adjustment on this basis because there were no attempts to contact him by the Probation Department after the January 2, 1992 interview, and no indications by the Probation Officer that additional contacts would be necessary. Because even a perfunctory inquiry would have revealed the Probation Officer's attempts to contact defendant, see infra, the Court finds defendant's argument a negligent or reckless misrepresentation of fact.
As the Court noted in its recusal decision, defendant's availability for one interview did not satisfy his responsibility to be available to the Probation Department during the entirety of its investigation, which lasted until mid-February, 1992. Item No. 105, at 10. It is routine procedure for the Probation Department to have follow-up conversations, discussions and or contacts with defendants. See Item No. 125, Memorandum from Colleen Rahill-Beuler to Court, December 4, 1992.
Here, Colleen Rahill-Beuler, the Probation Officer assigned to prepare the PSR, recalls that at the January 2, 1992 interview, defendant requested information regarding what his guideline sentence would be, and was advised that specific numbers could only be provided after review of all the material. Defendant informed Ms. Rahill-Beuler that he had paperwork regarding the amount of loss and they agreed that she would get the materials from him during one of their subsequent contacts regarding the presentence investigation. Id. Ms. Rahill-Beuler specifically recalled that in furtherance of her efforts to work with defendant during the presentence investigation period, she unsuccessfully attempted a home visit on January 16, 1992, and on January 23, 1992, made a home visit and contacted defendant's wife. During this time, Ms. Rahill-Beuler also recalled leaving two phone messages with defendant's wife asking that defendant contact her. Defendant never did. Id. It is clear from Ms. Rahill-Beuler's Memorandum, which the Court finds credible, that defendant was aware, or should have been aware that his obligations, for purposes of the Probation Department's Investigation, were not complete.
Further, even had Probation not attempted to contact defendant, an upward adjustment for obstruction on this basis would be warranted. Defendant left the jurisdiction without the Court's permission. By mid-January, the Court was informed that attempts by the Probation Department and defendant's own counsel to contact him had been unsuccessful and that there was a possibility that he had left the jurisdiction. By January 23, 1992, less than three weeks after Ms. Rahill-Beuler's January 2, 1992 meeting with defendant, a bench warrant was issued. Defendant's suggestion that the Probation Officer was required to attempt to call him or his attorneys and request additional meetings or information, despite the fact that he had left the jurisdiction, in order to preserve the record in the event he came back and contested his obstruction adjustment is nonsensical.
Defendant next argues that he did not act willfully, that is, that his unavailability was not designed to impede the course of the Probation Department's investigation. The Court disagrees. As a result of his meeting with Probation, defendant knew that Ms. Rahill-Beuler was in the midst of her presentence investigation; he knew there was at least a potential that there would be requests for additional information from Probation; he knew he was scheduled for sentencing on March 6, 1992; and he knew that leaving the jurisdiction prior to sentencing would in some way obstruct or impede the administration of justice by impeding the Probation Department's ability to prepare the PSR
and hampering the review of the PSR when it was ultimately sent out. The Court finds that defendant intended this result.
Thus, the two-level upward adjustment for obstruction based on defendant's unavailability to Probation is warranted.
3. Violation of the Conditions of Bail. Another ground for the enhancement for obstruction is defendant's failure to comply with the conditions of bail. The defendant was released on bail pending sentencing with the restriction that he not travel outside the counties of Erie, Genesee, Monroe, Cattaraugus, Wyoming and Chautauqua. Defendant's violation of this restriction constitutes at least an attempt to obstruct justice, which attempt also can be a basis for the adjustment under § 3C1.1. See United States v. Jackson, 974 F.2d 57, 61 (7th Cir. 1992) ("It was well within the discretion of the district court to consider [defendant's] violation of his bail conditions as an attempt to obstruct justice."). Thus, the two-level enhancement for obstruction based on defendant's failure to comply with the conditions of bail is warranted.
The Court, therefore, adopts the PSR's recommendation of a two-level upward adjustment for obstruction of justice pursuant to § 3C1.1, and finds that such adjustment is compelled by any one of the above-mentioned grounds.
