NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0143n.06 No. 11-6406 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MI CHAEL

ANTHO NY DOWL EN, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF TEN

NESSEE

BEF ORE: MARTI

N and ROGERS, Circuit J udg es, and TA RNOW, District J udg e. * ROGERS, Circuit J udg e. A fede ral jury convicted Michae l D owlen of twenty -nine counts of bank fra

ud for kiting chec ks worth near ly two-million dollars. On appea l, Dowlen challeng es his conviction and thirty -seve n-month, within-Guidelines sentenc e. He argues that the evi d e n c e w a s not sufficie nt, that irrele van t an d p re judicial testimony was admitted, that the jury instructions wer e improper, that the distr i ct co u rt incorre ctly calc ulated the losses he cause d, that he should have

The Honora

ble Arthur J

. Tarnow , United States Dist rict J udg e for the Easter n District of * Michig an, sitting by

desig nation.No. 11-6406

U.S. v. Dowlen

rec eived a reduc tion for acc eptanc e of responsibility , and that the district court should have g rante d his request for

a downwa

rd depa rture. N one of D owlen’s a rguments warr ants reve rsal. I . F A C T U A L A N D P R O C E D U R A L B A C K G R O U N D Michae l Dowlen operated a rea l estate construction business in southeaster n Tenne ssee for

over thirty y ear s. Dowlen borrowe d most of his funds from Colony L P and used business chec king

acc ounts with Northwe st Geor g ia Ba nk and Cornerstone Communi ty Ba nk. Following the decline of the rea l estate marke t in 2008, Colony ref used to allow Dowlen to make further draw s and Dowlen experience d cash f

low problems. This was not the first time that Dowlen experience d cash flow probl em s . Ac co rd ing to Dowlen, for y ear s he had regularly written chec ks to his subcontrac tors befor e he rec eived funds to back the ch ec k s. Northwe st Geor g ia Ba nk cover ed any overdr afts and char g ed Dowlen “nonsuff icient fund” fee s amounting to $1000 to $1500 a month. Dowlen saw these fee s as analog ous to interest costs and say s he treated his chec king acc ount as a line of cre dit. Dowlen say s he alwa y s expected to cove r the c hecks. The Gov e r

nme nt p ut f

o r th e v idence showing that from J uly 2008 to September 2008, Dowlen cross-de pos i t ed fifty chec ks betwee n his acc ounts at Northwe st Geor g ia Ba nk and Cornerstone Communi ty Ba

nk. Dowlen deposited twenty -nine chec ks, totaling $1,910,500, from his Northwe st Geor g ia acc ount into his Corne rstone acc ount. During the same time period, he deposited twenty

one chec ks, totaling $1,812,100, from his Cornerstone acc ount into his Northwe st Geor g ia acc ount.

- 2 -No. 11-6406

U.S. v. Dowlen

This sug g ests a classic chec k-kiting scheme

. Dowlen maintains that he expected all of these chec ks 1 to be cove red by

leg itimate funds. I n late Augus t 2008, Dowlen’ s loan office r at Cornerstone spoke with Dowlen about the b an k ’s s u spicion that Dowlen was kiting chec ks and instructed him that if he wanted to make deposits from his Northwe st Geor g ia account i nto his Cornersto n e ac co u n t , he would need to use cashie r’s chec ks. The loan office r said that Dowlen ag ree d. Howeve r, Dowlen continued to w rite chec ks on his Northwest Geor g ia ac count and de posit the chec ks into his C orner stone ac count.

1 Check kiting is a sy stematic scheme to def ra u d , whereby nonsufficie nt chec ks are trade d or cross deposited b et we en two or more chec king acc ounts in order to artificia lly inflate the bank acc ount balanc es. This is acc omplished by using the float time in the bank sy stem. On ce bank acc ounts are artificia lly inflated, chec ks that would normally

be re turned for

nonsufficie nt funds are , in fac t, paid or honored by the issuing ba

nks. United States v. Abboud , 438 F.3d 554, 563 n.1 (6th Cir. 2006). As Abboud explained, chec k kiting can a ct as a

