United States v. Archuletta

F I L E D
United States Court of Appeals
Tenth Circuit

OCT 26 2000
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk

FOR THE TENTH CIRCUIT
_______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 00-4014
v.

LEONORA LUPE ARCHULETTA,

Defendant-Appellant.

_______________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 97-CR-17-C)
_______________________________

Steven B. Killpack, Federal Defender, Salt Lake City, Utah (Kevin L. Sundwall, Assistant
Federal Defender with him on the brief) for Defendant-Appellant.

Michele Christiansen, Assistant United States Attorney, Salt Lake City, Utah (Paul M. Warner,
United States Attorney, and Richard N.W. Lambert, Assistant United States Attorney, on the
brief) for Plaintiff-Appellee.

_______________________________
TACHA, Circuit Judge, PORFILIO, Circuit Judge, and KANE, Senior District Judge*.
_______________________________

KANE, Senior District Judge.
_______________________________

Leonora Lupe Archuletta appeals her sentence on a single count of bank fraud in violation

of 18 U.S.C. § 1344. Archuletta claims the district court erred both in imposing a two-level

enhancement under U.S.S.G. § 2F1(b)(2)(A) for more than minimal planning and in refusing to

grant a reduction in offense level for “acceptance of responsibility” under U.S.S.G. § 3E1.1. We

exercise jurisdiction under 18 U.S.C. § 3742(a), 28 U.S.C. § 1291 and Fed. R. App. P. 4(b), and

AFFIRM in part and REVERSE in part.

I. INTRODUCTION AND STANDARD OF REVIEW.

On February 15, 1996, Leonora Lupe Archuletta, together with Sandra Kaye Lemieux,

entered Granite Credit Union in Salt Lake City and used the identification card of her deceased

sister to open a checking account in the sister’s name. Archuletta returned the following day to

pick up starter checks for the account. In February 1997, Archuletta pleaded guilty to an

indictment stating that she “did knowingly execute and attempt to execute an artifice and scheme

to defraud a financial institution . . . by fraudulently and without authorization opening a

checking account in the name of Mary Margaret Garcia and thereafter cashing checks and

otherwise obtaining money through the use of the fraudulently opened account.” (R. Vol. I, Doc.

6.) The total loss suffered by the affected financial institution was $1,395. Archuletta received

$400 of the fraudulently obtained funds. See Sentencing Report, ¶ 10 (R. Vol. II).

*
Honorable John L. Kane, Jr., Senior United States District Judge for the District of
Colorado, sitting by designation.

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 According to the government, Archuletta’s sentencing at the high end of the 15-21 month

guideline range was based on her having absconded after entering her plea and failing, generally,

to comply with the conditions for her release to pretrial supervision. Specifically, Archuletta

failed in March 1997 to keep a scheduled appointment with pretrial services, to submit as

instructed to required urinalysis and did not reside at the address provided to the court. A

warrant for Archuletta’s arrest was issued on March 21, 1997, but nothing was heard from her

again until December 28, 1999, when a warrant was executed against her at the Salt Lake County

Jail, where she was being detained on unrelated charges.

At sentencing on January 25, 2000, Archuletta was determined to have an offense level of

ten and a criminal history category of four, resulting in the 15-21 month guideline range. In

concluding that an application of the two-point “more than minimal planning” enhancement was

warranted, the sentencing court found there “was nothing spontaneous” about Archuletta’s crime,

which involved “the deliberate opening of an account, [a] fraudulent account; going into the

financial institution; using, if I recall, a false name . . . . and holding the account itself with false

identification, false name.” Tr. of Sentencing (R. Vol. I, Doc. 34) at 4-5. In addition, and

because Archuletta fled in March 1997 while awaiting sentencing, the court adjusted her base

offense by another two levels for obstruction of justice and declined to impose an “acceptance of

responsibility” reduction, noting Archuletta had not only fled, but had engaged in further criminal

activity after she fled. Archuletta appeals only the enhancement for more than minimal planning

and the refusal to reduce her offense level for acceptance of responsibility.

Archuletta does not challenge the district court’s factual findings, per se, but rather the

court’s application of those facts to the law as defined in the Sentencing Guidelines.

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Specifically, Archuletta challenges the increase of her offense level for “more than minimal

planning” on the basis of findings that constituted no more than the necessary elements of a

violation of 18 U.S.C. § 1344, and challenges the district court’s refusal to temper the obstruction

enhancement with a reduction for “acceptance of responsibility,” given the “extraordinary”

circumstance that Archuletta thought, at the time she fled after her guilty plea, that she had AIDS

and was “doomed by a medical death sentence.”

“We review the district court’s interpretation and application of the sentencing guidelines

de novo. We review the court’s underlying findings of fact for clear error. We will accept these

factual findings unless the record does not support them or, after reviewing the record, ‘we are

left with the definite and firm conviction that a mistake has been made.’” United States v.

Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997)(quoting United States v. Easterling, 921 F.2d

1073, 1077 (10th Cir. 1990)). Applied in United States v. Hill, 197 F.3d 436, 446 (10th Cir. 1999).

