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United States v. Dealy

filed*fn*: July 2, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RUSSELL DEALY, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding; D.C. No. CR-90-0127.

Wright and O'Scannlain, Circuit Judges, and Lew, District Judge.**fn**

MEMORANDUM

Russell Dealy appeals his sentence under the United States Sentencing Guidelines upon his guilty plea to bank fraud.

BACKGROUND

Dealy plead guilty to bank fraud, a violation of 18 U.S.C. section 1344, and was sentenced to 14 months incarceration. In computing Dealy's offense level, the court found the loss inflicted was between $10,000 and $20,000 and imposed a three level increase under U.S.S.G. section 2F1.1(b)(1)(D). In addition, the court found Dealy's conduct constituted more than minimal planning and increased the offense level by two under U.S.S.G. section 2F1.1(b)(2)(A).

Dealy now appeals both of these offense level increases, arguing that the district court overvalued the loss inflicted and that Dealy's conduct involved only minimal planning.

STANDARD OF REVIEW

We review de novo the application of the Sentencing Guidelines. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). We review the court's factual findings for clear error. United State v. McConney, 728 F.2d 1195, 1200 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824 (1984).

MORE THAN MINIMAL PLANNING

Dealy argues that the district court erred in increasing his offense level by two for more than minimal planning.

Under the Sentencing Guidelines, the base offense level for crimes involving fraud and deceit must be increased by two points if the defendant engaged in more than minimal planning. U.S.S.G. § 2F1.1(2). "More than minimal planning" means more planning than is typical with commission of the offense in a simple form. U.S.S.G. § 1B1.1, n. 1(f). It is also "deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune." Id.

Dealy argues that his offense did not involve activity which courts have generally determined to involve more than minimal planning. Dealy asserts that cases finding more than minimal planning fall into three general categories: (1) offenses involving a systematic scheme or repeated acts; (2) offenses using information gained "from the inside"; and (3) offenses committed with assistance of other persons. Dealy argues that his offense, in contrast, involved only a single taking accomplished by supplying false biographical information. Dealy contends that his conduct does not fall within one of recognized categories of activities involving more than minimal planning, because his actions in committing bank fraud were the minimum he could have done to obtain the fraudulent loan.

Although Dealy correctly cites a number of cases holding that certain acts involve more than minimal planning, these cases do not limit a finding of more than minimal planning to the discrete categories which Dealy suggests. These categories do not provide an exhaustive list of the circumstances in which a court may find that a defendant engaged in more than minimal planning.

In the instant case, the district court did not err in finding more than minimal planning. The district court found that Dealy obtained a fraudulent loan by using a false middle name, a false social security number and a driver's license fraudulently obtained by using false biographical information. Dealy's procurement of the loan took several acts which were clearly not "purely opportune." Thus, this is not a case where the defendant acted on the spur of the moment; Dealy provided a chain of false information in order to obtain the loan. The district court's findings that Dealy's conduct involved more than minimal planning were not clearly erroneous. See United States ...


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