substitut e for

a short-te rm loan. For example, if the defe ndant neede d $100,000 today but would not have sufficie nt money for three day s, he would write a chec k for $100,000 on Day 1 from an acc ount with Ba n k A wi t h i nsufficie nt funds. I f Ba nk A has a one day float time, then it would find insufficien t fu n d s o n Day 2. Be fore Ba nk A returne d the chec k, the defe ndant would write a chec k for $100,000 on Day 2 from an acc ount with Ba nk B with [i nsufficie nt] funds. I f Ba nk B has a one d ay fl o at t ime, then it would find insufficient funds on Day 3. Be fore Ba nk B returne d the chec k, the defe ndant would write a chec k for $100,000 o n Da y 3 fr om the account at Ba nk A wit h insufficient funds. Be fore Ba

nk A returne d the chec k on Day 4, the defe ndant would hopefully have r ece ived suffic ient money and deposited this in the ac count at B ank A. Id. at 590. - 3 -No. 11-6406

U.S. v. Dowlen

Acc ording to the Gover

nment, Dowlen was able to continue his behavior beca use on Aug ust 25, 2008, he deposited $250,000 in third-par ty funds into his Northwe st Geor g ia acc ount. These funds came from two couples, the Howar ds and the Shoemakers, for whom Dowlen was building houses. Although both couples had alread y made their down pay ments and were not obligated t o g ive Dowlen more money befor e the closing , Dowlen was able to convince them to pay him befor e their houses wer e complete. The Howar ds g ave $10 0 , 0 0 0 , an d the Shoemaker s g ave $150,000. These funds appea

r to have cover ed two of the Northwe st Geor g ia chec ks Dowlen deposited into his Cornerstone acc ount in late Aug ust ( chec ks from Aug ust 25th and Aug ust 26th totaling $98,000). Howeve r, subseque nt chec ks were written without sufficient f unds. A few wee ks later, the loan office r at Cornerstone beca me awa re of Dowlen’ s continued chec k kiting and de cided to close Dowlen’ s acc ount. After Corne rstone close d Dowlen’ s acc ount

on October 8, 2008 and Cor n e r s to n e a n d N o r th w est Geor g ia resolved all outstanding chec ks, Dowlen

was left with a

positive balance at Cornerstone of $56,000. Howeve r, Northwe st G eorg ia was left with a $310,000 loss and said they would g o to the police if Dowlen did not cover the loss. Dowlen

cover ed the $310,000 by enter ing into a settlement ag ree ment with Col o n y L P. Colony paid Northwe st Geor g ia $310,000 in exchang e for Dowlen’ s rele ase of any extorti on claims he may have had aga inst Colony

. Colony did not lend Dowlen f urther f unds and Dowle n was for ced to f ile for bankruptc y . The superse ding indictment char g ed Dowlen with two counts of interstate transportation of fra udulently obtained money , two counts of criminally derive d monetary transac tions, and twenty

-

- 4 -No. 11-6406

U.S. v. Dowlen

nine counts of bank fra

ud (cor responding to the twenty -nine Northwe st Geor g ia chec ks that Dowlen deposited i nto his Cornerstone acc ount). Following a two-day trial, the j ury found Dowlen g uilty of the ba nk-fr aud cha

rg es and a cquitted him of the other c harg es. The district court sentenc ed Dowlen to a within-Guidelines term of thirty -seve n months’ imprisonment. The prese ntence repor t calc ulated the total amount of the loss at $560,000, summing the $310,000 loss to Northwe st Geor g ia and the $250,000 loss to the Howar ds an d S h o em ak er s . Dowlen challeng ed both alleg ed losses. He argued that beca use Northwe st Geor g ia rec eived the $310,000, it had not lost money , and that the losses to the Howar ds and Shoemaker s wer e unrelated to the chec k-kiting scheme

. The district c ourt—rely ing upon Application Note 3(E) of U.S.S.G. § 2B1.1—de termined that the $310,000 was an attributable loss beca use the repa

y ment occur

red afte r Northwe st Geor g ia detec ted the scheme

. The district court allowed for a reduc tion in the loss related to the Howar ds’ and S h oemake rs’ funds to acc ount for a portion of the funds that may have been used by Dowlen for l eg itimate business purposes. For Guidelines-c alcu l at i o n purposes, the court found only $100,000 of the losses to be attributable to Dowlen’ s chec k-kiting scheme

