* This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### March 14, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GARY BRINSFIELD, Defendant - Appellant. No. 04-6404 (W.D. Oklahoma) (D.Ct. No. 03-CR-15-L)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Gary Brinsfield was convicted by a jury of six coun ts of bank fraud and two counts of making a false statement in order to infl uence a bank. He was-2-

sentenced to 41 months imprisonment. Brinsfield ap peals his convictions and sentence. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm. I. Background Brinsfield owned an automotive repair shop and an a uto body shop in Noble, Oklahoma, and a salvage yard in Slaughtervil le, Oklahoma. He operated these businesses under the names Gary’s Auto Sales, Gary’s Auto Repair and Gary Brinsfield’s Used Cars. He specialized in reb uilding damaged pickup trucks for resale. In the 1980’s, Charles Huffman was a loan officer at Norman Bank of Commerce in Norman, Oklahoma. While there, he met Brinsfield and became his personal loan officer. During the next fourteen ye ars, Huffman changed bank employers several times. Each time he did so, Brin sfield followed him. In October 1994, Huffman began working as a consume r loan officer and vice president for Republic Bank of Norman (Republi c). His lending limits for secured and unsecured loans were $25,000 and $10,00 0, respectively. If a loan exceeded these amounts, it had to be approved by a committee consisting of the bank’s president, its loan officers and one or two of its directors. While at Republic, Huffman approved a number of loa ns to Brinsfield. The loans ranged in value from $20,000 to $25,000 and w ere used to purchase1 There were five nominees involved in Counts 1-6: James Wiseman (Counts 1

and 2), Earl Curren (Count 3), Linda Sallee (Count 4), Rebecca McCoy (Count 5) and Amy Burnaman (Count 6). Wiseman, Sallee, McCoy and Burnaman all testified Brinsfield told them they would not be responsible for repaying the loan. As to Count 2, Wiseman testified Brinsfield told him there was an error in the previous loan application -3- damaged vehicles for repair and resale. Eventually , Brinsfield encountered problems re-paying the loans. As a result, Chuck T hompson, the bank’s president, informed Huffman to cease making loans t o Brinsfield. Huffman informed Brinsfield of Thompson’s decision. However, Brinsfield still needed money, in part, to pay off his outstanding loans. Huffman also had a personal incentive to ensure Brinsfield had money. Huffman had financial troubles as a result of a gambling proble m and had borrowed $15,000 to $20,000 from Brinsfield. He was concerned that if he stopped making loans to Brinsfield, his own source of funds would “dry up.” (R. Vol. 2 at 28.) Additionally, Huffman had borrowed money from anoth er bank to purchase damaged vehicles to be rebuilt and resold by Brinsf ield. In order to repay the bank, Huffman needed Brinsfield to rebuild the vehi cles, which required money. Thus, to keep money flowing to Brinsfield, Huffman and Brinsfield constructed loans to Brinsfield in the names of third-party bor rowers (called nominees). Under Huffman and Brinsfield’s scheme, Brinsfield w ould persuade friends, acquaintances and employees to complete an d sign loan documents, telling them they would not be responsible for repaying the loan. 1 Sometimes heWiseman had signed. Thus, Wiseman signed another loan application, believing he was

doing so to correct the previous application. In fact, the application was for a separate loan. Curren testified he told Brinsfield he was interested in purchasing a new truck but doubted he could obtain financing. Brinsfield informed Curren he could help him obtain a loan and brought Curren loan documents from Republic. Curren completed the forms, signed them and gave them to Brinsfield. Later, Brinsfield told Curren the loan had not been approved. -4- paid them for signing the documents. Brinsfield wo uld then provide these documents to Huffman, who would process them without ever speaking to the nominee. Huffman then issued the loan proceeds to either Gary’s Auto Sales or Gary Brinsfield’s Used Cars. Although the loan was in the nominee’s name, at all times Huffman understood that Brinsfield was the ac tual borrower and was obligated to pay off the loan. As collateral, Brinsfield would provide Huffman wit h a vehicle’s make, model, year and vehicle identification number (VIN) . Without observing the vehicle, Huffman would assign a value to the vehicl e using the National Automotive Dealers Association (NADA) manual. This manual provides three different values: loan value, trade-in value and re tail value. Normally, in making a loan, a bank uses the lowest value, the loan valu e. However, in processing Brinsfield’s loans, Huffman used the highest value—the retail value—in order to secure Brinsfield the most money. In order to prevent committee review, all of the no minee loans made to Brinsfield were at or below Huffman’s lending limit($25,000). Because the-5-

