In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 02-60050

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RUBY BUCK,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________

March 17, 2003

Before GARWOOD, SMITH, and BARKSDALE, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ruby Buck was convicted of misapplying

federal funds and submitting false documents.

She appeals her conviction on the ground that

the district court erred in admitting a summary

chart into evidence;she appeals hersentencing

on several grounds. We dismiss a portion of

the appeal for want of jurisdiction and affirm

on the remaining issues.
2

I.

A.

Buck worked for Mississippi Action for

Community Education (“MACE”) beginning in

1976. She held various positions until November 1995, when she became interim president and CEO of MACE; she was appointed

to the position permanently in July 1996 and

held the position until her resignation in May

2001. 

MACE was a nonprofit rural development

organization funded in part by federal grants

under the Corporation for National Service

AmeriCorps Program (“AmeriCorps”). The

CongressionalHungerCenter (“CHC”), a nonprofit corporation, received AmeriCorps

grants and sub-granted these funds to several

groups, including MACE. From 1996 to

2000, MACE received $660,423.93 through

AmeriCorps grants that were intended to provide living stipends for AmeriCorps members

working in MACE’s Anti-Hunger Partnership

and Empowerment Program. 

Instead, a significant portion of the grants

was used to pay all or part of the salaries of

MACE employees that were ineligible for

AmeriCorpsfunding. Even the mayor of Metcalfe, Mississippi, a member of the Board of

Directors of MACE, received a stipend as an

AmeriCorps volunteer. Many of these individuals testified that they did no AmeriCorps

work. Buck was responsible for submitting

numerous documentsthat facilitated the illegal

payments. 

B.

Buck was convicted of one count ofmisapplication of federal funds in violation of

18 U.S.C. § 666(a)(1)(A) and fourteen counts

ofsubmitting false documentsstating that thirteen recipients of funds were AmeriCorps volunteers in violation of 18 U.S.C. § 1001(a).

The false statementsresulted inthemisapplication of $116,751.67 in AmeriCorps funds.

Buck was sentenced to forty-one months’

imprisonment.

II.

A.

Buck challenges the admission into evidence of a summary diagram that depicted the

connections between her and the misapplied

payments.1 She argues that the summary

amounted to “propaganda” because it drew an

arrow from a logo representing MACE to her

name without making any reference to others

involved in authorizing the expenditures, suggesting that Buck directed the improper expenditures. She states that evidence presented

at trial contradicted this implication. 

Where a sufficient objection is made to the

evidence, we review for abuse of discretion.

United States v. Hart, 295 F.3d 451, 454 (5th

Cir. 2002). “If the court errs in its evidentiary

ruling, the error can be excused if it was harmless. In applying this rule, we have stated: A

nonconstitutional trial error is harmless unless

it had substantial and injurious effect or influence in determining the jury’s verdict.” Id. at

454-55 (citations and quotation marks omitted).

1 The MACE logo was placed near the center of

the summary, with fifteen lines drawn from the

logo to the names of fifteen MACE employees.

The summary listed the number of checks and total

amount received by each employee. Above the

MACE logo was a red line pointing to two captions,“MACE Board of Directors” and “Ruby

Buck, CEO/President.” Buck’s picture was included above the caption, but the district court required

that it be covered with tape, leaving only her name

and title visible.
3

Although Buck describes the summary as

having been admitted under FED. R. EVID.

10062and arguesthe issue in terms of that rule

and related caselaw, no rule was cited by either side or the court during the arguments

over admissibility. The government argues the

case on appeal under rule 1006 and FED. R.

EVID. 611.3

B.

The summary diagram was not admissible

under rule 611(a) or rule 1006:

Rule 1006 allows admission ofsummaries in lieu of having the voluminous

originals presented at trial. This use of

summaries in this manner should be

distinguished fromcharts and summaries

used only for demonstrative purposesto

clarify or amplify argument based on

evidence that has already been admitted

. . . . Although some Courts have considered suchcharts and summaries under

Rule 1006, the Rule isreally not applicable because pedagogical summaries are

not evidence. Rather, they are demonstrative aids governed by Rules 403 and

611.

