UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5783

VANCE EVANS, a/k/a Nancy Evans,

a/k/a Georgia Johnson,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5784

WAYNE BULLARD, a/k/a Michael

Harrod, a/k/a Jeffrey L. Cosby,

a/k/a Ivan Jasper,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVIN MICHAEL WELLS, a/k/a

No. 95-5820

Charles Rainey, a/k/a Bernard

Taylor, a/k/a Bernard Tyler, a/k/a

Christopher Westbrooks, a/k/a

Zermee Pryor, a/k/a McCullen Pitts,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Alexander Williams, Jr., District Judge.

(CR-95-46-AW)
Argued: September 24, 1996

Decided: November 27, 1996

Before WILKINSON, Chief Judge, and WILKINS and

WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded for resentencing by

unpublished per curiam opinion.

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COUNSEL

ARGUED: Clarke Francis Ahlers, Columbia, Maryland, for Appellant Evans; James Dennis Murphy, Jr., Annapolis, Maryland, for

Appellant Bullard; Timothy Joseph Sullivan, SULLIVAN & SULLIVAN, College Park, Maryland, for Appellant Wells. Maury S. Epner,

Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

ON BRIEF: Lynne A. Battaglia, United States Attorney, Sandra Wilkinson, Assistant United States Attorney, Greenbelt, Maryland, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Vance Evans, Wayne Bullard, and Kevin Michael Wells were convicted by a jury of conspiring to commit bank fraud, see 18 U.S.C.A.

§ 371 (West 1966 & Supp. 1996); Bullard and Wells were also convicted of bank fraud, see 18 U.S.C.A. § 1344 (West Supp. 1996); 18

 2
U.S.C.A. § 2 (West 1969). Evans and Bullard appeal their convictions. Evans claims that the Government's conduct at trial denied him

effective assistance of counsel because prosecutors improperly

referred to "other crimes" evidence during closing argument, and

"personally attacked" defense counsel during rebuttal. After careful

review of the record, we conclude that this contention is without merit

and does not warrant discussion. See United States v. Adam, 70 F.3d

776, 780-81 (4th Cir. 1995) (holding that prosecutor's remarks were

not sufficient to deprive Appellant of a fair trial) (citing United States

v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983), cert. denied,

Wissler v. United States, 466 U.S. 972 (1984)); Lindgren v. Lane, 925

F.2d 198, 204-05 (7th Cir.) (same), cert. denied , 502 U.S. 831 (1991);

United States v. Livingston, 816 F.2d 184, 195-96 (5th Cir. 1987)

(same). Bullard claims that the district court erred in failing to suppress physical evidence and oral and written statements made by him.

Because Bullard's suppression arguments were rejected in United

States v. Bullard, No. 95-5785, Slip Op. (4th Cir. Nov. 27, 1996), we

will not consider them here.

In addition, Evans, Bullard, and Wells appeal their sentences, arguing that the district court erroneously computed the fraud losses attributable to them, thereby improperly increasing their offense levels

under the Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual, §§ 1B1.3 (Relevant Conduct), 2F1.1

(Fraud and Deceit) (Nov. 1995). Wells also argues that the district

court erroneously increased his base offense level two points for

obstruction of justice. See U.S.S.G. § 3C1.1. We affirm Evans' and

Bullard's convictions and remand to the district court for resentencing

of each Appellant.

I.

Evans, Bullard, and Wells, along with several others, conspired to

defraud banks and merchants in the Washington, D.C. area. They

acquired identification documents in alias names, 1 opened fraudulent

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1 Evans, a transvestite, used the aliases "Nancy Nelson" and "Georgia

Johnson"; Bullard used the aliases "Michael Harrod," "Jeffrey Cosby,"

and "Ivan Jasper"; and Wells used the aliases"Bernard Taylor," "Robert

Chalmers," and "Charles Rainey."

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checking accounts in the alias names, "reordered" checks under the

alias names for legitimate bank accounts held by innocent persons,

and wrote fraudulent checks to local merchants and banks. To get

cash, Appellants artificially inflated the balance of alias and legitimate accounts by stealing checks written from one uninvolved party

to another and depositing these "booster" checks into the accounts.

Then Appellants cashed checks from the accounts or used automated

teller machine (ATM) cards to withdraw the fraudulently "boosted"

sums in cash before the fraud could be discovered.

Agents of the United States Secret Service executed searches of

Wells' and Bullard's apartments pursuant to warrants authorizing

searches for evidence relating to federal bank fraud offenses. Law

enforcement officers investigating the case also stopped and, after

obtaining consent, searched an automobile in which Evans was a passenger. During these searches, agents found and seized fraudulent

photograph-bearing identification documents, stolen checks, checks in

alias names, and retail merchant receipts demonstrating purchases in

alias names with fraudulent checks. During the search of Wells'

apartment, agents found and seized three computers; agents had

observed Wells take one of these computers a week earlier from the

residence of Raheim Knox, a coconspirator. The computers seized

from Wells' apartment contained information relating to certain of his

own known aliases, and also to aliases employed by several of his

coconspirators.

