## In the



# United States Court of Appeals

for the Fifth Circuit

_______________



### m 02-60050

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### R UBY 

### B UCK



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________ March 17, 2003

Before G ARWOOD , S MITH , and B ARKSDALE

, Circuit Judges.

J ERRY E. S MITH , 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 her sentencing

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

Comm uni ty 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 t he po sition permanently in July 1996 and

held the positi o n until her resignation in May

2001.

MACE was a nonprofit rural development

organ ization funded in part by federal grants

under the Corporati on for Na t io nal Service

AmeriCorps Program (“AmeriCorp s”). The

Congressional Hunger Center (“CHC”), a nonprofit corporati on, received Am e riCorps

grants and sub-granted these funds to several

groups, including MACE. From 1996 to

2000, MACE re ceived $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 porti on of the grants

was used to pay all

or part of the salaries of

MACE employees th a t were ineligible for

AmeriCorps funding. Even the mayor of Metcalfe, Mississippi, a memb er of the Board of

Directors o f 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 documents that facilitated the illegal

payments.

B.

Buck was convicted of one count of misapplicatio n o f federal funds in violation of

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

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

The false statements resulted in the misapplication of $116,75 1 .67 in AmeriCorps funds.

Bu c k was sentenced to forty-one months’

imprisonment.

II.

A.

Buck challenges the admi ssion into evidence of a summary diagram that depicted the

connections between

her and the misapplied

paymen ts. 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.” I d . at

454-55 (cit a tions and quotati on marks omitted).

1 The MACE logo was placed near the center of

the summary, with fifteen lines drawn from the

logo to th e 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 “ R uby

Bu ck, 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 F ED

. R. E VID

. 1006 2 and argues the issue in terms of that rule

and related ca s elaw, no rule was cited by either side or the court during the arguments

over admissibilit y. The government argues the

case on appeal under rule 1006 and F ED

. R.

E VID

. 611. 3

B.

The summary diagram w as not admissible

under rule 611(a) or rule 1006:

Rule 1006 allows admission of summaries in lieu of having the voluminous

originals presented at trial. This use of

summaries in this m a nner should be

distinguished from charts and sum maries

used only for demonstrative purposes to

clarify or amplify argument based on

evidence that has already been admitted . . . . Although some Courts have considered such charts and summaries under

Rule 1006, the Rule is really not applicable becaus e pedagogical summaries are

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

611.

5 S TEPHEN A

. S ALTZBURG ET AL

., F EDERAL

R ULES OF E VIDENCE M ANUAL § 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

rul e 1006, to summarize documents or other

evidence too voluminous to present effectively

and effic i ently to the jury. 5 Rather, the diagram summarized evidence that had a lready

been presented. S ee United States v. Griffin

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

2 Rule 1006 provides:

The contents of volu m inous writings,

recordings, or photographs which can n ot

conveniently be examined in court may be

presented in the

form of a chart, summary,

or calculation. The originals, or duplicates,

s hall be made available for examination or

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

that they be produced in court.

3 Rule 611(a) provides:

T he court shall exercise reasonabl e

con tr ol over the mode and order of interrogating witnesses and presen t ing 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 con fusion about summaries occurs

where pedagogical dev ices, used as illustrative

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

to summarize or illustrateevidence such as documents.” 2 C H ARLES E. W AGNER

, F EDERAL

R ULES OF E VIDENCE C ASE L AW C OMMENTARY

, at

1006-5 (2002-2003 ed.)

5 See United States v. Meshack

, 225 F.3d 556,

581 (5th Cir. 2 000) (stating that summary charts

a dmitted under rule 1006, as contrasted with r ule

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.

1 998) (“Since the government did not off er the

charts into evidence an d the trial court did not

a dmit 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

t o t he jury, to assist in its understanding o f

t e stimony and documents that had been produced, but the diagram should not have been

admitted as an exhibit 6 or taken to the j ury

room

. 7 Moreover, “[w]here a chart or summary is introduced solely a s 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 S A LTZBURG

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 t estimony and

other evidence that had been properly admitted and therefore was al ready before the jury. 8

Pedagogical charts not admitted un der rul e

1006 may be presented to the jury (though not

admitted into evidence) under rule 611 if they

are consistent with the evidence and not mi s

leading. Pierce , 753 F.2d at 431.

