*This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata, and collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may be cited under the terms

and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 22 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JACK WESLEY CHAMBLEE,

Defendant-Appellant.

No. 97-5144

(D.C. No. 97-CR-32-K)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal.

See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

Defendant-appellant, Jack Wesley Chamblee, was convicted on a plea of guilty
1

In calculating Chamblee’s sentence under the Guidelines, and pursuant to § 2X1.1(a),

the judge below began with a base offense level of six under § 2F1.1(a). Presentence Report

(PSR) at ¶ 23. Six levels were added under § 2F1.1(b)(1)(G) because the judge found that

the loss exceeded $70,000, but was less than $120,000. Id. at ¶ 24; Vol. III at 6. The judge

then added four levels under § 3B1.1(a) based on his finding that Chamblee was an organizer

or leader of the conspiracy. Vol. III at 8. This total offense level of 16 was then reduced by

three levels for acceptance of responsibility under § 3E1.1, id., and one level for substantial

assistance under § 5K1.1. Id. at 9. The resulting total offense level is 12, and, combined

with a criminal history category of one, the possible term of imprisonment under the

Guidelines ranged from 10 to 16 months. 

We acknowledge the inconsistent statement contained in the written judgment’s

Statement of Reasons, which indicates that the total offense level is 13. Vol. I at Tab 46.

However, the written Statement of Reasons fails to consider the one level reduction for

substantial assistance which the judge applied in his oral pronouncement of sentence. As we

have stated, the oral sentence controls over the written judgment when the two conflict.

United States v. Villano, 816 F.2d 1448, 1450 (10th Cir. 1987).

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entered April 15, 1997, to a one count indictment charging conspiracy to make, utter, and

possess counterfeit and forged securities. 18 U.S.C. § 371; 18 U.S.C. § 513(a). Chamblee

was sentenced on July 14, 1997, to thirteen months’ imprisonment, three years of supervised

release, and he was ordered to make restitution totaling $13,350.96 to the several victims.

Vol. I Tab 46.1 Chamblee was permitted to remain free on bond following sentencing and

ordered to report to prison on August 15, 1997. Id.; Vol. III at 14. 

Chamblee timely filed a notice of appeal on July 21, 1997, and he presents the

following issues: (1) whether the district judge erred in calculating the amount of loss under

the Guidelines, and (2) whether the judge erred in adding six levels to the base offense level.

Corrected Brief for Defendant-Appellant at 2, 10. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.
2The PSR’s representation of the intended loss is confusing. In paragraph 19 of the

PSR, it is alleged that “During the conspiracy, counterfeit checks totaling $13,350.96 were

successfully cashed or used for the purchase of goods and services. Completed checks

possessed by members of the conspiracy total $66,070.65, resulting in a combined loss and

attempted loss totaling $80,330.61.” Adding $13,350.96 and $66,070.65 totals $79,421.61,

not $80,330.61. 

However, other parts of the PSR indicate that the uncashed counterfeit checks found

in the possession of the coconspirators total $66,979.65. See, PSR paragraphs 11-13, 16-17.

And, on page 3 of the Addendum to the PSR, it is represented that $66,979.65 in counterfeit

checks were uncashed. Moreover, the judge below stated that the remaining uncashed

counterfeit checks totaled “almost $67,000,” Vol. III at 6, and Chamblee states in his brief

that “additional completed counterfeit checks in the amount of $66,979.65 were included . . .

in determining the loss amount . . . .” Aplt. Opening Brief at 3. We therefore find ample

evidence that the completed, uncashed counterfeit checks total $66,979.65.

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I

The indictment to which Chamblee pled guilty charged that he and others conspired

to make, utter, and possess counterfeit and forged payroll and personal checks. Vol. I Tab 1.

With the aid of a computer, Chamblee managed to manufacture counterfeit checks in the

likeness of legitimate checks issued by several businesses in the Tulsa area. Presentence

Report (PSR) at ¶ 8-9. The counterfeit checks were then cashed or used to purchase goods

and services by Chamblee and the other coconspirators. Id. During the conspiracy, the

coconspirators successfully cashed or used counterfeit checks totaling $13,350.96. Id. at

¶ 19. The PSR further states that members of the conspiracy were found to be in possession

of an additional $66,070.65 in completed, uncashed checks,2 and that the combined loss and

attempted loss resulting from the conspiracy totaled $80,330.61. Id. After starting from a

base offense level of six for offenses involving altered or counterfeit instruments, the PSR
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used the full intended loss in recommending a six level increase under Guidelines

§ 2F1.1(b)(1)(G), which provides for such an increase when the total loss exceeds $70,000,

up to $120,000. PSR at ¶ 24. The district judge adopted this sentencing recommendation,

reasoning that since the intended loss can be determined, it will be used in the sentencing

calculation. Vol. III at 6.

Chamblee argued below, and he now argues on appeal, that only the actual loss and

the “specifically intended loss” should be used in calculating his sentence, rather than the loss

associated with those completed counterfeit checks that the conspirators neither used nor

attempted to use. Chamblee agrees that the actual loss totaled $13,350.96, and that this

figure is properly included in his sentencing calculation. Aplt. Opening Brief at 3, 10.

However, with respect to the use of intended loss, he maintains that only those counterfeit

checks which the conspirators actually attempted to cash or use should be counted in his

sentencing calculation. 