The evidence at trial, viewed in the light most favorable to the

Government, see Glasser v. United States, 315 U.S. 60, 80 (1942),

revealed that Evans, Bullard, and Wells either knew each other

directly (as in the case of Evans and Wells), or knew other persons

in common. For example, after their arrests, Evans, Bullard, and

Wells each gave inculpatory statements in which they identified Knox

as the source of certain of their fraudulent documents. The jury

returned guilty verdicts on all counts, convicting all three Appellants

of conspiring to commit bank fraud and convicting Bullard and Wells

of bank fraud.

Following the return of guilty verdicts, a presentence report (PSR)

was prepared for each Appellant. The PSR assigned each Appellant

a base offense level of six for their fraud convictions. See U.S.S.G.

 4
§ 2F1.1(a). Appellants' offense levels then were increased according

to the amount of loss suffered as a result of their fraud. See U.S.S.G.

§ 2F1.1(b)(1). Evans' PSR attributed to him fraud loss of $182,749,

increasing his offense level seven points, see U.S.S.G. § 2F1.1(b)

(1)(H) (fraud involving loss of $120,000 to $200,000); Bullard's PSR

attributed to him fraud loss of $302,549, increasing his offense level

eight points, see U.S.S.G. § 2F1.1(b)(1)(I) (fraud involving loss of

$200,000 to $350,000); and Wells' PSR attributed to him fraud loss

of $1,877,615, increasing his offense level 12 points, see U.S.S.G.

§ 2F1.1(b)(1)(M) (fraud involving loss of $1,500,000 to $2,500,000).

Evans, Bullard, and Wells objected to the amount of fraud loss

attributed to them in their PSRs, each contending that he was responsible for substantially less fraud loss. The Government also objected,

challenging the amount of loss attributed to Bullard and Wells. The

Government claimed that additional fraud loss should be attributed to

Bullard and indicated that it would seek at sentencing to increase his

offense level nine points under U.S.S.G. § 2F1.1(b)(1)(J) (fraud

involving loss of $350,000 to $500,000), instead of the PSR's recommended increase of eight points under U.S.S.G. § 2F1.1(b)(1)(I). The

Government also admitted that the probation officer's attribution to

Wells of $1,877,615 of loss was excessive and indicated that it would

seek to increase his offense level only nine points under U.S.S.G.

§ 2F1.1(b)(1)(J) (fraud involving loss of $350,000 to $500,000),

instead of the recommended 12-point increase under U.S.S.G.

§ 2F1.1(b)(1)(M).

At sentencing, the district court adopted the loss calculations

offered by the Government. The court determined that fraud loss of

$189,950 should be attributed to Evans, resulting in a total offense

level of 13.2 See U.S.S.G. § 2F1.1(b)(1)(H). An offense level of 13,

combined with a criminal history category of IV, gave Evans a guideline range of 24-30 months. The district court sentenced him to 30

months imprisonment.

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2 The district court also added two points to Evans' offense level for

"more than minimal planning" under U.S.S.G.§ 2F1.1(b)(2)(A), but then

subtracted two points because he was a "minor participant" under

U.S.S.G. § 3B1.2(b), leaving a total offense level of 13.

 5
Next, the district court determined that fraud loss of $403,577

should be attributed to Bullard, increasing his offense level to 15. See

U.S.S.G. § 2F1.1(b)(1)(J). The court added an additional two points

for "more than minimal planning" under U.S.S.G. § 2F1.1(b)(2)(A),

resulting in a total offense level of 17 for the fraud conviction. The

court then considered Bullard's conviction for possession of a firearm

by a felon,3 which carried a base offense level of 20. See U.S.S.G.

§ 2K2.1(a)(4)(A) (prior felony conviction for crime of violence).

Combining the fraud and the firearm offense levels under U.S.S.G.

§ 3D1.4 (Combined Offense Level), the district court computed a

total offense level of 22. A total offense level of 22, with a criminal

history category of IV, gave Bullard a guideline range of 63-78

months. The district court sentenced him to 63 months imprisonment.

Finally, the district court determined that fraud loss of $403,577

should be attributed to Wells, increasing his offense level to 15. See

U.S.S.G. § 2F1.1(b)(1)(J). The court added an additional two points

for "more than minimal planning" under U.S.S.G. § 2F1.1(b)(2)(A),

and an additional two points for obstructing justice under U.S.S.G.

§ 3C1.1, resulting in a total offense level of 19. The court then considered Wells' conviction for possession of a firearm by a felon,4 which

carried a base offense level of 14. See U.S.S.G. § 2K2.1(a)(6) (prohibited person). Combining the fraud and the firearm offense levels

under U.S.S.G. § 3D1.4, the district court computed a total offense

level of 20. An offense level of 20, with a criminal history category

of IV, gave Wells a guideline range of 51-63 months. As with Bullard, the district court sentenced Wells to 63 months imprisonment.