loans were processed under third-party names, Repub lic was unaware that Brinsfield was the true borrower. In fact, Huffman often doctored the loans to make it appear that he spoke with the nominee and t hat the nominee was the actual borrower. Eventually, the loans became delinquent. Huffman c ontacted Brinsfield who stated he was short on cash but would “get it t aken care of.” (R. Vol. 2 at 111.) It was not. In late 1997 or early 1998, Huf fman finally informed Republic of the true nature of the loans. Huffman was fired but was retained temporarily to assist Republic in identifying the loans, as they w ere processed under the nominees’ names. In all, Huffman had made approxim ately fifty-eight nominee loans to Brinsfield, totaling a little over one mil lion dollars. After Huffman confessed, Republic attempted to locate the collateral securing the loans. It made a list of the vehicles and their respective VINS; over 100 vehicles were involved. Bank officials found f ifty to seventy-five vehicles during a visit to Brinsfield’s salvage yard. When they located a vehicle, they took a picture of it. Several weeks later, Brinsfield p rovided Republic with several more of the vehicles. The vast majority of the veh icles pledged as collateral were actually parts of a pickup truck, i.e. , the bed, chassis or cab. On February 5, 2003, Brinsfield was indicted for on e count of bank fraud in violation of 18 U.S.C. § 1344(1) and two counts of making a false statement in2All but Count 8 also alleged aiding and abetting in violation of 18 U.S.C. § 2. -6- violation of 18 U.S.C. § 1014. On July 2, 2003, a superseding indictment was filed, charging Brinsfield with six counts of bank fraud in violation of 18 U.S.C. § 1344(1) (Counts 1-6) and two counts of making a f alse statement in violation of 18 U.S.C. § 1014 (Counts 7-8). 2 Brinsfield proceeded to trial. On September 16, 2003, the jury returned a guilty verdict on all eig ht counts. Sentencing was originally scheduled for November 19 , 2004. Because Brinsfield failed to appear, the district court iss ued a warrant for his arrest. Sentencing was re-scheduled for December 9, 2004. This time, Brinsfield appeared. He was sentenced to 41 months imprisonme nt and ordered to pay restitution in the amount of $893,979.66.
II. Discussion On appeal, Brinsfield attacks both his conviction a nd sentence, arguing (1) the government presented insufficient evidence at t rial to support his convictions and (2) he was sentenced in violation of the Sixth Amendment under United States v. Booker , 543 U.S. 220, 125 S. Ct. 738 (2005). We address each argument in turn. A. Sufficiency of the Evidence Brinsfield argues the evidence presented at trial w as insufficient to prove beyond a reasonable doubt that he committed any of the offenses charged. He-7-

