Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
3-13-2003
USA v. Hinton
Precedential or Non-Precedential: Non-Precedential
Docket 01-2960
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Recommended Citation
"USA v. Hinton" (2003). 2003 Decisions. Paper 746.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/746
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 01-2960
UNITED STATES OF AMERICA
v.
HAYWOOD HINTON a/k/a AMEER HASAN
Haywood Hinton
Appellant
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. Action No. 00-cr-00125)
District Judge: Honorable Jerome B. Simandle
Argued February 3, 2003
BEFORE: SLOVITER, RENDELL and STAPLETON, Circuit Judges
(Opinion Filed: March 12, 2003)
Joseph R. Donahue (Argued)
Brickfield & Donohue
70 Grand Avenue
River Edge, NJ 07661
Attorney for Appellant
George S. Leone
Gail Zweig (Aargued)
Office of the United States Attorney
970 Broad Street - Room 700
Newark, NJ 07102
Attorneys for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Haywood Hinton appeals the sentencing determination of the United States
District Court for the District of New Jersey.
At the time of Hinton’s sentencing, U.S.S.G. § 2F1.1 increased the offense
level depending on the monetary “loss” associated with certain crimes involving fraud or
deceit. Application Note 8 of § 2F1.1 required the loss intended by the fraud to be used if
it was greater than the actual loss caused by the fraud. See United States v. Titchell, 261
F.3d 348, 353 (3d Cir. 2001). The government must prove loss by a preponderance of the
evidence. United States v. Evans, 155 F.3d 245, 252 (3d Cir. 1998). Although the loss
question “need not be determined with precision,” id., United States v. Titchell teaches that
it is error to “simply equate[] potential loss with intended loss without deeper analysis.”
Titchell, 261 F.3d at 353 (internal quotations omitted).
Here, the District Court found that Hinton’s method of operation was to
perpetuate a scheme of bank fraud in which “individuals who were confederates of Mr.
Hinton were instructed [by Hinton] to deposit the checks and to split the proceeds and to
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receive back a fraction of the proceeds of the checks [from the bank].” BA 408. The court
then concluded that the intended loss was the full face value of the deposited checks based
on the following analysis:
I’m satisfied from the government’s response that the balances in these
accounts at the end of the fraud was zero or less than zero, that there wasn’t
some sort of residual amount, nor could there have been because there was
never any real money put in there to begin with. Even if a paper balance was
reflected, and I have no evidence that there was a positive paper balance at the
end, the fact that that balance would have been created by fraudulent check
itself would render that balance zero. So, the intended loss was the entire
amount of these deposited false checks.
Id. at 409.
As in Titchell, the District Court’s determination of the intended loss is
without persuasive foundation. The District Court incorrectly reasoned that because the
deposited checks were bogus, and the accounts ultimately had a zero balance, the face value
of the bogus checks was necessarily the amount of loss intended by Hinton. This seems to
contradict the District Court’s express finding that Hinton’s method of operation was to
defraud banks by means of a split deposit, where only a portion of the deposited checks was
actually withdrawn from the bank, and the zero balance resulted not from a taking of all the
funds but, rather, from the bank’s discovery that the checks were bogus. The correct
analysis should focus on the amounts that Hinton intended to steal, not the value of the
worthless checks deposited at the bank.
It may well be, as the prosecution insists, that Hinton intended to abscond
with the entire amount of the deposited checks, or as close to the entire amount as he
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could. See United States v. Geevers, 226 F.3d 186, 193 (3d Cir. 2000). However, the
District Court has not adequately explored the issue of intended loss and explained its
finding. Contrary to the government’s suggestion, the record contains no finding by the
Court that Hinton intended for there to be any withdrawals from the accounts other than the
initial withdrawals. Accordingly, the Court’s finding regarding the intended loss cannot
stand, and we must remand to the District Court for further analysis. We leave to the
District Court’s sound discretion whether the record relevant to the intended loss should be
supplemented.
Hinton also challenges the District Court’s findings regarding relevant
conduct under U.S.S.G. § 1B1.3(a) and the two level enhancement for obstruction of justice
under U.S.S.G. § 3C1.1. The charged conduct and the conduct found relevant were, indeed,
part of the same course of conduct and common plan or scheme – having similar modus
operandi, and showing the requisite similarity, proximity, and regularity. Additionally, the
District Court did not clearly err in finding that Hinton had obstructed justice.
Accordingly, we will decline to disturb the District Court’s findings concerning relevant
conduct and obstruction of justice.
The judgment of the District Court will be reversed, and this matter will be
remanded for resentencing only.
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TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/Walter K. Stapleton
Circuit Judge
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