II.

We review the district court's application of the Sentencing Guidelines to the facts under a "due deference" standard, examining factual

determinations for clear error and legal conclusions de novo. See 18

U.S.C.A. § 3742(e) (West Supp. 1996); United States v. Daughtrey,

874 F.2d 213, 217-18 (4th Cir. 1989). Because the district court's

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3 We affirmed Bullard's firearm conviction in United States v. Bullard,

No. 95-5785, Slip Op. (4th Cir. Nov. 27, 1996).

4 We affirmed Wells' firearm conviction in United States v. Wells, No.

95-5823, 1996 WL 614623 (4th Cir. October 25, 1996).

 6
determination of the amount of loss attributable to each Appellant is

a factual one, we will vacate Appellants' sentences and remand for

resentencing if the determination was clearly erroneous. See United

States v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995) (citing United

States v. West, 2 F.3d 66, 71 (4th Cir. 1993)). In addition, we will

vacate Appellants' sentences and remand if the record is inadequate

and does not permit meaningful review. See United States v. Wilson,

980 F.2d 259, 260 (4th Cir. 1992) (remanding for resentencing "because the record is insufficient to permit a determination of whether

loss was correctly calculated"); see also Tice v. Botetourt County Sch.

Bd., 908 F.2d 1200, 1208 (4th Cir. 1990) (remand appropriate where

inadequacy of record will not permit meaningful review).

The Sentencing Guidelines provide a base offense level of six for

crimes involving fraud or deceit, see U.S.S.G. § 2F1.1, and then set

forth a schedule for incrementally increasing the offense level according to the amount of loss suffered as a result of the fraud, see

U.S.S.G. § 2F1.1(b)(1)(A)-(S). In order to calculate the amount of

loss under § 2F1.1(b)(1) correctly, district courts must first apply the

principles of relevant conduct. Cf. United States v. Irvin, 2 F.3d 72,

78 (4th Cir. 1993) (holding that district courts must apply relevant

conduct principles in determining the quantity of narcotics properly

attributable to each coconspirator), cert. denied, 510 U.S. 1125

(1994); United States v. Gilliam, 987 F.2d 1009, 1012-13 (4th Cir.

1993) (stating that "in order to attribute to a defendant for sentencing

purposes the acts of others in jointly-undertaken criminal activity,

those acts must have been within the scope of the defendant's agreement and must have been reasonably foreseeable to the defendant").

The relevant conduct provision of the Sentencing Guidelines,

§ 1B1.3, provides that specific offense characteristics, i.e., the loss

amount that should be attributed to a defendant under § 2F1.1, is to

be determined on the basis of the following:

(1)(A) all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by the defendant; and

 (B) in the case of a jointly undertaken criminal activity

. . . all reasonably foreseeable acts and omissions

 7
of others in furtherance of the jointly undertaken

criminal activity,

that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that

offense.

U.S.S.G. § 1B1.3(a)(1)(A)-(B). Thus, losses resulting from Appellants' fraudulent activities may be characterized as either "directly

attributable" loss under U.S.S.G. § 1B1.3(a)(1)(A), or "reasonably

foreseeable" loss under U.S.S.G. § 1B1.3(a)(1)(B).

At sentencing, in order to ascertain the losses that could be attributed to each Appellant, the district court heard testimony from David

Thomas, a Special Agent of the United States Secret Service, and

received summaries prepared by him which were offered by the Government as calculations of the loss attributable to each Appellant.5

The summaries listed the various bank accounts where fraudulent

activity had taken place, the amount of loss suffered by the particular

bank because of the fraud, the dates of fraudulent activity, and the

Government's explanation why the loss suffered should be attributed

to the specific Appellant. (J.A. at 470-76.) In addition, the district

court heard arguments from the parties about whether the losses suffered by the various accounts should be attributed to each particular

Appellant. Ultimately, the district court adopted in full the loss calculations offered by the Government, finding that $189,950 in losses

should be attributed to Evans, and that $403,577 in losses should be

attributed to both Bullard and Wells. (J.A. at 457.) Accordingly, the

district court increased Evans' offense level for fraud by seven points,

and Bullard's and Wells' offense levels by nine points. (J.A. at 457-

69.)

Appellants make two arguments challenging the district court's

loss calculation. First, they argue that the district court erroneously

calculated the amount of fraud loss that could be directly attributed

to them under U.S.S.G. §§ 2F1.1(b)(1) and 1B1.3(a)(1)(A). Second,

_________________________________________________________________

5 At oral argument, the Government conceded that the summaries were

inaccurate in several respects.

