UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-40998

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYNE EDWIN BOLLMAN,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

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May 7, 1998

Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:

Wayne Edwin Bollman appeals the sentence imposed following his

guilty plea conviction for counterfeiting United States currency.

He contends that the district court erred by enhancing his sentence

under U.S.S.G. § 2B5.1(b)(2), which provides for a base offense

level increase for manufacturing or producing counterfeit items, or

for possessing a counterfeiting device or materials used in

counterfeiting. We AFFIRM.

I.

In May 1997, Bollman pleaded guilty to counterfeiting a $100

Federal Reserve Note, in violation of 18 U.S.C. § 471. Under the

Sentencing Guidelines in effect at the time Bollman was sentenced

in August 1997 (the 1995 Guidelines Manual), the base offense level
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for a violation of 18 U.S.C. § 471 is 9. U.S.S.G. § 2B5.1(a).

However, in the presentence report (PSR), the probation officer

increased Bollman’s base offense level to 15, pursuant to U.S.S.G.

§ 2B5.1(b)(2), because Bollman utilized a personal computer, color

computer scanner, and special paper in order to illegally

manufacture 221 counterfeit Federal Reserve Notes.

Section 2B5.1(b)(2) provides:

If the defendant manufactured or produced any

counterfeit obligation or security of the

United States, or possessed or had custody of

or control over a counterfeiting device or

materials used for counterfeiting, and the

offense level as determined above is less than

15, increase to 15.

U.S.S.G. § 2B5.1(b)(2). The commentary provides, however:

Subsection (b)(2) does not apply to persons

who merely photocopy notes or otherwise

produce items that are so obviously

counterfeit that they are unlikely to be

accepted even if subjected to only minimal

scrutiny.

U.S.S.G. § 2B5.1, comment. (n.3). The background notes indicate

that the enhancement is intended to punish defendants who produce,

rather than merely pass, counterfeit money; and those who possess

counterfeiting devices also receive a greater punishment because of

the sophistication and planning involved in manufacturing

counterfeit notes and because of the public policy of protecting

the integrity of Government-issued notes. U.S.S.G. § 2B5.1,

comment. (backg’d).

Bollman objected to the enhancement of his offense level on

the ground that the items he produced were so obviously counterfeit
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that they were unlikely to be accepted, even if subjected to

minimal scrutiny. In the addendum to the PSR, the probation

officer, in response to Bollman’s objection to the § 2B5.1(b)(2)

enhancement, noted that a Secret Service Agent and an Assistant

United States Attorney had advised him that the notes created by

Bollman were “of a quality that would have passed the scrutiny of

most people who are not trained to identify counterfeit Federal

Reserve notes”. The probation officer also recommended that the

district court consider not only whether the $100 note that was the

subject of Bollman’s guilty plea was passable, but also other

factors, including that: Bollman created an additional 220 notes;

Bollman did not use a standard copy machine and copy paper, but

instead used color-scanner and color-printer computer equipment,

software, and special Japanese rice paper in an effort to create

passable notes; and Bollman had advised a confidential informant

that he was creating passable notes.

At the sentencing hearing, the district court examined a

counterfeit note created by Bollman and found that it was not

obviously counterfeit. Therefore, it overruled Bollman’s

objection, adopted the PSR’s findings and conclusions, and

sentenced Bollman to 41 months imprisonment.

II.

Bollman contends that the district court erred by applying the

§ 2B5.1(b)(2) enhancement, because his method of production was

tantamount to mere photocopying, and because the notes he produced
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were so obviously counterfeit that they were unlikely to be

accepted even if subjected to only minimal scrutiny.

A.

Bollman maintains that the counterfeiting process he used

consisted of unsophisticated techniques with his computer,

tantamount to mere photocopying. He asserts that the enhancement

was intended to apply to offenders who use much more sophisticated

counterfeiting equipment, such as litho plates, printing blankets,

maskings, printing presses, negatives, stones, or other printing or

engraving paraphernalia.

Because Bollman did not present this objection to the

enhancement in district court, we review it only for plain error.

See United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997).

To demonstrate plain error, Bollman must show clear or obvious

error which affects his substantial rights; if he makes such a

showing, we have the discretion to correct the error. See United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc),

cert. denied, 513 U.S. 1196 (1995).

At the time Bollman was sentenced, there were no Fifth Circuit

cases discussing whether § 2B5.1(b)(2) applies to cases involving

unsophisticated counterfeiting methods and/or the relative

sophistication of the use of computer scanning equipment as a

counterfeiting method. However, in United States v. Wyjack, No.

