level of 16 discussed above, would have

resulted in a sentencing range of 24-30 months of imprisonment.

Id. ch. 5 pt. A (Sentencing Tbl.).

11
 Thus, the factors explicitly relied upon by the district

court do not adequately account for the 33-month sentence that

the defendant received. Nevertheless, as we noted above, where

an issue is not raised in the court below, we review the claim on

appeal only for plain error. See McDowell, 109 F.3d at 216.

Reviewing for plain error, we will uphold a defendant’s sentence

if on remand the district court could reinstate the same sentence

by relying on a reasonable application of the Sentencing

Guidelines. See Brunson, 915 F.2d at 944. We therefore turn to

the Government’s argument that Ravitch’s conduct while released

on bond supplies another ground for departure.

C. Ravitch’s Conduct While Released on Bond

Although the Government requested a departure on the basis

of Ravitch’s post-conviction conduct while released on bond, the

district court refused to depart on that basis because it

interpreted this court’s decision in United States v. Lara, 975

F.2d 1120 (5th Cir. 1992), to preclude upward departures based on

a defendant’s post-conviction conduct. In Lara, we held that a

district court may not enhance a sentence based on a defendant’s

conviction for another offense while released on bond for the

first offense because that would lead to the anomalous result of

“subjecting an offender to risk of enhancement of her sentence

for the first offense simply because it happens to be adjudicated

after the second conviction.” Id. at 1129.

In the instant case, the Government moved for enhancement on

the basis of Ravitch’s uncharged post-conviction conduct that was

12
expressly forbidden by her bond agreement. This court has

approved of enhancements pursuant to § 5K2.0 of the Sentencing

Guidelines based on the defendant’s “continuing unlawful

behavior” while released on bond. United States v. Sanchez, 893

F.2d 679, 681 (5th Cir. 1990); see also United States v. George

911 F.2d 1028, 1031 (5th Cir. 1990) (affirming upward departure

based on defendant’s unauthorized travel out of state between

sentencing and conviction).

In approving upward departures based on a defendant’s

conduct while released on bond, this court has noted that

[m]aking an upward adjustment to account for acts
committed while on bond is similar to making an upward
adjustment because the criminal history category does
not “adequately reflect . . . the likelihood that the
defendant will commit other crimes” or due to “prior
similar adult conduct not resulting in criminal
conviction.”

Sanchez, 893 F.2d at 681. Thus, a district court should use the

next higher criminal history category when it determines that the

applicable category does not adequately reflect a defendant’s

criminal history. On this basis, the district court reasonably

could have determined that Ravitch’s criminal history category

should be increased to III. A criminal history category of III,

paired with an offense level of 16, yields a sentencing range of

27-33 months of imprisonment. Noting that “[t]he only remedy for

this defendant is to remove her from society for as long as

possible” and thus remove her from the temptation of engaging in

fraudulent conduct, the district court sentenced Ravitch to 33

months of imprisonment.

13
 Although the district court may have been mistaken in its

method of departure, the departure did not substantially affect

Ravitch’s rights because, had the district court departed in the

correct manner, the same sentence could have been imposed. We

therefore conclude that any error committed by the district court

does not rise to the level of plain error. See Olano, 501 U.S.

at 732-35. As a result, we are without discretion to remand the

case for resentencing.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

conviction and sentence of the district court.

14