* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 23 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MICHAEL D. WHITENER, Defendant-Appellant. No. 03-3022 (D. Kansas) (D. Ct. No. 02-CR-10114-MLB)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Mr. Michael D. Whitener pled guilty to Possession o f Counterfeit Obligations or Securities in violation of 18 U.S.C. § 472. He was sentenced, inter-2-

alia, to twelve months and one day imprisonment. He objects to an upward adjustment in his base offense level for producing counterfeit bills. United States Sentencing Commission, Guidelines Manual , § 2B5.1(b)(2)(A) (Nov. 2002). Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm. Mr. Whitener and a coterie of associates printed co unterfeit twenty dollar ($20.00) federal reserve notes and a counterfeit on e hundred dollar ($100.00) federal reserve note, using Mr. Whitener’s printer/ scanner. Six of the counterfeit notes were introduced into evidence at the sentenci ng hearing. Only one had been rejected when tendered to a merchant. The others w ere accepted. Three of the notes were identified as counterfeit only after dep osit into the banking system. A Secret Service agent testified at sentencing that a lthough the notes were of poor counterfeit quality (in part because they lacked ev en a pretense of security features common to genuine notes), they were typica l of eighty-five percent of counterfeit notes passed successfully nationwide. He testified notes of far poorer quality had been successfully passed in other cases

. The base offense level for Mr. Whitener’s offense i s nine. USSG § 2B5.1(a). The district court adjusted upward becau se Mr. Whitener “manufactured or produced [a] counterfeit obligatio n or security of the United States, or possessed or had custody of or control o ver a counterfeiting device or materials used for counterfeiting . . . .” USSG § 2B5.1(b)(2)(A). That1 Without the upward adjustment, Mr. Whitener claims his total offense

level would have been seven, calling for a guidelin e range of zero to six months imprisonment. -3- circumstance requires a two-level upward adjustment , but to a level no less than fifteen. USSG § 2B5.1(b)(3). Finally, the court g ranted a two-level downward adjustment for acceptance of responsibility pursuant to USSG § 3E1.1(a), resulting in a total offense level of thirteen. Wi th a Criminal History Category I, Mr. Whitener was subject to a guideline range of tw elve to eighteen months imprisonment. 1 Mr. Whitener claims the district court erred in app lying the § 2B5.1(b)(2)(A) upward adjustment because the notes he produced were obvious counterfeits. Commentary to § 2B5.1(b)(2)(A) provi des it “does not apply to persons who produce items that are so obviously cou nterfeit that they are unlikely to be accepted even if subjected to only minimal sc rutiny.” USSG § 2B5.1, comment. (n.4). The district court reasoned the ex ception in the commentary did not apply because, aside from the one note rejected by a merchant, the counterfeit notes “to one degree or another were accepted by th e persons to whom they were tendered.” (R. Vol. III at 23.) The court also in dicated, “I think the logical interpretation of [the exception] is that the bills have to be so bad that they don’t get accepted by anybody.” (Id. at 23-24.) We review de novo interpretation and application of the guidelines. United-4-

States v. Tisdale, 248 F.3d 964, 975 (10th Cir. 2001), cert. denied, 534 U.S. 1153 (2002). However, we “give due deference to the dis trict court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e); United States v. Jones, 332 F.3d 1294, 1299 (10th Cir. 2003), cert. denied, 2003 WL 22172768 (U.S. Oct. 20, 2003) (No. 03-6431). We accept the district court’ s findings of fact unless clearly

erroneous. Id. We construe Mr. Whitener’s challenge as one going to the district court’s interpretation of the guidelines, specifica lly its interpretation of Application Note 4 included in the Commentary to § 2B5.1. Therefore, we review de novo. Mr. Whitener argues the exception in Application No te 4 applies in all instances where a note subjected to minimal scrutiny is discovered to be counterfeit, even if it was successfully passed. H e claims the merchants who accepted five of the notes failed to apply even min imal scrutiny, but when later subjected to minimal scrutiny by knowledgeable pers ons, the notes were quickly discovered to be counterfeit. Therefore, he reason s, the exception in Application Note 4 applies. Quite to the contrary, we think common perception p rovides a workable and reliable yardstick. We presume reasonable people, acting with enlightened selfinterest, apply minimal scrutiny before accepting a ny currency. Minimal scrutiny does not suggest scientific accuracy, studied refle ction or the facile judgment of2 Gaitherwas decided under the precursor to Application Not e 4, which

read: “[S]ubsection (b)(2) does not apply to perso ns who merely photocopy notes or otherwise produce items that are so obviously co unterfeit that they are unlikely to be accepted even if subjected to only minimal sc rutiny.” USSG § 2B5.1, comment. (n.3) (Nov. 1991). -5- one familiar with the security features of modern c urrency. It reflects, instead, the manner of the marketplace where ready acceptanc e of legal tender moves the machinery of commerce. That practical test was cor rectly applied by the district
court. When counterfeit notes, even unsophisticated ones, are successfully passed on several occasions, as here, the exception contai ned in Application Note 4 does not apply. United States v. Gaither, 1 F.3d 1040, 1044 (10th Cir. 1993). 2We agree with the Seventh Circuit’s analysis of the ex ception provided in Application Note 4: “[I]f [notes] are obviously counterfeit, they are unlikely to be accepted and so the harm done by the counterfeiter is less, and moreover, the counterfeiter is more likely to be caught and so the punishment n eed not be so severe in order to maintain the proper level of deterrence.” United States v. Barnes, 188 F.3d 893, 894 (7th Cir. 1999). We detect no error in the district court’s interpre tation of the guidelines.-6-

Accordingly, we AFFIRM

. Entered by the Court:

TERRENCE L. O’BRIEN United States Circuit Judge