* Chief Judge of the Northern District of Texas, sitting by

designation.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 92-4790

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BILL WILDER,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court

For the Eastern District of Texas

__________________________________________________

(February 22, 1994)

Before DUHE, EMILIO M. GARZA, Circuit Judges, and BLACK, District

Judge.*

EMILIO M. GARZA, Circuit Judge:

Defendant Bill Wilder pled guilty to one count of conspiring

to defraud an agency of the United States, in violation of 18

U.S.C. § 371, and one count of defrauding a financial institution,

in violation of 18 U.S.C. § 1344, pursuant to a plea agreement with

the government. The district court sentenced Wilder to a seventyone month term of imprisonment and three years supervised release.

The district court also imposed a fine of four million dollars.
 

1 Wilder was a stockholder of GSA and the majority stockholder,

founder, and chairman of the board of Bedford Savings Association ("BSA"), both

of which were insured by the Federal Savings and Loan Insurance Corporation.

 

2 Hale apparently caused the loans to be erroneously

identified as "simple interest loans," which did not require that

the recipient of the loans be identified. Moreover, Hale kept the

ledger reflecting the true extent of GSA's loans to Wilder in his

office and did not show it to federal banking authorities or to

GSA's board of directors.

 

3 A letter of credit is "[a]n engagement by a bank

. . . made at the request of a customer that the issuer will honor

drafts or other demands for payment upon compliance with the

conditions specified in the credit." Black's Law Dictionary 903-04

(6th ed. 1990).

-2-

Wilder now appeals his sentence on several grounds. We affirm in

part and reverse and remand in part.

I

Wilder, a licensed attorney and a self-described "land

trader/developer," sought to build several hotels and to purchase

a federally-insured depository institution. Wilder procured the

assistance of Mark Hale, the president and chief executive officer

of General Savings Association ("GSA"),1 to help obtain funding for

these projects. Hale then caused several loans to be made to

Wilder, or for his benefit, that were not reflected in the regular

loan files of GSA.2 Wilder also requested, and received, from GSA

several irrevocable letters of credit,3 many of which were typed on

GSA stationery in Wilder's law office by Wilder's employees. Like

the loans, Hale did not cause the letters to be identified in GSA's

records and their existence was not disclosed to federal bank

examiners. Wilder then used these letters as collateral on loans he
-3-

received from other financial institutions. Additionally, Wilder

obtained several fraudulent certificates of deposit, which he used

as collateral for loans, listing GSA as the depository institution.

Hale and Wilder also joined forces to conceal from GSA's board

of directors Wilder's involvement in GSA's purchase of a tract of

land in Bedford, Texas. Wilder purchased the land in 1984 for

$1.375 million. Approximately one year later, Hale presented to

GSA's board a proposal to purchase the land as investment property.

Hale, however, informed the board that the land was owned by R.J.

Kinney, one of Wilder's business associates. After GSA's board

approved the purchase, Wilder deeded the land to Kinney, and Kinney

received the $1.823 million purchase price. Kinney then gave

Wilder the sale proceeds, and Wilder ultimately paid Hale a

kickback of over $25,000.

Subsequently, Wilder, Kinney, and Toni Lockridge formed G & K

Development, Inc. ("G&K") to purchase property near the Dallas-Fort

Forth Airport that Wilder had previously agreed to purchase. Kent

Glasscock became a director of G&K, and Wilder signed an agreement

assuming liability on any loan obtained to purchase the property

and releasing Glasscock, Kinney, and G&K from liability. G&K then

obtained a loan from Bedford Savings, with part of the proceeds

used to purchase the land and part used by Wilder to pay various

debts. When Glasscock complained to Wilder that G&K was actually

a "front" for Wilder, Wilder caused BSA to release Glasscock from

liability on the loan. Freeport Development, Inc., a company
 

4 Wilder's law firm performed the legal work on this

transaction. In response to a request by the president of BSA for

all documents prepared by Wilder's firm regarding the Freeport

transaction, however, Wilder denied that his firm prepared any

documents.

