UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40998
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE EDWIN BOLLMAN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
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May 7, 1998
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:
Wayne Edwin Bollman appeals the sentence imposed following his
guilty plea conviction for counterfeiting United States currency.
He contends that the district court erred by enhancing his sentence
under U.S.S.G. § 2B5.1(b)(2), which provides for a base offense
level increase for manufacturing or producing counterfeit items, or
for possessing a counterfeiting device or materials used in
counterfeiting. We AFFIRM.
I.
In May 1997, Bollman pleaded guilty to counterfeiting a $100
Federal Reserve Note, in violation of 18 U.S.C. § 471. Under the
Sentencing Guidelines in effect at the time Bollman was sentenced
in August 1997 (the 1995 Guidelines Manual), the base offense level
for a violation of 18 U.S.C. § 471 is 9. U.S.S.G. § 2B5.1(a).
However, in the presentence report (PSR), the probation officer
increased Bollman’s base offense level to 15, pursuant to U.S.S.G.
§ 2B5.1(b)(2), because Bollman utilized a personal computer, color
computer scanner, and special paper in order to illegally
manufacture 221 counterfeit Federal Reserve Notes.
Section 2B5.1(b)(2) provides:
If the defendant manufactured or produced any
counterfeit obligation or security of the
United States, or possessed or had custody of
or control over a counterfeiting device or
materials used for counterfeiting, and the
offense level as determined above is less than
15, increase to 15.
U.S.S.G. § 2B5.1(b)(2). The commentary provides, however:
Subsection (b)(2) does not apply to persons
who merely photocopy notes or otherwise
produce items that are so obviously
counterfeit that they are unlikely to be
accepted even if subjected to only minimal
scrutiny.
U.S.S.G. § 2B5.1, comment. (n.3). The background notes indicate
that the enhancement is intended to punish defendants who produce,
rather than merely pass, counterfeit money; and those who possess
counterfeiting devices also receive a greater punishment because of
the sophistication and planning involved in manufacturing
counterfeit notes and because of the public policy of protecting
the integrity of Government-issued notes. U.S.S.G. § 2B5.1,
comment. (backg’d).
Bollman objected to the enhancement of his offense level on
the ground that the items he produced were so obviously counterfeit
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that they were unlikely to be accepted, even if subjected to
minimal scrutiny. In the addendum to the PSR, the probation
officer, in response to Bollman’s objection to the § 2B5.1(b)(2)
enhancement, noted that a Secret Service Agent and an Assistant
United States Attorney had advised him that the notes created by
Bollman were “of a quality that would have passed the scrutiny of
most people who are not trained to identify counterfeit Federal
Reserve notes”. The probation officer also recommended that the
district court consider not only whether the $100 note that was the
subject of Bollman’s guilty plea was passable, but also other
factors, including that: Bollman created an additional 220 notes;
Bollman did not use a standard copy machine and copy paper, but
instead used color-scanner and color-printer computer equipment,
software, and special Japanese rice paper in an effort to create
passable notes; and Bollman had advised a confidential informant
that he was creating passable notes.
At the sentencing hearing, the district court examined a
counterfeit note created by Bollman and found that it was not
obviously counterfeit. Therefore, it overruled Bollman’s
objection, adopted the PSR’s findings and conclusions, and
sentenced Bollman to 41 months imprisonment.
II.
Bollman contends that the district court erred by applying the
§ 2B5.1(b)(2) enhancement, because his method of production was
tantamount to mere photocopying, and because the notes he produced
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were so obviously counterfeit that they were unlikely to be
accepted even if subjected to only minimal scrutiny.
A.
Bollman maintains that the counterfeiting process he used
consisted of unsophisticated techniques with his computer,
tantamount to mere photocopying. He asserts that the enhancement
was intended to apply to offenders who use much more sophisticated
counterfeiting equipment, such as litho plates, printing blankets,
maskings, printing presses, negatives, stones, or other printing or
engraving paraphernalia.
Because Bollman did not present this objection to the
enhancement in district court, we review it only for plain error.
See United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997).
To demonstrate plain error, Bollman must show clear or obvious
error which affects his substantial rights; if he makes such a
showing, we have the discretion to correct the error. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc),
cert. denied, 513 U.S. 1196 (1995).
At the time Bollman was sentenced, there were no Fifth Circuit
cases discussing whether § 2B5.1(b)(2) applies to cases involving
unsophisticated counterfeiting methods and/or the relative
sophistication of the use of computer scanning equipment as a
counterfeiting method. However, in United States v. Wyjack, No.