C. Upward Adjustment for More than Minimal Planning Defendant contends, without factual or legal support, that he should not be given the two-level upward adjustment for more than minimal planning. See Item No. 10. The Court, however, finds that the preponderance of the evidence at trial established that this adjustment is appropriate.
Section 2F1.1(b)(2)(A) provides for a two-level increase in the offense level if the offense involved more than minimal planning. "More than minimal planning" is defined in the Commentary to § 1B1.1 as "more planning than is typical for commission of the offense in a simple form. . . . 'More than minimal planning' is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune." Application Note 1(f). Not only does defendant fail to provide any evidence or legal argument that would dictate that an upward adjustment on this basis is improper, but it is clear from Application Note 1(f) that where, as here defendant's crimes involved repeated submission of false statements over a period of time, such an adjustment is appropriate. The evidence and testimony at trial regarding the nature of defendant's scheme to obtain money from the banks by submission of false statements supports the two-level adjustment on this basis.
D. Upward Adjustment for Supervisory Role in the Offense
Defendant also asserts a general objection to the two-level upward adjustment for role as manager or supervisor in the offenses. Section 3B1.1(c) provides for a two-level increase if the defendant was an "organizer, leader, manager, or supervisor in any criminal activity. . . ." The Commentary to this section notes that the inclusiveness of § 3B1.1(c) reflects that "in relatively small criminal enterprises . . . the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility."
The two-level enhancement is appropriate here where the preponderance of the evidence established that defendant instructed other individuals to alter leases and other documentation that were subsequently submitted to banks in support of defendant's loan applications. For example, Kathleen Stachura testified that with regard to both loans, defendant directed her to alter and/or create leases with Roseanne Adamowich's assistance, before submitting the documents to the bank. Transcript, Item No. 88, at 2290-2304 (Central Trust); 2334-36 (Home and City).
The evidence and testimony at trial revealed that defendant was the manager and supervisor regarding the loan transactions that formed the basis of the charges on which he was convicted; that he reviewed all documents before they were submitted to the banks; and that he kept close tabs on the work being done at the various offices. The Court therefore adopts the PSR's recommendation of a two-level enhancement for defendant's leadership or supervisory role in the offense.
E. Grouping of Offenses under the Sentencing Guidelines for Purposes of Calculating Defendant's Offense Level14
Defendant asserts, in objecting to the Probation Department's application of the Sentencing Guidelines in determining his offense level, that: (1) Counts V and VI and Counts VII and VIII should be separately grouped; and (2) that the calculated offense level on Counts V and VI can be no greater than level 14, which corresponds to a guideline range of 18-24 months (Criminal History Category II), because the statutory maximum on Counts V and VI is 24 months. These arguments are based on defendant's assertion that § 5G1.1(a)'s provision that "if application of the guidelines results in a sentence above the maximum authorized by statute for the offense of conviction, the statutory maximum shall be the guideline sentence," applies to the calculation of the offense level on that count under § 1B1.1(a)-(d).
Defendant's analysis of the Guidelines is fatally flawed in that defendant attempts to take sections of the Guidelines that apply strictly to sentencing, and apply them to sections that deal only with the calculation of the offense level. As defendant argues, the various sections of the Guidelines are meant to be applied in a specific order. Section 1B1.1 provides that after determining the base offense level for the particular count of conviction and applying any specific offense characteristics, the provisions of Parts A, B and C of Chapter 3 are to be applied. This calculation is to be made for each count of conviction, and then the counts are to be grouped in accordance with § 3D. After applying any adjustment for acceptance of responsibility, the resulting offense level is the "total offense level." 1987 Guidelines, § 1B1.1(a)-(e). Defendant's criminal history category is then calculated, and the guideline range that corresponds to that criminal history category and the total offense level is the relevant guideline range. § 1B1.1(f), (g). Only after the guideline range is determined are the provisions of Chapter 5, and in particular Part G of Chapter 5, consulted in order to determine "the sentencing requirements and options related to probation, imprisonment, supervision conditions, fines, and restitution." § 1B1.1(h).