II. DISCUSSION.

A. Two-Level Enhancement for “More than Minimal Planning.”

Section § 2F1.1(b)(2) provides for a two-level enhancement “[i]f the offense involved

. . . more than minimal planning.” “More than minimal planning,” in turn, is defined in the

relevant Application Notes as “more planning than is typical for commission of the offense in a

simple form.” U.S.S.G. § 1B1.1, Application Note 1(f). “More than minimal planning” is also

said to exist if “significant affirmative steps were taken to conceal the offense,” id., and will be

“deemed present in any case involving repeated acts over a period of time, unless it is clear that

each instance was purely opportune.” Id. Applied in United States v. Copus, 110 F.3d 1529,

1537 (10th Cir. 1997).

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 The enhancement in Archuletta’s case was premised on the first of the three rationales.

(Tr. of Sentencing at pp. 4-5.)2 The question before us then is whether, under a clearly erroneous

standard, the planning and conduct in which the district court found Archuletta to have engaged

constituted “more planning than is typical for the commission of the offense [of bank fraud] in its

simple form” as a matter of law. We conclude it does not.

Bank fraud is committed by one who

knowingly executes, or attempts to execute, a scheme or artifice –

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds . . . or other property . . . under the custody
or control of a financial institution, by means of false or fraudulent pretenses.

18 U.S.C. § 1344. Here, the district court found the “deliberate opening,” by Archuletta, of a

“fraudulent account.” The court found Archuletta “[went] into the financial institution using . . .

a false name . . . and [held] the account . . . with . . . [that] false name .” (Tr. Sentencing at p.

5:1-3.) “[A]lthough Ms. Archuletta’s part may have been quite isolated and discrete,” the court

concluded, “it seems to me that it showed a great deal of planning.”3 Try as we might, we

2
The district court acknowledged, and it is undisputed, that this case involved a single act
of fraud such that the “repeated acts . . . unless . . . opportune” rationale would not apply. (Tr.
Sentencing at p. 5:13-15.) It appears, however, the district court confused these standards
somewhat, conceding, on the one hand, that “we really don’t have [repeated acts] here,” but
finding, on the other hand, that there was “nothing opportune” about Archuletta’s conduct such
that the enhancement would apply. (Tr. of Sentencing at p. 5:13-16.) The government also urges
us in its brief to consider the second rationale, citing United States v. Moser, 168 F.3d 1130,
1131 (8th Cir. 1999) to support a contention that the opening of an account using a false identity
card and check made out in that false name constitute “steps to conceal” the offense sufficient to
establish more than minimal planning. (Br. of United States, at p. 9.) We do not consider this
rationale because it was neither applied nor considered by the district court below.
3
The entirety of the court’s comments are quoted below:

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cannot discern how this conduct constituted more than the minimal planning necessary to

commit a violation of 18 U.S.C. § 1344 in its simplest form.

Fraud is a specific intent crime. Bank fraud under 18 U.S.C. § 1344 requires, as a

minimum and necessary element for conviction, that the fraud be achieved through “a scheme or

artifice” “executed” by the defendant. How, we wonder, could Archuletta have “execute[d] . . . a

scheme or artifice . . . to defraud” with anything less than some level of “deliberation” or

consciousness greater than “spontaneity?” And how, if the elements of the crime include the

obtaining of funds “by means of false or fraudulent pretenses,” can the use by Archuletta of her

sister’s identification constitute anything more than the minimal planning necessary to “execute”

a scheme or artifice to obtain those funds by such means?

The government urges us to focus on the use of Archuletta’s dead sister’s identification

card, suggesting “the facts adduced” in that regard give rise to a “reasonable inference” that

[I]t seems to me that more than minimal planning does apply here.
There was nothing spontaneous about that. We have the deliberate
opening of an account, fraudulent account; going into the financial
institution; using, if I recall, a false name. That certainly shows
that – wasn’t there identification of Ms. Archuletta’s sister that was
used in the offense?
* * *
All those – and holding the account itself with false identification,
false name, shows me that what you have would fall within the
more than minimal planning.
* * *
And although it says more than repeated acts, which we really
don’t have here, there’s nothing opportune about this. What I see
was a very deliberate plan. And although Ms. Archuletta’s part
may have been quite isolated and discrete, it seems to me that it
showed a great deal of planning. And so I am going to find that the
two point enhancement is appropriate.

(Tr. of Sentencing at pp. 4-5.)

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Archuletta engaged in more than minimal planning in conceiving of and executing the plan to use

Garcia’s ID. Our review of the record, however, reveals these “adduced facts” to be elusive.

Other than the established conduct of Archuletta, which we have already determined does

nothing more than meet the basic elements of a § 1344 violation, there is no testimony or other

evidence in the record that supports an inference that Archuletta, rather than Lemieux or

someone else, conceived of the plan to use Garcia’s identification card. Archuletta specifically

denies it was her idea to open the account in her sister’s name and states it was “Sandra Kaye

Lemieux’s planning that she followed in every respect because she didn’t know how the scheme

worked without Sandra outlining what she should do in detail.” Def.’s Statement Regarding

Sentencing Factors (R. Vol. I, Doc. 24) at p. 1.4 There is nothing in the record that refutes or

contradicts this statement. Not even the identification card or the check used to open is included

in the record.