contends the evidence showed he asked family and fr iends to help him by taking out loans. He alleged these individuals applied fo r these loans “with their eyes open.” (Appellant’s Br. at 14.) Although the nomi nees believed Brinsfield would pay off the loans, which he did for a long time, Br insfield contends the loans to them were valid. Indeed, he states he worked direc tly with Republic’s vice president, Huffman. Brinsfield argues he was merel y running a business and never intended to defraud the bank. “We review de novo whether the prosecution presente d sufficient evidence to support a conviction.” United States v. Avery , 295 F.3d 1158, 1177 (10th Cir. 2002). “In conducting this review . . . we ask whe ther, taking the evidence--both direct and circumstantial, together with the reason able inferences to be drawn therefrom--in the light most favorable to the gover nment, a reasonable jury could find the defendant guilty beyond a reasonable doubt .” Id. (quotations omitted). We will not evaluate witness credibility or re-weig h the evidence. Id. We will only reverse a conviction if no rational trier of f act could have reached the disputed verdict. United States v. Wilson , 182 F.3d 737, 742 (10th Cir. 1999). “The evidence necessary to support a verdict need n ot conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. Instead, the evidence only has to reasonably support the jury’s finding of guilt beyond a reasonable doubt.” Id. (citation and quotations omitted).-8- 1. Bank Fraud (Counts 1 through 6) “To prove bank fraud [under 18 U.S.C. § 1344(1)], t he government must show that (1) the defendant knowingly executed or attempted to execute a scheme or artiface to defraud a financial institution, (2) the defendant had the intent to defraud a financial institution and (3) the bank in volved was federally insured.” United States v. Waldroop , 431 F.3d 736, 741 (10th Cir. 2005). “[T]he phras e ‘scheme or artiface to defraud’ simply requires a d esign, plan, or ingenious contrivance or device to defraud.” United States v. Hill , 197 F.3d 436, 444 (10th Cir. 1999). “[A] scheme can involve fraudulent mis representations to deceive a bank to obtain money.” United States v. Young , 952 F.2d 1252, 1257 (10th Cir. 1991). Brinsfield does not challenge the third element and rightly so. At trial, Brett Sullivan, a loan review and compliance office r for Republic, testified Republic was FDIC insured. As to the first and sec ond elements, the government clearly met its burden at trial. Nominee loans are not illegal per se . Waldroop , 431 F.3d at 741. However, they are unlawful if used to deceive a ban k about the true identity of the borrower. Id. “[A] borrower who receives funds from a nominee l oan is guilty of bank fraud if he intends to conceal the f act that he will receive the funds (and knows that such information is being concealed ).” Id. (citing United States-9-

v. Bonnett , 877 F.2d 1450 (10th Cir. 1989)). That the nomine e is aware of the terms of the loan or has the ability to repay the l oan is not a defense. Id. Here, although all of the loans at issue in Counts 1 through 6 were in the name of a third party, the evidence showed that Bri nsfield was the actual borrower. All of the nominees testified to this ef fect, stating they only agreed to sign for the loan with the understanding that they would not be responsible for repaying it (Counts 1, 4, 5 and 6) or they never knew a loan had been taken out in their name (Counts 2 and 3). Although Brinsfield p aid a few of the nominees for signing the loan papers, none of them received any of the loan proceeds. All of the proceeds were given to Brinsfield. Huffman als o testified that Brinsfield was the actual borrower. He stated that under normal c ircumstances, he would not have made the loans to the nominees, given their fi nancial condition or the lack of information regarding their financial condition. H owever, Huffman testified he approved the loans anyway because he knew Brinsfiel d was the true borrower and needed the money. The evidence also showed that the loan documents di d not reveal Brinsfield was the actual borrower. Huffman testified all of the loans were in the nominees’ names and Republic would not know from looking at t he loan documents that Brinsfield was the actual borrower. Huffman also t estified Republic needed his assistance in identifying the loans as they were pr ocessed under the nominees’3 For example, the nominee loan involved in Count 3 (the Curren loan) was

secured by a 1995 Chevrolet extended cab pickup truck and a 1993 Chevrolet pickup truck. Huffman assigned these vehicles loan values of $15,600 and $11,400, respectively. The 1995 pickup had extensive fire damage, was missing its bed and could not be rebuilt. Its value was estimated at $20-$25. The 1993 pickup consisted solely of the cab, could not be rebuilt and was worth $5. Sullivan testified he would not have approved a loan secured by this collateral. -10- names. Additionally, Huffman testified that Thompson had instructed him not to make any further loans to Brinsfield. Huffman told Brinsfield he could no longer extend credit to him. However, because Brinsfield needed money and Huffman had a personal incentive to ensure that Brinsfield had money, Huffman and Brinsfield circumvented Thompson’s directive by pro cessing loans to Brinsfield in the names of third parties. Thus, the jury coul d reasonably conclude that Huffman and Brinsfield constructed the nominee loan s in order to deceive Republic. Moreover, Brinsfield pledged the collateral for the se loans. Using the information provided by Brinsfield, Huffman valued the collateral using its retail value rather than its loan value. Although this pr actice was contrary to bank policy, Huffman testified he did so to secure Brins field the most money. While Huffman believed Brinsfield was pledging whole vehi cles, in actuality, most of the collateral consisted of parts of vehicles with little value. 3 Both Huffman and Sullivan testified banks rely on collateral to miti gate their risk in making a loan.-11-