 8
they argue that the losses erroneously attributed to them by the district

court as "directly attributable" losses may not be attributed to them as

the reasonably foreseeable acts of others in furtherance of a jointly

undertaken criminal activity, see U.S.S.G.§§ 2F1.1(b)(1) and

1B1.3(a)(1)(B), because the district court failed to make specific factual findings respecting the scope of the jointly undertaken criminal

activity or the reasonable foreseeability to the individual Appellants

of the acts of coconspirators. We address Appellants' arguments in

turn.

A.

Appellants argue that the district court erred in adopting the Government's calculation of losses "directly attributable" to Appellants

because the Government's direct loss calculation was flawed. In estimating the amount of "directly attributable" loss, the Government

included losses on bank accounts where an alias was used by a particular Appellant. For example, losses on an account in the name of Zermee Pryor were attributed to Wells because a fraudulent payee on the

account was Charles Rainey, an admitted alias of Wells. (J.A. at 255.)

In addition, the Government also added losses on bank accounts

that were related to a particular Appellant by physical evidence found

in searches of Appellants' residences and persons. For example,

losses suffered by two legitimate accounts in the names of Staci Parreco and C. & J. Duplaa were attributed to Wells and Bullard, because

the accounts were fraudulently "boosted" by checks from the Leonard

Wood account, and documents regarding Leonard Wood were found

in searches of Wells' and Bullard's residences. (J.A. at 255-56, 470-

72.) Similarly, losses suffered by the Mark Balksdale Standard Federal account, two Pamela Terry accounts, two David Gilford accounts,

and two Charles Rainey accounts were attributed to Bullard because

each of those accounts were "boosted" by checks from the Donna

Anderson account, which itself was "boosted" from checks from the

William Brown account, and physical evidence regarding William

Brown was found in the search of Bullard's residence. (J.A. at 274-

75.)

We agree in part with Appellants, and conclude that the record on

appeal does not support the district court's calculation of "directly

 9
attributable" fraud loss. First, in estimating the amount of "directly

attributable" loss, the Government correctly included losses on bank

accounts where the record revealed that an alias was used by a particular Appellant as a drawer, payee, or maker on the account. Losses

resulting from "acts or omissions" of the Appellant (or his aliases) are

"directly attributable" losses. See U.S.S.G. § 1B1.3(a)(1)(A).

However, in calculating "directly attributable" losses, the Government erroneously included losses on bank accounts that were related

to a particular Appellant solely by physical evidence found in

searches of Appellants' residences and persons. Based on the record

before us, the various items of physical evidence linking Appellants

to the fraud loss -- such as the retail merchant receipts found in Bullard's and Wells' residences -- standing alone create a connection to

each individual Appellant that is too tenuous to establish "directly

attributable" fraud loss. Including these losses in its calculation of "directly attributable" losses was improper because the record on appeal

does not reflect that the losses on these accounts resulted directly

from Appellants' fraudulent acts. See United States v. Evbuomwan,

992 F.2d 70, 72 (5th Cir. 1993) (district court's attribution to defendant of $90,471 in losses was erroneous because only $1,500 in losses

were directly caused by defendant's fraudulent use of a credit card);

United States v. Balogun, 989 F.2d 20, 22 (1st Cir. 1993) (noting that

defendant was "directly involved" in ten of 124 fraudulent claims and

remanding for determination of whether remaining 114 fraudulent

claims could be attributed to him as "reasonably foreseeable" loss);

cf. United States v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993)

(stating in drug conspiracy case that defendant is directly responsible

only "for drugs he personally handled or anticipated handling"), cert.

denied, 114 S. Ct. 2714 (1994).

Accordingly, we remand to provide the district court the opportunity to sufficiently explain whether losses attributed to Appellants are

"directly attributable" or "reasonably foreseeable" losses. In doing so,

we note that the Government did not argue, and the record on appeal

does not establish, that losses should be directly attributed to Appellants as acts or omissions "aided, abetted, counseled, commanded,

induced, or willfully caused by the defendant." See U.S.S.G.

§ 1B1.3(a)(1)(A). We express no opinion as to whether on remand the

Government can establish "directly attributable" loss under such an

 10
"aiding and abetting" theory. To give guidance to the district court,

we review the losses attributed to each Appellant.

1. Evans

At sentencing, the Government endeavored to prove that losses

totalling $189,950 suffered by 11 bank accounts should be directly

attributed to Evans. (J.A. at 476.) On appeal, the Government argues

that the "entire loss calculation proven by the[G]overnment as to

Evans was based on a direct, rather than `reasonably foreseeable', loss

analysis." (Appellee's Br. at 9.) Evans concedes that $18,000 in loss

should be directly attributed to him (Appellants' Br. at 22), but contends that the Government's calculation of "directly attributable" loss,

which was adopted by the district court (J.A. at 461), is clearly erroneous.

