United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 20, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 05-10535
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UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
DAVID SPENCER GEESLIN,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
The issue in this case is whether a participant in a crime
can be considered a victim for purposes of U.S. SENTENCING GUIDELINES
MANUAL § 2B1.1(b)(1)(2005)(“USSG”). Under the rare circumstances
presented here, we conclude he can and AFFIRM the sentence
imposed by the district court.
I.
The facts in this case are fairly simple, and largely
undisputed by the parties.
From about June 1986 to November 2001, Appellant David
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Spencer Geeslin was the Chief of Police in the City of
Kennendale, Texas (“the City”). In this capacity, he
administered the Kennendale Police Department (“KPD”), exercising
control over budgetary and personnel matters. Geeslin also
oversaw the Municipal Court of Kennendale and its employees.
The City received financial assistance from the United
States Department of Housing and Urban Development for the fiscal
years 1996 through 2002.
In 1993, with approval from the City Council, Geeslin
established a program that allowed KPD officers to earn extra
money by serving warrants for which they would be reimbursed by
the City. From 1993 through 1998, officers were paid $35 for
each warrant served; beginning in 1999, they were paid $50.
Officers seeking reimbursement would submit paysheets documenting
service for review by Paula Lummus, the Municipal Court
coordinator. Geeslin had the authority to authorize warrant
service, and he supervised Lummus.
From the beginning of the warrant service program, Geeslin
supplemented his own income by serving warrants. Other officers
participated as well, including Kennendale police officer Gary
Cooper. In 1996, Geeslin and Cooper began serving warrants
together and splitting the proceeds. By the end of 1997, they
were the only officers involved in the program.
At some point in 1997, Geeslin decided he would no longer
serve the warrants with Cooper. He proposed that Cooper serve
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the warrants on his own, but submit paysheets with both officers’
names. Cooper agreed,1 and Geeslin continued to collect half of
the reimbursements. From 1997 through November 2001, Cooper
submitted approximately 130 fraudulent pay sheets which
collectively reflected that Geeslin earned $147,000 in fees.2
Beginning in 1998, Geeslin augmented his fraud scheme by
ordering Lummus to alter paysheets so that he would receive
additional reimbursements. From 1998 through November 2001,
Lummus directed some $64,000 to Geeslin from the City in this
fashion.
Geeslin pled guilty to Conspiracy to Obtain Program Funds by
Fraud in violation of 18 U.S.C. § 371 and 18 U.S.C. §
666(a)(1)(A) on January 5, 2005. His presentence report (“PSR”)
concluded that he caused the City to sustain a loss of $64,000,
resulting in a six-level increase of the offense level in
1
Geeslin’s factual resume, which he signed, describes the
agreement so:
When Geeslin proposed this arrangement to Cooper,
Cooper readily agreed to the new arrangement. When
Cooper agreed to the arrangement, Geeslin was fully
aware that Geeslin was in a position of authority over
Cooper and that Cooper probably agreed to the new
arrangement because Cooper thought that Cooper’s
agreement would be in Cooper’s long term best
interests, both professionally and financially.
2
Although the exact number is unclear from the record,
Cooper also earned approximately the same amount of money for his
recorded share of the work (in reality, of course, the entire
share was Cooper’s).
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accordance with USSG § 2B1.1(b)(1)(D).3 This figure reflected the
$211,000 Geeslin fraudulently earned from both the Cooper and
Lummus schemes, less the fair market value of the warrant
services actually provided to the City by Cooper, $147,000, in
accordance with USSG § 2B1.1 cmt. n.3(E)(i).4 The PSR calculated
an offense level of 15.
The government objected to the sentence on the theory that
while the City was made whole, Geeslin also victimized Cooper for
the $147,000 in reimbursements he received for work Cooper
performed on his own. It presented testimony at the sentencing
hearing from Cooper that he agreed to Geeslin’s plan for fear of
being “black-balled” by Geeslin and losing his ability to
participate in the warrant service program. On April 18, 2005,
the district court sustained the government’s objection and
determined that Cooper was also a victim for purposes of the
Sentencing Guidelines. It calculated the loss caused by Geeslin
to be $211,000, which resulted in six additional offense levels,
21 total. The district court sentenced Geeslin to a term of 37
3
This subsection provides for a six-level increase for
crimes causing losses of more than $30,000. The following
subsection, § 2B1.1(b)(1)(E), provides for an eight-level
increase for crimes causing losses of more than $70,000.