Both stated that under normal circumstances, a bankseeks collateral with a value similar to the amount of the loan so if the loan go es into default, the bank can sell the collateral and recoup most of the loan amount. By pledging collateral which appeared to be whole vehicles, Brinsfield deceived Republic and exposed it to substantial risk in the event the loans became deli nquent. That Huffman, a bank officer, was aware of the frau dulent scheme and worked with Brinsfield is irrelevant. Waldroop , 431 F.3d at 742; United States v. Rackley , 986 F.2d 1357, 1361 (10th Cir. 1993). Section 13 44 prohibits defrauding a financial institution, not its directo rs or agents. Id. “It follows that bank customers who collude with bank officers to de fraud banks may also be held criminally accountable either as principals or as a iders and abettors.” Waldroop , 431 F.3d at 742 (quotations omitted). There was no evidence that Huffman tricked Brinsfield into securing false nominee loan s. In fact, the evidence showed Brinsfield provided the loan documents to the nomin ees, secured their signatures and delivered the signed documents to Huffman. The refore, even if Huffman was aware of the misrepresentations Brinsfield made to the nominees, Republic could still be defrauded. Based on the above, there was more than sufficient evidence to support the jury’s verdicts on Counts 1 through 6.

2. False Statement (Counts 7 through 8)-12-

Brinsfield alleges, without any legal or factual ar gument, that the government provided insufficient evidence supportin g his convictions on Counts 7 through 8. While normally such a perfunctory arg ument is insufficient to invoke our review, we consider it anyway because we can readily dispose of it. LaFevers v. Gibson , 182 F.3d 705, 725 (10th Cir. 1999) (“We have repe atedly warned litigants that issues adverted to in a perfu nctory manner and without developed argumentation are deemed waived on appeal .”). To convict Brinsfield for making a false statement under 18 U.S.C. § 1014, the government had to prove beyond a reasonable doubt t hat he “made a false statement to a federally insured bank knowing the statement w as false and intending to influence the bank.” United States v. Copus , 110 F.3d 1529, 1534-35 (10th Cir. 1997). The government clearly met its burden. Huf fman testified Brinsfield brought him a personal loan application in the name of Davi d Ryan Kill (Count 7). Kill testified he never filled out a Republic loan appli cation, did not sign it and did not give anyone permission to sign it. Huffman testifi ed he was not aware that Kill’s signature had been forged. Brinsfield used the fal se application to influence Republic to make a $11,640.26 loan to Kill with the proceeds payable to Gary’s Auto Sales. As to Count 8, Huffman testified Brinsfield secured a $10,589.00 loan with a 1992 Chevrolet pickup truck and obtained the loan p roceeds. Huffman stated he believed the truck was a full vehicle. However, itwas actually a severely damaged4 Brinsfield was sentenced pursuant to the 1997 edition of the United States

Sentencing Guidelines Manual. All citations to the guidelines herein refer to the 1997 guidelines unless otherwise indicated.

