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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-7315
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PATRICIA DAVIDSON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(February 16, 1993)
Before REAVLEY, KING and WIENER, Circuit Judges.
KING, Circuit Judge:
Patricia Davidson appeals from the district court's decision
to depart upward in imposing a sentence under the United States
Sentencing Guidelines. Finding that any error in the district
court's application of the Guidelines was harmless, we affirm.
I.
In 1988, Patricia Davidson devised a scheme with her
husband, Ronnie Davidson, and her brother, Ronald Coots, to
portray the accidental death of Ronnie Davidson in order to
collect life insurance and pension benefits. Coots caused a

sailboat to explode during a staged fishing excursion and falsely
reported that Ronnie Davidson was killed during the explosion.
As a result of the scheme, the Davidsons received a total of
$799,247.46 in insurance and pension benefits from seven
companies through the mail. After a mock funeral and five years
of active concealment -- including the assumption of a new
identity by Ronnie Davidson and a remarriage to his wife under
the assumed name -- the elaborate scheme was finally exposed.
Federal authorities charged the Davidsons with four counts
of mail fraud. Pursuant to a plea bargain, Ronnie Davidson pled
guilty to the first two counts, which were pre-Guidelines
offenses, in return for the Government's promise to drop the two
remaining Guidelines counts. Mr. Davidson was sentenced to five
years' imprisonment. Patricia Davidson pled guilty to all four
counts of mail fraud in return for the Government's promise to
recommend a two-level reduction in the two Guidelines counts.
She received four concurrent twenty-three month terms of
imprisonment.
Because this appeal concerns the district court's
application of the Sentencing Guidelines, it is necessary to
review the applicable provisions. Under the Guidelines, mail
fraud is assigned a base offense level of six. See U.S.S.G. §
2F1.1(a) (1988) ("Fraud and Deceit"). This provision treats the
specific amount of money defrauded as an "offense
characteristic," which is Guidelines' parlance for an offense-
specific aggravating sentencing factor. The degree of
aggravation under § 2F1.1 depends upon the amount of money

defrauded. In the instant case, based on the amount of loss --
almost $800,000 -- the offense level was increased by eight. Id.
§2F1.1(b)(1)(I).
Section 2F1.1(b)(2) lists four additional "built-in"
aggravating factors; any of these, if found, permitted the
district court to increase the offense level by two additional
levels. In Davidson's case, the district court found two factors
present: i) "more than minimal planning" went into the crime, and
ii) the scheme defrauded "more than one victim." However, the
Guidelines' Application Notes state that "the enhancements
available in § 2F1.1(b)(2) are alternative rather than
cumulative, so that a court may not stack" multiple (b)(2)
factors. United States v. Khan, 969 F.2d 218, 222 (6th Cir.
1992) (citing Application Notes to § 2F1.1(b)(2)). Thus, the
district court could only increase Davidson's total offense level
by two levels, notwithstanding the existence of two separate §
2F1.1(b)(2) factors, which raised Davidson's offense level to
sixteen. Pursuant to the Government's recommendation, the
district court then decreased Davidson's offense level by two in
view of her acceptance of responsibility, see U.S.S.G. § 3E1.1,
thus bringing her offense level back down to fourteen.
The sentencing range under the Guidelines for an offense
level of fourteen, when combined with Davidson's criminal history
category of I, resulted in a recommended sentencing range of 15-
21 months. See U.S.S.G., Sentencing Table. The district court
decided that this range was inadequate for a number of reasons
3

and, thus, departed upward to a sentence of 24 months.1 The
district court specifically articulated its reasons for departing
upward as follows: 1) the "remarkably aggravated circumstance[]
of the complexity [of the fraud]" and the "extensive and
extraordinary planning and execution" involved; 2) the existence
of multiple victims; 3) the large amount of money defrauded
(almost $800,000);2 and 4) that a recommended range of 15 to 21
months did not have "fair equity with regard to this case," since
Davidson's co-defendant received a much stiffer sentence.
However, of the four factors, the record reveals that the court's
primary reason for departing upward was the extensive planning
and elaborate execution of the fraud.
II.
On appeal, Davidson challenges the district court's upward
departure on three main grounds. First, Davidson points out that
the Sentencing Commission already considered three of the four
aggravating factors noted by the judge -- the large amount of
money lost, the existence of multiple victims, and the extensive
planning and meticulous execution of the scheme -- in the express
1 Twenty-four months falls at the top end of the recommended
range for an offense level of 15 and a criminal history category
of I. The district court thus departed upward the equivalent of
only one offense level.
2 In the Presentence Investigation Report (PSI), the
probation officer stated that the 1992 amendments to
§2F1.1(b)(1) provided for a greater increase based on the amount
of money involved in this case than the version of the Guidelines
operative at the time of the offense. The probation officer
considered this to be a reason to depart upward.
4

