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. e du/thir dc ir c uit_2000/74Filed April 6, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1149

UNITED STATES OF AMERICA

v.

JORGE TORRES a/k/a
GEORGE BOYD, JR. Jorge Torres, Appellant

No. 99-1491

UNITED STATES OF AMERICA

v.

JORGE TORRES a/k/a
GEORGE BOYD, JR. Jorge Torres, Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA District Judge: Honorable Eduardo C. Robreno, Jr.

D.C. Criminal No. 98-cr-00514

Submitted Under Third Circuit LAR 34.1(a) January 10, 2000

Before: BECKER, Chief Judge, and ALITO and BARRY, Circuit Judges.

(Filed: April 6, 2000)

Salvatore C. Adamo, Esquire

100 South Broad Street Land Title Building, Suite 1351 Philadelphia, PA 19110

Attorney for Appellant

Joel D. Goldstein, Esquire Assistant U.S. AttorneyOffice of United States Attorney

Suite 1250, 615 Chestnut Street Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

Appellant Jorge Torres was sentenced on his plea of guilty to one count of bank fraud, in violation of 18 U.S.C. S 1344. On appeal, he has raised various challenges to the sentence that was imposed, most bottomed on his
contentions that he was sentenced as if the fraud h ad been successful, when it was not, and there was no actua l loss.
We have considered the issues he has raised andfind them to be without merit. Because, however, two of the i ssues addressed to Torres' attempted but unsuccessful fra ud as well as the issue of how explicit a district court must be regarding a defendant's ability to pay a fine recur with some frequency in the district courts of this Circu it (and, by extension, in this Court), we will discuss them, al beit briefly.1

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1. Torres also contends that he should not have rec eived a two-level
increase in the offense level because his offense d id not involve "more

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I. Background

On September 14, 1997, Jorge Torres, identifying hi mself as George Boyd, opened a money market account at th e Cottman Avenue branch of the Commonwealth Bank in Philadelphia, Pennsylvania. He presented photo

identification displaying a picture of himself and a nonissued social security number. Ten days later, Torr es, again posing as Boyd, returned to the Cottman Avenue bran ch and opened a second money market account in the nam e of Kelly Services, Inc. He presented a license in Boyd 's name "c/o Kelly" from the Department of Licenses and Ins pection and deposited a subsequently dishonored $240.65 thi rd party check made payable to Kelly Services. On the same day, at the Port Richmond branch of the Commonwealt h Bank, another individual using Boyd's name (surveil lance cameras indicate that it was not Torres) deposited a stolen U.S. Treasury check in the amount of $66,021.94 and payable to Kelly Services into the Kelly Services a ccount. An investigation subsequently established that Torres' fingerprint was on the deposit slip used in that tr ansaction. The following day, Torres, yet again claiming to be Boyd,appeared at the Castor Avenue branch of the

Commonwealth Bank and attempted to withdraw $24,900 from the Kelly Services account. The bank refused t o permit the withdrawal, advising Torres that the funds were unavailable. Either shortly before or shortly there after, the bank came to suspect that the account was fraudulen t. It

___________________________________________________ ______________

than minimal planning." See U.S.S.G.S 2F1.1(b)(2)(A ). " `More than minimal planning' means more planning than is typic al for commission of the offense in a simple form' and is `deemed pre sent in any case involving repeated acts over a period of time, unle ss it is clear that

each

instance was surely opportune.' " U.S.S.G.S 1B1.1, comment (n.1(f)). Because generally a finding of more than minimal pl anning is fact specific and because the facts of this case compel the conclusion that more than minimal planning was involved, we will no t further discuss
this issue. Nor will we discuss Torres' contention that, because he did not profit from the fraud and there was no actual l oss, he should have but did not receive a downward departure. Where, as here, the District Court understood that it had the ability to depart but refused to do so, we lack jurisdiction to review that refusal. See Un ited States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996), cert. d enied, 520 U.S. 1253 (1997).