5 According to Republic’s declaration, it made loans to Brinsfield totaling $989,475.21, of which only $95,495.55 was repaid, resulting in a loss of $893,979.66. -13- truck cab worth $10-$15. Based on the above, there was sufficient evidence t o support the jury’s verdicts on Counts 7 and 8.
B. Booker After the jury returned its verdicts, a presentence investigation report (PSR) was prepared. 4 Applying USSG §2F1.1, the guideline applicable fo r violations of 18 U.S.C. §§ 1014 and 1344, the probation officer dete rmined Brinsfield’s base offense level was 6. Relying on Republic’s declaration of victim loss, the officer determined Republic’s loss was $893,979.66 5 and increased the base offense level by 11 pursuant to USSG §2F1.1(b)(1)(L) (requiring an 11-l evel increase to the base offense level if the amount of loss is between $800,000 and $1,500,000). The officer also added 2 levels because the offense involved more th an minimal planning. See USSG §2F1.1(b)(2). Because Brinsfield failed to appear at sentencing, the officer applied a 2-level upward adjustment for obstruction of justic e. See USSG §3C1.1. Based on a total offense level of 21 and a criminal history category of I, the probation officer calculated the guideline range as 37-46 months impr isonment. He also recommended6Of this amount, $143,979.66 was owed to Republic. The remainder, $750,000, was to

be paid to Republic’s insurer, St. Paul Insurance Company.

7 In his written objections, Brinsfield erroneously stated the amount of the loans involved in Counts 1-8 totaled $116,175.26. At sentencing, Brinsfield corrected the error. -14- Brinsfield be ordered to make restitution in the am ount of $893,979.66. 6 Brinsfield raised several objections to the PSR und er Blakely v. Washington , 542 U.S. 296 (2004). First, he argued the amount o f loss alleged in the indictment and proven at trial was only $146,175.26, the total amount of the loans at issue in Counts 1 through 8. 7Thus, he contended his base offense level should only be increased by 7 levels. See USSG §2F1.1(b)(1)(H) (authorizing a 7-level increa se if the amount of loss falls between $120,000 and $200, 000). Brinsfield also objected to the 2-level enhancement for more than minimal pl anning and the 2-level upward adjustment for obstruction of justice because the f acts supporting them were not charged in the indictment, proven at trial or stipu lated to. As such, Brinsfield argued his total offense level was 13, resulting in a guid eline range of 12-18 months imprisonment. The district court rejected Brinsfield’s arguments. Adopting the recommendations in the PSR, the court sentenced Bri nsfield to 41 months imprisonment, the middle of the guideline range. I t also ordered Brinsfield to pay restitution in the amount of $893,979.66, to be pai d jointly and severally with8 In November 2002, Huffman pled guilty to conspiracy to commit bank fraud. On

October 21, 2003, he was sentenced to 48 months probation. -15- Huffman. 8 On appeal, Brinsfield asserts his sentence, imposedpursuant to the mandatory federal sentencing guidelines and enhanced pursuantto judicial fact-finding by a preponderance of the evidence, violates the Sixth A mendment underBooker . In Booker , the Supreme Court extended its holding in Blakelyto the federal sentencing guidelines, holding that the Sixth Amendment requir es “[a]ny fact (other than a prior conviction) which is necessary to support a sentenc e exceeding the maximum authorized by the facts established by a plea of gu ilty or a jury verdict [to] be admitted by the defendant or proved to a jury beyon d a reasonable doubt.” Booker , 125 S. Ct. at 756. To remedy the constitutional in firmity of the guidelines, Booker invalidated their mandatory nature, requiring the d istrict court to consult them in an advisory fashion. Id. at 756-57 (severing and excising 18 U.S.C. §§ 3553 (b)(1), 3742(e)).
In United States v. Gonzalez-Huerta , we determined there were two types of error a district court could commit prior to Booker : First, a court could err by relying upon judge-found fact s, other than those of prior convictions, to enhance a defendant’s sent ence mandatorily. As Bookermakes clear, the Sixth Amendment prohibits this pr actice. As a matter of convenience, we will refer to such an err or as a constitutional Bookererror. Second, a sentencing court could err by ap plying the Guidelines in a mandatory fashion, as opposed to a discretionary fashion,-16-