language of § 2F1.1(b). Davidson further contends that the
district court's adoption of the PSI's explicit consideration of
the 1992 version of § 2F1.1(b) violated the Ex Post Facto Clause.
Finally, Davidson argues that the district court erred by
departing upward in order to attempt to achieve sentencing
"equity" between Davidson and her co-defendant.
A. The district court's consideration of aggravating factors
already "built into" § 2F1.1(b) in departing upward
Davidson argues that the district court, in departing
upward, improperly considered factors already taken into
consideration by the U.S. Sentencing Commission in promulgating
§ 2F1.1. Specifically, she contends that § 2F1.1(b)(1) & (b)(2)
already provide for adequate consideration of the excessive
amount of money defrauded, the existence of multiple victims, and
the fact that "more than minimal planning" was involved.
The district court recognized that its upward departure was
duplicative of the aggravating factors "built-into" to §
2F1.1(b), yet determined these aggravating factors were so
excessive in Davidson's case that they were not sufficiently
reflected by the Guidelines' recommended sentence. In United
States v. Garcia, 900 F.2d 45 (5th Cir. 1990), this court noted
language in the Guidelines' policy statement applicable to upward
departures that rely on aggravating factors already considered by
the Guidelines: "[W]here the applicable guidelines, specific
offense characteristics, and adjustments [already] take into
consideration a factor listed in this part, departure from the
5

guideline is warranted only if the factor is present to a degree
substantially in excess of that which ordinarily is involved in
the offense of conviction." Id. at 49 (emphasis added); see also
18 U.S.C. § 3553 (b); U.S.S.G. § 5K2.0. However, when a district
court determines that "built-in" aggravating circumstances are
not adequately considered by the Guidelines in this fashion, our
review is limited under the abuse-of-discretion standard. See
United States v. Huddleston, 929 F.2d 1030, 1031 (5th Cir. 1991).
The district court appears to have erred in departing upward
based on the number of victims and the amount of money involved
in the instant case. The amount of money -- slightly under
$800,000 -- was well within the parameters established by the
Sentencing Commission in § 2F1.1(b)(1); that section expressly
deals with dollar amounts up to $5,000,000 and specifies the
precise degree of enhancement for incremental amounts.3 In
Davidson's case, the large amount defrauded was, therefore,
adequately considered by the Guidelines; the district court thus
abused its discretion in reconsidering that aggravating factor in
departing upward. Similarly, the number of victims in this case
-- seven insurance companies4 -- was not extraordinarily large
and also seems to fall within the range contemplated by the
3 Such precise increments entirely remove a district court's
discretion to depart upward based on the amount of loss when the
amount falls within a particular increment.
4 Section 2F1.1(b)(2) treats a business entity, such as an
insurance company, as a single victim. § 2F1.1, Application Note
3.
6

Sentencing Commission in § 2F1.1(b)(2). Again, the district
court abused its discretion.
We do not believe, however, that the district court abused
its discretion in holding that a third § 2F1.1(b) aggravating
factor -- the extraordinary planning and meticulous execution
involved in the fraudulent scheme in the instant case -- was so
extraordinary that the Guidelines did not adequately consider
this "built-in" aggravating factor. In this regard, the district
court's explanation seems to satisfy the requirement that the
aggravating factor be "substantially in excess" of those
generally found in mail fraud cases.5
B. Ex Post Facto problems?
Davidson contends the district court's consideration of the
1992 version of U.S.S.G. § 2F1.1(b) in departing upward violated
the Constitution's Ex Post Facto Clause. In order for a criminal
law to be ex post facto, it must apply to events occurring before
its enactment and it must disadvantage the offender. United
States v. Suarez, 911 F.2d 1016, 1021 (5th Cir. 1990). In the
5 The phrase "more than minimal planning" is defined in the
Guidelines as "more planning than is typical for commission of
the offense in a simple form." It also "exists if significant
affirmative steps were taken to conceal the offense." U.S.S.G.
§1B1.1, comment. n. 1(f). In this case, the scheme was carefully
organized and executed, and so well concealed that the parties
evaded criminal prosecution for five years. After a mock
funeral, the Davidsons developed a new identity for Ronnie
Davidson and remarried under the assumed name; their scheme
survived several law enforcement and insurance investigators; and
Mrs. Davidson was involved in two court actions in addition to
probate proceedings based on the fraudulent death. It is also
noteworthy that all of the defrauded money was spent by the time
the scheme was exposed.
7