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notified the authorities, and Torres was subsequent ly

arrested.

On September 29, 1998, a grand jury in the Eastern District of Pennsylvania indicted Torres on one cou nt of bank fraud, in violation of 18 U.S.C. S 1344. On No vember 17, 1998, Torres pled guilty and a Presentence Inve stigation Report ("PSR") was prepared. The PSR noted that the United States Sentencing Guidelines ("U.S.S.G") cal led for a
base offense level of six for a violation of 18 U.S .C. S 1344. See U.S.S.G. S 2F1.1. Because the attempted loss wa s $66,262.59, i.e. more than $40,000 but less than $7 0,000, the base offense level was increased by five levels pursuant to U.S.S.G. S 2F1.1(b)(1)(F). Another two levels we re added pursuant to U.S.S.G. S 2F1.1(b)(2)(A) because the o ffense involved repeated acts over a period of time, and t wo levels were deducted pursuant to U.S.S.G. S 3E.1.1(a) beca use Torres accepted responsibility for the offense to w hich he pled guilty.

Based on a total offense level of eleven and a crim inal history category of I, Torres' guideline range was eight to fourteen months imprisonment. At the sentencing hea ring on February 8, 1999, Torres objected to the five le vel increase for loss in the amount of $66,262.59, cont endingthat the correct loss figure should be $24,900 with only a

four level increase. He argued, as well, that his a ctions constituted an attempt warranting only a three leve l increase pursuant to U.S.S.G. S 2X1.1(b)(1) and did not involve repeated acts over a period of time.

The District Court rejected each of Torres' objecti ons and denied his motion for a downward departure. Having ruled on the objections, the Court "adopted the recommend ed findings of facts in the presentence investigation report as the findings of facts of the Court."

Sentence was thereafter imposed as follows:

[T]he defendant, Jorge Torres, is hereby com mitted to the custody of the Bureau of Prisons to be i mprisoned

for a term of 12 months. That sentence shall be a split sentence, pursuant to Section 5(c)1.1 of the sentencing guidelines. The defendant shall spend six mo nths in custody and the balance of the sentence shal l be spent

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in a community confinement institution to be designated by the Bureau of Prisons.

Torres was also sentenced to a five year term of su pervised release and a $5,000 fine. He appealed.

Torres, still in prison after having served more th an seven months, filed a "Motion for Clarification of Split Sentence and Immediate Release on Home Confinement." He argu ed, not surprisingly and with considerable force, that the District Court's remarks at sentencing and the sent ence imposed clearly indicated that he serve six months in jail and six months in community confinement. If that wa s the sentence the Court intended to impose, we note, it did it wrong by not sentencing Torres to the custody of th e Bureau of Prisons for six months rather than twelve , with the remaining six months in community confinement a s a condition of supervised release. Be that as it may, the Court denied Torres' motion, stating that it senten ced Torres to twelve months imprisonment and only
recommended to the Bureau of Prisons that the last six months be served in a community confinement facilit y. Torres again appealed and, in little more than a pa ssing comment, suggests only that he disagrees with the C ourt's decision not to have immediately released him on ho me confinement. Whatever the District Court's intent a t sentencing may have been, however, the fact remains , and fact it be, that both orally and in the written Jud gment, the Court sentenced Torres to the custody of the Bureau of Prisons for twelve months, not six. Given that sent ence, wewill affirm without further discussion the denial o f Torres'

motion and will address only Torres' appeal from th e Judgment of February 8, 1999.2

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18 U.S.C. S 3231. We have jurisdiction pursuant 18 U.S.C. S 3 742(a) and (e) and 28 U.S.C. S 1291. We exercise plenary r eview of the District Court's legal construction of the Sent encing

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2. That appeal and the appeal from the Judgment hav e been consolidated by this Court for briefing and disposi tion.