In our view, the district court’s findings regarding Archuletta’s conduct reflect nothing

more than the planning necessary to the commission of bank fraud in its simplest form. Bank

fraud is “fraud”: An element of “deliberation,” as distinguished from “spontaneity,” and the use

of a false name or false identification to defraud, are each endemic to the specific offense.

Further, and because Archuletta could not have violated § 1344 unless she actually obtained

funds from the credit union through fraud, the fact Archuletta returned for the starter checks the

following day is also evidence of nothing more than the minimum conduct required to establish a

violation of § 1344 in its simplest form.

4
According to the government’s Presentence Report (R. Vol II, submitted under SEAL),
Lemieux was sentenced to 30 days in prison and a three year term of probation for her role in the
fraud. She successfully completed probation on October 31, 1999.

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 And finally, we iterate this Court’s position that the enhancement for more than minimal

planning is “designed to target criminals who engage in complicated criminal activity because

their actions are considered more blameworthy and deserving of greater punishment than a

perpetrator of a simple version of the crime.” United States v. Rice, 52 F.3d 843, 851 (10th Cir.

1995)(more than minimal planning enhancement appropriate where defendant was an accountant

who used his special skills to perpetrate a “complicated scheme of tax fraud” involving several

Subchapter S corporations and multiple counts of income tax evasion). As we read the

Sentencing Report and the record generally in this case, it appears Archuletta was a drug addict

whose largely inept and small scale criminal activity is consistent with her needs as a drug addict.

(R. Vol. II, Criminal History and Offender Characteristics.) The $400 bank fraud “scheme” to

which she pleaded guilty was far from complicated and was easily detected. In short, we do not

view Archuletta as the type of criminal toward whom the § 2F1.1 more than minimal planning

enhancement is targeted.

We conclude the facts in the record and the facts found by the district court at sentencing

do not support a two-level “more than minimal planning” adjustment of Archuletta’s offense.

B. Refusal to Reduce Sentence for “Acceptance of Responsibility.”

Notwithstanding a recommendation in the Sentencing Report that Archuletta be

considered for a two-level reduction for “acceptance of responsibility” under U.S.S.G. § 3E1.1,

the district court refused to apply such a reduction because Archuletta had “obstructed justice” by

fleeing before her original sentencing hearing. Archuletta concedes the validity of the

“obstruction of justice” enhancement, imposed in accordance with U.S.S.G. § 3C1.1, but

challenges the court’s refusal to reduce her sentence for “acceptance of responsibility” in

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accordance with the commentary to § 3E1.1, note 4.

Note 4 of the commentary to § 3E1.1 provides that an obstruction of justice enhancement

“ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.”

In certain “extraordinary cases,” however, “adjustments under both §§ 3C1.1 and 3E1.1 may

apply.” U.S.S.G. § 3E1.1, Note 4 (applied in United States v. Hawley, 93 F.3d 682, 689 (10th

Cir. 1996)). Archuletta contends hers is such an “extraordinary” case because the court’s refusal

to reduce her sentence was based not on her refusal to acknowledge guilt (the Presentence Report

explicitly stated Archuletta accepted “full responsibility” for her actions (R. Vol. II at ¶ 12) and

the government at sentencing took no contrary position), but on her conduct in fleeing her

sentencing hearing and thereby obstructing justice. Because she believed, at the time, that she

was dying of AIDS and fled for that reason rather than to conceal her crime or avoid accepting

responsibility for it, Archuletta contends it was error for the sentencing court to refuse to apply

the two-level § 3E1.1 reduction.

The district court explicitly rejected Archuletta’s request for a Note 4 exception at

sentencing. (Tr. of Sentencing, at pp. 15-16.) The court found Archuletta “has not shown

recognition for her criminal conduct” (Tr. at 15:24-25) and “continues in criminal activity.” (Tr.

at 16:2-3.) “This is not,” the district court concluded, “one of those exceptional cases that would

warrant the reduction [under § 3E1.1].” (Id. at 16:3-4.) While expressing concern over the

departure from the Presentence Report in this regard, we cannot, on the basis of Archuletta’s

“medical death sentence” rationale, conclude that the district court’s findings are clearly

erroneous. We therefore decline to disturb them on appeal.

Based on the foregoing, IT IS ORDERED that the district court’s imposition of a two-

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level enhancement for more than minimal planning under U.S.S.G. § 2F1.1(b)(2) is REVERSED.

The court’s rejection of a two-level reduction for acceptance of responsibility under U.S.S.G.

§ 3E1.1 is AFFIRMED. The matter is REMANDED to the district court for resentencing using

an offense level of eight and a guideline range of four. The mandate shall issue forthwith. Given

the time already served during the pendency of this appeal and the fact that Archuletta may be

approaching her release date under her reconfigured sentence, the district court is expected to

effect the mandate of this court as expeditiously and effectively as possible.

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