5 STEPHEN A. SALTZBURG ET AL., FEDERAL

RULES OF EVIDENCE MANUAL § 1006.02[5],

at 1006-6 (8th ed. 2002) (footnotes omitted).4

The diagram was plainly a pedagogical aid.

It was not introduced, per the proper use of

rule 1006, to summarize documents or other

evidence too voluminousto present effectively

and efficiently to the jury.5 Rather, the diagram summarized evidence that had already

been presented. See United States v. Griffin,

2003 U.S. App. LEXIS 4080, at *33-*41 (5th

2

 Rule 1006 provides:

The contents of voluminous writings,

recordings, or photographs which cannot

conveniently be examined in court may be

presented in the form of a chart, summary,

or calculation. The originals, or duplicates,

shall be made available for examination or

copying, or both, by other parties at reasonable time and place. The court may order

that they be produced in court.

3

 Rule 611(a) provides: 

The court shall exercise reasonable

control over the mode and order of interrogating witnesses and presenting evidence

so as to (1) make the interrogation and presentation effective for the ascertainment of

the truth, (2) avoid needless consumption of

time, and (3) protect witnesses from harassment or undue embarrassment.”

4

“The confusion about summaries occurs

where pedagogical devices, used as illustrative

aids, such as information presented on a chalkboard, flip chart, or drawing, and the like, are used

to summarize or illustrate evidence such as documents.” 2 CHARLES E. WAGNER, FEDERAL

RULESOFEVIDENCECASE LAWCOMMENTARY, at

1006-5 (2002-2003 ed.)

5

See United States v. Meshack, 225 F.3d 556,

581 (5th Cir. 2000) (stating that summary charts

admitted under rule 1006, as contrasted with rule

611, apply to the contents of voluminous writings

that have been previously admitted and that are so

extensive that in-court review by the jury would be

difficult, inconvenient, or imposible); cf. United

States v. Posada-Rios, 158 F.3d 832, 869 (5th Cir.

1998) (“Since the government did not offer the

charts into evidence and the trial court did not

admit them, we need not decide whether . . . they

were not admissible under Fed. R. Evid. 1006.

Where, as here, the party using the charts does not

offer them into evidence, their use at trial is not

governed by Fed. R. Evid. 1006.”).
4

Cir. Mar. 10, 2003) (No. 01-20368).

It was proper for the diagram to be shown

to the jury, to assist in its understanding of

testimony and documents that had been produced, but the diagram should not have been

admitted as an exhibit6or taken to the jury

room.

7

 Moreover, “[w]here a chart or summary is introduced solely as a pedagogical

device, the jury should be instructed that it is

not to be considered as evidence but only as an

aid in evaluating the evidence.” 5 SALTZBURG

ET AL., supra, § 1006.02[5], at 1006-6 to

1006-7 (footnote omitted). Needless to say,

there was no such instruction here, because the

court admitted the diagram into evidence.

Despite the fact that it was an error of law,

and therefore an abuse of discretion, to admit

the diagram, it was harmless, because the diagram accurately summarized testimony and

other evidence that had beenproperlyadmitted

and therefore was already before the jury.8

Pedagogical charts not admitted under rule

1006 may be presented to the jury (though not

admitted into evidence) under rule 611 if they

are consistent with the evidence and not misleading. Pierce, 753 F.2d at 431. 

Under rule 611 or rule 1006, “[t]he essential requirement is not that the charts be free

from reliance on any assumptions, but rather

that these assumptions be supported by evidence in the record.”9

 The summary witness

testified that Buck wasthe individualnamed as

applying for the grant and signing all certifications. Previously admitted documents and testimony supported the existence and accuracy

of each of the more than three hundred checks

that were summarized and showed that Buck

had signed all but one. Some of the other individuals that were involved in processing the

checks were present during only part of the

relevant time period, whereas Buck was a

constant.