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

from reliance on any assumptions, but rather

that the se assumptions be supported by evidence in the record.” 9 The summary witness

testified that Buck was the individual named 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 tha t Buck

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

checks were present during only part of t he

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 tha t went

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

inacc u rate, Buck’s complaint rests on the 6 Though the prose cutor did not invoke Rule

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

7 Uni ted 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, jury must be warned that

the chart is not evidence and may not go into jury

r oom, absent consent); Pierce v. Ramsey Winc h

Co.

, 753 F.2d 416, 431 (5 th 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 tha t summaries admitted under Rule

1 006 should go to the jury room but that other

visual aids should not, absent parties’ consent). 8 Because any error is h a r mless and hence not

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

sufficiently articulated for preservation on appeal.

See F ED

. R. E VI

D . 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) (consideri n g 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 implies that she was responsible for each transaction and that no one else was involved. Even

i f the jury could infer this from the summ ary,

B uck had ample opportunity to present evidence demonstrating the involvement of other

parties and had the chance to cross-examine

the summary witness concerni ng 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 h er sentence, Buck presents

two challenges to the decisi on to add a twolevel increase to her offense level for “abuse of

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

argues that fraud inherently includes the abuse

of trust element, and therefore it is inappropriate to apply the enhancem ent. She al so contends th at to be eligible for the enhancement,

a defendant must be in a position of trust with

respect to the victim of the crime 

### SS in this case

t he go vernment



### S S and 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

. U

nited States v. Scurlock , 52

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

finding is not clearly erroneous as long as the

findi ng is plausible in light of the record as a

whole.’” I

d

. (quoting United States v. Brown

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

A.

Buck argues that the abuse of trust enhancement is inapplicable 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 co mmission 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 .” I d

. (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

t he victim, rendering further

sentence enhancement for abuse of trust inappropriate.

Although this court has affirmed an abuse

of trust enhancement t o a sentence for fraud

under § 2F1.1, see., e.g., Scurlock

, 52 F.3d at

541, it has not addressed Buck’s specific 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

a ny prejudice. S ee United States v. Winn

, 948

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

United States v. Nort on , 867 F.2d 1354, 1363

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

defense conducted a thorough cross examination of

t he witness concerning the disputed matters, a n d

also had the opportunity to present its own version

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

Jennings

, 724 F.2d at 4 4 2; United States v.

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

11 Buck was sentenced under the 2000 v ersion

of the guidelines, because the district cou rt 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 t he guidelines, given that

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

(2000), has been deleted and consolida t ed 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 of fense level

for embezzlement. In so holding, we found

support in the reasoning of three sister circuits

distinguishing between breach of trust, which

is implicit in embezzlement, and abuse of trust,

which requires more egregious conduct. 12 We

should view fr aud similarly, distinguishing

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

discretion necess ary t o trigger an abuse of

trust enhancement.

Bu ck argues that other circuits have proscribed application of the e nhancement for

fraud convictions. She principally cites U nited

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 em ployee of a NASA contractor, failed to

notify NASA that its interest rate on some financed equipment had gone down since its last submission, and later certified that its submissions were “accurate, complete, and current,”

resulting in a cost estimate that was incorrect

by $2.1 millio n. I

d

. at 454-55. The court held

that “Broders o n’s fraudulent conduct was

signing the certificate stating that Grumman

had complied with TINA and FAR. Any abuse

o f 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 limit ed to its facts, an d any breach of trust

arose only from the submission of a false statement, which was minimally necessary to commit fraud. After B roderson

, the Second Circuit, in affir ming an abuse of trust enhancement to a sentence for mail fraud, held:

An abuse of trust 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

vict im’s reliance on a misrepresentation.

Every fraud involves these elements. Instead, a court must determine the extent

to which the defendant’s po sition provides the fr e edom to commit a difficul t-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.