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Guidelines. See United States v. Medeiros, 884 F.2d 75, 78 (3d Cir. 1989). Factual determinations and offense level calculations are reviewed under the clearly erroneo us standard. See United States v. Demes, 941 F.2d 220 (3d Cir.) cert. denied, 502 U.S. 949 (1991); United Sta tes v. Cianscewski, 894 F.2d 74, 82 (3d Cir. 1990). Where a defendant has not raised an issue at sentencing, th e standard of review is plain error. See Fed. R. Crim . P. 52(b).

III. Discussion

A. Amount of Loss

The District Court found, as had the PSR, that the loss was $66,262.59, i.e. the amount of the stolen check deposited into the Kelly Services account -- $66,02 1.94 -- plus the amount of the bad check used to open the a ccount -- $240.65. Torres contends that the loss was $24,9 00, i.e. the amount of the attempted withdrawal. Torres is w rong. As this Court has stated on numerous occasions, and as the Commentary to U.S.S.G. S 2F1.1 at note 8 provid es, the Guidelines sweep in not only actual loss but intend ed loss, if that amount can be determined and is higher than actual

loss:

This Court's precedents establish that `frau d loss is, in the first instance, the amount of money the victim has actually lost.' However, `if an intended los s that the defendant was attempting to inflict can be d etermined, this figure will be used if it is greater th an actual loss.'

United States v. Yeaman, 194 F.3d 442, 456 (3d Cir. 1999)(emphasis added) (quoting United States v. Coy le, 63 F.3d 1239, 1250-51 (3d Cir. 1995) & Application Not e 7 (now Application Note 8) to S U.S.S.G. 2F1.1); see also United States v. Holloman, 981 F.2d 690, 693 (3d Ci r.1992), cert. denied, 509 U.S. 907 (1993); United St ates v.

Schneider, 930 F.2d 555, 558 (7th Cir. 1991)(" `los s' within the meaning of the Guidelines includes intended, pr obable, or otherwise expected loss, a qualification of vita l importance in a case such as this where the fraud i s discovered or otherwise interrupted before the vict im has been fleeced").

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Torres' activities in connection with the accounts leave little or no doubt that the "intended, probable, or otherwise expected loss" here was for the full amount fraudul ently deposited. Within a two week period of time, in two
accounts neither of which was in Torres' name or th e name of a company he had anything to do with, three bran ches of the same bank were hit by Torres and a cohort wi th a rubber check, a stolen check, and an attempted with drawal of more than one-third of those fraudulent deposits . It was eminently reasonable for the District Court to infe r that Torres intended to withdraw the balance of the depo sits

before the stolen check surfaced as stolen and woul d have
done so had he not been arrested. As the Seventh Ci rcuit put it, on similar facts,

The S 2F1.1 commentary thus anticipates prec isely the sort of situation presented in the instant c ase: a defendant who clearly intended to inflict a loss on his victim much greater than the `actual' loss t ime and circumstances (i.e., his arrest) permitted h im to exact. In those situations, the Guidelines make cle ar that the

defendant should be held accountable for the full amount of the loss he was prepared to inflic t.

United States v. Strozier, 981 F.2d 281, 285 (7th C ir. 1992).

The correct measure of loss, therefore, was the ent ire amount that Torres fraudulently deposited in the Ke lly Services account, regardless of the fact that he wa s prevented from making his first withdrawal. Thus, t he District Court did not err in upwardly adjusting by five levels for loss greater than $40,000 but less than $70,000, pursuant to U.S.S.G. S 2F1.1(b)(1)(F).

B. Attempt

Torres argues, next, that even if the loss figure w as properly calculated, because the withdrawal of the $24,900 and, thus, the completion of the offense were thwar ted, his actions constituted only an incomplete attempt to d efraud the bank of the full amount of the loss, warranting a three
level reduction under U.S.S.G. S 2X1.1:If an attempt, decrease by 3 levels, unless the

defendant completed all the acts the defenda nt believed

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necessary for successful completion of the s ubstantive
offense or the circumstances demonstrate tha t the defendant was about to complete all such act s but for apprehension or interruption by some similar event beyond the defendant's control.