Buck concedes that “[t]here was nothing

improper about the chart’s depiction of the

trail of the Americorps money that went

through MACE and was paid to various individuals.” Because the summary is not factually

inaccurate, Buck’s complaint rests on the

6 Though the prosecutor did not invoke Rule

1006 when introducing the summary, he unambiguously “move[d] its introduction into evidence[.]”

7 United States v. Taylor, 210 F.3d 311, 315

(5th Cir. 2000) (stating that although charts may

be used as pedagogical devices within the court’s

discretion under rule 611, jurymust bewarned that

the chart is not evidence and may not go into jury

room, absent consent); Pierce v. Ramsey Winch

Co., 753 F.2d 416, 431 (5th Cir. 1985)

(distinguishing between summaries that are admitted under rule 1006 and “other visual aids that

summarize or organize testimony or documents

that have already been admitted in evidence” and

concluding that summaries admitted under Rule

1006 should go to the jury room but that other

visual aids should not, absent parties’ consent).

8 Because any error is harmless and hence not

reversible, we do not dwell on whether the objection to admissibility that Buck raised at trial was

sufficiently articulated for preservation on appeal.

See FED. R. EVID. 103(a)(1). Moreover, the

government does not assert that the objection was

inadequate.

9 United States v. Diez, 515 F.2d 892, 906 (5th

Cir. 1975) (considering a summary under rule

611); accord United States v. Jennings, 724 F.2d

436, 442 (5th Cir. 1984) (considering a summary

under rule 1006).
5

argument that it is misleading because it impliesthatshe wasresponsible for each transaction and that no one else was involved. Even

if the jury could infer this from the summary,

Buck had ample opportunity to present evidence demonstrating the involvement of other

parties and had the chance to cross-examine

the summary witness concerning the involvement of others.10 Accordingly, the admission

of the summary into evidence did not occasion

undue prejudice and was harmless.

III.

In regard to her sentence, Buck presents

two challenges to the decision to add a twolevel increase to her offense levelfor “abuse of

trust” under U.S.S.G. § 3B1.3 (2000).11 She

arguesthat fraud inherently includesthe abuse

of trust element, and therefore it isinappropriate to apply the enhancement. She also contends that to be eligible for the enhancement,

a defendant must be in a position of trust with

respect to the victim of the crimeSSin this case

the governmentSSand she avers that she was

not in such a position.

We review findings of fact for clear error

and the application of the sentencing guidelines de novo. United States v. Scurlock, 52

F.3d 531, 539 (5th Cir. 1995). “‘A factual

finding is not clearly erroneous as long as the

finding is plausible in light of the record as a

whole.’” Id. (quoting United States v. Brown,

7 F.3d 1155, 1159 (5th Cir. 1993)).

A.

Buck argues that the abuse of trust enhancement isinapplicable to fraud convictions.

The enhancement applies “[i]f the defendant

abused a position of public or private trust, or

used a special skill, in a manner that significantly facilitated the commission or concealment of the offense[.]” § 3B1.3. “This adjustment may not be employed if an abuse of trust

or skill is included in the base offense level or

specific offense characteristic.” Id. (emphasis

added). Buck reasons that all fraud sentenced

under § 2F1.1 inherently includes an abuse of

trust, because the perpetrator must somehow

mislead or trick the victim, rendering further

sentence enhancement for abuse of trust inappropriate.

Although this court has affirmed an abuse

of trust enhancement to a sentence for fraud

under § 2F1.1, see., e.g., Scurlock, 52 F.3d at

541, it has not addressed Buck’sspecific argument that all fraud includes an abuse of trust.

