In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-60050
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUBY BUCK,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________
March 17, 2003
Before GARWOOD, SMITH, and BARKSDALE, She appeals her conviction on the ground that
Circuit Judges. the district court erred in admitting a summary
chart into evidence; she appeals her sentencing
JERRY E. SMITH, Circuit Judge: on several grounds. We dismiss a portion of
the appeal for want of jurisdiction and affirm
Ruby Buck was convicted of misapplying on the remaining issues.
federal funds and submitting false documents.
I. unteers in violation of 18 U.S.C. § 1001(a).
A. The false statements resulted in the misapplica-
Buck worked for Mississippi Action for tion of $116,751.67 in AmeriCorps funds.
Community Education (“MACE”) beginning in Buck was sentenced to forty-one months’
1976. She held various positions until No- imprisonment.
vember 1995, when she became interim presi-
dent and CEO of MACE; she was appointed II.
to the po sition permanently in July 1996 and A.
held the position until her resignation in May Buck challenges the admission into evi-
2001. dence of a summary diagram that depicted the
connections between her and the misapplied
MACE was a nonprofit rural development payments.1 She argues that the summary
organization funded in part by federal grants amounted to “propaganda” because it drew an
under the Corporation for National Service arrow from a logo representing MACE to her
AmeriCorps Program (“AmeriCorps”). The name without making any reference to others
Congressional Hunger Center (“CHC”), a non- involved in authorizing the expenditures, sug-
profit corporation, received AmeriCorps gesting that Buck directed the improper ex-
grants and sub-granted these funds to several penditures. She states that evidence presented
groups, including MACE. From 1996 to at trial contradicted this implication.
2000, MACE received $660,423.93 through
AmeriCorps grants that were intended to pro- Where a sufficient objection is made to the
vide living stipends for AmeriCorps members evidence, we review for abuse of discretion.
working in MACE’s Anti-Hunger Partnership United States v. Hart, 295 F.3d 451, 454 (5th
and Empowerment Program. Cir. 2002). “If the court errs in its evidentiary
ruling, the error can be excused if it was harm-
Instead, a significant portion of the grants less. In applying this rule, we have stated: A
was used to pay all or part of the salaries of nonconstitutional trial error is harmless unless
MACE employees that were ineligible for it had substantial and injurious effect or influ-
AmeriCorps funding. Even the mayor of Met- ence in determining the jury’s verdict.” Id. at
calfe, Mississippi, a member of the Board of 454-55 (citations and quotation marks omit-
Directors of MACE, received a stipend as an ted).
AmeriCorps volunteer. Many of these individ-
uals testified that they did no AmeriCorps
work. Buck was responsible for submitting 1
numerous documents that facilitated the illegal The MACE logo was placed near the center of
payments. the summary, with fifteen lines drawn from the
logo to the names of fifteen MACE employees.
The summary listed the number of checks and total
B. amount received by each employee. Above the
Buck was convicted of one count of misap- MACE logo was a red line pointing to two cap-
plication of federal funds in violation of tions,“MACE Board of Directors” and “Ruby
18 U.S.C. § 666(a)(1)(A) and fourteen counts Buck, CEO/President.” Buck’s picture was includ-
of submitting false documents stating that thir- ed above the caption, but the district court required
teen recipients of funds were AmeriCorps vol- that it be covered with tape, leaving only her name
and title visible.
2
Although Buck describes the summary as . . . . Although some Courts have con-
having been admitted under FED. R. EVID. sidered such charts and summaries under
10062 and argues the issue in terms of that rule Rule 1006, the Rule is really not applica-
and related caselaw, no rule was cited by ei- ble because pedagogical summaries are
ther side or the court during the arguments not evidence. Rather, they are demon-
over admissibility. The government argues the strative aids governed by Rules 403 and
case on appeal under rule 1006 and FED. R. 611.
EVID. 611.3
5 STEPHEN A. SALTZBURG ET AL., FEDERAL
B. RULES OF EVIDENCE MANUAL § 1006.02[5],
The summary diagram was not admissible at 1006-6 (8th ed. 2002) (footnotes omitted).4
under rule 611(a) or rule 1006:
The diagram was plainly a pedagogical aid.