. I n total, the district court found the attributable losses to be $410,000. Be cause the offe nse level incre ases occur at $400,000 and $1,000,000, see U.S.S.G. § 2B1.1(b) , the cha ng e fr om $560,000 to $410,000 had no eff ect on Dow len’s Guidelines r ang e. Dowlen also moved for a downwar d depar ture. Dowlen arg

ued that he was an aty

pical white-c ollar defe ndant beca use he had been a law-a

biding businessman for over thirty y ear s and only g ot into trouble beca

use Colony L P decide d not to provide him with neede d funds. The district court

- 5 -No. 11-6406

U.S. v. Dowlen reje cted this motion beca use the court found that Dowlen was “not outside of the hear tland of offe nders” that the particular guideline was written for and that chec k kiting was “spec ifically the ty pe of offe nse that the Sentencing Commi ssion had in mind.” Sentencing Hr’g Tr. 3 9 , No v . 3, 2011. Acc ording ly , the cour t did not find a downwar d depar ture to be a

ppropriate

. Dowlen a ppeals his conviction and se ntence

. I I

. AN A L Y S I S On appea l, Dowlen raises six challeng es to his conviction and sentence. No n e war rants

reve rsal. A. Sufficiency of the E videnc e Dowlen first argues that the Gover nment failed to offe r sufficie nt evidenc e showing he intended to def

ra u d C o rn erstone Communi ty Ba nk. A rational jury could have found that when Dowlen continued to cross-de posit chec ks without sufficie nt funds afte r Cornerstone bank told him not to do so, sufficie nt circ umstantial evidenc e of his fra udulent intent exis ted. A jury likely would have been able to find t h at t h e ex t ent of Dowlen’ s actions befor e the war ning from Cornerstone Communi ty Ba

nk was sufficient, but even if the court assumes t hat Dowle n ’s criminal intent was not clear befor e the war

ning, the re is no explanation other than a n intent to defra

ud for his ac tions afte r the wa

rning

. W h en considering a challeng e to the sufficie ncy of the evidenc e, “the rele vant question is whether , afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime bey ond a rea sonable doubt.” Jack son

- 6 -No. 11-6406

U.S. v. Dowlen

v. Virginia , 443 U.S. 307, 319 (1979). There are three elements of bank fra ud under 18 U.S.C. § 1344: (1) the defe ndant knowing ly executed or attempted to execute a scheme to defr aud a financ ial instit ution, (2) the defe ndant had an intent to defr aud, and (3) the financ ial instit ution was insured b y the FDI C. See United States v. Eve rett , 270 F.3d 986, 989 (6th Cir. 2001). Dow l en d o es n o t challeng e the applicability of 18 U.S.C. § 1344 to his actions or to Cornerstone Communi ty Ba nk. He contends, howeve r, that the Gover nment did not put forth sufficie nt evidenc e for a rational jury to find that he intended to de fra ud Cornerstone. “‘Intent to defr aud’ means to act ‘with the specific intent to dece ive or cheat for the purpose of either causing some financ ial loss to another , or bring ing about some financ ial g ain to oneself.’ ” United St ates v. Vavliti s , 9 F.3d 206, 212–13 (1st Cir. 1993) (quoting United States v. Cloud , 872 F. 2 d 8 4 6 , 852 n.6 (9th Cir. 1989)). As this court has rec og nized, “[b] eca use direc t evidenc e o f a defe ndant’s fra

udulent intent is ty

pically not available , specific intent to defr aud may be established by circ umstantial evidenc e and by infere nce s d ra wn from examining the scheme itself which demonstrate that the scheme was rea sonably calc ulated to dece ive persons of ordinary prudenc e and compre hension.” United States v. W inkle , 477 F.3d 407, 413 (6th Cir. 2007) (quoting United States v. Y oon , 128 F.3d 515, 523–24 ( 7th Cir. 1997) (modification in orig inal)). The combination of the number of chec ks exchang ed by the banks, the larg e dollar value of the chec ks, and the absenc e of an appar ent leg itimate purpose for the transac tions sug g ests Dowlen intended to defra

ud Cornerstone Community Ba nk. See United States v. Y oon , 128 F.3d 515, 524 (7th Cir. 1997). But ev en i f we assume for purposes of arg ument that there are g ood-fa ith

- 7 -No. 11-6406

U.S. v. Dowlen explanations for these fac ts, there is no explanation for Dowlen’ s continued chec k kiting afte r Cornerstone confr onted him. See United States v. Abboud , 438 F.3d 554, 593–94 (6th Cir. 2006). His continued chec k kiting and the simult aneous infusion of the Howar ds’ and Shoemaker s’ funds

can only be understood as d em o n s t ra t ing Dowlen’ s intent to dece ive Cornerstone for his own financ ial benef

it. For purposes of establishing g uilt under 18 U.S.C. § 1344, it is not r equire d that Cornerstone suffe red any loss. See Eve rett , 270 F.3d at 991. There was suffici en t ev i d en ce to support the jury ’s conviction.