We agree that the losses suffered by five of the 11 accounts should

be directly attributed to Evans because the record establishes that

Evans (employing an alias) acted as either a drawer, payee, or maker

of checks written from the account. (J.A. at 278 (Georgia Johnson

account), 278-79 (Hayes/Nelson and Webb Hayes accounts), 279

(Steven Guttenberg and Silver Spring Rehabilitation Center

accounts).) With respect to these five accounts, which suffered losses

totalling $38,039, the district court correctly determined that the

losses should be directly attributed to Evans.

The Government also included as "directly attributable fraud loss"

(J.A. at 476), losses totalling $151,911 suffered by six accounts. The

Government included losses totalling $87,455 suffered by the Eric

Jackson and Boycee Poore accounts in its estimate of losses directly

attributable to Evans (J.A. at 476), because the accounts had some of

the same payees as the Steven Guttenberg account (J.A. at 279-80,

312-14), an account the losses of which were correctly directly attributed to Evans.6 (J.A. at 279.) The record on appeal, however, does

not support the Government's contention that the losses on these six

accounts should be directly attributed to Evans. Nowhere does the

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6 Losses suffered by the Steven Guttenberg account were directly

attributable to Evans because "Georgia Johnson," an alias of Evans, was

a payee of the Guttenberg account. (J.A. at 279.)

 11
record indicate that Evans (or one of his aliases) was a drawer, payee,

or maker, or that he aided or abetted the fraud, on either the Eric Jackson or Boycee Poore accounts.

While evidence of common payees might support a finding that

defrauding the accounts was within the scope of an agreement to

undertake criminal activity by Evans and his coconspirators or that

the fraudulent activity of other coconspirators was reasonably foreseeable to Evans, see U.S.S.G. § 1B1.3(a)(1)(B), such evidence does not

support a finding that the losses should be directly attributed to Evans.

Based on the record before us, we cannot conclude that the district

court properly directly attributed fraud losses from these two accounts

to Evans; we therefore remand to the district court for further proceedings respecting these accounts.

With respect to the remaining four accounts, namely, the Brian

Tankersley, Marquitta Coleman, William Ecker, and Alliance for

Aging Research accounts, the record before us is not sufficiently clear

(J.A. at 279-82, 317-19), to assess meaningfully the propriety of attributing the losses on these accounts to Evans under either a "directly

attributable" or a "reasonably foreseeable" theory. Consequently, we

remand consideration of these accounts to the district court as well.

See Wilson, 980 F.2d at 260, 262; see also Tice, 908 F.2d at 1208.

2. Bullard

The Government estimated that Bullard's fraudulent activities

relating to 27 bank accounts resulted in a "directly attributable" loss

of $308,685. (J.A. at 473-74.) The Government also estimated that

"reasonably foreseeable" losses attributable to Bullard totalled

$94,892. (J.A. at 474-75.) Like Evans, Bullard concedes that some

loss, in his case $22,000, should be directly attributed to him (Appellants' Br. at 47), but contends that the Government's calculation of

"directly attributable" fraud loss and "reasonably foreseeable" fraud

loss, both of which were adopted by the district court (J.A. at 462-65),

is clearly erroneous.

We agree with the district court that losses suffered by six of the

27 accounts should be directly attributed to Bullard because Bullard

(employing an alias) acted as either a drawer, payee, or maker of

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checks written from the account. (J.A. at 256 (Staci Parreco and C.

& J. Duplaa accounts), 273 (Glenn Eckanger and Sean McCoart

accounts), 274 (Myrtle Jackson and Charles Longworth accounts).)

With respect to these six accounts, which suffered losses totalling

$75,746, the district court was correct in directly attributing the fraud

loss to Bullard.

The record on appeal, however, does not support the Government's

contention that 14 of the remaining 21 accounts can be directly attributed to Bullard. Each of the 14 accounts was connected by the Government to Bullard entirely through evidence found in the search of

his residence.7 The record on appeal does not indicate that Bullard (or

one of his aliases) was a drawer, payee, or maker on any of the 14

accounts, nor does it establish that he aided or abetted the fraud

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7 The Eric Jackson account, which suffered a loss of $59,000, was

directly attributed to Bullard because documents bearing the name

Michael Eric Jackson were found in the search of his residence. (J.A. at

274-75.) Similarly, the Leonard Wood account, which suffered a loss of

$500, was directly attributed to Bullard because documents bearing the

name Leonard Wood were found during the search. (J.A. at 273.) The

James Earl and Raymond Green accounts, which suffered losses totalling

$10,365, were directly attributed to Bullard because they were "boosted"

by checks written from the Leonard Wood account. (J.A. at 275.) The

Robert Chalmers account, which suffered losses totalling $5,475, was

directly attributed to Bullard because that account was "boosted" by

checks written from the Bernard Taylor account, and documents bearing

the name Bernard Taylor (an alias of Appellant Wells) were found at

Bullard's residence. (J.A. at 275.) The Donna Anderson NationsBank

and Mark Balksdale Riggs Bank accounts, which suffered losses totalling

$15,130, were directly attributed to Bullard because those accounts were

"boosted" by checks written from the William Brown account, and documents bearing the name William Brown were found during the search of

Bullard's house. (J.A. at 274.) The Mark Balksdale Standard Federal

account, two Pamela Terry bank accounts, two David Gilford bank

accounts, and two Charles Rainey bank accounts, which suffered losses

totalling $55,696, were directly attributed to Bullard because each of

those accounts was fraudulently "boosted" by checks written from the

Donna Anderson account, which itself was "boosted" by checks written

from the William Brown account, and documents bearing the name William Brown were found during the search of Bullard's residence. (J.A.

at 274-75.)