U.S.S.G. S 2X1.1(b)(1). See also U.S.C.G. S 2B1.1 c omment (n.2).

We cannot ignore the fact that Torres pled guilty t o the substantive, completed offense of bank fraud, and n ot to a mere attempt. But even aside from that important fa ct, when Torres' argument is considered solely under S 2X1.1(b)(1), which is all that he asks this Court to do, the simple answer is two-fold: first, as to the $24,900 attempted withdrawal, Torres had "completed all the acts [he] believed necessary"; and, second, as to the ba lance of the fraudulently deposited funds, the "circumstance s demonstrate" that he "was about to complete all suc h acts" and was unsuccessful only because the bank was fort unate enough to suspect fraudulent activity such that Tor res was subsequently arrested, and not because of any event within

Torres' control.

This conclusion is reached along the same lines tha t we followed in determining the amount of the intended loss under S 2F1.1, the guideline which concededly gover ns Torres' offense. As the Strozier Court observed, "T he framers of the Guidelines noted this similarity the mselves: the critical language concerning the defendant's`in tended loss' in the S 2F1.1 commentary is preceded by the words, `[c]onsistent with the provisions of S 2X1.1 (Attem pt, Solicitation or Conspiracy) . . . .' And so the def endant's arguments have brought us full circle." Strozier, 9 81 F.2d
at 286.

The District Court did not err in rejecting Torres' request for a three level reduction pursuant to U.S.S.G. S 2X1.1(b)(1).

C. Imposition of the $5,000 Fine

The Guidelines provide that the "court shall impose a fine in all cases, except where the defendant establishe s that he is unable to pay and is not likely to become able t o pay any

8fine." U.S.S.G. S 5E1.2(a). The defendant has the b urden of

proving his or her inability to pay. See United Sta tes v. Carr, 25 F.3d 1194, 1212 (3d Cir.)(citing U.S.S.G. S 5E1.2(a)), cert. denied, 513 U.S. 1086 (1995). A sentencing court must consider an array of factors, including evidence of the defendant's ability to pa y the fine and to pay that fine over a period of time, his or her future earning capacity, any restitution or reparation tha t the defendant has made or is obligated to make, the bur den that the fine will impose upon the defendant and ot hers who are financially dependent on the defendant, and "any other pertinent equitable considerations." U.S.S.G. S 5E1.2(d); see also 18 U.S.C. S 3572(a); 18 U.S.C. S 3553(a); United States v. Seale, 20 F.3d 1279, 12 84 (3d Cir. 1994).

The Guidelines contain a "fine table" which establi shes a
minimum and maximum fine based on the defendant's offense level. Based upon a total offense level of 11, Torres was subject to a fine in the range of $2,000 to $1, 000,000. See U.S.S.G. S 5E1.2 (c)(4). The District Court fou nd that this was the appropriate range "provided the defend ant has the ability to pay the fine." Torres did not object to the range or to the facts in the PSR which enabled the probation officer to conclude that he could pay afi ne within the appropriate range, arguing through counsel only that because "he's obviously not working [and] he has a wife and a child to support [, a] fine would be an undue har dship." The Court thereafter imposed sentence, including a $5,000 fine to be paid in equal monthly installments over Torres' five year period of supervised release.

It is important to highlight what Torres does not a rgue, and what he does. He does not argue that the Distri ct Court did not consider his ability -- or lack there of -- to pay a fine. Nor does he argue that the PSR did not contain sufficiently detailed information about his financi al condition and earning capacity or that any of that information was wrong. All he argues, citing that s ame concededly correct information, is that the record before the
District Court did not establish whether he had the earning capacity to pay a fine while on supervised release. Torres is

wrong.