B. Admissibili ty of the Testimony of David Howard and Peggy Shoemak er Second, Dowlen argues that the district court abused its discretion by finding the testimony of David Howar d and Peg g y Shoemaker rele vant and not unduly prejudicia l. The admission of David Howa

rd’s a nd Peg g y Shoemaker ’s testimony

does not war

rant re versa l. The Gover

nment introduced t he testimony of David Howar d and Peg g y Shoemaker , two individuals who wer e buying homes that Dowl en wa s const ructing

. Although the Howar ds and Shoemaker s al re ad y p ai d their down pay ments, Dowlen was able to convince them to g ive him $250,000 in additi o n al funds in late Aug ust 2008. Ba sed on the testimony of an expert in chec k kiting, the Gover

nment all eg ed that Dowlen soug ht this $250,000 to perpe tuate his chec k-kiting scheme

. The Gover

nment put Mr. Howar d and Mrs. Shoemaker on the stand to provide backg round evidenc e re g ardingthe source of the $250,000 a nd Dowlen’ s business dealing s. Dowlen object e d , a

r g u in g th a t M r . Howar d’s and Mrs. Shoemaker ’s testimony was irrele vant and unduly prejudicia l. Dowlen argues here on appea l that the Gover nment’s purpose was to inject

- 8 -No. 11-6406

U.S. v. Dowlen

evidenc e of Dowlen’ s brea ch of contra ct with the Howar ds and Shoemaker s to bias the jury ag ainst Dowlen. He argues that their testimony is irrele vant to the chec k-kiting scheme beca use there was

no nexus betwee n the homes he was building for the Howar ds and Shoemaker s and the chec k kiting. The district court did not abuse its discretion in finding the evidenc e rele vant. Relevanc y is

a low bar; all that is req u i re d i s fo r the evidenc e to have “any tendenc y to make a fac t [of conseque nce] more or less probable than it would be without the evidenc e.” Fe d. R. Evid. 401. At trial, the Gover

nment repr esente d that the testimony would show Dowlen’s k n o wl edge that his chec k-kiting scheme was falling apar t and that he had a g uilty intent in “swindling these folks.” Trial Tr. J u l y 1 8 , 2 0 1 1, 146. The district court did not abuse its discretion in finding that Mr. Howar d’s and Mrs. Shoemaker ’s testimony would have some tendenc y to make Dowlen’ s intent to defr aud the ba

nks more proba

ble than it would be without the evidenc e. Dowlen had a plausible argument that even if the evidenc e was rele vant, its prejudicia l nature outweig hed its probative value. Howeve r, t his deter mination is within the broad discretion of the trial judge and this court considers “the evidenc e in ‘the light m o s t fa v o rable to its proponent, maxi miz ing its probative value and minimi zing its prejudicia l eff ect.’ ” United States v. Bonds , 12 F.3d 540, 567 (6th Cir. 1993) (quoting United States v. Zipkin , 729 F.2d 384, 389 (6th Cir. 1984)). The testimony of Mr. Howar d and Mrs. Shoemaker had the potential to inform the jury about Dowlen’ s behavior afte r Cornerstone bank confr onted him about his chec k-kiting scheme

. This could be probative of Dowlen’ s intent to defr aud the bank. The dang er of unfair prejudice could be

as minimal as the time it took for two witnesses to speak. In fac t, this is how the district co u rt

- 9 -No. 11-6406

U.S. v. Dowlen

understood the prejudice

. See Trial Tr. J uly 19, 2011, 165 (“The only prejudice I could see to y our client is that we may

have to he ar f

rom two other witnesse s.”). Mrs. Shoemaker ’s statement from the stand, “That was our life saving s and it’s been stolen,” id. at 189, confirme d Dowlen’ s conce rns of unfair prejudice , but as the Supreme Court stated in Old Chief v. United States , “[i] t is important that a revie wing court ev al u at e t h e trial court’s decision from its perspe ctive when it had to rule and not indulge in revie w by hindsight.” 519 U.S. 172, 182 n.6 (1997). Per

haps the district cour

t should have pre dicted Mrs. Shoemake r’s stateme nt, but this ty pe of predic tion is the province of the trial judg e. I t was not an a buse of discr etion to allow Mr. Howar d and Mrs. Shoemake r to testify