Rule 1006 allows admission of sum- It was not introduced, per the proper use of
maries in lieu of having the voluminous rule 1006, to summarize documents or other
originals presented at trial. This use of evidence too voluminous to present effectively
summaries in this manner should be and efficiently to the jury.5 Rather, the dia-
distinguished from charts and summaries gram summarized evidence that had already
used only for demonstrative purposes to been presented. See United States v. Griffin,
clarify or amplify argument based on 2003 U.S. App. LEXIS 4080, at *33-*41 (5th
evidence that has already been admitted
4
“The confusion about summaries occurs
where pedagogical devices, used as illustrative
2
Rule 1006 provides: aids, such as information presented on a chalk-
board, flip chart, or drawing, and the like, are used
The contents of voluminous writings, to summarize or illustrate evidence such as doc-
recordings, or photographs which cannot uments.” 2 CHARLES E. WAGNER, FEDERAL
conveniently be examined in court may be RULES OF EVIDENCE CASE LAW COMMENTARY, at
presented in the form of a chart, summary, 1006-5 (2002-2003 ed.)
or calculation. The originals, or duplicates,
5
shall be made available for examination or See United States v. Meshack, 225 F.3d 556,
copying, or both, by other parties at reason- 581 (5th Cir. 2000) (stating that summary charts
able time and place. The court may order admitted under rule 1006, as contrasted with rule
that they be produced in court. 611, apply to the contents of voluminous writings
that have been previously admitted and that are so
3
Rule 611(a) provides: extensive that in-court review by the jury would be
difficult, inconvenient, or imposible); cf. United
The court shall exercise reasonable States v. Posada-Rios, 158 F.3d 832, 869 (5th Cir.
control over the mode and order of inter- 1998) (“Since the government did not offer the
rogating witnesses and presenting evidence charts into evidence and the trial court did not
so as to (1) make the interrogation and pre- admit them, we need not decide whether . . . they
sentation effective for the ascertainment of were not admissible under Fed. R. Evid. 1006.
the truth, (2) avoid needless consumption of Where, as here, the party using the charts does not
time, and (3) protect witnesses from har- offer them into evidence, their use at trial is not
assment or undue embarrassment.” governed by Fed. R. Evid. 1006.”).
3
Cir. Mar. 10, 2003) (No. 01-20368). and therefore was already before the jury.8
Pedagogical charts not admitted under rule
It was proper for the diagram to be shown 1006 may be presented to the jury (though not
to the jury, to assist in its understanding of admitted into evidence) under rule 611 if they
testimony and documents that had been pro- are consistent with the evidence and not mis-
duced, but the diagram should not have been leading. Pierce, 753 F.2d at 431.
admitted as an exhibit6 or taken to the jury
room.7 Moreover, “[w]here a chart or sum- Under rule 611 or rule 1006, “[t]he essen-
mary is introduced solely as a pedagogical tial requirement is not that the charts be free
device, the jury should be instructed that it is from reliance on any assumptions, but rather
not to be considered as evidence but only as an that these assumptions be supported by evi-
aid in evaluating the evidence.” 5 SALTZBURG dence in the record.”9 The summary witness
ET AL., supra, § 1006.02[5], at 1006-6 to testified that Buck was the individual named as
1006-7 (footnote omitted). Needless to say, applying for the grant and signing all certifica-
there was no such instruction here, because the tions. Previously admitted documents and tes-
court admitted the diagram into evidence. timony supported the existence and accuracy
of each of the more than three hundred checks
Despite the fact that it was an error of law, that were summarized and showed that Buck
and therefore an abuse of discretion, to admit had signed all but one. Some of the other indi-
the diagram, it was harmless, because the dia- viduals that were involved in processing the
gram accurately summarized testimony and checks were present during only part of the
other evidence that had been properly admitted relevant time period, whereas Buck was a
constant.