 13
affecting these accounts. See U.S.S.G. § 1B1.3(a)(1)(A). Adding the

$181,665 in losses on these accounts to the losses directly attributable

to Bullard was therefore improper. Based on the record before us, we

cannot conclude that the district court correctly attributed fraud losses

from these accounts directly to Bullard. Accordingly, we remand for

consideration of these accounts.

With respect to the remaining seven accounts, namely, the Purnell

Walker, Ruth Paul, William Ecker, Silver Spring Rehabilitation Center, Steven Guttenberg, Alliance for Aging Research, and Holzbierlein accounts, the record is so unclear and the findings of the district

court so nonspecific (J.A. at 274-77), that we are unable to assess

whether the losses on these accounts should be attributed to Bullard.

Accordingly, we remand consideration of these accounts to the district court. See Wilson, 980 F.2d at 260, 262; see also Tice, 908 F.2d

at 1208.

On remand, a minimum of $75,746 of loss must be attributed to

Bullard. Such a minimal loss calculation, however, would decrease

Bullard's total offense level only from 22 to 21, and his guideline

range from 63-78 to 57-71 months imprisonment.8 In some instances,

because the sentence of 63 months imprisonment imposed on Bullard

falls within both guideline ranges, we would declare the district

court's erroneous loss calculation to be harmless error and decline to

remand. Remand is not necessary when "the reviewing court con-

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8 At most, Bullard's total offense level will decrease one level (from 22

to 21), even though the fraud loss attributed to him may decrease substantially, because he was convicted of multiple offenses. Under the

Guidelines, when a defendant is convicted of more than one offense, the

combined offense level is determined by taking the highest offense level

and increasing that level by an amount specified in U.S.S.G. § 3D1.4

(Combined Offense Level). Here, Bullard was convicted of bank fraud

and of unlawfully possessing a firearm. The offense level for Bullard's

firearm conviction is 20, see U.S.S.G. § 2K2.1(a)(4)(A) (prior felony

conviction for a crime of violence); the offense level for Bullard's fraud

convictions is 14-17, depending on the amount of fraud attributed to him

on remand, see U.S.S.G. § 2F1.1. Thus, Bullard's offense level will

begin at 20, and will increase either one or two points (to 21 or 22),

depending on the amount of loss attributed to him on remand. See

U.S.S.G. § 3D1.4.

 14
cludes, on the record as a whole, that the error was harmless, i.e., that

the error did not affect the district court's selection of the sentence

imposed." See Williams v. United States, 503 U.S. 193, 203 (1992)

(citations omitted).

In Kelly v. United States, 29 F.3d 1107 (7th Cir. 1994), the district

court applied an incorrect sentencing range, but came up with a sentence that nevertheless fell inside the correct range. The Government

argued that the district court's error was harmless because the sentence fell within both ranges. The court rejected this argument, stating

that

absent an express statement that the [district] court would

impose the same sentence even if a different range were

applicable, it is difficult to imagine a case in which an

appeals court could declare with the requisite degree of confidence that the application of an incorrect range would

amount to a harmless error . . . .

Id. at 1111; see also United States v. Mount, 966 F.2d 262, 265 (7th

Cir. 1992) ("An appellate court may be confident that the choice of

range did not affect the sentence when the district judge says so.").

Here, the "record as a whole" suggests that Bullard was sentenced

at the bottom of the guideline range because the district court found

Wells and Bullard to be equally culpable. (J.A. at 465, 467

("[B]ecause I don't see any distinction between [Mr. Wells] and Mr.

Bullard, [Mr. Wells] will be given the same sentence as Mr. Bullard

was given.").) On remand, Wells' guideline range, and his corresponding sentence, may be lowered. See post at 15-17. As a result, we

remand to allow the district court to determine both the proper guideline range for sentencing Bullard, and where within that guideline

range Bullard's sentence should fall. United States v. Surasky, 976

F.2d 242, 247 (5th Cir. 1992) (remanding and stating that "[f]rom the

record before us, it is not unreasonable to conclude that . . . the district

court might well choose to give [the defendant] a lesser sentence.").

