In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2500

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MELODIE KIPTA,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 CR 638--Milton I. Shadur, Judge.

Argued December 7, 1999--Decided May 18, 2000

 Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER,

Circuit Judges.

 HARLINGTON WOOD, JR., Circuit Judge. Defendantappellant Melodie Kipta pled guilty to one count

of bank fraud in violation of 18 U.S.C. sec.

1344. She was sentenced to 27 months

imprisonment. On appeal, Kipta challenges the

district court’s determination of her sentence,

arguing that the district court erred in

calculating the amount of loss attributable to

her fraudulent conduct.

I. BACKGROUND

 In 1996, Kipta maintained two bank accounts,

one at the Loyola University Employees’ Credit

Union ("Loyola") and a second joint account with

her husband at the First National Bank of Chicago

("First Chicago"). On July 19, 1996, Kipta wrote

a check for $46,355.46 on her Loyola account and

deposited it into the First Chicago account. On

July 25, Kipta wrote a check for $20,000.00 on

the Loyola account and deposited it into the

First Chicago account. Because she did not have

funds in the Loyola account to cover these

checks, Kipta arranged for a fraudulent letter to

be faxed to First Chicago on July 29. The letter,

which was printed on Loyola Credit Union

letterhead, stated that Kipta was a customer in

good standing at the credit union, that she had

$800,000.00 in funds available, and that First

Chicago should have no concerns regarding the
deposits by Kipta or any subsequent withdrawals. 

 On July 30, 1996, Kipta wrote a check for

$60,000.00 on her Loyola account and deposited it

into the First Chicago account. Finally, on

August 15, Kipta deposited a check written on her

Loyola account for $45,000.00 into the First

Chicago account and, that same day, attempted to

obtain a First Chicago cashier’s check in that

amount. At no time during this period did Kipta

have more than $600.00 in her Loyola account.

Nevertheless, between July 17 and August 6, 1996,

Kipta and her husband wrote eight checks on the

First Chicago account for withdrawals totaling

$39,500.00. First Chicago honored these checks

based on Kipta’s fraudulent deposits. The total

actual loss to First Chicago as a result of

Kipta’s scheme was $38,219.92. 

 On September 10, 1997, based on the facts

outlined above, Kipta was indicted by a grand

jury on five counts of bank fraud in violation of

18 U.S.C. sec. 1344. On January 30, 1998, Kipta

pled guilty pursuant to a written plea agreement

to one count of bank fraud. On July 13, 1998,

Kipta appeared before Judge Shadur on a

superseding written plea agreement, entering a

plea of guilty to one count of bank fraud and

admitting to additional offenses as stipulated

conduct. The stipulated conduct involved a

scheme, perpetrated during September 1997, in

which Kipta defrauded one of her employers by

stealing and forging checks. 

 Kipta was sentenced on July 7, 1999. At

sentencing, Kipta challenged the probation

officer’s amount of loss determination, arguing

that she should be held liable only for the

actual loss to First Chicago, $38,219.92, and not

for the total amount deposited into the First

Chicago account, a sum of $171,355.46. The

district court found that Kipta’s case did not

parallel a check-kiting situation in which the

total amount of deposits is never at risk due to

the necessity of maintaining the float. The court

adopted the probation officer’s recommendation

and based Kipta’s amount of loss on a total

intended loss to First Chicago of $171,355.46.

Given this finding, the district court increased

Kipta’s offense level by seven levels under sec.

2F1.1(b) (1)(H) of the United States Sentencing

Guidelines (the "Guidelines" or "U.S.S.G.")/1

and assigned Kipta a total offense level of 17.

Kipta scored a criminal history category II,

resulting in a Guidelines range of 27 to 33

months imprisonment. The district court sentenced

Kipta to 27 months imprisonment followed by a

five-year term of supervised release and ordered

her to pay $38,219.92 in restitution to First

Chicago and a $100.00 special assessment. Kipta
appeals.

II. ANALYSIS

 Kipta argues that the district court erred in

holding her liable for an amount of loss greater

than the actual loss suffered by First Chicago.

Under U.S.S.G. sec. 2F1.1(b)(1), a defendant’s

base offense level in a fraud case is enhanced

based on the amount of loss involved. While the

district court’s assessment of the amount of loss

is a factual finding which we review under a

clearly erroneous standard, the meaning of loss

under sec. 2F1.1(b)(1) is a legal determination

which we review de novo. United States v.

Saunders, 129 F.3d 925, 929 (7th Cir. 1997). 

 Kipta asserts that the district court

erroneously analyzed her conduct as a fraudulent

loan offense rather than as a check-kiting

scheme. Kipta contends that she should be held

liable only for the $38,219.92 actual loss to

First Chicago and not for the remaining funds

which, while fraudulently deposited, were never

withdrawn. However, as we have noted, "in all

fraud cases, Application Note 7 [to sec. 2F1.1]

requires district courts to increase a

defendant’s offense level based on the greater

value of either the actual loss suffered by the

victims of the fraud or the intended . . . loss

which the defendant attempted to inflict on the

victims." Saunders, 129 F.3d at 930; see also

U.S.S.G. sec. 2F1.1, comment. (n.7) ("[I]f an

intended loss that the defendant was attempting

to inflict can be determined, this figure will be

used if it is greater than the actual loss.").

Kipta’s actions are analogous to the conduct we

examined in United States v. Strozier, 981 F.2d

281 (7th Cir. 1992). As was the case in Strozier,

Kipta’s scheme was not based on a float in which

checks are circulated back and forth between two

accounts, a situation which limits the amount

available for withdrawal and the corresponding

risk of loss. Instead, Kipta used the fraudulent

letter and checks she knew would bounce to

inflate the balance only in the First Chicago

account and then caused checks to be drawn

against this inflated balance. The district court

did not err in basing Kipta’s amount of loss

calculation on the value of the intended, rather

than the actual, loss. 

 Having determined that the district court’s

sentencing calculations were based on a proper

interpretation of sec. 2F1.1(b)(1), we turn to

the district court’s assessment of the amount of

the intended loss. We find that the district

court’s determination that Kipta intended to

defraud First Chicago out of the entire

$171,355.46 was not clearly erroneous. The
fraudulent letter that Kipta used to back her

deposits stated that she had reserves of

$800,000.00, an amount more than sufficient to

cover the deposits into the First Chicago

account. There was nothing to limit the amount of

funds available for withdrawal, and the

corresponding potential for loss by First

Chicago, to less than the total amount deposited

into the account. See United States v. Yusufu, 63

F.3d 505, 513 (7th Cir. 1995) (holding that the

amount that a defendant made available to himself

by way of fraudulent deposits demonstrated the

amount of loss intended); see also United States

v. Bonanno, 146 F.3d 502, 509-10 (7th Cir. 1998)

("[T]he relevant inquiry is not ’How much would

the defendants probably have gotten away with?’,

but, rather, ’How many dollars did the culprits’

scheme put at risk?’."). Furthermore, it is

undisputed that Kipta unsuccessfully attempted to

negotiate her final deposit of $45,000.00 into a

cashier’s check. These facts support the district

court’s conclusion that Kipta intended to

withdraw the entire amount deposited. Kipta’s

claim of error fails.

III. CONCLUSION

 Kipta’s sentence is affirmed.

/1 Section 2F1.1(b)(1)(H) provides for a seven-level

enhancement in offense level for cases in which

the amount of loss is greater than $120,000.00

but less than $200,000.00.