Buck concedes that “[t]here was nothing
improper about the chart’s depiction of the
trail of the Americorps money that went
6
Though the prosecutor did not invoke Rule through MACE and was paid to various indi-
1006 when introducing the summary, he unambig- viduals.” Because the summary is not factually
uously “move[d] its introduction into evidence[.]” inaccurate, Buck’s complaint rests on the
7
United States v. Taylor, 210 F.3d 311, 315
(5th Cir. 2000) (stating that although charts may 8
Because any error is harmless and hence not
be used as pedagogical devices within the court’s reversible, we do not dwell on whether the ob-
discretion under rule 611, jury must be warned that jection to admissibility that Buck raised at trial was
the chart is not evidence and may not go into jury sufficiently articulated for preservation on appeal.
room, absent consent); Pierce v. Ramsey Winch See FED. R. EVID. 103(a)(1). Moreover, the
Co., 753 F.2d 416, 431 (5th Cir. 1985) government does not assert that the objection was
(distinguishing between summaries that are admit- inadequate.
ted under rule 1006 and “other visual aids that
9
summarize or organize testimony or documents United States v. Diez, 515 F.2d 892, 906 (5th
that have already been admitted in evidence” and Cir. 1975) (considering a summary under rule
concluding that summaries admitted under Rule 611); accord United States v. Jennings, 724 F.2d
1006 should go to the jury room but that other 436, 442 (5th Cir. 1984) (considering a summary
visual aids should not, absent parties’ consent). under rule 1006).
4
argument that it is misleading because it im- ate to apply the enhancement. She also con-
plies that she was responsible for each transac- tends that to be eligible for the enhancement,
tion and that no one else was involved. Even a defendant must be in a position of trust with
if the jury could infer this from the summary, respect to the victim of the crimeSSin this case
Buck had ample opportunity to present evi- the governmentSSand she avers that she was
dence demonstrating the involvement of other not in such a position.
parties and had the chance to cross-examine
the summary witness concerning the involve- We review findings of fact for clear error
ment of others.10 Accordingly, the admission and the application of the sentencing guide-
of the summary into evidence did not occasion lines de novo. United States v. Scurlock, 52
undue prejudice and was harmless. F.3d 531, 539 (5th Cir. 1995). “‘A factual
finding is not clearly erroneous as long as the
III. finding is plausible in light of the record as a
In regard to her sentence, Buck presents whole.’” Id. (quoting United States v. Brown,
two challenges to the decision to add a two- 7 F.3d 1155, 1159 (5th Cir. 1993)).
level increase to her offense level for “abuse of
trust” under U.S.S.G. § 3B1.3 (2000).11 She A.
argues that fraud inherently includes the abuse Buck argues that the abuse of trust en-
of trust element, and therefore it is inappropri- hancement is inapplicable to fraud convictions.
The enhancement applies “[i]f the defendant
10
abused a position of public or private trust, or
The record indicates that Buck took advan- used a special skill, in a manner that signifi-
tage of these opportunities, reducing the chance of cantly facilitated the commission or conceal-
any prejudice. See United States v. Winn, 948
ment of the offense[.]” § 3B1.3. “This adjust-
F.2d 145, 159 & n.36 (5th Cir. 1991); see also
ment may not be employed if an abuse of trust
United States v. Norton, 867 F.2d 1354, 1363
(11th Cir. 1989) (“Furthermore, where, as here, the or skill is included in the base offense level or
defense conducted a thorough cross examination of specific offense characteristic.” Id. (emphasis
the witness concerning the disputed matters, and added). Buck reasons that all fraud sentenced
also had the opportunity to present its own version under § 2F1.1 inherently includes an abuse of
of those matters, the likelihood of any error in ad- trust, because the perpetrator must somehow
mitting summary evidence diminishes.”) (citing mislead or trick the victim, rendering further
Jennings, 724 F.2d at 442; United States v. sentence enhancement for abuse of trust inap-
Means, 695 F.2d 811, 817 (5th Cir. 1983)). propriate.