3. Wells

At sentencing, the Government estimated that Wells' fraudulent

activities relating to 31 bank accounts resulted in"directly attribut-

 15
able" loss of $359,377 (J.A. at 470-71), and"reasonably foreseeable"

loss of $44,200 (J.A. at 472). Like Evans and Bullard, Wells concedes

that some loss, $57,192, should be directly attributed to him, but contends that the Government's calculation of "directly attributable"

fraud loss and "reasonably foreseeable" fraud loss, both of which

were adopted by the district court (J.A. at 465-66), is clearly erroneous.

We agree that losses suffered by five of the 31 accounts should be

directly attributed to Wells because Wells (employing an alias) acted

as either a drawer, payee, or maker of checks written from the

account. (J.A. at 255 (Zermee Pryor account), 260-61 (Christopher

Westbrooks and Robert Chalmers accounts), 262 (two Charles Rainey

accounts).) With respect to these five accounts, totalling $59,792, the

district court correctly attributed the fraud loss directly to Wells.

The record on appeal, however, does not support the Government's

contention that 18 of the remaining 26 accounts can be directly attributed to Bullard. Each of the 18 accounts was connected to Bullard

by the Government through evidence found in the search of his

residence.9 The record on appeal does not indicate that Wells (or one

_________________________________________________________________

9 The Leonard Wood account, which suffered a loss of $500, was

directly attributed to Wells because documents bearing the name Leonard Wood were found in the search of Wells' residence. (J.A. at 255.)

The Staci Parreco, C. & J. Duplaa, James Earl, and Raymond Green

accounts, which suffered losses totalling $25,965, were directly attributed to Wells because those accounts were "boosted" by checks written

from the Leonard Wood account. (J.A. at 255, 261-62.) The McCullen

Pitts account, which suffered $3,907 in losses, was directly attributed to

Wells because that account was "boosted" by an account "with the name

of Cameron [who was] a payee on the Zermee Pryor account as well as

Charles Rainey." (J.A. at 256.) Two Mark Balksdale accounts, two

Pamela Terry accounts, and the Donna Anderson account, which suffered losses totalling $39,317, were directly attributed to Wells because

each account was fraudulently "boosted" by checks written from the Dirk

Magruder account, and documents bearing the name Dirk Magruder (an

alias of coconspirator Darrell Brown) were found in the search of Wells'

residence. (J.A. at 257-59.) The Myrtle Jackson and Charles Longworth

accounts, which suffered losses totalling $15,946, were directly attributed to Wells because both accounts were made payable to Ivan Jasper,

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of his aliases) was a drawer, payee, or maker on any of the accounts,

nor does it establish that he aided or abetted the fraud affecting these

accounts. See U.S.S.G. § 1B1.3(a)(1)(A). As a result, adding the

$153,812 loss on these 18 accounts to the losses correctly determined

to be directly attributable to Wells was improper. Accordingly, we

remand to the district court for consideration of these accounts.

With respect to the remaining eight accounts, namely, the Purnell

Walker, Ruth Paul, Silver Spring Rehabilitation Center, Steven Guttenberg, Alliance for Aging Research, Eric Jackson, William Ecker,

and Holzbierlein accounts, the record before us is not sufficiently

clear (J.A. at 260, 63-66), to permit us to assess meaningfully whether

the losses on these accounts should be attributed to Wells under either

a "directly attributable" or "reasonably foreseeable" theory. Accordingly, we remand consideration of these accounts to the district court.

See Wilson, 980 F.2d at 260, 262; see also Tice, 908 F.2d at 1208.

B.

The Government argues that even if the losses attributed to Appellants were not all "directly attributable" losses, they were nevertheless

"reasonably foreseeable" to Appellants and therefore were properly

attributed to them. (Appellee's Br. at 7-9.) In complex conspiracies,

the Government argues, "reasonably foreseeable" loss analysis is

"perfectly appropriate." (Appellee's Br. at 8.) With respect to Appellant Evans, for example, the Government argues that

_________________________________________________________________

and documents bearing the name Ivan Jasper (an alias of Appellant Bullard) were found in the search of Wells' residence. (J.A. at 259.) The

Boycee Poore account, which suffered $28,475 in losses, was directly

attributed to Wells because documents bearing the name Boycee Poore

were found in the search of his residence. (J.A. at 263.) Similarly, two

David Gilford accounts, which suffered losses totalling $13,752, were

directly attributed to Wells because documents bearing the name David

Gilford were found in Wells' residence. (J.A. at 262.) The Jimmy Kissee

account, which lost $689, was directly attributed to Wells because the

account was made payable to David Gilford. (J.A. at 265.) Finally, the

Brian Tankersley account, which lost $25,261, was directly attributed to

Wells because it was payable to Dennis Walls, and documents bearing

the name Dennis Walls were found in Wells' residence. (J.A. at 264.)

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it was entirely appropriate under the related [sic] conduct

guideline for the trial judge to attribute [to] Evans not just

fraud loss directly attributable to his own conduct in his

alias names, but to the conduct of his coconspirators in connection with the same accounts.

(Appellee's Br. at 10.)