instant case, the presentence investigation report (PSI)
distinguished the 1992 Guidelines from the 1988 Guidelines in two
significant ways. First, the PSI noted that an upward departure
based on the existence of "several" (b)(2) factors is not
addressed in the current Guidelines; second, it observed that the
amended § 2F1.1(b)(1) increased the aggravation level when
$799,247 -- the amount at issue in the instant case -- is
defrauded. In both cases, the PSI recommended a departure
upward, apparently at least in part in view of the post-1988
amendments.6 The district court specifically adopted this
portion of the PSI after hearing Davidson's arguments regarding
the Ex Post Facto Clause. The Government responded that "[i]n
Mrs. Davidson's case, she was subject to the 1988 version of the
guideline manual."7
6 The PSI stated that information provided about
§ 2F1.1(b)'s enhanced offense level for fraud involving $799,247
was "presented for the Court's review as an aggravating
circumstance not adequately taken into consideration by the
United States Sentencing Commission in formulating the applicable
[1988] guideline."
7 The probation officer who prepared the PSI appeared at the
sentencing hearing and explained her mention of the 1992 version
of the Guidelines in the PSI. She first stated that she simply
mentioned the amendment of § 2F1.1's Application Notes, which
removed the requirement of "several" § 2F1.1(b)(2) factors before
a departure upward is warranted, without intending for it to
justify a departure upward in Davidson's case. The probation
officer also denied that the 1992 version of § 2F1.1(b)(1) was
used to calculate Davidson's offense level based on the amount of
loss; however, the probation officer did not reveal whether she
considered it proper to depart upward based on the 1992 version
of § 2F1.1(b)(1). The prosecutor approved of the probation
officer's explanation and the district court accepted it.
8

In Suarez, we specifically held that "an increase in
sentence based on an amendment to the [G]uidelines effective
after the offense was committed `would be an obvious . . .
violation'" of the Ex Post Facto Clause. Id. at 1021 (citing
United States v. Woolford, 896 F.2d 99, 102 n.2 (5th Cir. 1990)
(dicta)). Suarez simply followed well-established Supreme Court
authority regarding the Ex Post Facto Clause's application to
sentencing statutes. See, e.g., Miller v. Florida, 482 U.S. 423
(1987).
We observe that the revised portion of § 2F1.1(b)(1)(I) of
the 1992 Guidelines substantively changed the preceding version
of the Guidelines by increasing the base offense level by two for
offenses involving $799,247. The 1992 version also removed from
§ 2F1.1(b)'s Application Notes the limiting language about the
need to establish "several" (b)(2) aggravating factors before an
upward departure would be warranted. Although it was resolved at
Davidson's sentencing hearing that the amendment to the
Application Notes was not considered as a reason to depart
upward, the probation officer apparently did consider the
amendment to § 2F1.1(b)(1)'s mechanism for calculating an offense
level based on the amount of loss as a justification for imposing
a harsher sentence on Davidson. Because the district court
specifically adopted the PSI, we must presume that the district
court also relied on the 1992 version.
Citing United States v. Bachynsky, 949 F.2d 722, 735 (5th
Cir. 1991), the Government claims that the district court merely
9

used the amended version of § 2F1.1(b)(1)(I) as a "yardstick" and
did not feel bound by it; therefore, the Government argues, there
was no violation of the Ex Post Facto Clause. The Government's
reliance on Bachynsky is misplaced. In that case, the district
court considered the amendment to § 2F1.1(b)(1) that permitted
the offense level of a fraud crime to be raised for incremental
amounts above $5 million, which had been the maximum increment
under the prior version. The district court relied on the
amendment because the amount of loss in that case, which occurred
prior to the amendment, exceeded $5 million and the commentary to
the unamended version of the Guidelines expressly permitted an
upward departure if more than $5 million was at issue. Thus, the
district court in Bachynsky simply used the amendment to guide
its permitted discretion to depart upward. In the instant case,
the district court appeared to ignore the applicable pre-
amendment provisions, which did not permit a departure upward if
only $799,247 was defrauded; instead, the district court, relying
on the PSI, appeared to find justification for departing upward
in part by looking to the subsequently amended version of §
2F1.1(b)(1)(I). The district court's reliance on the 1992
Guidelines was, therefore, a violation of the Ex Post Facto
Clause.
C) The district court's statements regarding sentencing "equity"
between Davidson and her codefendant
During the sentencing hearing, the district court stated,
"[t]he Court does not feel that the guideline range of 15 to 21
10