11
Buck was sentenced under the 2000 version Although this court has affirmed an abuse
of the guidelines, because the district court de- of trust enhancement to a sentence for fraud
termined that sentencing under the 2001 guidelines
under § 2F1.1, see., e.g., Scurlock, 52 F.3d at
would result in a longer sentence and violate the ex
post facto clause of the Constitution. Some
541, it has not addressed Buck’s specific argu-
holdings in this opinion may not be relevant to ment that all fraud includes an abuse of trust.
subsequent versions of the guidelines, given that In United States. v. Fisher, 7 F.3d 69, 70 (5th
the guideline section for fraud, U.S.S.G. § 2F1.1 Cir. 1993), we determined that § 3B1.3 may
(2000), has been deleted and consolidated with apply to embezzlement convictions, sentenced
U.S.S.G. § 2B1.1 effective November 1, 2001. under U.S.S.G. § 2B1.1, because abuse of
See U.S.S.G. app. C, amend. 617 (2001).
5
trust is not included in the base offense level submission, and later certified that its submis-
for embezzlement. In so holding, we found sions were “accurate, complete, and current,”
support in the reasoning of three sister circuits resulting in a cost estimate that was incorrect
distinguishing between breach of trust, which by $2.1 million. Id. at 454-55. The court held
is implicit in embezzlement, and abuse of trust, that “Broderson’s fraudulent conduct was
which requires more egregious conduct.12 We signing the certificate stating that Grumman
should view fraud similarly, distinguishing had complied with TINA and FAR. Any abuse
between the breach of trust necessary to com- of trust was therefore ‘included in the base
mit fraud and more egregious conduct and offense level’ of six for fraud and deceit.” Id.
discretion necessary to trigger an abuse of at 456.
trust enhancement.
Broderson does not stand for the proposi-
Buck argues that other circuits have pro- tion that the abuse of trust enhancement can
scribed application of the enhancement for never be applied to a fraud sentence; rather, it
fraud convictions. She principally cites United is limited to its facts, and any breach of trust
States v. Broderson, 67 F.3d 452, 456 (2d Cir. arose only from the submission of a false state-
1995), holding that a defendant convicted of ment, which was minimally necessary to com-
making false statements was not eligible for an mit fraud. After Broderson, the Second Cir-
abuse of trust enhancement. The defendant, cuit, in affirming an abuse of trust enhance-
an employee of a NASA contractor, failed to ment to a sentence for mail fraud, held:
notify NASA that its interest rate on some fi-
nanced equipment had gone down since its last An abuse of trust enhancement may
not be imposed on a defendant convict-
ed of fraud solely because of a violation
12
Fisher, 7 F.3d at 70 (citing United States v. of a legal obligation to be truthful and a
Christiansen, 958 F.2d 285, 287-88 (9th Cir. victim’s reliance on a misrepresentation.
1992); United States v. Milligan, 958 F.2d 345, Every fraud involves these elements. In-
347 (11th Cir. 1992); United States v. Georgiadis, stead, a court must determine the extent
933 F.2d 1219, 1225 (3d Cir. 1991)). In Chris- to which the defendant’s position pro-
tiansen, the court noted that the commentary to the vides the freedom to commit a diffi-
guidelines specifically contemplates the application cult-to-detect wrong. In other words,
of § 3B1.3 to an embezzlement case. 958 F.2d at we have said, the defendant’s position
287. “It follows that, at least in those instances in- must involve discretionary authority.
volving embezzlement by someone in a significant
position of trust, the enhancement may be applied.” United States v. Hirsch, 239 F.3d 221, 227
Id. (2d Cir. 2001) (citations and quotation marks
omitted).13 We adopt this portion of Hirsch
The commentary to the 2000 guidelines con-
tains similar language. After describing what fac-
tors demonstrate a position of trust, it states that
13
“[t]his adjustment does not apply to the case of an The other case relied on by Buck, United
embezzlement or theft by an ordinary back teller or States v. Garrison, 133 F.3d 831, 843 (11th Cir.
hotel clerk because such positions are not charac- 1998), also fails to support her argument that the
terized by the above-described factors.” § 3B1.3, abuse of trust enhancement is unavailable for fraud
cmt. n.1 (2000). (continued...)