-4-

listing Kinney as a director, later purchased the land from G&K

using loan funds provided by BSA.4 This loan then was transferred

to GSA in an attempt to hide its existence from bank examiners;

Hale caused GSA to assume the loan without the knowledge of GSA's

board.

After a lengthy government investigation, Wilder, Kinney, and

Glasscock were indicted on numerous charges of defrauding GSA and

BSA. One the eve of trial, Wilder and the government entered into

a plea agreement requiring Wilder to plead guilty to one count of

conspiring to defraud an agency of the United States and one count

of defrauding a financial institution. The agreement also provided

that the government would recommend a reduced sentence if Wilder

assisted the government in investigating or prosecuting other

individuals. After debriefing Wilder on several occasions, the

government ultimately determined that Wilder had not provided

sufficient cooperation and refused to move for a reduced sentence.

Wilder then filed a motion to compel specific performance of the

plea agreement, which the district court denied. Wilder now

appeals this ruling and the sentence ultimately imposed by the

district court.
 

5 The Sentencing Guidelines provides that "[u]pon motion of

the government stating that the defendant has provided substantial

assistance in the investigation or prosecution of another person

who has committed an offense, the court may depart from the

guidelines." United States Sentencing Commission, Guidelines

Manual, § 5K1.1 (Nov. 1991).

 

6 The United States Attorney's office for the Eastern

District of Texas determines whether to recommend a § 5K1.1

departure in a particular case by referring the matter to its

Departure Committee. Pursuant to the office's policies, the

prosecutor informs the committee of the extent, nature, and quality

of a defendant's assistance. A defendant also has the opportunity

to submit a statement to the committee. Here, the members of the

committee unanimously voted not to move for a downward departure.

-5-

II

Wilder first argues that the government, in the plea

agreement, agreed to file a § 5K1.1 motion requesting a downward

departure in his sentence,5 and that the government breached this

promise by not filing the motion. The government contends the

Departure Committee for the Eastern District legitimately

determined that the government should not move for a § 5K1.1

departure because Wilder had not provided substantial assistance.6

The disputed provision in the plea agreement provided:

[I]n the event it is determined that [Wilder] provides

substantial assistance in the investigation and/or

prosecution of other individuals, the United States will

move the court to depart downward from the guidelines

under Section 5K1.1. BILL WILDER understands that even

if such a motion is made, that the court has sole

discretion to grant or deny the motion.

This agreement bound not only the prosecutor in the Eastern

District, but also federal prosecutors in other districts who were

pursuing possible charges against Wilder.
 

7 Cobb's letter stated: (1) Although Wilder was initially

reluctant to provide details of various transactions, Wilder later

was "much more forthcoming" and provided "numerous documents" and

"information [that] helped in the investigation of other

individuals at Bedford Savings Association." (2) Wilder testified

before a grand jury "concerning numerous transactions" and

"indirectly" helped the government obtain two indictments. (3)

Wilder's cooperation also may have convinced Bedford's former

president to plead guilty to conspiracy to commit bank fraud. (4)

Wilder additionally testified before the grand jury about kickbacks

that he received from Edward Richter; "[a]s a result of [Wilder's]

known cooperation, Edward Richter pled guilty" to two bank fraud

offenses. (5) Wilder's cooperation "likewise led to a guilty plea

-6-

A

"Whether the government's conduct violated the terms of the

plea agreement is a question of law." United States v. Watson, 988

F.2d 544, 548 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.

Ct. 698 (1994). Wilder, as the party alleging a breach of the plea

agreement, bears "the burden of proving the underlying facts

establishing a breach by a preponderance of the evidence." Id.

"In determining whether the terms of the plea bargain have been

violated, the court must determine whether the government's conduct

is consistent with the parties' reasonable understanding of the

agreement." United States v. Valencia, 985 F.2d 758, 761 (5th Cir.

1993).