In United States. v. Fisher, 7 F.3d 69, 70 (5th

Cir. 1993), we determined that § 3B1.3 may

apply to embezzlement convictions, sentenced

under U.S.S.G. § 2B1.1, because abuse of

10 The record indicates that Buck took advantage of these opportunities, reducing the chance of

any prejudice. See United States v. Winn, 948

F.2d 145, 159 & n.36 (5th Cir. 1991); see also

United States v. Norton, 867 F.2d 1354, 1363

(11thCir. 1989)(“Furthermore, where, as here, the

defense conducted a thorough cross examination of

the witness concerning the disputed matters, and

also had the opportunity to present its own version

of those matters, the likelihood of any error in admitting summary evidence diminishes.”) (citing

Jennings, 724 F.2d at 442; United States v.

Means, 695 F.2d 811, 817 (5th Cir. 1983)).

11 Buck was sentenced under the 2000 version

of the guidelines, because the district court determined that sentencing under the 2001 guidelines

would result in a longer sentence and violate the ex

post facto clause of the Constitution. Some

holdings in this opinion may not be relevant to

subsequent versions of the guidelines, given that

the guideline section for fraud, U.S.S.G. § 2F1.1

(2000), has been deleted and consolidated with

U.S.S.G. § 2B1.1 effective November 1, 2001.

See U.S.S.G. app. C, amend. 617 (2001).
6

trust is not included in the base offense level

for embezzlement. In so holding, we found

support in the reasoning of three sister circuits

distinguishing between breach of trust, which

isimplicit in embezzlement, and abuse oftrust,

which requires more egregious conduct.12 We

should view fraud similarly, distinguishing

between the breach of trust necessary to commit fraud and more egregious conduct and

discretion necessary to trigger an abuse of

trust enhancement.

Buck argues that other circuits have proscribed application of the enhancement for

fraud convictions. She principally cites United

States v. Broderson, 67 F.3d 452, 456 (2d Cir.

1995), holding that a defendant convicted of

making false statements was not eligible for an

abuse of trust enhancement. The defendant,

an employee of a NASA contractor, failed to

notify NASA that its interest rate on some financed equipment had gone down since itslast

submission, and later certified that its submissions were “accurate, complete, and current,”

resulting in a cost estimate that was incorrect

by $2.1 million. Id. at 454-55. The court held

that “Broderson’s fraudulent conduct was

signing the certificate stating that Grumman

had complied with TINAand FAR. Any abuse

of trust was therefore ‘included in the base

offense level’ of six for fraud and deceit.” Id.

at 456.

Broderson does not stand for the proposition that the abuse of trust enhancement can

never be applied to a fraud sentence; rather, it

is limited to its facts, and any breach of trust

arose only fromthe submission of a false statement, which was minimally necessary to commit fraud. After Broderson, the Second Circuit, in affirming an abuse of trust enhancement to a sentence for mail fraud, held:

An abuse oftrust enhancement may

not be imposed on a defendant convicted of fraud solely because of a violation

of a legal obligation to be truthful and a

victim’sreliance on a misrepresentation.

Everyfraud involvesthese elements. Instead, a court must determine the extent

to which the defendant’s position provides the freedom to commit a difficult-to-detect wrong. In other words,

we have said, the defendant’s position

must involve discretionary authority.

United States v. Hirsch, 239 F.3d 221, 227

(2d Cir. 2001) (citations and quotation marks

omitted).13 We adopt this portion of Hirsch

12 Fisher, 7 F.3d at 70 (citing United States v.

Christiansen, 958 F.2d 285, 287-88 (9th Cir.

1992); United States v. Milligan, 958 F.2d 345,

347 (11th Cir. 1992); United States v. Georgiadis,

933 F.2d 1219, 1225 (3d Cir. 1991)). In Christiansen, the court noted that the commentary to the

guidelinesspecifically contemplates the application

of § 3B1.3 to an embezzlement case. 958 F.2d at

287. “It follows that, at least in those instances involving embezzlement by someone in a significant

position of trust, the enhancement may be applied.”

Id. 

The commentary to the 2000 guidelines contains similar language. After describing what factors demonstrate a position of trust, it states that

“[t]his adjustment does not apply to the case of an

embezzlement or theft by an ordinary back teller or

hotel clerk because such positions are not characterized by the above-described factors.” § 3B1.3,

cmt. n.1 (2000).