. C. Jury I nstruction s Third, Dowlen argues that it was err or for the district court to in s t ru ct the jury that it was irrele vant whether the financ ial i nstitut ion was paid back. L ooking at the jury instructions as a whole, the instructions do not requir e re versa l. The district cour

t instructed the jury

as follows: I t is sufficie nt to prove an intent to defr aud if the g overnme nt proves the funds of the financ ial instit ution wer e at risk. Note the languag e is “at risk,” not that the bank lost money or that the defe ndant intended to cause the financ ial institution to lose money . Ne i t her an actua l loss of m oney [n] or an intent on the part of t he defenda nt for t h e financ ial institution to lose money is require d under the bank fra ud statute. For that reason it is also irrelevant w h ether the financial instit ution was paid back, was reimbursed, or did not lose money . I t is also irrele vant for y o u r consideration whether chec ks wer e cove re d o r made g ood, whether insufficient funds fee s or penalties we re pa id, or if a f inancial institution honored the che cks. Ba nk fra ud is a fede ral offe nse. So whether a bank participa ted in, acquie sced in, or approve d the fra

ud would not be a defe nse. For a person to have the intent to

- 10 -No. 11-6406

U.S. v. Dowlen

defr aud, they cannot act in g ood faith. A person who acts or cause s another person to act on a belief or an opinion honestly held is not punishable under the bank fra ud statute mere ly beca

use the belief or opinion turns out to be inacc urate , incorre ct, or wrong . An honest mistake in judg ment or an honest err or in ma nag ement does not rise to the level of criminal conduct. A defe ndant does not act in g ood faith if, even though he honestly holds a cer tain opinion or belief, that de fenda nt a lso know ingly makes false or frau d u l ent prete nses, repr esentations, or promises to others or acts with rec kless disreg ard f

or the true fac ts. Whil e the term g ood faith has no prec ise definition, it e ncompasses, among other thing s, a belief or opi nion honestly held, an absenc e of malice or ill will , and an intention to avoid taking unfair advanta g e of another

. The burden of proving g ood faith does not rest with the defe ndant, beca use the defe ndant does n o t h ave any obligation to prove any

thing in this case . I t is the gove rnment' s burden to prove to y ou bey ond a rea sonable doubt that the defe ndant acte d with an intent to defr aud. I f t h e evidence in this case leave s y ou with a rea sonable doubt as to whether t h e defe ndant acte d with an intent to defr aud or instead acte d in g ood faith, y ou must find the def endant not g uilty

on that particula

r count of f

raud. Trial Tr. J uly 20, 2011, 347–49 (empha sis added)

. Dowlen acknow ledg es that his postd etec tion repa y ment does not reduc e his culpability

. Dowlen contends, howeve r, that the jury could consider his repay ment rele vant to whether

he initially

intended to def

raud the banks. Do wlen is logic ally corr ect that evidenc e of repa y ment could be rele vant to Dowl en ’s prede tection intent beca

use repa y ment makes it more probable that it was an honest mistake than if Dowlen had ref

used to reimburse Northwe st Geor g ia for its loss. But the question for this c ourt is whether “the instructions, when viewed as a whole, wer e confusing , misleading , and prejudicia l.” Roberts ex rel. Johnson v. Galen of Va., Inc. , 325 F.3d 776, 787 (6th Cir. 2 0 0 3 ) (q u o t i n g United States v. W

ells , 211 F.3d 988, 1002 (6th Cir. 2000). The statement about rele vance was made in the

course of instructing the jury conce rni n g t he issue of whether a bank needs to suffe r a loss. The district court subsequently g ave detailed instructions cover ing the g ood-fa ith defe nse. The jury was - 11 -No. 11-6406

U.S. v. Dowlen

told “An honest mistake in judgme nt or an honest err or in manag ement does not rise to the level of criminal conduct

