At page 207 Reviewing district court findings for clear error13 citing casesaffirming § 2F1.1(b)(2) adjustment where defendant used stolen credit card 15 times
- United States v. Proffit, 304 F.3d 1001 (10th Cir. 2002).publishedSee, e.g., *1006 United States v. Allen, 129 F.3d 1159, 1166 (10th Cir.1997) (multiple acts of embezzlement); United States v. Orr, 68 F.3d 1247, 1253 (10th Cir.1995) (depositing 298 checks as part of a check kiting scheme); United States…
- United States v. Sir Victor William Bryant, I, 91 F.3d 146 (7th Cir. 1996).unpublishedSee United States v. Abdelkoui, 19 F.3d 1178, 1183 (7th Cir.1994); United States v. Pandero, 7 F.3d 691, 694-95 (7th Cir.1993); United States v. Sanchez, 914 F.2d 206, 207 (7th Cir.1990).
- United States v. David William Ladd, 42 F.3d 1389 (6th Cir. 1994).unpublishedIn United States v. Jones, 933 F.2d 353 (6th Cir.1991), a somewhat similar case, we upheld an enhancement for more than minimal planning where the defendant "not only used elaborate falsehoods in obtaining the credit cards, she used the ca…
- United States v. Randy Clayton Yost, 24 F.3d 99 (10th Cir. 1994).publishedWise, 990 F.2d at 1550 ; Abud-Sanchez, 973 F.2d at 837 ; United States v. Sanchez, 914 F.2d 206, 207-08 (10th Cir.1990), we cannot say that the district court’s finding in this regard was clearly erroneous.
- United States v. Bruce J. Birr, 996 F.2d 312 (10th Cir. 1993).publishedWe review the district court's findings of fact in determining guideline adjustment levels for clear error, United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990), and review a district court order for restitution for abuse of discret…
- United States v. Darrel Gene Morgan, 986 F.2d 1430 (10th Cir. 1993).publishedUnited States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990). 12 Finally, defendant argues under Colorado law, driving while impaired is "the lesser offense" of driving while intoxicated.
- United States v. Danilo Abud-Sanchez, 973 F.2d 835 (10th Cir. 1992).publishedUnited States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 614 , 116 L.Ed.2d 636 (1991); United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990).
- United States v. Richard L. Meek, 972 F.2d 1346 (9th Cir. 1992).unpublished(affirming § 2F1.1(b)(2) adjustment where defendant used stolen credit card 15 times)
- United States v. Thomas B. Ackerman, 968 F.2d 21 (10th Cir. 1992).published(examination of "minimal planning" in the context of credit card fraud under U.S.S.G. § 2F1.1(b)(2)(A))
- United States v. Kim A. Wise, 990 F.2d 1545 (10th Cir. 1992).published He argues that the "entire planning" was done by his co-defendants and that he "simply carried out their specific instructions." (Appellant's Opening Brief at p. 40). 44 In United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990), we op…
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- United States v. Kim A. Wise, 968 F.2d 22 (10th Cir. 1992).publishedHe argues that the "entire planning" was done by his co-defendants and that he "simply carried out their specific instructions." (Appellant's Opening Brief at p. 40). 43 In United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990), we op…
- United States v. Henry Williams, Jr., 966 F.2d 555 (10th Cir. 1992).publishedUnited States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990); United States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 614 , 116 L.Ed.2d 636 (1991).
- United States v. Debra Ann Jones, 933 F.2d 353 (6th Cir. 1991).published(affirming a finding of more than minimal planning when a stolen credit card was used repeatedly at more than one location)
At page 208 Determining culpability and sufficiency of evidence for sentencing1 citing casedistrict court not required to find that defendant was or was not the least culpable participant in determining that defendant’s role was not minor
- United States v. David Caruth, 930 F.2d 811 (10th Cir. 1991).published(district court not required to find that defendant was or was not the least culpable participant in determining that defendant’s role was not minor)
At page 206 “(appellant's opening brief at p. 40). 43 in united states v. sanchez, 914 f.2d 206, 207 (10th cir.1990), we opined: 44 the sentencing guidelines envision an increase in base offense levels for crimes involving fraud or deceit where”0 citing cases
v.