B

Wilder submits that a letter written by Charles W. Cobb, a

Justice Department trial attorney in the Northern District of

Texas, demonstrated that Wilder provided substantial assistance,

thereby obligating the government to file the motion for downward

departure.7 Wilder also contends that he was prepared to provide
by William Kemp" to making false statements, and Cobb anticipated

that information provided by Wilder would "lead to future

indictments." (6) Finally, Wilder provided "very valuable"

information and documents during an investigation of Bedford's

comptroller; "[a]s a result of Mr. Wilder's cooperation," Cobb

anticipated "an indictment against the comptroller . . . in the

near future." The prosecutor did not submit Cobb's letter to the

Departure Committee because it was not written until after the

Committee had met.

In the same vein, we note that the government, while declining

to file § 5K1.1 motion, filed a motion before sentencing detailing

Wilder's cooperation. The motion reported that Wilder "responded

to every request for documents by the Government," "furnished

voluminous documents" regarding his own case, and "met with several

agents of the F.B.I. at their convenience and discussed what he

knew about what they inquired." This motion also referenced and

included Cobb's letter.

 

8 The prosecutor in this case, Assistant United States

Attorney Larry Eastepp, submitted two letters to the committee

detailing Wilder's assistance. The first, from government agent

Norman Middleton to Eastepp, stated: (1) Wilder provided documents

relating to the prosecution of Glasscock; "[a]lthough these

documents did not result in conviction, Wilder's cooperation was

helpful." (2) "Wilder allowed the Government access to any

documents in his possession and at times allowed his accountants to

assist the Government in the analysis of these records." (3)

Wilder's grand jury testimony against Ed and Devon Richter

"substantiated the information which the Government already had,

strengthening the Government's case," although the government "had

enough information without Wilder's testimony to prosecute the

Richters." "In summary," Middleton concluded, "Wilder's

information was true, accurate, and assisted the prosecution of

several individuals, but came at a time when the Government was

already positioned to prosecute these people, without Wilder's

-7-

additional assistance to the government, but the government

informed him that it did no longer needed his assistance. The

government, on the other hand, argues both that the plea agreement

allowed the government to determine whether Wilder provided

substantial assistance and that the Departure Committee's goodfaith determination that Wilder had not provided substantial

assistance was correct.8
assistance." 

The second letter, from Eastepp to the committee, stated: (1)

Wilder did not testify in the Glasscock trial because the plea

agreement with Wilder was not reached until shortly before

Glasscock's trial began, and Eastepp did not have time to debrief

Wilder. (2) Other than one grand jury appearance, "Wilder [w]as

not . . . asked to testify for the government" and there existed no

instances "where his testimony may have been needed and was not

used." (3) Wilder offered primarily historical or corroborative

information about other co-conspirators. (4) Ed Richter's decision

to enter into a plea agreement was "in part attributable to

information that Wilder provided." (5) While Wilder "alluded to

having detailed information about the criminal acts of others,

. . . when pressed he [either did] not come forward with this

additional information or it [w]as . . . corroborative/known

information." (6) "Wilder has only reluctantly cooperated in

[related civil] suits filed against him personally."

-8-

In United States v. Hernandez, 996 F.2d 62, 63 (5th Cir.

1993), a case involving facts remarkably similar to the case at

bar, the plea agreement provided that "if Mr. Hernandez should

provide substantial assistance to the Government, . . . the

Government may make a motion for downward departure at sentencing."

When the government refused to move for a downward departure,

Hernandez sought to compel the government to do so, arguing that

"he provided every bit of assistance within his power." Id. at 64.

The district court, explicitly finding that Hernandez had not

provided substantial assistance, rejected Hernandez's claim that

the government breached the plea agreement. We vacated Hernandez's

sentence, however, because the district court did not "determine

whether the government's conduct [was] consistent with the parties'

reasonable interpretation of . . . what might constitute

substantial assistance." Id.
 

9 At sentencing, the district court found that Wilder "did

not render a full and complete debriefing and substantial

assistance to the Government as agreed by him. Instead, [Wilder's]

assistance [was] for the most part grudging, reluctant, and not

forthcoming, and he revealed information only upon specific

requests." In a memorandum opinion issued shortly after Wilder was

sentenced, the district court found the government's determination

that Wilder did not provide substantial assistance to be

"objectively reasonable."