even though the resulting sentence was calculated s olely upon facts that were admitted by the defendant, found by the jury, or based upon the fact of a prior conviction. While this type of sentence does not violate the Sixth Amendment, such a sentence is nonetheless imp ermissible because the Court severed the portion of the Sentencing Ref orm Act that required the mandatory application of the Guidelines. We wi ll refer to this second type of error as a non-constitutional Bookererror. 403 F.3d 727, 731-32 (10th Cir.) (quotations and ci tations omitted), cert. denied, 126 S.Ct. 495 (2005). Here, the district court clearly committed constitutional Booker error at sentencing because it relied upon facts ne ither found by the jury nor admitted by Brinsfield to enhance his sentence mandatorily. Because Brinsfield objected in the district court u nder Blakely , we review his sentence for harmless error. United States v. Corchado , 427 F.3d 815, 820 (10th Cir. 2005). Thus, our inquiry is whether the court’s co nstitutional error at sentencing was harmless under Rule 52(a) of the Federal Rules of C riminal Procedure. United States v. Lang , 405 F.3d 1060, 1064 (10th Cir. 2005). Rule 52(a) states: “Any error, defect, irregularity, or variance that does not affect subs tantial rights must be disregarded.” The government bears the burden of demonstrating th e error was harmless and in cases involving constitutional error, it must do so beyond a reasonable doubt. Lang , 405 F.3d at 1065. The government argues the constitutional error at s entencing was harmless in this case because the amount of loss and more than minimal planning enhancements were overwhelmingly supported by the evidence at tr ial and did not affect-17-

Brinsfield’s substantial rights. It also asserts B rinsfield’s willful failure to appear for sentencing supports the obstruction of justice adjustment. Lastly, the government contends there is no indication in the record that the district court was dissatisfied with the mandatory guidelines or that the court wou ld be inclined to impose a lower sentence under an advisory guideline scheme. Indee d, it points out that the court imposed a sentence in the middle of the guideline r ange. We agree. Section 2F1.1(b)(2) of the guidelines requires a 2- level enhancement to the base offense level if “the offense involved [] more than minimal planning . . . .” The Commentary to §2F1.1 refers to the Commentary to §1 B1.1 for the definition of “[m]ore than minimal planning.” USSG §2F1.1 comment. (n.2). The Commentary to §1B1.1 states: “More than minimal planning” means more planning th an is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative st eps were taken to conceal the offense, other than conduct to which § 3C1.1 (Obstructing or Impeding the Administration of Justice) applies. “More than minimal planning” is deemed present in any case involving r epeated acts over a period of time, unless it is clear that each instan ce was purely opportune. Consequently, this adjustment will appl y especially frequently in property offenses. USSG §1B1.1, comment. (n.1(f)). “[T]he notion of r epeated acts refers to a series of acts each of which would be criminal standing alone , rather than referring to a crime that requires the completion of a series of steps.” United States v. Proffit , 304 F.3d 1001, 1005 (10th Cir. 2002). In order to have “rep eated acts,” “there must have been-18-

more than two instances of the behavior in question .” United States v. Bridges , 50 F.3d 789, 793 (10th Cir. 1994). By finding Brinsfi eld guilty on Counts 1 through 6, the jury necessarily found that his offense involve d more than minimal planning because Counts 1 through 6 involved six acts of ban k fraud over the course of two and a half years (May 1995 to December 1997) and ea ch act was not “purely opportune.” Section 3C1.1 of the guidelines requires a 2-level upward adjustment to the offense level if “the defendant willfully obstructe d or impeded, or attempted to obstruct or impede, the administration of justice d uring the . . . sentencing of the instant offense . . . .” The Commentary to §3C1.1 provides a non-exhaustive list of examples of conduct to which the adjustment applies . USSG §3C1.1, comment. (n.3). One such example is “willfully failing to appear, as ordered, for a judicial proceeding.” Id. at (n.3(e)). Here, Brinsfield admitted at sentenc ing that he did not appear at the original sentencing hearing. While h e stated he was “real sick” and his vehicle was “broke[n] down,” he conceded his attorn ey had told him the hearing could not be re-scheduled. (R. Vol. 4 at 5.) He al so failed to provide the district court with the medical documentation it requested. It is also clear that Brinsfield did not attempt to self-surrender after the district co urt issued a bench warrant for his arrest, apparently because he “got scared and didn’ t know what to do.” (Id. ) We conclude the jury, had it been presented with these facts, would have found that the9 Indeed, these admissions appear to render the application of the obstruction of