97-50630, ___ F.3d ___ (5th Cir. 1998), rendered on the same day as

the opinion in the case at hand, we interpreted § 2B5.1(b)(2) as

providing for application of the enhancement to counterfeiters who
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produce instruments by mere photocopying, unless the instruments

produced are so obviously counterfeit that they are unlikely to be

accepted after only minimal scrutiny. Id. at ___. Accordingly,

even assuming that the counterfeiting techniques used by Bollman

were tantamount to “mere photocopying”, Bollman has not

demonstrated error, plain or otherwise.

B.

Alternatively, Bollman contends that the notes he produced

were not well-made and were obviously counterfeit, even with only

minimal inspection. He points out that there is no evidence that

the notes he produced were passed successfully. We did not reach

this issue in Wyjack; instead, we remanded for resentencing

because, in that case, the district court had not determined

whether the counterfeit currency was so obviously counterfeit that

it was unlikely to be accepted even if subjected to only minimal

scrutiny. Wyjack, ___ F.3d at ___. Accordingly, our court has not

addressed the appropriate standard of review for such a

determination.

Bollman’s contention is, essentially, that the district court

erred by deciding that the note he created was not obviously

counterfeit. Because such a decision depends upon an examination

of the counterfeit item(s) in question and, in some cases, on the

testimony of witnesses, as discussed infra, it is factual in

nature. Therefore, consistent with the general rule that findings

of fact at sentencing are reviewed only for clear error, e.g.,

United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997), the
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decision should be reviewed under the “clearly erroneous” standard.

See, e.g., United States v. Miller, 77 F.3d 71, 76-77 (4th Cir.

1996).

In Wyjack we stated that the district court, 

[i]n assessing the quality of the notes ...

may wish to consider, if applicable and

appropriate, some or all of the following

factors ...:

(1) physical inspection during the

trial or at the sentencing hearing;

(2) whether the counterfeit notes

were successfully passed; (3) the

number of counterfeit notes

successfully passed; (4) the

proportion of the number of

counterfeit notes successfully

passed to the number of notes

attempted to be passed; and (5) the

testimony of a lay witness who

accepted one or more of the

counterfeit notes or an expert

witness who testified as to the

quality of the counterfeit notes.

Wyjack, ___ F.3d at ___ (quoting Miller, 77 F.3d at 76).

With respect to the first factor, the Government asserted in

its sentencing memorandum that the district court should physically

inspect all of the counterfeit Federal Reserve Notes created by

Bollman, and that it would produce them for the court’s inspection

at the sentencing hearing. The transcript of the sentencing

hearing does not indicate whether the Government did so. However,

the record reflects that the district court, at the request of

Bollman’s counsel, examined a counterfeit note created by Bollman

(presumably the $100 Federal Reserve Note that was the subject of

the count to which Bollman pleaded guilty), and made the following

findings:
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I, of course, tend to be very careless in my

handling of money, but if someone tendered me

this bill, I think I would have accepted it.

I’ve compared it ... with a genuine twentydollar bill in my possession. I find -- it

looks as if the imprinting on the face is what

-- if there’s anything, that gives it away,

it’s not quite as good as what is on the

genuine bills.

....

It appears that the matters that he had

counterfeited that had not yet been passed,

would to the ordinary person be the type of an

obligation, Government obligation, that would

have been accepted.

Regarding the second, third, and fourth factors, the

Government did not present any evidence that any of the counterfeit

Federal Reserve Notes produced by Bollman were passed, successfully

or otherwise. And, as to the fifth factor, the Government asserted

in its sentencing memorandum that a United States Secret Service

Agent would be available to testify at the sentencing hearing

regarding the quality of the notes; but no testimony was presented

at that hearing.

In Wyjack, we stressed that no one factor should be

dispositive; that a “far-reaching inquiry” was unnecessary; and

that all that was required was “a common sense judgment” as to the

quality of the notes. Wyjack, ___ F.3d at ___. The record

reflects that the district court made such “a common sense

judgment” in this case. Because the counterfeit note that the

court examined during the sentencing hearing was not introduced

into evidence, and thus is not a part of the record on appeal, we

are not able to examine it. On the other hand, it is, of course,
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the appellant’s duty to ensure that the record contains the

evidence relevant to a finding or conclusion that the appellant

urges is unsupported by, or contrary to, the evidence. See FED. R.

APP. P. 10(b)(2); Coats v. Pierre, 890 F.2d 728, 731 (5th Cir.

1989), cert. denied, 498 U.S. 821 (1990); United States v.

Giarratano, 622 F.2d 153, 156 n.4 (5th Cir. 1980). Nevertheless,

the record is adequate for us to review the district court’s

finding.

In sum, we cannot conclude that the district court clearly

erred by finding that the note created by Bollman was not obviously

counterfeit. Accordingly, the court did not err by enhancing

Bollman’s base offense level under § 2B5.1(b)(2).

III.

For the foregoing reasons, the judgment is

AFFIRMED.