-9-

Here, as in Hernandez, the district court concluded))without

making any discrete factual determinations as to the reasonable

expectations of either Wilder or the government))that the

assistance provided by Wilder was not substantial.9 See id.

Although the government, and the district court, believed the

information provided by Wilder to be insubstantial, "[t]he record

. . . is silent as to just what the parties did believe, at the

time the plea agreement was entered into, would constitute

substantial assistance." Id. (emphasis added). Moreover, "[t]he

record is simply devoid of information concerning what quantity or

quality of information and cooperation the parties contemplated

that [Wilder] would (but did not) provide in this case." Id. We

also note the district court failed to address Wilder's claim that

government investigators failed to both follow up on information he

provided and fully debrief him. See United States v. Melton, 930

F.2d 1096, 1098-99 (5th Cir. 1991) (noting that when a defendant,

"in reliance on a [promise by the government], accepted the

government's plea offer and did his part, or stood ready to perform

but was unable to do so because the government had no further need

or opted not to use him, the government is obliged to move for a
 

10 We of course express no view as to the ultimate

resolution of these issues.

-10-

downward departure"). Consequently, we must remand this case for

such determinations.10 On remand, if the district court determines

that Wilder did provide substantial assistance, it must then

determine whether the plea agreement obligates the government to

move for a downward departure))i.e., whether the government, in the

agreement, retained its discretion to refuse to move for a downward

departure even if Wilder provided substantial assistance.

Hernandez, 996 F.2d at 66; see also Wade v. United States, ___

U.S. ___, 112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992)

(recognizing that the government could obligate itself to file a

substantial-assistance motion in exchange for a defendant's guilty

plea).

III

Wilder's next contention, which is closely related to the

substantial assistance issue, is that the district court erred in

sentencing him based on ex parte information, thereby depriving him

of the opportunity to rebut any incorrect factual assumptions made

by the court. Specifically, Wilder challenges the government's

decision to submit ex parte to the district court the letters upon

which the Departure Committee relied when deciding not to file the

§ 5K1.1 departure motion. The government contends that Wilder had

no right to examine the letters and, even if such a right exists,

Wilder waived that right by not asserting it prior to sentencing.
 

11 Accordingly, it is irrelevant that Wilder "repeatedly

requested the information" from the government "but had been

deprived of it." Moreover, even when Wilder broached the subject

of the letters during the sentencing hearing, he did not ask the

district court to order their production so that he could respond

to their contents prior to being sentenced. See Transcript of July

28, 1992 Sentencing Hearing at 24 ("I presume the Court is aware of

the fact that we have not been privy to viewing the materials that

are in camera . . . ."); id. at 39 ("may we ask the Government to

consider allowing Counsel for the Defendant access to [the letters]

so we can make an adequate determination with regard to the

appellate issues, Your Honor?"); id. at 39-40 ("I would move at

this time that the Court consider unsealing [the letters] so that

we can adequately and intelligently make a decision with regard to

the appeal; and if we do decide to appeal, whether we can

adequately respond and intelligently argue our position before the

Court of Appeals.").

-11-

We agree that Wilder waived any right he may have had to

receive the letters submitted by the government when he failed to

petition the district court for access to the letters prior to

sentencing. See United States v. Lemons, 941 F.2d 309, 320 (5th

Cir. 1991) (rejecting a claim that the district court should have

provided Lemons with certain letters because "when the district

court referenced that correspondence, Lemons did not object, did

not request to examine it, and did not request that it be made a

part of the record"). While Wilder argues that he did "object[] to

the fact that he had not been permitted to even see the letters,"

the record reveals that Wilder did not ask the district court to

order production of the letters until after he had been sentenced.11

Consequently, we need not determine whether Wilder had a right to

examine the documents submitted by the government because, if such

a right exists, Wilder waived it.
 

12 U.S.S.G. § 3C1.1 provides: "If the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the investigation, prosecution, or

sentencing of the instant offense, increase the offense level by 2

levels."

