United States Court of Appeals, Eleventh Circuit.
No. 95-6775
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jacob Shames BEHR, Defendant-Appellant.
Sept. 5, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CR-93-238-S), Ira De Ment, Judge.
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Jacob Behr was convicted after a guilty plea of one count of
wire fraud in violation of 18 U.S.C.A. § 1343. He appeals the 24-
month sentence of imprisonment he received as a result of that
conviction.
I.
The conduct underlying the offense of conviction began when
the Sheridans, the victims, gave Behr a check for approximately
$12,000 to fund a pension fund. Behr was an insurance agent for
Northwest Mutual Life Insurance Company (Northwest). Behr
illegally deposited the check into his district agent account for
his personal use. To hide his fraud, Behr used Northwest's
computer system to change the Sheridans' address of record to an
address very similar to his office address, thereby allowing him to
intercept any correspondence sent to the Sheridans by Northwest.
In addition, he submitted to the Sheridans false statements of
their account.
In the course of Northwest's internal investigation into
Behr's conduct, the company found that Behr's overall activities
involving thefts, verbal misrepresentations, and unauthorized
withdrawals from clients' accounts, resulted in a loss to Northwest
of over $300,000. This amount was in addition to a $12 million
punitive damages award that Northwest paid to the Sheridans due to
Behr's conduct.
The probation officer noted that the loss involved in the
offense of conviction was about $12,000. He recommended, however,
that pursuant to U.S.S.G. § 1B1.3(a)(2) the district court consider
Northwest's loss of over $300,000 as relevant conduct. Thus, the
probation officer recommended that the district court increase
Behr's offense level by eight levels. See U.S.S.G. §
2F1.1(b)(1)(I).
At the sentencing hearing, Behr admitted to all the facts
contained in the PSI, including the probation officer's description
of his relevant conduct. He argued, however, that the court should
not consider his relevant conduct in its sentence because (1) the
statute of limitations period had expired on the $300,000 of losses
incurred by Northwest, (2) the government failed to give notice
that the PSI would enhance Behr's sentence based on Behr's relevant
conduct, and (3) the court's use of the relevant conduct to enhance
his sentence would deny him due process protection.
II.
On appeal, Behr argues that it was inappropriate for the
government to use relevant conduct to enhance Behr's sentence when
(1) the statute of limitations period had expired on the relevant
conduct in question, and (2) Behr had never entered a guilty plea
on this uncharged relevant conduct. As was the case in the
district court, Behr fails to specify in this Court what statute of
limitations period the Court violated by its use of Northwest's
$300,000 in losses as relevant conduct. In addition, Behr argues
that the government has a duty to advise a defendant that the Court
could use relevant conduct to enhance his sentence, because without
such disclosure, the government deprives a defendant of his right
to effective assistance of counsel. Behr does not argue that the
$300,000 in losses that Northwest incurred because of his
activities is not relevant conduct to the offense of conviction.
III.
This Court reviews the sentencing court's findings of fact
for clear error and reviews the application of the Sentencing
Guidelines to the facts de novo. United States v. Jennings, 991
F.2d 725, 732 (11th Cir.1993).
IV.
Behr argues that the district court erred in considering the
$300,000 in losses relevant conduct (1) for which an unspecified
statute of limitations period had expired, and (2) for which Behr
had never entered a guilty plea.
This Court broadly interprets the provisions of the relevant
conduct guideline. See United States v. Ignancio Munio, 909 F.2d
436, 438-39 (11th Cir.1990) (district court may evaluate relevant
conduct not included in the indictment for purpose of sentencing),
cert. denied, 499 U.S. 938, 111 S.Ct. 1393, 113 L.Ed.2d 449 (1991).
Even assuming that the $300,000 in losses to Northwest did occur
outside some relevant statute of limitations, although this Court
has not previously addressed the issue the five Circuits that have
have all held that the district court may consider criminal conduct
that occurred outside of the statute of limitations period as
relevant conduct for sentencing purposes. See United States v.
Silkowski, 32 F.3d 682, 688 (2nd Cir.1994); United States v.
Lokey, 945 F.2d 825, 840 (5th Cir.1991); United States v. Pierce,
17 F.3d 146, 150 (6th Cir.1994); United States v. Neighbors, 23
F.3d 306, 311 (10th Cir.1994); United States v. Wishnefsky, 7 F.3d
254, 256-57 (D.C.Cir.1993). Accordingly, based on this persuasive
authority, we reject Behr's contrary argument.
V.
Behr also argues that the government has a duty to advise a
defendant before he pleads guilty which relevant conduct the Court
will use to enhance his sentence. He argues that without such
disclosure, the government deprives a defendant of his right to
effective assistance of counsel because counsel cannot apprise his
client of the duration of his possible sentence.
As noted by the district court, the relevant conduct that
eventually gets considered in the PSI is unknown to both the
government and the defendant when a plea is entered, because the
probation officer has not prepared the PSI at that time. The
government does not have a duty to disclose information it does not
possess. In addition, Behr did not raise this theory in the
district court, and for that reason he is precluded from raising it
on appeal. See Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir.1994)
("appellate courts generally will not consider an issue or theory
that was not raised in the district court.").
VI.
Behr's sentence is AFFIRMED.