F I L E D
United States Court of Appeals
Tenth Circuit
JUN 15 1999
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-6189
v. (W. District of Oklahoma)
(D.C. No. CR-97-208-A)
MICHAEL BRANDON LUTZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this three-judge panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
We therefore honor the parties’ requests and order the case submitted without oral
argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
A federal grand jury handed down a three-count indictment charging
Michael Lutz with stealing approximately $2.6 million from a Loomis/Fargo
Armored Carriers (“Loomis”) armored car. In particular, the indictment alleged
that Lutz conspired to steal the money and transport it in interstate commerce in
violation of 18 U.S.C. § 371; stole money belonging to the Oklahoma City,
Oklahoma, Federal Reserve Bank in violation of 18 U.S.C. § 2113(b); and
transported the stolen money in interstate commerce in violation of 18 U.S.C.
§ 2314.
Lutz entered a plea of guilty to all three counts of the indictment. Pursuant
to the sentencing calculations set out in the Presentence Report, the district court
sentenced Lutz to a term of imprisonment of fifty-one months on each of the three
counts and ordered that the terms all run concurrently with one another. Lutz
appeals the sentence imposed, contending the district court erred in the following
particulars: (1) increasing Lutz’s base offense level by two points pursuant to
United States Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(4) because Lutz
engaged in “more than minimal planning”; and (2) increasing Lutz’s base offense
level by four points pursuant to U.S.S.G. § 2B1.1(b)(6)(B) because Lutz derived
more than $1,000,000 and the theft “affected a financial institution.” This court
exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and
affirms.
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Lutz recognizes that this court recently rejected the identical arguments
raised in this appeal in affirming the sentence of Lutz’s co-conspirator. See
United States v. Negri, No. 98-6178, 1999 WL 157423 (10 th Cir. March 23, 1999).
Lutz further recognizes that the decision in Negri controls the resolution of this
case but notes that he raises the issues here simply to preserve his right to petition
the Supreme Court. This court agrees that the decision in Negri controls the
disposition of this case and thus AFFIRMS Lutz’s sentence for those reasons set
out in Negri, 1999 WL 157423, at *2-*5.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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