6
and uphold the application of the abuse of Several other circuits have reached this con-
trust enhancement to a fraud sentence where clusion.16 We conclude that Buck did abuse a
the defendant employed discretionary authority position of trust with respect to the govern-
given by her position in a manner that facili- ment, and, in the alternative, that her abuse of
tated or concealed the fraud.14 the position of trust with respect to CHC suf-
fices to sustain the district court’s decision.
B.
Buck challenges the determination that she Buck maintained significant direct ties to
was in a position of trust, arguing that she was the government in directing the AmeriCorps
not in such a position with respect to the gov- program. The grant was originally awarded
ernment, the primary victim, because her deal- directly by AmeriCorps in 1996, while Buck
ings with the government passed through was interim CEO and President of MACE.
CHC, and her duties were limited to following Though MACE’s submissions were reviewed
government regulations. We have never held, and administered by CHC, they were also cer-
however, nor do the guidelines explicitly re- tifications to the government. All of the data
quire, that the determination whether a defen- submitted by MACE was forwarded to Ameri-
dant occupied a position of trust must be as- Corps; CHC often served as a passthrough,
sessed from the perspective of the victim.15 with AmeriCorps reviewing the forms to de-
termine eligibility. AmeriCorps relied on the
accuracy of these submissions, because neither
13
(...continued) it nor CHC could easily verify the validity ex-
convictions. In fact, the Eleventh Circuit has cited istence of MACE’s grant recipients. Many
Garrison in affirming an abuse of trust enhance- records prepared by MACE were also subject
ment to a fraud sentence. See United States v. to on-site inspection by AmeriCorps workers.
Liss, 265 F.3d 1220, 1229-30 (11th Cir. 2001).
14
This is consistent with our approach in Fisher
and with the guidance of the commentary to
15
§ 3B1.3, which states that a position of public or (...continued)
private trust is “characterized by professional or whether a physician who acts in concert
managerial discretion” and advises that “for this with his patients to conduct a fraudulent
adjustment to apply, the position of public or pri- billing scheme may be assessed a § 3B1.3
vate trust must have contributed in some significant enhancement for abuse of a position of trust
way to facilitating the commission or concealment on the basis of the physician's relationship
of the offense[.]” § 3B1.3, cmt. n.1. with an insurance company.
15
This requirement, however, has been implied (Citations omitted.)
in some of our opinions. For example, in United
16
States v. Iloani, 143 F.3d 921, 922 (5th Cir. See., e.g., United States v. Thorn, 317 F.3d
1998), we stated: 107, 120 (2d Cir. 2003); United States v. Mackey,
114 F.3d 470, 475 (4th Cir. 1997); United States
In this Circuit, it is settled that a § 3B1.3 v. Zaragoza, 123 F.3d 472, 481 (7th Cir. 1997);
enhancement is appropriate for a physician United States v. Hill, 915 F.2d 502, 506 n.3 (9th
who abuses the trust of his patients. How- Cir. 1990); United States v. Trammell, 133 F.3d
ever, this Circuit has never considered 1343, 1355 (10th Cir. 1998); United States v. Gar-
(continued...) rison, 133 F.3d 831, 837 (11th Cir. 1998).
7
Buck again points to Garrison, in which the firmance on the defendant’s abuse of his pa-
court did not find a position of trust, in part tients’ trust. This holding may be explained by
because the defendant our determination, for purposes of another
sentencing enhancement, that although the
did not hold a position of discretion con- government and insurers may have been the
cerning her crime of false reporting to “primary victims of his criminal conduct,” the
Medicare, as required for application of patients also were victims of the fraud. Id.
the abuse-of-trust enhancement. As her at 655.