justice adjustment non-constitutional Bookererror. Moreover, we are confident the district court would impose the obstruction of justice adjustment even under a purely discretionary sentencing guideline scheme. At sentencing, the court stated: Well, Mr. Brinsfield, you certainly did not help yourself by not appearing when you were supposed to at sentencing and of course it created a situation where the guidelines are now higher and you are going to end up serving, under the best of circumstances, probably a year longer than you would have served if you had appeared at sentencing. And the Court became somewhat concerned earlier when I made several requests for some medical documentation and asked [your attorney] on several occasions if he had received that and why it had not been forwarded [to] the Court. He informed me that he had requested of you to furnish that to the Court and that he had not been provided a copy, so it appears that the Court’s request or orders meant very little. (R. Vol. 4 at 7.) -19- obstruction of justice adjustment was warranted. 9 As to the amount of loss enhancement, by finding Br insfield guilty on Counts 1 through 8, the jury necessarily found that Republ ic suffered loss in the amount of $146,175.26, the total amount of the loans at issue in Counts 1 through 8. Indeed, Brinsfield stipulated to this amount at sentencing. However, there was also testimony supporting the district court’s finding that the total amount of loss was $893,979.66. Huffman testified approximately fifty -eight loans were involved in the scheme to defraud and Republic lost approximately $ 900,000 on these loans. Sullivan testified the aggregate amount of the fifty-eight l oans involved was a little over $1 million and when confronted, Brinsfield signed two new promissory notes to the-20-

bank, one covering the principal balance ($842,000) and one covering interest ($146,000). Sullivan further testified that Brinsf ield made $95,000 in payments on these notes, leaving a loss of approximately $900,0 00. By signing the two promissory notes and making payments on them, Brins field essentially admitted that the amount of loss to Republic as a result of his a ctions was about $900,000, which supports an 11-level enhancement under USSG §2F1.1( b)(1)(L). However, we need not decide whether the signing of the promissory no tes constituted a sufficient admission for purposes of Booker . Even if insufficient, the promissary notes are potent evidence of the amount of loss. Further, bo th Huffman and Sullivan testified the approximate loss to Republic was $900,000. The re was no evidence contradicting their testimony and both were intimat ely familiar with the nominee loans and their amounts. It also appears based on the verdicts that the jury found Huffman and Sullivan credible. Therefore, we can c omfortably conclude that had this factual issue been presented to the jury, it w ould have found as the district court did. The district judge expressed no dissatisfaction wit h the guideline sentence. In fact, although Brinsfield requested a sentence at t he bottom of the guideline range and the court had the discretion to impose such a s entence, it chose not to do so and sentenced Brinsfield to the middle of the guideline range. Thus, there is no reason to believe the court would impose a lower sentence on remand under a post- Booker-21-

sentencing scheme. See United States v. Riccardi , 405 F.3d 852, 876 (10th Cir.) (“Having exercised his limited discretion under the pre- Bookersystem to give Mr. Riccardi the highest permissible sentence, there is no reason to think the judge would exercise his now-greater discretion to reduce the s entence.”), cert. denied, 126 S.Ct. 299 (2005); see also Waldroop , 431 F.3d at 743 (same); United States v. Dowell , 430 F.3d 1100, 1112-13 (10th Cir. 2005) (finding non-co nstitutional Bookererror harmless where the district court exercised its dis cretion to impose a sentence in the middle of the guideline range, thereby giving us no reason to think the court would impose a different sentence on remand). The district court’s constitutional Bookererror at sentencing was harmless beyond a reasonable doubt in that it did not affectBrinsfield’s substantial rights.
AFFIRMED.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge