concurring in part and dissenting in part.
The essential difference between a fraudulent loan and theft or embezzlement seems to me to be whether there was throughout an intent to re-pay the money or, on the contrary, an intent to permanently misappropriate it. Here Dion was regularly making payments on the loans he had illegally arranged; he intended to repay them and under Guideline § 2F1.1 would receive credit for the amount repaid.
The majority, on the other hand, seems to think that the difference between §§ 2B1.1 and 2F1.1 is whether the misapplication of funds was an inside or an outside job. If a customer lied in order to obtain funds he intended to repay the matter falls under § 2F1.1; if a loan officer makes similar arrangements on his own behalf, § 2B1.1 applies. I think this is incorrect.
The increased culpability of the loan officer in comparison with, for example, a customer is covered by the enhancement for abuse of a position of trust. See United States v. Hathcoat, 30 F.3d 913, 915-19 (7th Cir.1994), which draws a significant distinction between mere breach of trust which may be inherent in the charged offense and abuse of trust which requires something more.
In summary, I would follow the fraudulent loan guideline (§ 2F1.1) in calculating Dion’s offense level but would subject him to an enhancement for abuse of trust. Therefore, to the extent indicated I respectfully dissent.