counsel explained at sentencing, Gar-
rison lacked the discretion and ability to We interpret Sidhu to allow the enhance-
conceal the false cost reports submitted ment whenever any victim of a criminal
for Medicare reimbursement and relied scheme placed the defendant in a position of
on others to accomplish this deception. trust that significantly facilitated the crime.17
The CHC, as sub-grantor, also was injured by
Garrison, 113 F.3d at 841. The court also Buck’s fraud, as it was unable to distribute the
credited Garrison’s contention that her false
statements were made in reliance on financial
17
experts, id. at 841 n.19, which mitigated In United States v. Bhagavan, 116 F.3d 189,
against finding that she had a position of trust. 193 (7th Cir. 1997), the court took a similar ap-
proach, holding that the government is not neces-
By comparison, Buck was in perhaps the sarily the only victim in a tax evasion scheme, and
best position, in terms of discretion and ability, that the § 3B1.3 enhancement can apply if any
identifiable victim of the overall scheme to evade
to conceal her false reports from the govern-
taxes put the defendant in a position of trust that
ment. All the false certifications passed facilitated the commission or concealment of the
through her. Her relationship to those assist- offense. Similarly, in United States v. Cianci, 154
ing her was employer-employee, giving her F.3d 106, 110-13 (3d Cir. 1998), the court held
significant leverage to gain the complicity of that enhancement was appropriate in a tax evasion
others. Notwithstanding the presence of CHC case where the defendant abused a position of trust
as intermediary, there is ample support in the with his company to embezzle unreported income.
record for a finding that Buck occupied a posi- Although the defendant had not been charged for
tion of trust with respect to the government. any crime in relation to his employer, the abuse of
trust could be considered as “relevant conduct”
Alternatively, there is little doubt that Buck under the guidelines. Id. at 112-13.
occupied a position of trust with respect to
CHC. In United States v. Sidhu, 130 F.3d In United States v. Duran, 15 F.3d 131, 132-33
644, 655-56 (5th Cir. 1997), we affirmed a (9th Cir. 1994) (per curiam), the court affirmed an
enhancement, allowing a sheriff’s use of a position
§ 3B1.3 enhancement where the position of
of trust to embezzle money to support an en-
trust was not held with respect to the main vic- hancement for the illegal structuring of the finan-
tim of the crime. There, a doctor defrauded cial transactions to avoid reporting requirements.
various government programs and insurance This was allowed despite the fact that the jury
companies by billing patients for services that failed to reach a verdict on the underlying theft
were not performed or were not performed charge, because the theft was part of a common
appropriately. Id. at 647. We based our af- scheme or plan with the illegal structuring under
U.S.S.G. § 1B1.3(a)(2). Id. at 133.
8
AmeriCorps funds to deserving sub-grantees dence of a similar but separate incident, in-
that supported its mission. Buck’s position of volving misapplication of approximately
trust with respect to CHC suffices to support $88,000 of Department of Labor Welfare-To-
the enhancement. Work (“DLWTW”) grant funds, was intro-
duced pursuant to FED. R. EVID. 404(b).19 The
Whether viewed in terms of the government district court added this $88,000 when deter-
or CHC, the record supports the finding that mining the amount of the loss for sentencing
Buck abused her position of trust. “[T]o de- purposes under § 2F1.1(b)(1). Buck argues
termine whether the position of trust ‘signifi- that this conduct was insufficiently related to
cantly facilitated’ the commission of the of- the fraud to be considered in sentencing.
fense, [a] court must decide whether the de-
fendant occupied a superior position relative to “The district court’s determination of what
all people in a position to commit the offense, constitutes relevant conduct for sentencing
as a result of [her] job.” Fisher, 7 F.3d at purposes is a factual finding.” United States v.
70-71. Nevels, 160 F.3d 226, 229 (5th Cir. 1998).