While defendant has focused on § 1B1.1 as the correct way to determine defendant's guideline range, he has conveniently chosen not to follow those application instructions when they do not work to his benefit. The preliminary steps, subsections (a) through (e), deal with the calculation of the offense level. Subsections (h) and (i) deal with the actual imposition of sentencing. The purpose of § 5G, which defendant relies on in asserting that defendant's offense level on the false statement counts can be no greater than a level 14, is simply to ensure that the actual sentence of imprisonment imposed adequately reflects the total offense level calculated by application of the Guidelines without being higher or lower than any statutory maximum or minimum on the particular counts. Section 5G has nothing to do with the calculation of the offense levels on the various counts of conviction, nor on their subsequent grouping under § 3D.
The Court finds that the PSR's calculation of defendant's offense level is correct under the Guidelines. In calculating the offense level for each count of conviction under § 1B1.1, Counts V and VI each result in an offense level of 19,
and Counts VII and VIII each result in an offense level of 21.
Section 1B1.1(d) then indicates that the counts should be grouped in accordance with § 3D. Section 3D1.2(d) provides that: "counts are grouped together if the offense level is determined largely on the basis of the total amount of harm or loss, . . . or some other measure of aggregate harm . . . ." It specifically states that offenses under § 2F1.1, such as the offenses involved here, are to be so grouped. Id. Thus, defendant's contention that Counts V and VI should have been grouped separately from Counts VII and VIII because they relate to different banks or because they involve different statutory maximums, is without merit.
Section 3D1.3(b) provides that:
in the case of counts grouped together pursuant to § 3D1.2(d), the offense level applicable . . . is the offense level corresponding to the aggregated quantity, determined in accordance with Chapter Two and Parts A, B and C of Chapter Three. When the counts involve varying offenses, apply the offense guideline that produces the highest offense level.
(emphasis added). Here, the aggregated quantity of loss for all four of the grouped counts is in excess of $ 2 million. Going to Chapter Two, and specifically § 2F1.1(b)(1), the corresponding offense level for such loss is an increase often levels. § 2F1.1(b)(1)(K). When the adjustments for more than minimal planning, obstruction of justice and supervisory role are added, the resulting base offense level is 22--the same offense level calculated by the Probation Department.
In terms of the application of the Guideline provisions under Part G of Chapter Five, it is clear that for purposes of sentencing, a term of imprisonment of no more than 24 months can be imposed on Counts V, VI and VIII, as the statutory maximum for violations of 18 U.S.C. § 1014 is two years. The term of imprisonment imposed on Count VII can be no greater than 60 months, as the statutory maximum for violations of 18 U.S.C. § 1341 is five years. Such requirements, however, have no bearing on the initial calculation of defendant's offense level, which, with a criminal history category of II, corresponds to a guideline range of 46-57 months.
Moreover, the Court notes that taking defendant's interpretation of the Guidelines to its logical conclusion would result in a higher offense level than that calculated by Probation--23 rather than 22. In addition, if Counts V and VI and Counts VII and VIII were separately grouped, and defendant separately sentenced on those groups, the same sentence would result because § 5G1.2(d) would require imposition of a sentence on Counts V and VI consecutive to that on Counts VII and VIII in order to satisfy the total sentence of 46 to 57 months called for under the Guidelines, which Guideline range is within the 60 month statutory maximum for Count VII.
Thus, the Court finds that the PSR properly grouped the counts of conviction, and properly calculated defendant's offense level.
For the reasons stated, the Court finds that defendant forfeited without cause shown, or knowingly and voluntarily waived, his right to raise factual objections to the PSR by failing to "timely file such objections. Nevertheless, the Court has considered these objections and, for the reasons set forth above: (1) adopts the recommendation that the amount of loss sustained by the victim banks was in excess of $ 2 million dollars such that a ten-level enhancement is warranted; (2) adopts the recommendation that a two-level upward adjustment be given for obstruction of justice pursuant to § 3C1.1; (3) adopts the recommendation that a two-level upward adjustment be given for more than minimal planning pursuant to § 2F1.1(b)(2)(A); (4) adopts the recommendation that a two-level upward adjustment for supervisory role in the offense be given pursuant to § 3B1.1(c); and (5) finds that the counts of conviction were properly grouped under the Guidelines and that defendant's offense level was properly calculated at level 22.
The defendant is ordered to appear before the Court for sentencing on February 22, 1993 at 9:15 a.m.
IT IS SO ORDERED.
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
Dated: February 11, 1993