97-50630, ___ F.3d ___ (5th Cir. 1998), rendered on the same day as
the opinion in the case at hand, we interpreted § 2B5.1(b)(2) as
providing for application of the enhancement to counterfeiters who
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produce instruments by mere photocopying, unless the instruments
produced are so obviously counterfeit that they are unlikely to be
accepted after only minimal scrutiny. Id. at ___. Accordingly,
even assuming that the counterfeiting techniques used by Bollman
were tantamount to “mere photocopying”, Bollman has not
demonstrated error, plain or otherwise.
B.
Alternatively, Bollman contends that the notes he produced
were not well-made and were obviously counterfeit, even with only
minimal inspection. He points out that there is no evidence that
the notes he produced were passed successfully. We did not reach
this issue in Wyjack; instead, we remanded for resentencing
because, in that case, the district court had not determined
whether the counterfeit currency was so obviously counterfeit that
it was unlikely to be accepted even if subjected to only minimal
scrutiny. Wyjack, ___ F.3d at ___. Accordingly, our court has not
addressed the appropriate standard of review for such a
determination.
Bollman’s contention is, essentially, that the district court
erred by deciding that the note he created was not obviously
counterfeit. Because such a decision depends upon an examination
of the counterfeit item(s) in question and, in some cases, on the
testimony of witnesses, as discussed infra, it is factual in
nature. Therefore, consistent with the general rule that findings
of fact at sentencing are reviewed only for clear error, e.g.,
United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997), the
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decision should be reviewed under the “clearly erroneous” standard.
See, e.g., United States v. Miller, 77 F.3d 71, 76-77 (4th Cir.
1996).
In Wyjack we stated that the district court,
[i]n assessing the quality of the notes ...
may wish to consider, if applicable and
appropriate, some or all of the following
factors ...:
(1) physical inspection during the
trial or at the sentencing hearing;
(2) whether the counterfeit notes
were successfully passed; (3) the
number of counterfeit notes
successfully passed; (4) the
proportion of the number of
counterfeit notes successfully
passed to the number of notes
attempted to be passed; and (5) the
testimony of a lay witness who
accepted one or more of the
counterfeit notes or an expert
witness who testified as to the
quality of the counterfeit notes.
Wyjack, ___ F.3d at ___ (quoting Miller, 77 F.3d at 76).
With respect to the first factor, the Government asserted in
its sentencing memorandum that the district court should physically
inspect all of the counterfeit Federal Reserve Notes created by
Bollman, and that it would produce them for the court’s inspection
at the sentencing hearing. The transcript of the sentencing
hearing does not indicate whether the Government did so. However,
the record reflects that the district court, at the request of
Bollman’s counsel, examined a counterfeit note created by Bollman
(presumably the $100 Federal Reserve Note that was the subject of
the count to which Bollman pleaded guilty), and made the following
findings:
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I, of course, tend to be very careless in my
handling of money, but if someone tendered me
this bill, I think I would have accepted it.
I’ve compared it ... with a genuine twenty-
dollar bill in my possession. I find -- it
looks as if the imprinting on the face is what
-- if there’s anything, that gives it away,
it’s not quite as good as what is on the
genuine bills.
....
It appears that the matters that he had
counterfeited that had not yet been passed,
would to the ordinary person be the type of an
obligation, Government obligation, that would
have been accepted.
Regarding the second, third, and fourth factors, the
Government did not present any evidence that any of the counterfeit
Federal Reserve Notes produced by Bollman were passed, successfully
or otherwise. And, as to the fifth factor, the Government asserted
in its sentencing memorandum that a United States Secret Service
Agent would be available to testify at the sentencing hearing
regarding the quality of the notes; but no testimony was presented
at that hearing.
In Wyjack, we stressed that no one factor should be
dispositive; that a “far-reaching inquiry” was unnecessary; and
that all that was required was “a common sense judgment” as to the
quality of the notes. Wyjack, ___ F.3d at ___. The record
reflects that the district court made such “a common sense
judgment” in this case. Because the counterfeit note that the
court examined during the sentencing hearing was not introduced
into evidence, and thus is not a part of the record on appeal, we
are not able to examine it. On the other hand, it is, of course,
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the appellant’s duty to ensure that the record contains the
evidence relevant to a finding or conclusion that the appellant
urges is unsupported by, or contrary to, the evidence. See FED. R.
APP. P. 10(b)(2); Coats v. Pierre, 890 F.2d 728, 731 (5th Cir.
1989), cert. denied, 498 U.S. 821 (1990); United States v.
Giarratano, 622 F.2d 153, 156 n.4 (5th Cir. 1980). Nevertheless,
the record is adequate for us to review the district court’s
finding.
In sum, we cannot conclude that the district court clearly
erred by finding that the note created by Bollman was not obviously
counterfeit. Accordingly, the court did not err by enhancing
Bollman’s base offense level under § 2B5.1(b)(2).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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