The PSR reveals that conspirator Melissa Cooke was arrested while attempting to cash

a counterfeit check in the amount of $298.05, Chamblee was arrested while attempting to

pass a counterfeit check in the amount of $335.88, and conspirator Donald Coltharp was

arrested for attempting to cash a counterfeit check in the amount of $250.00. PSR at ¶ 11,

13, 17. These checks total $883.93. The conspirators neither used nor attempted to use the

remaining counterfeit checks totaling $66,095.72. Hence, Chamblee argues that, under a

proper interpretation of the Guidelines, the full intended loss should only include the
3Commentary contained in the Guidelines Manual, which interprets or explains a

guideline, is authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or is a plainly erroneous reading of, that guideline. Stinson v. United

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$13,350.96 in actual loss plus $883.93 in the “specifically intended loss,” or $14,234.89,

which represents the counterfeit checks which the conspirators actually used or attempted to

use. He contends that it was error to include in the sentencing calculation the completed

counterfeit checks which were merely possessed by members of the conspiracy. 

II

We “review a district court’s determination of a U.S.S.G. § 2F1.1 loss under the

clearly erroneous standard, but the factors a district court properly may consider are reviewed

de novo.” United States v. Yarnell, 129 F.3d 1127, 1136 (10th Cir. 1997) (quotations and

citations omitted). Section 2F1.1(a) mandates a base offense level of six for crimes involving

the forgery or counterfeiting of instruments of the kind involved in this case. Subsection

(b)(1) then provides an incremental scale when the loss exceeds $2,000. Chamblee contends

that using only the actual loss and “specifically intended loss,” totaling $14,234.89, places

him within § 2F1.1(b)(1)(D), which results in a three level increase. The government,

however, argues that the full intended loss of $80,330.61 places him within subsection

(b)(1)(G), resulting in a six level increase. Hence, the precise issue is whether the full

intended loss properly includes those amounts associated with the counterfeit checks that the

conspirators neither used nor attempted to use. 

Comment 7 to § 2F1.1 provides guidance on this issue.3

 The comment states that “if
States, 508 U.S. 36, 44-45 (1993). See also United States v. Smith, 133 F.3d 737, 745 (10th

Cir. 1997) (“We . . . follow the commentary in the guidelines that interprets or explains how

a guideline is to be applied.”).

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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.” Relying on this comment, the district judge

dismissed Chamblee’s contention that the intended loss was too speculative, and he

concluded that the entire amount of the completed, uncashed checks, along with the amount

of the checks which the conspirators actually cashed or attempted to cash, should be included

in the full intended loss because the intended loss can be readily determined and the

conspirators possessed the ability to cash the unused checks had they not been apprehended.

Vol. III at 6. This finding is not clearly erroneous.

The district court’s calculation of loss need only be supported by a preponderance of

the evidence, United States v. Hargus, 128 F.3d 1358, 1364-65 (10th Cir. 1997), cert. denied,

118 S. Ct. 1526 (1998), but “the record must support the conclusion that the defendant

intended the loss or that a loss in that amount was probable.” United States v. Jaramillo, 98

F.3d 521, 525 (10th Cir.), cert. denied, 117 S. Ct. 499 (1996). Further, Comment 8 to §

2F1.1 states that the loss need not be determined with precision but that the court need only

make a reasonable estimate of the loss, based on the available information. 

Here, Chamblee was involved in a conspiracy to manufacture and pass counterfeit

checks. The members of the conspiracy, as well as Chamblee himself, passed and attempted

to pass the counterfeit checks prior to being apprehended. There is absolutely no indication
4The government also points to the Addendum to the PSR, in which the Probation

Office deleted from the loss calculation those checks that were of poor quality and would

have been non-negotiable. Addendum to PSR at 2. Hence, it is apparent that Chamblee was

only held responsible for those completed, uncashed checks that the conspirators might have

successfully cashed, and would have likely attempted to cash, had they not been

apprehended.

Chamblee suggests in pages 4 through 6 of his corrected brief that the government

failed to prove intended loss with reasonable certainty, as required by §§ 2X1.1(a) and 2F1.1.

This argument was addressed in the addendum to the PSR. As support for his argument to

the district court, Chamblee cited and relied upon United States v. Galbraith, 20 F.3d 1054,

1059 (10th Cir. 1994), which held that “the loss defendant subjectively intended to cause is

not controlling if he was incapable of inflicting that loss.” The addendum to the PSR,

however, points out that contrary to Galbraith, Chamblee and the other conspirators actually

inflicted a loss of $13,350.96 and also possessed the ability to cash the remaining $66,979.65.

Addendum to PSR at 3-4. The district judge adopted that reasoning and rejected Chamblee’s

argument. Vol. III at 6. We agree - Chamblee and his coconspirators demonstrated their

capability of inflicting loss by successfully cashing several counterfeit checks. It was only

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from the record that, absent their apprehension, the conspirators would have destroyed the

completed, uncashed checks or that they would have abandoned their unlawful endeavor.

Moreover, considering the fact that the conspirators were “extensively involved in the use

of methamphetamine” and that the “[p]roceeds from the cashing of the counterfeit checks

were used primarily to support their drug habit,” PSR at ¶ 8, it is probable that the remaining

uncashed checks would have been used to this end. The government also points out that

Chamblee had a vested interest in seeing all counterfeit checks cashed since he, as the

conspiracy’s organizer and the manufacturer of the counterfeit checks, received a percentage

of the proceeds from most of the checks which the other conspirators cashed. PSR at ¶ 8-10.

Furthermore, the precise amount of intended loss is plain from the face of the

counterfeit checks.4 As such, the amount of the full intended loss was not too speculative to
their apprehension that averted the actual infliction of further loss.

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be determined. Hence, the record provides ample support for the conclusion that it is

probable that the conspirators would have used or attempted to use all of the completed

counterfeit checks, with the resulting intended loss totaling $80,330.61. Accordingly, the

district court did not err when it increased Chamblee’s base offense level by six levels under

§ 2F1.1(b)(1)(G).

AFFIRMED.

Entered for the Court

William J. Holloway, Jr.

Circuit Judge