1

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

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No. 05-10535

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UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

DAVID SPENCER GEESLIN,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

The issue in this case is whether a participant in a crime

can be considered a victim for purposes of U.S. SENTENCING GUIDELINES

MANUAL § 2B1.1(b)(1)(2005)(“USSG”). Under the rare circumstances

presented here, we conclude he can and AFFIRM the sentence

imposed by the district court.

I.

The facts in this case are fairly simple, and largely

undisputed by the parties. 

From about June 1986 to November 2001, Appellant David
2

Spencer Geeslin was the Chief of Police in the City of

Kennendale, Texas (“the City”). In this capacity, he

administered the Kennendale Police Department (“KPD”), exercising

control over budgetary and personnel matters. Geeslin also

oversaw the Municipal Court of Kennendale and its employees.

The City received financial assistance from the United

States Department of Housing and Urban Development for the fiscal

years 1996 through 2002. 

In 1993, with approval from the City Council, Geeslin

established a program that allowed KPD officers to earn extra

money by serving warrants for which they would be reimbursed by

the City. From 1993 through 1998, officers were paid $35 for

each warrant served; beginning in 1999, they were paid $50. 

Officers seeking reimbursement would submit paysheets documenting

service for review by Paula Lummus, the Municipal Court

coordinator. Geeslin had the authority to authorize warrant

service, and he supervised Lummus.

From the beginning of the warrant service program, Geeslin

supplemented his own income by serving warrants. Other officers

participated as well, including Kennendale police officer Gary

Cooper. In 1996, Geeslin and Cooper began serving warrants

together and splitting the proceeds. By the end of 1997, they

were the only officers involved in the program.

At some point in 1997, Geeslin decided he would no longer

serve the warrants with Cooper. He proposed that Cooper serve
1 Geeslin’s factual resume, which he signed, describes the

agreement so:

When Geeslin proposed this arrangement to Cooper,

Cooper readily agreed to the new arrangement. When

Cooper agreed to the arrangement, Geeslin was fully

aware that Geeslin was in a position of authority over

Cooper and that Cooper probably agreed to the new

arrangement because Cooper thought that Cooper’s

agreement would be in Cooper’s long term best

interests, both professionally and financially.

2 Although the exact number is unclear from the record,

Cooper also earned approximately the same amount of money for his

recorded share of the work (in reality, of course, the entire

share was Cooper’s).

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the warrants on his own, but submit paysheets with both officers’

names. Cooper agreed,1 and Geeslin continued to collect half of

the reimbursements. From 1997 through November 2001, Cooper

submitted approximately 130 fraudulent pay sheets which

collectively reflected that Geeslin earned $147,000 in fees.2

Beginning in 1998, Geeslin augmented his fraud scheme by

ordering Lummus to alter paysheets so that he would receive

additional reimbursements. From 1998 through November 2001,

Lummus directed some $64,000 to Geeslin from the City in this

fashion.

Geeslin pled guilty to Conspiracy to Obtain Program Funds by

Fraud in violation of 18 U.S.C. § 371 and 18 U.S.C. §

666(a)(1)(A) on January 5, 2005. His presentence report (“PSR”)

concluded that he caused the City to sustain a loss of $64,000,

resulting in a six-level increase of the offense level in
3 This subsection provides for a six-level increase for

crimes causing losses of more than $30,000. The following

subsection, § 2B1.1(b)(1)(E), provides for an eight-level

increase for crimes causing losses of more than $70,000.

4 Comment 3(E) provides, in pertinent part: “Loss shall be

reduced by . . . (i) The money returned, and the fair market

value of the property returned and the services rendered, by the

defendant and other persons acting jointly with the defendant, to

the victim before the offense was detected.”

4

accordance with USSG § 2B1.1(b)(1)(D).3 This figure reflected the

$211,000 Geeslin fraudulently earned from both the Cooper and

Lummus schemes, less the fair market value of the warrant

services actually provided to the City by Cooper, $147,000, in

accordance with USSG § 2B1.1 cmt. n.3(E)(i).4 The PSR calculated

an offense level of 15.

The government objected to the sentence on the theory that

while the City was made whole, Geeslin also victimized Cooper for

the $147,000 in reimbursements he received for work Cooper

performed on his own. It presented testimony at the sentencing

hearing from Cooper that he agreed to Geeslin’s plan for fear of

being “black-balled” by Geeslin and losing his ability to

participate in the warrant service program. On April 18, 2005,

the district court sustained the government’s objection and

determined that Cooper was also a victim for purposes of the

Sentencing Guidelines. It calculated the loss caused by Geeslin

to be $211,000, which resulted in six additional offense levels,

21 total. The district court sentenced Geeslin to a term of 37
5 Cooper was not prosecuted in federal court. He was

prosecuted in state court however, where he agreed to plead

guilty to a felony in connection with his role in the scheme in

exchange for a probated sentence.