4
Comment 3(E) provides, in pertinent part: “Loss shall be
reduced by . . . (i) The money returned, and the fair market
value of the property returned and the services rendered, by the
defendant and other persons acting jointly with the defendant, to
the victim before the offense was detected.”
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months, a special assessment of $100 and three years’ supervised
release. Geeslin timely appeals the sentence.
II.
In evaluating a sentence imposed in accordance with the
Sentencing Guidelines, we review the district court’s
interpretation of the Guidelines de novo and its factual
determinations for clear error. U.S. v. Solis-Garcia, 420 F.3d
511, 513-14 (5th Cir. 2005). We review the sentence for
unreasonableness with regard to the sentencing factors enumerated
in 18 U.S.C. § 3553(a), United States v. Duhon, 440 F.3d 711, 714
(5th Cir. 2006), inferring reasonableness if the district court
imposes a sentence within a properly calculated Guidelines range.
U.S. v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
III.
The issue in this case is whether the district court
properly considered Cooper a “victim” under section 2B1.1.
Geeslin describes Cooper as a willing co-conspirator, while the
government paints him as the victim of extortion.5 Because it
considered Cooper a victim, the district court added $147,000 to
its calculation of the loss caused by Geeslin, cancelling out the
effect of the credit against loss for value received by the City.
5
Cooper was not prosecuted in federal court. He was
prosecuted in state court however, where he agreed to plead
guilty to a felony in connection with his role in the scheme in
exchange for a probated sentence.
5
Under subsection 2B1.1(b), the amount of loss is a factor in
determining the appropriate sentence. The application notes
define loss as the greater of the actual loss and the intended
loss. USSG § 2B1.1 cmt. n.3(A). Actual loss, the only loss
relevant here, is “the reasonably foreseeable pecuniary harm that
resulted from the offense.” USSG § 2B1.1 cmt. n.3(A)(i).
The Guidelines provide for a credit against loss where the
victim of the fraud receives value. The loss amount is reduced
by “[t]he money returned, and the fair market value of the
property returned and the services rendered, by the defendant or
other persons acting jointly with the defendant, to the victim
before the offense was detected.” USSG § 2B1.1 cmt. n.3(E). As
there is no dispute that the City got the full value of its
$147,000 because of the warrant service Cooper performed, the
question is whether he is properly considered a victim. If not,
the appropriate loss amount for sentencing purposes is $64,000,
the Lummus scheme money for which the City received no value.
The application notes define a victim as “(A) any person
who sustained any part of the actual loss determined under
subsection (b)(1); or (B) any individual who sustained bodily
injury as a result of the offense. ‘Person’ includes individuals,
corporations, companies, associations, firms, partnerships,
societies, and joint stock companies.” USSG § 2B1.1 cmt. n.1.
We believe this definition includes someone in Cooper’s position.
Cooper’s agreement to participate in Geeslin’s scheme to
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defraud the City does not preclude the district court’s
determination that he was a victim because it was not entirely
voluntary. Geeslin was Cooper’s superior and controlled access
to the warrant service program. It is unclear what new value
Cooper would receive for agreeing to Geeslin’s scheme, as his
participation was already accomplishing the goals of staying in
his employer’s good graces and receiving money. In that he
received nothing new, Cooper’s agreement looks less like a quid
pro quo and more like an assent to extortion.
Geeslin argues that our opinion in United States v. Sublett
compels the application of the credit against loss. 124 F.3d 693
(5th Cir. 1997). In Sublett, the defendant misrepresented his
personal academic and professional qualifications in an attempt
to win two counseling contracts with the IRS. Id. at 694. He
pled guilty and was sentenced under section 2F1.1, the
predecessor-in-part to the current section 2B1.1. The district
court calculated the loss as the total value of the two
contracts. Id. This Court vacated the sentence, reasoning that
Sublett’s firm’s provision of counseling services, some of which
were provided by counselors whose qualifications had not been
misrepresented, should be credited against the loss amount for
purposes of sentencing. Id. at 695. The analogy of Sublett to
the present case is insufficient. Geeslin is analogous to
Sublett, and the City to the Internal Revenue Service; but there
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is no analog for Cooper. This distinction forces the issue back
to the question of whether Cooper can be considered a victim. He
can, so Sublett does not apply.
Given the rare circumstances in this case, the district
court correctly sentenced within the Guidelines range and its
sentence is entitled to a presumption of reasonableness. See
Mares, 402 F.3d at 519.
IV.
For the aforementioned reasons, we AFFIRM the sentence.
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