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Where, as here, a defendant did not at sentencing r aise the issue of his or her inability to pay, a sentenc ing court's decision to impose a fine and the amount of thefine is reviewed for plain error. See Fed. R. Crim. P. 52(b ). And where, again as here, a defendant, whose burden it was to prove his or her inability to pay by a preponderanc e of theevidence, made utterly no showing in that regard an d took

no issue with facts of record showing an ability to pay, error sufficient to warrant relief must be very pla in, indeed.

Which brings us to Torres' "the record did not esta blish" argument which we construe as a challenge to the fa ct that the District Court did not make specific findings s howing
that the factors which touch on a defendant's abili ty to pay were considered. It is, of course, a requirement in this Circuit that findings be made regarding a defendant 's ability to pay a fine or that a factual record be c reated such
that it can be said that the Court considered the i ssue. See, e.g., Seale, 20 F.3d at 1284; United States v. Deme s, 941 F.2d 220, 223 (3d Cir.) cert. denied, 502 U.S. 949 (1991).
While Torres is correct that the District Court did not explicitly find an ability to pay, it surely implic itly did so when it stated that it could impose a fine within t he guideline range only if Torres had the ability to p ay that fine, and thereafter imposed a fine; when it indica ted in the Statement of Reasons section of the Judgment that t he fine was not "waived or below the guideline range becaus e of inability to pay" and the interest requirement on t he fine was not waived or modified because of an inability to pay; and, most importantly, when it adopted the facts se t forth
in the PSR.

Those facts as relevant to the fine, facts with whi ch Torres not only took no issue at sentencing but tak es no issue before us, clearly indicate that Torres' earn ing capacity upon his release from prison would be more than sufficient to pay the fine on an installment basis, pay off some or all of his debts, and support his family. T orres, twenty-one years old at that time of sentencing, re ceived a high school degree in 1995 and satisfied the requir ements for an associates degree in computer science at a c ollege in the Dominican Republic. He reads, writes and speaks four languages. He has held several short-term positions , such

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as bartender, car salesman, and credit manager, and has served in the U.S. Army Reserves. He is able-bodied and in good health, with no history of mental or emotional problems or any drug or alcohol abuse.

As explained in the PSR, if upon release Torres hel d a forty-hour per week job at the minimum wage of $5.1 5 per hour, he would earn $892.66 per month, or $10,712 p er year. Allowing 80% of this sum for subsistence resu lts in $178.50 per month, or $2,142 per year for payment o f any fine, restitution not being applicable in this case

. Accordingly, Torres would be capable of paying thef ine in less than three years while providing subsistence f or hisfamily in addition to that provided by his wife, wh o works

as a waitress. The District Court allowed him to pa y the fine in monthly installments over a five year perio d, moreover, which provided ample room for Torres to s atisfy in whole or in part those obligations which had not been charged off or classified as bad debts.

Given that Torres offered nothing beyond counsel's fleeting reference to the fact that Torres, not the n working because he was in prison, "has a wife and a child t o support," he failed to carry the "burden of persuas ion (and, logically, the burden of production) . . . on the i ssue of his
financial resources and needs." United States v. Vo igt, 89 F.3d 1050, 1093 (3d Cir.), cert. denied, 519 U.S. 1 047 (1996) (restitution under Victim and Witness Protec tion Act). That aside, this Court's requirement of speci fic findings will be satisfied if the District Court ad opts a PSR which contains adequate factual findings with refer ence to an ability to pay such that there can be effective appellate review. See United States v. Hallman, 23 F.3d 821, 827 (3d Cir.) cert. denied, 513 U.S. 881 (1994) (rejecting claim that the District Court failed to make specific findings with reference to ability to pay restitution where it ad opted the specific findings of the PSR). See also United Stat es v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). Becaus e the unchallenged facts in the PSR supported the imposit ion of a fine within the guideline range, and because the District Court adopted the facts of the PSR, there was no er ror in imposing that fine without specific findings, much less plain error.

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IV. Conclusion

For the reasons given, the judgments of the Distric t Court of February 8, 1999 and May 28, 1999 will be
affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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