13 The other case relied on by Buck, United

States v. Garrison, 133 F.3d 831, 843 (11th Cir.

1998), also fails to support her argument that the

abuseof trust enhancement is unavailable for fraud

(continued...)
7

and uphold the application of the abuse of

trust enhancement to a fraud sentence where

the defendant employed discretionary authority

given by her position in a manner that facilitated or concealed the fraud.14

B.

Buck challenges the determination that she

was in a position of trust, arguing that she was

not in such a position with respect to the government, the primary victim, because her dealings with the government passed through

CHC, and her duties were limited to following

government regulations. We have never held,

however, nor do the guidelines explicitly require, that the determination whether a defendant occupied a position of trust must be assessed from the perspective of the victim.15

Several other circuits have reached this conclusion.16 We conclude that Buck did abuse a

position of trust with respect to the government, and, in the alternative, that her abuse of

the position of trust with respect to CHC suffices to sustain the district court’s decision.

Buck maintained significant direct ties to

the government in directing the AmeriCorps

program. The grant was originally awarded

directly by AmeriCorps in 1996, while Buck

was interim CEO and President of MACE.

Though MACE’s submissions were reviewed

and administered by CHC, they were also certifications to the government. All of the data

submitted byMACE wasforwarded to AmeriCorps; CHC often served as a passthrough,

with AmeriCorps reviewing the forms to determine eligibility. AmeriCorps relied on the

accuracyofthese submissions, because neither

it nor CHC could easily verify the validity existence of MACE’s grant recipients. Many

records prepared by MACE were also subject

to on-site inspection by AmeriCorps workers.

13(...continued)

convictions. In fact, the Eleventh Circuit has cited

Garrison in affirming an abuse of trust enhancement to a fraud sentence. See United States v.

Liss, 265 F.3d 1220, 1229-30 (11th Cir. 2001).

14Thisis consistent with our approach inFisher

and with the guidance of the commentary to

§ 3B1.3, which states that a position of public or

private trust is “characterized by professional or

managerial discretion” and advises that “for this

adjustment to apply, the position of public or private trust must have contributed in some significant

way to facilitating the commission or concealment

of the offense[.]” § 3B1.3, cmt. n.1.

15 This requirement, however, has been implied

in some of our opinions. For example, in United

States v. Iloani, 143 F.3d 921, 922 (5th Cir.

1998), we stated:

In this Circuit, it is settled that a § 3B1.3

enhancement is appropriate for a physician

who abuses the trust of his patients. However, this Circuit has never considered

(continued...)

15(...continued)

whether a physician who acts in concert

with his patients to conduct a fraudulent

billing scheme may be assessed a § 3B1.3

enhancement for abuse of a position of trust

on the basis of the physician's relationship

with an insurance company.

(Citations omitted.)

16 See., e.g., United States v. Thorn, 317 F.3d

107, 120 (2d Cir. 2003); United States v. Mackey,

114 F.3d 470, 475 (4th Cir. 1997); United States

v. Zaragoza, 123 F.3d 472, 481 (7th Cir. 1997);

United States v. Hill, 915 F.2d 502, 506 n.3 (9th

Cir. 1990); United States v. Trammell, 133 F.3d

1343, 1355 (10thCir. 1998); United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998).
8

Buck again pointsto Garrison, inwhich the

court did not find a position of trust, in part

because the defendant

did not hold a position of discretion concerning her crime of false reporting to

Medicare, as required for application of

the abuse-of-trust enhancement. As her

counsel explained at sentencing, Garrison lacked the discretion and ability to

conceal the false cost reports submitted

for Medicare reimbursement and relied

on others to accomplish this deception.

Garrison, 113 F.3d at 841. The court also

credited Garrison’s contention that her false

statements were made in reliance on financial

experts, id. at 841 n.19, which mitigated

against finding that she had a position of trust.