We agree that here, in the context of a "jointly undertaken criminal

activity," see U.S.S.G. § 1B1.3(a)(1)(B), "reasonably foreseeable"

losses may be attributed to Appellants under principles of relevant

conduct. Cf. Irvin, 2 F.3d at 78; Gilliam, 987 F.2d at 1012-13. However, the district court -- because it found that all losses should be

directly attributed to Appellants -- never discussed whether the losses

should be attributed to Appellants as the consequence of reasonably

foreseeable acts of coconspirators.10 The court simply stated:

I just do not believe that it is necessary to restrict the fraud

amount solely to those who either made it or withdraw [sic]

_________________________________________________________________

10 The entire amount of fraud loss may not be attributed to each Appellant simply because each Appellant was convicted of conspiracy to commit bank fraud. The conspiracy and the jointly undertaken criminal

activity are not necessarily coextensive. The Application Note to § 1B1.3

provides that

the scope of the criminal activity jointly undertaken by the

defendant . . . is not necessarily the same for every participant.

In order to determine the defendant's accountability for the conduct of others under subsection (a)(1)(B), the court must first

determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i.e., the scope of the specific

conduct and objectives embraced by the defendant's agreement).

U.S.S.G. § 1B1.3, comment. (n.2). See also United States v. Irvin, 2 F.3d

72, 77 (4th Cir. 1993) (stating that "[u]nder the guidelines, a coconspirator is held accountable for the quantity of drugs reasonably foreseeable

to him within the scope of his unlawful agreement," not for the quantity

of drugs attributed to the conspiracy as a whole); United States v.

Gilliam, 987 F.2d 1009, 1012-13 (4th Cir. 1993) (same); William W.

Wilkins, Jr. & John R. Steer, Relevant Conduct: Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L. Rev. 495, 510-12 (1990) (same).

 18
it or paid it or wrote it or ordered checks or what have you.

This scheme required far more. It involved . . . a number of

different acts and [though] each of the particular defendants

did not necessarily make or draw or steal or order or pay or

use[ ] alias[es] in every single check, clearly in a number of

them, they did.

(J.A. at 458.)

Whether this statement from the district court constitutes a finding

that the acts of other coconspirators were within the scope of Appellants' agreements to jointly undertake criminal activities is arguable.

Cf. United States v. Jenkins, 4 F.3d 1338, 1347 (6th Cir. 1993) (noting

in drug conspiracy case that "the district court did not address, implicitly or explicitly, the scope of the criminal activity [the defendant]

agreed to jointly undertake," and that as a result, the court "lack[ed]

an adequate basis on which to differentiate between" the defendant

and other coconspirators), cert. denied, 114 S. Ct. 1547 (1994).

In any event, the district court failed even to consider whether the

fraudulent acts of coconspirators on bank accounts not directly

defrauded by Appellants were reasonably foreseeable to them. We

recognize that in most circumstances general findings regarding reasonable foreseeability are adequate, see United States v. Catalfo, 64

F.3d 1070, 1082 (7th Cir. 1995), cert. denied , 116 S. Ct. 1683 (1996),

and that under § 2F1.1(b), "the loss need not be determined with precision. The court need only make a reasonable estimate of the loss,

given the available information," U.S.S.G. § 2F1.1, comment. (n.8).

However, losses not directly attributable to Appellants may not be

attributed to them via principles of relevant conduct in the absence of

a finding of reasonable foreseeability. See U.S.S.G. § 1B1.3(a)(1)(B);

Evbuomwan, 992 F.2d at 72-73; United States v. Fuentes, 991 F.2d

700, 701 (11th Cir. 1993); Balogun, 989 F.2d at 22; cf. Irvin, 2 F.3d

at 78 (narcotics); Gilliam, 987 F.2d at 1012-13 (same).

Here, the district court failed to determine whether the amount of

fraud loss on the accounts was reasonably foreseeable to Evans, Bullard, and Wells and within the scope of their agreements prior to

determining their offense levels under § 2F1.1. Accordingly, we

vacate Appellants' sentences and remand for resentencing.

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III.

Wells raises an additional issue pertaining to application of the sentencing guidelines. He maintains that the district court erroneously

increased his base offense level two points for obstructing justice, see

U.S.S.G. § 3C1.1, for removing a computer containing evidence of

bank fraud from the residence of a coconspirator and concealing the

computer in his residence. Our review of the record indicates that this

contention is without merit. See U.S.S.G.§ 3C1.1, comment. (n.3(d))

(enhancement applies where defendant conceals or attempts to conceal evidence material to an official investigation or judicial proceeding); United States v. Hicks, 948 F.2d 877, 884-85 (4th Cir. 1991)

(concealing evidence constitutes obstruction of justice).

IV.

Accordingly, we affirm the conviction of Evans, vacate the sentences of all Appellants, and remand to the district court for resentencing consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

FOR RESENTENCING

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