5

months, a special assessment of $100 and three years’ supervised

release. Geeslin timely appeals the sentence.

II.

In evaluating a sentence imposed in accordance with the

Sentencing Guidelines, we review the district court’s

interpretation of the Guidelines de novo and its factual

determinations for clear error. U.S. v. Solis-Garcia, 420 F.3d

511, 513-14 (5th Cir. 2005). We review the sentence for

unreasonableness with regard to the sentencing factors enumerated

in 18 U.S.C. § 3553(a), United States v. Duhon, 440 F.3d 711, 714

(5th Cir. 2006), inferring reasonableness if the district court

imposes a sentence within a properly calculated Guidelines range. 

U.S. v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

III.

The issue in this case is whether the district court

properly considered Cooper a “victim” under section 2B1.1. 

Geeslin describes Cooper as a willing co-conspirator, while the

government paints him as the victim of extortion.5 Because it

considered Cooper a victim, the district court added $147,000 to

its calculation of the loss caused by Geeslin, cancelling out the

effect of the credit against loss for value received by the City.
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Under subsection 2B1.1(b), the amount of loss is a factor in

determining the appropriate sentence. The application notes

define loss as the greater of the actual loss and the intended

loss. USSG § 2B1.1 cmt. n.3(A). Actual loss, the only loss

relevant here, is “the reasonably foreseeable pecuniary harm that

resulted from the offense.” USSG § 2B1.1 cmt. n.3(A)(i). 

The Guidelines provide for a credit against loss where the

victim of the fraud receives value. The loss amount is reduced

by “[t]he money returned, and the fair market value of the

property returned and the services rendered, by the defendant or

other persons acting jointly with the defendant, to the victim

before the offense was detected.” USSG § 2B1.1 cmt. n.3(E). As

there is no dispute that the City got the full value of its

$147,000 because of the warrant service Cooper performed, the

question is whether he is properly considered a victim. If not,

the appropriate loss amount for sentencing purposes is $64,000,

the Lummus scheme money for which the City received no value.

The application notes define a victim as “(A) any person

who sustained any part of the actual loss determined under

subsection (b)(1); or (B) any individual who sustained bodily

injury as a result of the offense. ‘Person’ includes individuals,

corporations, companies, associations, firms, partnerships,

societies, and joint stock companies.” USSG § 2B1.1 cmt. n.1. 

We believe this definition includes someone in Cooper’s position.

Cooper’s agreement to participate in Geeslin’s scheme to
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defraud the City does not preclude the district court’s

determination that he was a victim because it was not entirely

voluntary. Geeslin was Cooper’s superior and controlled access

to the warrant service program. It is unclear what new value

Cooper would receive for agreeing to Geeslin’s scheme, as his

participation was already accomplishing the goals of staying in

his employer’s good graces and receiving money. In that he

received nothing new, Cooper’s agreement looks less like a quid

pro quo and more like an assent to extortion. 

Geeslin argues that our opinion in United States v. Sublett

compels the application of the credit against loss. 124 F.3d 693

(5th Cir. 1997). In Sublett, the defendant misrepresented his

personal academic and professional qualifications in an attempt

to win two counseling contracts with the IRS. Id. at 694. He

pled guilty and was sentenced under section 2F1.1, the

predecessor-in-part to the current section 2B1.1. The district

court calculated the loss as the total value of the two

contracts. Id. This Court vacated the sentence, reasoning that

Sublett’s firm’s provision of counseling services, some of which

were provided by counselors whose qualifications had not been

misrepresented, should be credited against the loss amount for

purposes of sentencing. Id. at 695. The analogy of Sublett to

the present case is insufficient. Geeslin is analogous to

Sublett, and the City to the Internal Revenue Service; but there
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is no analog for Cooper. This distinction forces the issue back

to the question of whether Cooper can be considered a victim. He

can, so Sublett does not apply.

Given the rare circumstances in this case, the district

court correctly sentenced within the Guidelines range and its

sentence is entitled to a presumption of reasonableness. See

Mares, 402 F.3d at 519.

IV.

For the aforementioned reasons, we AFFIRM the sentence.