By comparison, Buck was in perhaps the

best position, in terms of discretion and ability,

to conceal her false reports from the government. All the false certifications passed

through her. Her relationship to those assisting her was employer-employee, giving her

significant leverage to gain the complicity of

others. Notwithstanding the presence of CHC

as intermediary, there is ample support in the

record for a finding that Buck occupied a position of trust with respect to the government.

Alternatively, there islittle doubt that Buck

occupied a position of trust with respect to

CHC. In United States v. Sidhu, 130 F.3d

644, 655-56 (5th Cir. 1997), we affirmed a

§ 3B1.3 enhancement where the position of

trust was not held with respect to the main victim of the crime. There, a doctor defrauded

various government programs and insurance

companies by billing patients for services that

were not performed or were not performed

appropriately. Id. at 647. We based our affirmance on the defendant’s abuse of his patients’ trust. This holding may be explained by

our determination, for purposes of another

sentencing enhancement, that although the

government and insurers may have been the

“primary victims of his criminal conduct,” the

patients also were victims of the fraud. Id.

at 655. 

We interpret Sidhu to allow the enhancement whenever any victim of a criminal

scheme placed the defendant in a position of

trust that significantly facilitated the crime.17

The CHC, as sub-grantor, also was injured by

Buck’sfraud, as it was unable to distribute the

17 In United States v. Bhagavan, 116 F.3d 189,

193 (7th Cir. 1997), the court took a similar approach, holding that the government is not necessarily the only victim in a tax evasion scheme, and

that the § 3B1.3 enhancement can apply if any

identifiable victim of the overall scheme to evade

taxes put the defendant in a position of trust that

facilitated the commission or concealment of the

offense. Similarly, in United States v. Cianci, 154

F.3d 106, 110-13 (3d Cir. 1998), the court held

that enhancement was appropriate in a tax evasion

case where the defendant abused a position of trust

with his company to embezzle unreported income.

Although the defendant had not been charged for

any crime in relation to his employer, the abuse of

trust could be considered as “relevant conduct”

under the guidelines. Id. at 112-13. 

In United States v. Duran, 15 F.3d 131, 132-33

(9th Cir. 1994) (per curiam), the court affirmed an

enhancement, allowing a sheriff’s use of a position

of trust to embezzle money to support an enhancement for the illegal structuring of the financial transactions to avoid reporting requirements.

This was allowed despite the fact that the jury

failed to reach a verdict on the underlying theft

charge, because the theft was part of a common

scheme or plan with the illegal structuring under

U.S.S.G. § 1B1.3(a)(2). Id. at 133.
9

AmeriCorps funds to deserving sub-grantees

that supported its mission. Buck’s position of

trust with respect to CHC suffices to support

the enhancement.

Whether viewed interms ofthe government

or CHC, the record supports the finding that

Buck abused her position of trust. “[T]o determine whether the position of trust ‘significantly facilitated’ the commission of the offense, [a] court must decide whether the defendant occupied a superior positionrelative to

all people in a position to commit the offense,

as a result of [her] job.” Fisher, 7 F.3d at

70-71. 

Buck’s abuse of trust was not merely signing the false forms; it extended to her decisions

to have employees perform tasks not allowed

under the grants and to convince others to

falsify numerous documents to defraud the

government. Buck was distinguished from her

employees by the broad discretion, autonomy,

and ability to conceal the falseness of her

claims from the government and CHC provided by her position as President and CEO;

herresponsibilityto certifying each employee’s

validity; and her status as the applicant for the

grant. The district court properly enhanced

Buck’s sentence for abusing a position of

trust.18

IV.

ThoughBuck was convicted ofmisapplication of $116,751.67 in AmeriCorpsfunds, evidence of a similar but separate incident, involving misapplication of approximately

$88,000 of Department of Labor Welfare-ToWork (“DLWTW”) grant funds, was introduced pursuant to FED.R.EVID.404(b).19 The

district court added this $88,000 when determining the amount of the loss for sentencing

purposes under § 2F1.1(b)(1). Buck argues

that this conduct was insufficiently related to

the fraud to be considered in sentencing.