 

13 The plea agreement provided that "no truthful statements

made during the course of [Wilder's] cooperation will be used

against him, nor . . . will any such information . . . be used in

determining the applicable guideline range, with the exception of

the provisions of § 1B1.8(b) of the U.S.S.G." U.S.S.G. § 1B1.8(b)

provides, inter alia, that the government may use against a

defendant any information "known to the government prior to

entering into the cooperation agreement."

-12-

IV

Wilder next asserts that the district court erred by

increasing his offense level by two points for obstruction of

justice.12 Wilder contends that the district court, in finding the

obstruction enhancement applicable, unlawfully relied on evidence

obtained pursuant to Wilder's cooperation with the government.13

We review the district court's finding that Wilder obstructed

justice using the clearly erroneous standard. United States v.

Pofahl, 990 F.2d 1456, 1481 (5th Cir. 1993).

The basis for the obstruction enhancement was the district

court's finding that Wilder removed a loan file from BSA to hinder

the government's investigation. Wilder, however, argues that he

provided the loan file to the government only after the plea

agreement was signed, thus barring the government from using the

file against him in any way. The government failed to produce

evidence demonstrating whether it obtained the loan file from Mark
 

14 We note, however, that a letter sent by Eastepp to the

§ 5K1.1 committee reported that "[t]he main set of documents [to

which the government gained access pursuant to the plea agreement]

consisted of an original loan file taken out of Wilder's

institution, Bedford Savings, ostensibly by Wilder."

 

15 Notwithstanding the lack of evidence regarding the

circumstances under which the government obtained the loan file,

the government argues that the obstruction finding was appropriate

given Wilder's tardiness in returning to the probation office the

standard financial disclosure statement needed to properly complete

the PSR. However, "[a] defendant's . . . refusal to . . . provide

information to a probation officer . . . is not a basis for

application" of the obstruction enhancement. U.S.S.G. § 3C1.1,

comment. (n.1). Accordingly, we do not believe that Wilder's

three-month delay in returning the disclosure statement, standing

alone, constitutes obstruction of justice.

-13-

Hale, as it contends, or from Wilder, as Wilder contends.14 The

government also failed to demonstrate whether it knew, prior to

entering into the plea agreement, that Wilder had removed the file

from BSA. Because there is not "sufficient evidence in the record

to permit the sentencing judge to conclude that [Wilder] obstructed

the administration of justice," United States v. Frances-Torres,

869 F.2d 797, 800, we are compelled to find the district court's

conclusion that Wilder obstructed justice to be clearly erroneous.15

See id. at 801 (noting that § 3C1.1 should not be applied "when the

prosecution has failed to procure available evidence crucial to the

resolution of a controversy"). As this error affected the district

court's selection of the sentence imposed, we vacate Wilder's

sentence and remand for resentencing without consideration of the

obstruction enhancement. United States v. Surasky, 976 F.2d 242,

247 (5th Cir. 1992).
 

16 We have not definitively determined what standard applies

when reviewing a district court's refusal to credit a defendant's

acceptance of responsibility. Compare Hardeman, 933 F.2d at 283

(applying the clearly erroneous standard) with United States v.

Thomas, 870 F.2d 174, 176 (5th Cir. 1989) (applying the "without

foundation" standard) and United States v. Brigman, 953 F.2d 906,

909 (5th Cir.) (applying the "great deference" standard), cert.

-14-

V

Wilder next argues that he is entitled to a downward

adjustment in his offense level because he accepted responsibility

for his crimes. Under § 3E1.1(a) of the guidelines, "[i]f the

defendant clearly demonstrates a recognition and affirmative

acceptance of personal responsibility for his criminal conduct,"

the district court may reduce the defendant's offense level by two

points. "The mere entry of a guilty plea, however, does not

entitle a defendant to a sentencing reduction for acceptance of

responsibility as a matter of right." United States v. Shipley,

963 F.2d 56, 58 (5th Cir.) (per curiam), cert. denied, ___ U.S.

___, 113 S. Ct. 348, 121 L. Ed. 2d 263 (1992).

Entry of a plea of guilty prior to the commencement of

trial combined with truthful admission of involvement in

the offense and related conduct will constitute

significant evidence of acceptance of responsibility

. . . . However, this evidence may be outweighed by

conduct of the defendant that is inconsistent with such

acceptance of responsibility.