This finding must be supported by a prepon-
Buck’s abuse of trust was not merely sign- derance of the evidence and is reviewed for
ing the false forms; it extended to her decisions clear error. Id. For fraud, the guidelines pro-
to have employees perform tasks not allowed vide a broad reach in including relevant con-
under the grants and to convince others to duct.20 “All acts and omissions committed,
falsify numerous documents to defraud the aided, abetted, counseled, commanded, in-
government. Buck was distinguished from her duced, procured, or willfully caused by the de-
employees by the broad discretion, autonomy, fendant,” § 1B1.3(a)(1)(A), “that were part of
and ability to conceal the falseness of her the same course of conduct or common
claims from the government and CHC pro- scheme or plan as the offense of conviction,”
vided by her position as President and CEO; § 1B1.3(a)(2), should be considered. “For
her responsibility to certifying each employee’s two or more offenses to constitute part of a
validity; and her status as the applicant for the common scheme or plan, they must be sub-
grant. The district court properly enhanced stantially connected to each other by at least
Buck’s sentence for abusing a position of one common factor, such as common victims,
trust.18
19
IV. Rule 404(b) allows the admission of evidence
Though Buck was convicted of misapplica- of other crimes for several purposes, “such as
tion of $116,751.67 in AmeriCorps funds, evi- proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident[.]”
18 20
The district court did not state whether it See United States v. Pinnick, 47 F.3d 434,
viewed Buck’s position of trust in terms of CHC or 438 (D.C. Cir. 1995) (comparing the broad reach
the government. But, “when the judgment of the of the Guidelines for fraud to that for “most of-
district court is correct, this court may affirm for fenses, [where] the Guidelines require the sentenc-
reasons not given by the district court and not ad- ing court to consider only conduct intrinsic to the
vanced to it.” United States v. Giraldo, 111 F.3d offense of conviction in determining the defendant’s
21, 24 n.12 (5th Cir. 1997). guideline range.”).
9
common accomplices, common purpose, or frauds, Buck used MACE to defraud the gov-
similar modus operandi.” § 1B1.3, cmt. ernment out of social services funds; with
n.9(A) (emphasis added). both, she certified that she would abide or had
abided by the various requirements of the
Offenses that do not qualify as part programs. Buck used the funds acquired by
of a common scheme or plan may none- both frauds to pay for numerous activities re-
theless qualify as part of the same lating to the operation of MACE, rather than
course of conduct if they are sufficiently for the limited purposes for which the grants
connected or related to each other as to were specified.
warrant the conclusion that they are part
of a single episode, spree, or ongoing Both frauds therefore shared a common
series of offenses. Factors that are ap- purpose: to prop up the cash-strapped MACE.
propriate to the determination of wheth- The common victim, common purpose, and
er offenses are sufficiently connected or similar modus operandi paired the two frauds
related to each other to be considered as in a common scheme. The two crimes are
part of the same course of conduct in- distinguished by obvious differences, but the
clude the degree of similarity of the of- evidence does not so differentiate them to ren-
fenses, the regularity (repetitions) of the der the district court’s ruling clearly errone-
offenses, and the time interval between ous.
the offenses. When one of the above
factors is absent, a stronger presence of V.
at least one of the other factors is re- Buck argues that the $11,580.96 that went
quired. to the mayor of Metcalfe under the Ameri-
Corps grant should have been deducted from
§ 1B1.3, cmt. n.9(B). the loss amount, because Allen’s involvement
in several community service projects “went
It does not matter that Buck was never toward the ultimate goals of the program.”
charged with the misapplication of DLWTW We review the inclusion of these funds for
grant funds. The “Background” portion of clear error. United States v. Kimbrough, 69
§ 1B1.3 specifically advises that F.3d 723, 733 (5th Cir. 1995).
the applicability of subsection (a)(2) Buck’s argument is meritless. AmeriCorps
does not depend upon whether multiple funds may not be used to fund programs that
counts are alleged. Thus, in an embez- already exist. See 45 C.F.R. § 2540.100(e)
zlement case, for example, embezzled (2001). Allen testified that all the programs in
funds that may not be specified in any question were already in existence before she
count of conviction are nonetheless in- began receiving AmeriCorps grants, that they
cluded in determining the offense level if had independent funding, and that her involve-
they were part of the same course of ment was limited.
conduct or part of the same scheme or
plan as the count of conviction. The jury credited this testimony, finding
that Buck had misappropriated funds, because
With both the DLWTW and Americorps Allen was not authorized to receive grants un-
10
der the AmeriCorps program. The district tencing Commission in formulating the guide-
court did not err in considering the loss of lines.” 18 U.S.C. § 3553(b) (1996). The sen-
those unauthorized grants at sentencing. tencing court must consider a factor in its
given circumstances and “decide whether it is
VI. sufficient to take the case out of the Guide-
Buck maintains that the district court erred line’s heartland.” Koon v. United States, 518
by not granting a downward departure on U.S. 81, 96 (1996).
numerous grounds offered at sentencing, in-
cluding her lack of pecuniary gain from the Buck urges that the district court was un-
offenses, the obstacles of poverty and preju- aware that it could depart and that we should
dice she had overcome, and her charitable and remand because of the district court’s mistake
public service work. We have jurisdiction to of law. The court, however, displayed a firm
review the district court’s refusal to grant a understanding of the law. Indeed, it had re-
downward departure from the Guidelines only cently read Koon and Walters, as well as other
if the refusal was based on an error of law. cases and the applicable portions of the guide-
United States v. Palmer, 122 F.3d 215, 222 lines, and recited in detail the standards it was
(5th Cir. 1997). to apply.
Thus, we have jurisdiction if a district A careful reading of the sentencing hearing
court’s refusal to depart downward is indicates that the court considered every one
premised upon the court’s mistaken con- of Buck’s points but reluctantly decided they
clusion that the Guidelines do not permit did not rise to the level necessary to justify a
such departure, but we have no jurisdic- departure. The court did not believe it was
tion if the court’s refusal is based on its unable to make a downward departure under
determination that departure is not war- the law, but rather concluded that Buck’s ar-
ranted on the facts of the case. A defen- guments did not merit such a departure.
dant’s mere dissatisfaction with the trial
court’s refusal to depart downward For example, with respect to Buck’s con-
forms no basis for an appeal. tention that a downward departure was appro-
priate because she did not experience pecuni-
Id. (citation omitted). Even where jurisdiction ary gain and therefore the loss calculation
is found, “the appellate court rarely should re- “overstates the seriousness of the particular
view de novo a decision to depart from the defendant’s conduct,” the court reviewed Wal-
Sentencing Guidelines, but instead should ask ters, in which we upheld a six-month down-
whether the sentencing court abused its discre- ward departure where the defendant received
tion.” United States v. Walters, 87 F.3d 663, no personal benefit and the lower court deter-
672 n.10 (5th Cir. 1996). mined that the “guideline calculation over-
states the seriousness of [Walter’s] involve-
The district court could grant a downward ment.” Walters, 87 F.3d at 672. The victim,
departure under U.S.S.G. § 5K2.0 if it found a Louisiana parish, had been unaware of illegal
“there exist[ed] an aggravating or mitigating fees included in its insurance payments, but
circumstance of a kind, or to a degree, not ad- ultimately received insurance at the price it had
equately taken into consideration by the Sen- negotiated. Id. at 668.
11
The district court determined that the gov-
ernment did not get the benefit of AmeriCorps
volunteers as it had been led to believe, and
potential AmeriCorps volunteers were denied
grants as a result of Buck’s fraud. Therefore,
in the district court’s judgment, despite the
lack of direct pecuniary gain by Buck,21 “[t]he
seriousness of the offense has not been over-
stated by either the sentencing guidelines or
the presentence investigation report.”
The district court made similar determina-
tions in weighing each of Buck’s arguments
for a downward departure. Because the court
understood its authority and declined to de-
part, we are without jurisdiction to review its
determinations. This portion of Buck’s appeal
is dismissed.
We therefore AFFIRM Buck’s conviction
and sentence on all issues except the district
court’s denial of a downward departure under
§ 5K2.0, as to which issue we DISMISS the
appeal for want of jurisdiction.
21
It is also questionable to assert that Buck did
not benefit pecuniarily when the fraud helped keep
afloat the struggling nonprofit of which she was
CEO and President. Presumably she paid herself
a salary that would have disappeared had MACE
failed.
12