“The district court’s determination of what

constitutes relevant conduct for sentencing

purposesis a factualfinding.” United States v.

Nevels, 160 F.3d 226, 229 (5th Cir. 1998).

This finding must be supported by a preponderance of the evidence and is reviewed for

clear error. Id. For fraud, the guidelines provide a broad reach in including relevant conduct.20 “All acts and omissions committed,

aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant,” § 1B1.3(a)(1)(A), “that were part of

the same course of conduct or common

scheme or plan as the offense of conviction,”

§ 1B1.3(a)(2), should be considered. “For

two or more offenses to constitute part of a

common scheme or plan, they must be substantially connected to each other by at least

one common factor, such as common victims,

18 The district court did not state whether it

viewed Buck’s position of trust in terms of CHC or

the government. But, “when the judgment of the

district court is correct, this court may affirm for

reasons not given by the district court and not advanced to it.” United States v. Giraldo, 111 F.3d

21, 24 n.12 (5th Cir. 1997).

19 Rule 404(b) allowsthe admission of evidence

of other crimes for several purposes, “such as

proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or

accident[.]”

20 See United States v. Pinnick, 47 F.3d 434,

438 (D.C. Cir. 1995) (comparing the broad reach

of the Guidelines for fraud to that for “most offenses, [where] the Guidelines require the sentencing court to consider only conduct intrinsic to the

offenseof conviction in determining the defendant’s

guideline range.”).
10

common accomplices, common purpose, or

similar modus operandi.” § 1B1.3, cmt.

n.9(A) (emphasis added).

Offenses that do not qualify as part

of a common scheme or plan may nonetheless qualify as part of the same

course of conduct if they are sufficiently

connected or related to each other as to

warrant the conclusion that they are part

of a single episode, spree, or ongoing

series of offenses. Factors that are appropriate to the determination of whether offenses are sufficiently connected or

related to each other to be considered as

part of the same course of conduct include the degree of similarity of the offenses, the regularity (repetitions) of the

offenses, and the time interval between

the offenses. When one of the above

factors is absent, a stronger presence of

at least one of the other factors is required.

§ 1B1.3, cmt. n.9(B).

It does not matter that Buck was never

charged with the misapplication of DLWTW

grant funds. The “Background” portion of

§ 1B1.3 specifically advises that

the applicability of subsection (a)(2)

does not depend upon whether multiple

counts are alleged. Thus, in an embezzlement case, for example, embezzled

funds that may not be specified in any

count of conviction are nonetheless included in determining the offense level if

they were part of the same course of

conduct or part of the same scheme or

plan as the count of conviction.

With both the DLWTW and Americorps

frauds, Buck used MACE to defraud the government out of social services funds; with

both, she certified that she would abide or had

abided by the various requirements of the

programs. Buck used the funds acquired by

both frauds to pay for numerous activities relating to the operation of MACE, rather than

for the limited purposes for which the grants

were specified. 

Both frauds therefore shared a common

purpose: to prop up the cash-strapped MACE.

The common victim, common purpose, and

similar modus operandi paired the two frauds

in a common scheme. The two crimes are

distinguished by obvious differences, but the

evidence does not so differentiate them to render the district court’s ruling clearly erroneous.

V.

Buck argues that the $11,580.96 that went

to the mayor of Metcalfe under the AmeriCorps grant should have been deducted from

the loss amount, because Allen’s involvement

in several community service projects “went

toward the ultimate goals of the program.”

We review the inclusion of these funds for

clear error. United States v. Kimbrough, 69

F.3d 723, 733 (5th Cir. 1995).

Buck’s argument is meritless. AmeriCorps

funds may not be used to fund programs that

already exist. See 45 C.F.R. § 2540.100(e)

(2001). Allen testified that all the programs in

question were already in existence before she

began receiving AmeriCorps grants, that they

had independent funding, and that her involvement was limited. 

The jury credited this testimony, finding

that Buck had misappropriated funds, because

Allen was not authorized to receive grants un-
11

der the AmeriCorps program. The district

court did not err in considering the loss of

those unauthorized grants at sentencing.

VI.

Buck maintains that the district court erred

by not granting a downward departure on

numerous grounds offered at sentencing, including her lack of pecuniary gain from the

offenses, the obstacles of poverty and prejudice she had overcome, and her charitable and

public service work. We have jurisdiction to

review the district court’s refusal to grant a

downward departure from the Guidelines only

if the refusal was based on an error of law.

United States v. Palmer, 122 F.3d 215, 222

(5th Cir. 1997). 

Thus, we have jurisdiction if a district

court’s refusal to depart downward is

premised uponthe court’smistakenconclusion that the Guidelines do not permit

such departure, but we have no jurisdiction if the court’s refusal is based on its

determination that departure is not warranted on the facts of the case. A defendant’s mere dissatisfaction with the trial

court’s refusal to depart downward

forms no basis for an appeal.

Id. (citation omitted). Even where jurisdiction

is found, “the appellate court rarely should review de novo a decision to depart from the

Sentencing Guidelines, but instead should ask

whetherthe sentencing court abused its discretion.” United States v. Walters, 87 F.3d 663,

672 n.10 (5th Cir. 1996).

The district court could grant a downward

departure under U.S.S.G. § 5K2.0 if it found

“there exist[ed] an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (1996). The sentencing court must consider a factor in its

given circumstances and “decide whether it is

sufficient to take the case out of the Guideline’s heartland.” Koon v. United States, 518

U.S. 81, 96 (1996).

Buck urges that the district court was unaware that it could depart and that we should

remand because of the district court’s mistake

of law. The court, however, displayed a firm

understanding of the law. Indeed, it had recently read Koon and Walters, as well as other

cases and the applicable portions of the guidelines, and recited in detail the standards it was

to apply. 

A careful reading of the sentencing hearing

indicates that the court considered every one

of Buck’s points but reluctantly decided they

did not rise to the level necessary to justify a

departure. The court did not believe it was

unable to make a downward departure under

the law, but rather concluded that Buck’s arguments did not merit such a departure.

For example, with respect to Buck’s contention that a downward departure was appropriate because she did not experience pecuniary gain and therefore the loss calculation

“overstates the seriousness of the particular

defendant’s conduct,” the court reviewed Walters, in which we upheld a six-month downward departure where the defendant received

no personal benefit and the lower court determined that the “guideline calculation overstates the seriousness of [Walter’s] involvement.” Walters, 87 F.3d at 672. The victim,

a Louisiana parish, had been unaware of illegal

fees included in its insurance payments, but

ultimatelyreceived insurance at the price it had

negotiated. Id. at 668. 
12

The district court determined that the government did not get the benefit of AmeriCorps

volunteers as it had been led to believe, and

potential AmeriCorps volunteers were denied

grants as a result of Buck’s fraud. Therefore,

in the district court’s judgment, despite the

lack of direct pecuniary gain by Buck,21 “[t]he

seriousness of the offense has not been overstated by either the sentencing guidelines or

the presentence investigation report.”

The district court made similar determinations in weighing each of Buck’s arguments

for a downward departure. Because the court

understood its authority and declined to depart, we are without jurisdiction to review its

determinations. This portion of Buck’s appeal

is dismissed.

We therefore AFFIRM Buck’s conviction

and sentence on all issues except the district

court’s denial of a downward departure under

§ 5K2.0, as to which issue we DISMISS the

appeal for want of jurisdiction.

21 It is also questionable to assert that Buck did

not benefit pecuniarily when the fraud helped keep

afloat the struggling nonprofit of which she was

CEO and President. Presumably she paid herself

a salary that would have disappeared had MACE

failed.