U.S.S.G. § 3E1.1, comment. (n.3) (emphasis added). Here, the

district court found that Wilder did not fully accept

responsibility for his criminal acts. We review this finding using

the clearly erroneous standard. United States v. Hardeman, 933

F.2d 278, 283 (5th Cir. 1991).16
denied, ___ U.S. ___, 113 S. Ct. 49, 121 L. Ed. 2d 16 (1992).

However, "[t]here appears to be no practical difference between the

three standards." United States v. Cartwright, 6 F.3d 294, 304

(5th Cir. 1993).

-15-

While Wilder accepted responsibility for some acts, he did not

demonstrate "sincere contrition" regarding the full extent of his

criminal conduct. See United States v. Beard, 913 F.2d 193, 199

(5th Cir. 1990). Instead, Wilder sought to minimize his

participation in the offenses, blame others for his criminal

activity, and resist efforts by the Resolution Trust Corporation

and the probation office to investigate his financial affairs. See

United States v. Windham, 991 F.2d 181, 183 (5th Cir.) (noting that

a defendant is required under the pre-1992 guidelines to accept

responsibility for all relevant criminal conduct to be eligible for

a downward departure under § 3E1.1), cert. denied, ___ U.S. ___,

114 S. Ct. 444, 126 L. Ed. 2d 377 (1993); United States v. Alfaro,

919 F.2d 962, 968 (5th Cir. 1990) (same). Moreover, Wilder did not

agree to plead guilty until the eve of trial, thereby putting the

government to much effort and expense preparing for trial. See

U.S.S.G. § 3E1.1, comment. (1(g)) (noting that the district court

should consider "the timeliness of the defendant's conduct in

manifesting the acceptance of responsibility"). Accordingly, the

district court's finding that Wilder did not accept responsibility

is not erroneous.
-16-

VI
-17-

Wilder contends that the district court erred in awarding him

a four point upward adjustment for his role in the conspiracy.

Such an adjustment is proper "[i]f the defendant was an organizer

or leader of a criminal activity that involved five or more

participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). In

determining the number of participants in a criminal activity, the

district court must focus upon "the number of transactional

participants, which can be inferentially calculated provided that

the court does not look beyond the offense of conviction to enlarge

the class of participants." United States v. Barbontin, 907 F.2d

1494, 1498 (5th Cir. 1990). The term "offense," however, "is

broader than the offense charged, and includes the `contours of the

underlying scheme itself.'" United States v. Kleinebreil, 966 F.2d

945, 955 (5th Cir. 1992) (quoting United States v. Mir, 919 F.2d

940, 945 (5th Cir. 1990)). Thus, "the scope to be considered

. . . encompasses . . . the underlying activities and participants

that directly brought about the more limited sphere of the elements

of the specific charged offense." United States v. Manthei, 913

F.2d 1130, 1136 (5th Cir. 1990). We review the district court's

findings on this issue under the clearly erroneous standard.

United States v. Mergeson, 4 F.3d 337, 347 (5th Cir. 1993).

The record adequately demonstrates that Wilder participated in

a criminal activity involving at least five individuals. First,

Wilder himself may be counted as a participant. Barbontin, 907

F.2d at 1498. Moreover, the record reflects that Kinney,
 

17 We also note that the parties stipulated that Wilder's

scheme to defraud the two savings and loans caused losses of over

five million dollars. See United States v. Allibhai, 939 F.2d 244,

252-53 (5th Cir. 1991) (upholding district court's finding that a

money laundering scheme was "otherwise extensive" because over one

million dollars was involved), cert. denied, ___ U.S. ___, 112 S.

Ct. 967, 117 L. Ed. 2d 133 (1992).

-18-

Glasscock, and Hale also were participants in the underlying

criminal scheme. Finally, evidence submitted by Wilder indicates

that at least one of his employees prepared the fraudulent letters

of credit and was otherwise associated with the counterfeit

certificates of deposit and the fraudulent land transfers.