. . . . Whil e the ter m good f aith has no prec ise definition, it e ncompasses, among other thing s, a belief

or opinion honestly held, an absenc e of malice or ill will , and an intention to avoid taking unfair advanta g e of another .” Trial Tr. J uly 20, 2011, 348. As a whole, the instructions

wer e acc eptable beca

use a jury would have understood that it could take all fac ts into acc ount when considering whether Dowlen ac t ed in g ood faith when he initially prese nted the chec ks to Cornerstone. I n addition, the rec ord ref lects that the district cou rt wa s o p en to the idea of substitut ing another word for the word irrele vant, to addre ss Dowlen’ s conce rns. See id. at 330 (“ I wo u l d b e willing to consider repla cing the word irrele vant wi t h s o m et h i n g else.” ). The district court also considere d other way s to express its point about repa y ment but decide d that conce rns about biasing the jury outweig hed more specific lang uag e. The district court said I considere d putting in, “I t is not a defe nse whether the financ ial instit ution was paid back,” but thought that was a littl e bit too much involved in this case . So I was trying to tell the jury that “I t’s rea lly not a consideration for y ou whether the bank was paid back or not paid back, or

whether the che cks we re c overe d or not cove red.” Id. at 331. Dowlen’ s argument reg arding the district court’s instruc tions does not warra nt reve rsal. D. Attributabl e Loss Four th, Dowlen contends that the district court incorre ctly calc ulated the attribut ab l e l o s s under U .S.S.G. § 2B1.1. Dowlen makes a two- part a rg ument, but both parts fail.

- 12 -No. 11-6406

U.S. v. Dowlen

1. Northwe st Georg ia’s $310,000 L oss Dowlen arg

ues that beca

use he was not char g ed in the superse ding i n d i ct m en t with defr auding Northwe st Geor g ia Ba nk and beca

use he paid Northwe st Geor g ia back for its $310,000 loss, the district court’s inclusion of Northwe st Geor g ia’s $310,000 loss was an err or. This argument is not meritorious. First, Dowlen’ s postdetection repa y ment is not materia l to the attributable loss calc ulation. The Guidelines commentar y allows for a reduc tion in attributable loss for prede tection repa y ment. See U.S.S.G. § 2B1.1 cmt. n.3(E)( I ). The key moment, howeve r, is detec tion. See Abboud , 438 F.3d at 594. I f postdetection repa y ments reduc ed the at t ri b utable loss, then wea lthy defe ndants would simply be able to buy their way out of jail. See United States v. Flowers , 55 F.3d 218, 221 (6th Cir. 1995). Be cause Dowlen’ s repa y ment was made afte r detec tion, repa y ment does not chang e the calc ulation of attributable loss under U.S.S.G. § 2B1.1. Second, whether he was char g ed with defr auding No rt hwest Geor g ia Ba nk is also not materia l to the attributable loss calc ulation. Attributable losses are calc ulated by looking at all acts and omissions “that occur red during the commission of the offe nse of conviction, in prepa ration for that offe nse, or in the c ourse of attempting to avoid detection or r esponsibility for that offense

. . . [and] all harm that resulted from the acts and omissions .” U.S.S.G. § 1B1.3( a) (empha sis added)

. Whether or not the Gover nment char g ed Dowlen with defr auding Northwe st Geor g ia bank, the $310,000 loss resulted from acts occur ring during the commission of Dowlen’ s fra ud upon Cornerstone.

- 13 -No. 11-6406

U.S. v. Dowlen

N o r thw est Geor g ia’s $310,000 loss was p r o p e r ly a tt r ib ute d to D o w le n ’ s c h e c k

- k it in g s c h e me . 2. The $100,000 L oss Related to the Howa rds and Shoemake rs Dowlen’ s argument that the Howar ds’ and Shoemaker s’ losses should not have been taken into acc ount also does not require reve rsal. At the sentenc ing hear ing, Dowlen and the Gover nment offe red differ ing theories reg arding whether the Howar ds’ and Shoemaker s’ losses resulted from Do wlen’s check- kiting scheme. The Government contended that the Howards’ and Sho em ak er s ’ losses resulted from Dowlen’ s acts that took place “in t he course of attempting to avoid detection

or responsibility ,” U.S.S.G. § 1B1.3( a)( 1), for his bank fra ud, and are there fore attributable losses. I n support of this theory , the Gover nment pointed out that the injection of the Howar ds’ and Shoemaker s’ funds into the chec k-kiting scheme shifted losses from Northwe st Geor g ia Ba nk to the families. Dowlen maintained that he obtained the $250,000 from the Howar ds and Shoemaker s in the ordinary course of his construction business and that their losses resulted from the overa ll failure of his business rather

than any thing r elated to the c heck- kiting sche me. The district court appea

red to split the differ ence , but eff ectively sided with the Gover nment. The district court said that it was g iving Dowlen the benef it of the doubt and cre dited Dowlen with $150,000 as being used for leg itimate business purposes, but the court found the rema ining $100,000 to be an attributable loss