Christianse n, 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

, 9 33 F.2d 1219, 1225 (3d Cir. 1991)). In C hristiansen

, the court noted that the commentary to the

guidelines specificall y 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 ca se relied on by Buck, U nited

States v. Garrison

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

1998), also fails to sup port her argument that the

abuse of trust enhancement is unavailable for fraud

(continued...)7

and uphold the ap plication of the abuse of

trust enhancement t o a fraud sentence where

the defendant employed discre ti onary authority

g iven by her position in a manner that fac ilitated 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 vict im, because her dealings with t he government passed through

CHC, and her duties were limit ed to following

government regulations. We have never held,

however, nor do the guidelines ex plicitly require, that the determination whether a defendant occupied a

po sition of trust must be assessed from the perspective of the vict im. 15 Several other circuits have reac hed this conclusion. 16 We conclude that Buck did abuse a

position of tru st wi th 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 maint a ined significant direct ties to

the government in directing t he AmeriCorps

pr o gram. The grant was originally awarded

directly by AmeriCorps in 1996, while Buck

was interim CEO and President of MACE.

Though MACE’s submissions were r eviewed

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

submitted by MACE was forwarded to AmeriCorps; CHC often

served as a passthrough,

with AmeriCorps reviewing the forms to det ermine eligibility. AmeriCorps relied on the

accuracy of these submissions, because neither

it nor CHC could easily verify the validit y 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. S ee United States v.

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

14 This is consistent with our approach in Fisher

and with the gu ida nce of the commentary to

§ 3B 1.3, which states that a position of public or

private trust is “characterized by professional or

managerial d iscretion” 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 U nited

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 c onsidered

(continued...) 15 (...continued)

whether a physician who ac ts in concert

with his patients to conduct a fraudulent

billing s c heme 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. 3 d 472, 481 (7th Cir. 1997);

United States v. Hill

, 915 F.2d 502, 506 n.3 (9th

Cir. 1990); United States v. Tramme l l

, 133 F.3d

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

Buck again points to Garrison

, in which the

c ourt did not find a position of trust, in part

because the defendant

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

Medicare, as required for application of

the abuse-of-trust enhancement. As her

counsel explained at sentencing, Garrison lacked the discretion and abilit y to

conceal the false cost reports submitted

for Medicare reimburseme nt and relied

on others to accomplish this deception.

Gar rison , 113 F.3d at 841. The court also

cr edited Garrison’s contention that her false

statements were made in reliance on financial

experts, i d . 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 abilit y,

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 leverag e t o gain the complicity of

others. Notwithstanding the presence of CHC

a s intermediary, there is ample support in th e

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

Alternatively, there is little doubt that Buck

occupied a position of trust with respect t o

CHC. In U

nited States v. Sid

hu , 130 F.3d

644, 655-56 (5th Cir. 19 97), 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 insur a nce

companies by billing patients for services that

were not performed or were not performed

appropriately. I

d

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

our deter mination, for purposes of another

sentencing enhancement, that although the

govern ment and insurers may have been the

“primary vict ims of his criminal conduct,” the

patients also were vict ims of the fraud. I

d

. at 655.

We interpret Sidhu to allow the enhancement wh e never any victim of a criminal

scheme placed t he defendant in a position of

trus t t hat significantly facilitated the crime. 1 7

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

Buck’s fraud, as it was unable to distribute the

17 In United States v. Bhagavan

, 116 F.3d 189,

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

that the § 3B1.3 enhancement can a pply if any

identifiable victim

of the overall scheme to evade

taxes put the d efendant in a position of trust that

facilit a ted the commission or concealment of the

offense. Similarly, in U

nited States v. Cianci

, 154

F.3d 106, 110-13 (3d Cir. 1998), the cou rt 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 ha d not been charged for

any crime in relation to his employer, the abuse of

trust could be considered as “relevant co nduct”

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 st ructuring of the financial tran sactions to avoid reporting requirements.

This was allowed de spite the fact that the jury

fa iled 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 t o deserving sub-grantees

that supported its mission. Buck’s position of

trust with respect to CHC suffices to support

the enhancement.