Consequently, the criminal scheme in which Wilder was a participant

involved at least five individuals.17

The record also establishes Wilder's status as a leader or

organizer of the scheme. In determining whether a defendant was a

leader or organizer, the district court should consider:

the exercise of decision making authority, the nature of

participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the

nature and scope of the illegal activity, and the degree

of control and authority exercised over others.

U.S.S.G. § 3B1.1, comment. (n.3). Here, application of these

factors indicates that Wilder organized and managed almost every

aspect of the scheme. For example, Wilder enlisted the assistance

of Glasscock, Hale, and Kinney in defrauding the two savings and

loans and concealing Wilder's participation in transactions through

the use of sham land transfers. Moreover, Wilder agreed to release

Glasscock and Kinney from liability regarding the G&K land purchase
 

18 Section 5E1.2 of the guidelines provides a fine range for

Wilder's offense level of $10,000 to $100,000.

 

19 The guidelines also recognize that upward departures from

the fine guideline range are appropriate in certain cases:

Where . . . two times either the amount of gain to the

defendant or the amount of loss caused by the offense

exceeds the maximum of the fine guideline, an upward

departure from the fine guideline may be warranted.

Moreover, where a sentence within the applicable

fine guideline range would not be sufficient to ensure

both the disgorgement of any gain from the offense that

otherwise would not be disgorged . . . and an adequate

punitive fine, an upward departure from the fine

guideline range may be warranted.

-19-

transaction and received the bulk of the proceeds and benefits from

the fraudulent schemes. The evidence thus amply supports the

district court's conclusion that Wilder exercised a leadership role

in the criminal scheme.

VII

Wilder next argues that the district court erred in imposing

a four million dollar fine, which was an upward departure from the

guideline range.18 In determining whether to impose a fine, the

district court must consider two factors particularly relevant to

our inquiry: "any pecuniary loss inflicted upon others as a result

of the offense" and "the need to deprive the defendant of illegally

obtained gains from the offense." 18 U.S.C. § 3572(a)(3), (4).

Moreover, "[i]f any person derives pecuniary gain from the offense,

or if the offense results in pecuniary loss to a person other than

the defendant, the defendant may be fined not more than the greater

of twice the gross gain or twice the gross loss . . . ."19 18
U.S.S.G. § 5E1.2, comment. (n.4).

-20-

U.S.C. § 3571(d). Accordingly, Wilder must have derived a gross

gain or caused gross losses of at least two million dollars to

justify the four million dollar fine.

A

Although we have recognized the general standards for

reviewing departures from the sentencing guidelines, we have not

yet addressed the standards for reviewing upward departures from

fine guideline ranges. Because the statute governing appellate

review of sentences draws no distinction between review of

departures from fine or imprisonment ranges, see 18 U.S.C.A.

§ 1372(e)-(f) (West Supp. 1993), the standards we previously have

established for review of upward departures from imprisonment

ranges are equally applicable to reviewing departures from fine

ranges. See United States v. Graham, 946 F.2d 19, 21 (4th Cir.

1991) (reaching the same conclusion). Thus, we review the district

court's decision to depart from the guidelines for an abuse of

discretion. See United States v. Roberson, 872 F.2d 597, 601 (5th

Cir.), cert. denied, 493 U.S. 861, 110 S. Ct. 175, 107 L. Ed. 2d

131 (1989). "A departure from the guidelines will be affirmed if

the district court offers `acceptable reasons' for the departure

and the departure is `reasonable.'" United States v. VelasquezMercado, 872 F.2d 632, 635 (5th Cir.), cert. denied, 493 U.S. 866,

110 S. Ct. 187, 107 L. Ed. 2d 142 (1989). The reasons articulated

by the district court in support of its decision to depart from the
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guidelines constitute findings of fact that we review for clear

error. Id.