. When combined with Northwe st Geor g ia’s $310,000 loss, this resulted in a loss of $410,000—above t h e $ 4 0 0 , 000 threshold for U.S.S.G. § 2B1.1( b)(1) offe nse-leve l deter mination. Be cause the next loss tier was at $1,000,000, the only question for Guidelines calc ulation purposes was whether the attributable losses would be more than $400,000. As long as

- 14 -No. 11-6406

U.S. v. Dowlen

the district court found that at l east $90,001 of t he Howards and Shoemaker s’ funds we nt into the chec k-kiting sc heme, the G uidelines rang e would be the same. The court’s allocation of the $250,000 betwee n leg itimate business purposes and the chec kkiting scheme is a fac tual deter mination and thus is revie wed for clea r err or. See 1 8 U. S.C. § 3742(e)

. The amount of l oss does not need to b e p re ci s el y calc ulated; t he Guidelines say that the “c o u rt need only make a rea sonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n . 3 (C ). Acc ording ly , the question for this court is whether it “is left with a definite and firm conviction” that the district court made an unrea sonable estimate. Anderson v. City of Bessem er City, N.C. , 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948))

. The district court’s allocation was not clea r err or. The district court was prese nted with two plausible theories of how to treat the $250,000 and chose a rea sonable estimate that was in-betwe en and resulted in a sentenc e that was consistent with the Gover nment’s theory

. As the Supreme Court stated in Anderson , “[w]here there are two permissible views of the evidenc e, the fac tfinder’ s choice betwee n them cannot be clea rly err oneous.” Id. at 574. I t would be more satisfying on revie w if the district court ha d been a

ble to trac e whe re the $250,000 went, but a dist rict court does not need to deter mine l o ss amounts with prec ision. See United States v. Triana , 468 F.3d 308, 320 (6th Cir. 2006). The district court said its allocation was “ver y conser vative” and gave Dowlen the benef it of the doubt. Sentenc ing H r’gTr. 30, Nov. 3, 2011. The district court’s estimate was rea sonable, espec ially considering that the only two chec ks with sufficie nt funds wer e written around the same tim e as Do wl en’s rec eipt of the Howar ds’ and Shoemaker s’ money and these two chec ks had a

- 15 -No. 11-6406

U.S. v. Dowlen

combined value of $98,000. This consideration makes it very rea sonable for a fac tfinder to conclude that at leas t $ 9 0 , 0 01 of the Howar ds and Shoemaker s’ funds went into the scheme

. The district court’s e stimate was not clea r er ror. E. Reduc tion for Acceptanceof Responsibilit y Fifth, Dowlen argues that he should re ce i v e a t wo-leve l reduc tion for acc eptanc e of responsibility bec au se he repa id Northwe st Geor g ia Ba nk. Dowlen did not make this argument below and failed to object to the prese ntence repor t’s rec ommendation that he should not rec eive an adjustment for acc eptanc e of responsibility

. There fore , our revie w is limit ed to plain err or. That is, Dowlen must show an er

ror that wa s obvious or clear, affe cted his substantial rig hts, and affec ted the fairne ss, integ rity , or public reputation of the judicial proce eding

. See United States v. Vonner , 516 F.3d 382, 385–86 ( 6th Cir. 2008) (en ba nc). T h e Guidelines allow for a reduc tion only when the defe ndant “ clearly demonstrates

acc eptanc e of responsibility .” U.S.S.G. § 3E1.1 (empha sis added)