Alfred A. SANCHEZ, Defendant-Appellant
Alfred A. Sanchez challenges the sentence imposed upon him after his plea of guilty to fraud by unauthorized use of an access device in violation of 18 U.S.C. § 1029(a)(2). Sanchez contends that the district court erred in assessing an increase of two levels in the base offense level because the crime involved “more than minimal planning” as provided by U.S.S.G. § 2F1.1(b)(2)(A). He also argues that he was entitled to a reduction of at least two levels in the base offense level because his role in the offense was at most that of a “minor participant.” U.S.S.G. § 3B1.2(b). We affirm. *
Background
The facts surrounding this case are straightforward. Sanchez’ brother and his brother’s girlfriend were U.S. Postal Service employees who allegedly took credit cards from the mails and gave them to family and friends, including Sanchez. Sanchez used one credit card fifteen times during the month of January, 1988, each time forging the signature of the card’s true owner, resulting in a total loss of $3,862.84. Sanchez also brought his wife into the criminal activity, resulting in his wife’s use of three stolen cards on numerous occasions from January through August 1988. Sanchez personally used “his” stolen card at fifteen different stores.
Based on these facts, the district court concluded that Sanchez’ activities involved more than “minimal planning” because the offending use of the credit card took place repeatedly at more than one location. Likewise, the court found that Sanchez’ role was more than a minor one because, among other things, Sanchez had “recruited” his wife into similar criminal activity.
Discussion
We review the district court’s findings both as to the amount of planning involved under § 2Fl.l(b)(2)(A), and as to Sanchez’ role in the offense as essentially factual determinations which we will not disturb on appeal absent a showing that they are clearly erroneous. See, e.g., United States v. Cianscewski, 894 F.2d 74, 82 (3d Cir.1990) (reviewing a finding of “more than minimal planning” under clearly erroneous standard); United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989) (same); United States v. Lord, 907 F.2d 1028, 1031 (10th Cir.1990) (reviewing “minor participant” under clearly erroneous standard).
The Sentencing Guidelines envision an increase in base offense levels for crimes involving fraud or deceit where “more than minimal planning” is present. U.S.S.G. § 2F1.1(b)(2)(A). The term “more than minimal planning” is defined, in relevant part to include the following:
“ ‘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.”
U.S.S.G. § 1B1.1, comment. (n.l(f)) (referenced by § 2F1.1, comment, (n.2)). It is undisputed that Sanchez personally used the stolen card on fifteen separate occasions at as many locations over a period of approximately one month. Each purchase involved several calculated falsehoods including a forged signature. Given the record before us, we conclude that the district court’s determination that Sanchez’ offense involved “more than minimal planning” is not clearly erroneous. C.f., United States v. Hearrin, 892 F.2d 756 (8th Cir.1990) (upholding “more than minimal planning” where stolen check offense was repeated seven times over three week period).
Sanchez argues that he was entitled to a reduction based on his role in the offense, and to support his argument cites the fact that his wife received such a reduc[*208] tion in her sentence. Sanchez was not convicted for his role in any conspiracy however. Rather, he pled guilty to one single count of fraud involving his personal use of the stolen credit card. For this reason alone his argument fails; he is solely responsible for the crime. Moreover, Sanchez cannot insist on a relative comparison between his own crime and his wife’s conduct; the district court need not have determined that Sanchez “was or was not the least culpable participant in determining whether [his] role was ‘minor’ ” United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir.1990).
In any event, Sanchez clearly had knowledge of his brother’s and his wife’s activities concerning the stolen credit cards. He was responsible for instigating his wife’s use of the cards. He was solely responsible for his own personal forgeries and frauds and the resulting loss. Because the evidence appearing in the record before us supports the district court’s determination that Sanchez was not entitled to any adjustment for his role in the offense, we conclude that the court’s finding is not clearly erroneous.
The judgment of the district court is AFFIRMED.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.