months in this case has fair equity with regard to this case."
Furthermore, the court's written judgment listed, as one factor
justifying the upward departure, that "fair equity" would not
have otherwise been afforded to Davidson's co-defendant, who
received a considerably stiffer sentence.8 The Government
asserts that Davidson's failure at the sentencing hearing to
object to the district court's decision to depart upward in order
to provide sentencing parity limits appellate review to the plain
error standard. At the sentencing hearing, it was unclear
whether the district court's cryptic mention of "fair equity"
gave Davidson's counsel fair notice that the court was departing
upward in part based on a notion of parity among co-defendants.
It was not until the court's post hoc written judgment that the
court's reasoning became apparent. Therefore, Davidson's failure
to object at the sentencing hearing does not constitute
procedural default.9
8 Mrs. Davidson and her husband, the co-defendant, were
sentenced in the same hearing. Ronnie Davidson received a five-
year, pre-Guidelines sentence, which obviously exceeded his
wife's recommended Guideline's sentence of 17-21 months.
9 In a supplemental brief filed with the court, the
Government argues that under the law of this circuit, a court's
oral pronouncements at the sentencing hearing trump the court's
written reasons for sentencing as it did. See United States v.
Shaw, 920 F.2d 1225, 1231 (5th Cir. 1991). Thus, the Government
argues, we should ignore the district court's explicit written
statements and only look to the court's cryptic oral statement
about "equity." True, that statement -- when viewed in isolation
-- did not unequivocally evince an intent on the part of the
district court to depart upward so as to equalize the co-
defendants' sentences. However, while we agree with the general
statement of law advanced by the Government, we disagree with the
Government's attempt to apply it in this case. When it is
obvious that an unequivocal statement in the written judgment
11

Whether a district court may depart from a recommended
Guidelines sentence solely to harmonize sentences of codefendants
was decided by this court in United States v. Ives, ___ F.2d ___
(5th Cir. 1993) (No.92-1259), rendered on this very day. In
Ives, we fell in line with the majority of other circuits and
held that under no circumstances could a district court depart
upward or downward in order to achieve sentencing equity between
co-defendants. Thus, the district court erred in referring to
any sentencing inequities between Davidson and her co-defendant
as a reason for departing upward.
III.
Even though three of the four aggravating factors cited by
the district court as grounds for departing upward were
invalid,10 there still remains the question of whether this court
should nevertheless affirm in view of the one valid factor cited
by the district court. A similar issue was recently addressed by
the Supreme Court in United States v. Williams, 112 S. Ct. 1112,
1120-21 (1992). The Court held that remand for resentencing is
proper in a case where the district court relied on both valid
refers to the same impermissible rationale for departing upward
made in a prior ambiguous oral statement, we refuse to apply the
rule in Shaw.
10 We note that the district court's apparent ex post facto
consideration of the 1992 version of § 2F1.1(b)(1)(I) only
applied to the amount of money defrauded. Thus, while this
constituted a misapplication of the Guidelines distinct from the
district court's misapplication discussed in supra Part II.A., it
nevertheless only related to one of the two invalid factors
discussed in supra Part II.A.
12

and invalid aggravating factors in departing upward unless an
appellate court may say with confidence that even without
considering the invalid factors the district court would have
imposed the same sentence. See also United States v. Corley, 978
F.2d 185 (5th Cir. 1992) (discussing Williams' harmless error
standard).
Although three out of the four aggravating factors relied on
by the district court appear to have been invalid, we
nevertheless believe that the district court would have departed
upward as it did even if it only had considered the one valid
factor. This conclusion is based on the district court's
repeated statements noting the complexity in planning and the
carefulness in execution of the Davidsons' fraudulent scheme.
This aggravating factor appeared to be the district court's
primary consideration in departing upward. The other three
factors were, thus, superfluous to the court's decision to depart
upward. Finally, our confidence that the district court, upon
remand, would depart upward precisely as it originally did is
supported by the fact that the court only departed upward by a
mere three months.11
11 We note that in at least one case involving a retroactive
application of a criminal sentencing statute, a court held that
the constitutional violation was not subject to harmless error
analysis. See Coleman v. McCormick, 874 F.2d 1280, 1289 (9th
Cir. 1989) (en banc) (analyzing retroactive application under due
process clause rather than Ex Post Facto clause). Williams, of
course, requires appellate courts in Guidelines cases to apply
the equivalent of a harmless error analysis when a district court
has relied on both valid and invalid aggravating factors in
departing upward. We believe, however, that Coleman is
distinguishable from the instant case.
13

IV.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
In Coleman, the law applied ex post facto was one that
entirely altered capital sentencing procedures in Montana. The
Ninth Circuit held that "[t]his due process violation had a
pervasive effect" on the entire trial and, for that reason, was
not subject to harmless error analysis. Coleman, 874 F.2d at
1289. As the Ninth Circuit correctly held, the Supreme Court has
held that harmless error analysis is appropriately applied in
appellate review of any constitutional violation where a
"`reviewing court can make an intelligent judgment about
whether'" a constitutional violation was in fact harmless beyond
a reasonable doubt. Id. (quoting Satterwhite v. Texas, 486 U.S.
249, 258 (1988)). Because we can make a intelligent judgment
that the district court would have sentenced Davidson in the same
manner but for its apparent erroneously consideration of the 1992
version of Guidelines, we believe that harmless error analysis is
appropriate.
14