Whether viewed in terms of the government

or CHC, the record supports the f inding that

Buck abused her positionof 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 position relative to

all people in a position to commit the offense,

as a result of [her ] job.” F isher

, 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

unde r t he grants and to convince others to

falsify numerous docume nts to defraud the

government. Buck was distinguished from her

employees by the broad discretion, autonomy,

and abilit y to conceal the falseness of her

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

her responsibility to certifying each employee’s

validit y; and her status as the applicant for the

grant. The dist rict court properly enhanced

Buck’s sentence for a busing a position of

trust. 18

IV.

Though Buck was convicted of misapplication of $116,751.67 in AmeriCorps funds, evidence of a similar but separate incident, inv o lving misapplication of approximately

$88,000 of Department of Labor Welfare-ToWork (“DLWTW ”) grant funds, was introduced pursuant to F ED

. R. E VID

. 404(b). 19 The

district court added this $88,000 when determining the amount of the lo ss fo r sentencing

purposes u nder § 2F1.1(b)(1). Buck argues

that this conduct was insufficient ly related to

the fraud to be considered in sentencing.

“The district court’s determination of what

constitutes relevant conduct for sentenc ing

purposes is a factual finding.” U nited States v.

Nev e ls

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

Th is finding must be supported by a preponderance of the evi dence and is reviewed for

clear error. I

d

. For fraud, the guidelines provide a broad r each in including relevant conduct. 20 “All acts and o missions 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 o r plan as the offense of conviction,”

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

two or more offense s to consti tute part of a

common sch eme o r plan, they must be substantially connected to each other by a t least

one common factor

, such as common victims,

18 T he 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

dis trict 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) allows the admission of evidence

o f 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

, 4 7 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

offense of convicti on in determining the defendant’s

guideline range.”).10

c o mmon accomplices, common purpose, or

simi lar m odus operandi .” § 1B1.3, cmt.

n.9(A) (emphasis added).

Offenses that do not qualify as part

of a common scheme or plan may nonetheless qua lify 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

ser ies o f 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 similarit y of the offenses, the regularity (repetitions) of the

offenses, and t he 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 mat t er that Buck was never

charged with the misapplication of DLWTW

grant funds. The “Background” portion of

§ 1B1.3 specifically advises that

the ap p licabilit

y of subsection (a)(2)

does not depend upon whether mult iple

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

t hey 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 Americo r ps frauds, Buck used MACE to defraud the government out of social services fun ds; wi th

both, she certified that she would abide or had

abided by the various require ments of the

p ro grams. Buck used the funds acquired by

both frauds to pay for numerous activities relating to the operati on of

MACE, rather than

for the limit

ed purposes for which the g rants

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 t he mayor of Metcalfe under the AmeriCorps grant should have been d educted from

the loss amount, because Allen’s involvement

in several community service proj e cts “went

toward the ultimate goals of the progra m.”

We review the inclusion of these funds for

clear error. U

nited 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. S ee 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

co urt 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, inc luding her lack of pecuniary gain from the

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

public service work. We have jurisdict io n to

review the district c ourt’s refusal to grant a

downward departure from the Guidelines only

if the refusal was ba s ed on an error of law.

United States v. Pal mer , 122 F.3d 215, 222

(5th Cir. 1997).

Thus, we have jurisdiction if a district

court’s refusal

to depart downward i s

premised upon the court’s mistaken conclusion 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 dep art 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

whether the 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 c ourt 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 con s idered every one

o f Buck’s points but reluctantly decided they

did not rise to the level necessary to justify a

dep arture. 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 exampl e, with respect to Buck’s contention that a downward departure was appropriate because she did not experience pecuniary gain and therefore the lo ss calculation

“overstates the seriousness of the particular

defendant’s conduct,” the cour t reviewed Walters

, in which we upheld a six-m o nth 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.” W

alters

, 87 F.3d at 672. The victim,

a Louisiana parish, had been unaware of illegal

fees incl uded in its insurance payments, but

ultimately received 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

vo lunteers 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 offens e has not been overstated by either the sentencing guideli nes or

the presentence investigation report.”

The district court made similar dete r minations in we ighing each of Buck’s arguments

for a downward departure. Because the court

understood its author it y 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 co nviction

and sentence on all issues except the district

court’s denial of a downward departure under

§ 5K2.0, as to whi ch 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.