B

The district court based its decision to upwardly depart on

two grounds: first, that the enhanced fine was necessary to ensure

that Wilder disgorged any gain from his criminal activities and,

second, that the enhanced fine was permitted by § 3571(d) because

Wilder's criminal acts resulted in pecuniary losses to other

persons exceeding five million dollars. The district court's

findings that Wilder derived at least two million dollars in gross

gains and caused at least two million dollars in gross losses is

not clearly erroneous. For example, the parties stipulated to the

fact that the losses caused by Wilder's scheme exceeded five

million dollars. Moreover, the record adequately demonstrates that

Wilder received gross profits of over two million dollars from the

scheme to defraud. Thus, the district court did not abuse its

discretion by upwardly departing from the fine guideline range.

VIII

Wilder's last contention is that the government breached the

plea agreement by recommending to the district court that it adopt

the PSR, which in turn recommended the upward departure regarding

Wilder's fine. The government in the plea agreement promised "not

to oppose any sentence falling within the guidelines established

for" the offenses committed by Wilder. Wilder argues that the

prosecutor violated that promise by telling the district court that
 

20 Because Wilder opted to plead guilty instead of going to

trial, thereby depriving the district court of the opportunity to

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the probation office had supplied the court "with an excellent

Presentence Report [providing] the Court with great detail about

this case . . . , [giving] the Court a good picture of what

occurred in this case and . . . fully inform[ing] the Court so that

the Court can make the proper decision in this case."

Wilder failed to object to the comments that he now

challenges. Consequently, we review his claim for plain error.

United States v. Goldfaden, 959 F.2d 1324, 1327 (5th Cir. 1992).

Plain error 

is error which, when examined in the context of the

entire case, is so obvious and substantial that failure

to notice and correct it would affect the fairness,

integrity or public reputation of judicial proceedings.

. . . Alternatively stated, when a new factual or legal

issue is stated for the first time on appeal, plain error

occurs when our failure to consider the question results

in "manifest injustice."

United States v. Lopez, 923 F.2d 47, 50 (5th Cir.) (citation

omitted), cert. denied, ___ U.S. ___, 111 S. Ct. 2032, 114 L. Ed.

2d 117 (1991). The government's breach of a plea agreement can

constitute plain error. Goldfaden, 959 F.2d at 1328.

The prosecutor's comments do not amount to a breach of the

plea agreement. From the context in which the prosecutor made the

quoted remarks, it is clear that he was not recommending that the

district court depart from the applicable fine guideline range.

Rather, the prosecutor was commenting on the usefulness of the

PSR's recitation of facts.20 Additionally, the PSR did not
hear the factual basis for the charges brought by the government,

the PSR necessarily needed to provide the sentencing court "with

great detail about this case" and give the court "a good picture of

what occurred." Without such information, the sentencing court

could not properly impose a sentence.

 

21 The PSR, under the heading "Factors That May Warrant

Departure," stated that the amount of the loss caused by the scheme

to defraud and the extensive nature of the scheme "support an

upward departure for the fine amount."

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affirmatively state that the district court should impose a fine

greater than the guideline amount,21 and the issue of departing from

the guideline range was not mentioned during sentencing until the

district court announced its intent to impose an enhanced fine.

Cf. United States v. Hand, 913 F.2d 854 (10th Cir. 1990) (no breach

where the prosecutor presented no direct evidence in contradiction

to agreement). This case, therefore, is distinguishable from the

two cases cited by Wilder to support his claim that the government

violated the plea agreement by recommending an upward departure.

See United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992)

(where the government, after agreeing to recommend that the

sentencing court impose a specific sentence, failed to recommend

that sentence, urged the judge to impose a lengthy sentence and to

send a very strong message); Goldfaden, 959 F.2d at 1328 (where

the government, in the face of a promise to make no recommendation

as to the defendant's sentence, "suggested a base offense level,

argued for a minimum offense level . . . , later advanced a higher

base offense level . . . , and recommended an upward departure").
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Accordingly, we find that the government did not breach the plea

agreement by commending the PSR to the district court.

IX

For the foregoing reasons, we REVERSE the district court's

determination that Wilder obstructed justice, VACATE Wilder's

sentence, and REMAND for resentencing. On remand, the district

court should determine the validity of Wilder's allegations that he

rendered substantial assistance pursuant to the terms of the plea

agreement and that the government breached that agreement. In all

other respects, we AFFIRM the judgment of the district court.