. Thus, for it to be an obvious or clea r er ror not to apply

the ac cepta

nce- of-r esponsibility

reduc tion, it m ust be doubly clea r. I f this standard of revie w does not d i ct ate the outcome in Dowlen’ s case , the Guidelines commentar

y does. The c ommentary

states that: This adjustment is not intended to apply to a defe ndant who puts the g overnme nt to its burden of proof at trial by denying the essenti al fa ct u al elements of guilt, is convicted, and only then admits g uilt and expresses remorse . . . . I n rar e situations a defe ndant m ay clea

rly demonst rate an acce ptance of responsibili ty for his criminal conduct even though he exercises his constitutional rig ht to a trial. This may occur , for example, wher e a defe ndant g oes to trial to asser t and prese rve issues that do not relate to fac tual guilt (e.g ., to make a constitutional chal l en ge t o a statute or a challeng e to the applica

bility of a statute to his conduc t). - 16 -No. 11-6406

U.S. v. Dowlen

U.S.S.G. § 3E1.1 cmt. n.2. I n this c ase, Dowlen had not a dmitted guilt or expressed remorse even afte r being found g uilty ; in fac t, he maintains that there is an insufficient fac tual basis to convict him. I n addition, Dowlen does not challeng e the c onstitut ionality or applica

bility of 18 U.S.C. § 1344. The acc eptanc e-of

-re sponsibili ty reduc tion is not intende d to a p p ly to s o me o n e in D o wlen’s position. Dowlen argues that United States v. Flowers , 55 F.3d 218, 221–22 (6th Cir. 1995), require s that defe ndants who make p o s t d et ection pay ments should rec eive a two-point reduc tion for

acc eptanc e of r esponsibility

. We did state in Flowers that “[t] he fa ct that a c heck kiter enter s into

a repa y ment scheme afte r the loss has been discovere d does not chang e the fac t of the loss; such fac t

mere ly indicates some acc eptanc e of responsibility .” 55 F.3d at 221–22 (quoti ng United St ates v. Mau , 45 F.3d 212, 216 (7th Cir. 1995)). But this statement was made in the context of the calc ulation of lo s s es for U.S.S.G. § 2B1.1, rathe r than the application of the acc eptanc e-of

responsibility reduc tion at § 3E1.1. I n Flowers , the district court approve d of a two-point reduc tion for acc eptanc e of responsibility afte r Flowe rs pled guilty , see 55 F.3d at 220, 222, so this court had

no occa sion to consider the application of § 3E1.1. The opinion in Flowers could have just as easily used the phrase “acce ptance of the conseque nces” rathe r than “ac cepta nce of responsibility ” and come to the same conc lusion without any confusion about the a

pplication of U.S.S.G. § 3E1.1. Whil e Dowlen’ s repa

y ment may show that he is acc epting the conseque nces of his actions, he has not acc epted full responsibility for his actions. Responsibili ty entails a rec og nition of moral

acc ountability

. Dowlen, on the other hand, maintains that his actions wer e harmless and continues to pin the blame on Colony L P. Dowlen has not demonstrated that plain er ror oc curr ed.

- 17 -No. 11-6406

U.S. v. Dowlen

F. Downward Departure Six th, Dowlen arg

ues that the court err ed in reje cting his motion for a downwar d depar ture. This court’s jurisdiction to revie w a distr i ct court’s decision not to depar t downwar d is extremely circ umscribed; a decision not to depar t downwar d cannot be revie wed “unless the rec ord ref lects that the di strict court wa s not awar e of or did not understand it s discretion to make such a departure .” United St ates v. Pu ck

et t , 422 F.3d 340, 344–45 (6th Cir. 2005) (quoting United St ates v. Stewart , 3 0 6 F. 3 d 2 95, 329 (6th Cir. 2002)); see also 18 U.S.C. § 3742. The transcr ipt of the sentenci n g hear ing shows a leng thy colloquy re gar d i n g Dowlen’s argument for a downwar d depar ture. See Sentencing Hr’g Tr. 31–42, Nov. 3, 2011. At no point did the court express any doubt that it could make such a depar

ture, and the leng thy nature of the colloquy sug g ests that the court understood that it could g rant the motion for a downwar d depar ture if it found it war

rante d. Dowlen has not

overc ome t he presumption that a district cour t is aware of and understands its discretion to depar t downwar d. See United States v. Byrd , 53 F.3d 144, 145 (6th Cir. 1995). There fore , this court does not have jurisdiction to revie w the district cour t’s decision not to depar

t downwar d. I I I . C O N C L U S I O N For the fore g oing r easons, Dow len’s convic tion and sentenc e ar e af firmed.

- 18 -