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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-2717
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHAD GODFREY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(June 24, 1994)
Before WISDOM, JOLLY, and JONES, Circuit Judges.
WISDOM, Circuit Judge:*
Defendant/appellant Chad Godfrey pleaded guilty to one count
of conspiracy to commit bank fraud and misapplication of funds by
a bank officer in violation of 18 U.S.C. § 371. The district
court, after departing downward from the sentence range suggested
by the Sentencing Guidelines, sentenced Godfrey to 21 months in
* Most of this opinion merely decides this particular case
based on well-settled principles of law and is unworthy of
publication. See Loc. R. 47.5. The appeal raises one question
of precedential significance. We direct that only the first and
last paragraphs of the opinion and all of parts II.A and II.B be
published, with omissions in the published text to be indicated
by asterisks. See, e.g., Garcia v. Wash, 20 F.3d 608 (5th Cir.
1994).

prison. On three grounds, Godfrey challenges the district court's
calculation of his sentence. We AFFIRM.
I.
Chad Godfrey and several co-conspirators1 devised a scheme to
siphon money from failing financial institutions. We summarized
the scheme in a recent opinion disposing of the appeal of one of
Godfrey's co-conspirators:
The conspirators concocted an elaborate scheme whereby
they would create shell companies to purchase controlling
interests in several ailing Texas banks with small
amounts of money, then cause the management of the target
banks to purchase worthless debentures issued by compa-
nies owned by Barrus [James Barrus, Jr., a co-conspira-
tor]. The proceeds from the debenture sales would be
deposited in accounts held by Barrus-controlled entities
and used to purchase additional distressed banks. The
conspirators created counterfeit certificates of deposit
and phony financial statements prepared by nonexistent
accounting firms to create the appearance of financial
assets and fraudulently obtained loans to produce "show
money" for the acquisitions.2
Several examples illustrate Godfrey's involvement in the
conspiracy. In 1987, Godfrey and some of his co-conspirators
devised a plan to take over an offshore and a domestic bank, and
then to siphon funds from the domestic bank to the offshore bank.
At Godfrey's instruction, Allan Swan purchased First London Bank,
an institution of the British West Indies. Godfrey then recruited
Jedd Jones to borrow $650,000 from Imperial Savings Association
1 Those indicted along with Godfrey were James Barrus, Jr.,
Elliot Bernstein, James Trodden, Gloria Manchester, and Fred
Leroy Harwood. See United States v. Harwood, 20 F.3d 469 (5th
Cir. 1994) (table) (no. 93-2282, manuscript opinion at 2).
2 Id., manuscript opinion at 2.

("Imperial"). The conspirators planned to use that $650,000 to
purchase the domestic bank. Jones, following Godfrey's instruc-
tions, falsely represented to Imperial that he intended to purchase
a house with the $650,000. Instead of purchasing a house, however,
Jones transferred the loan proceeds to New Horizons Financial, a
group formed by Godfrey, Barrus, and other conspirators. New
Horizons Financial attempted unsuccessfully to purchase a bank with
the loan proceeds. A later attempt by Barrus, Godfrey, and the
other conspirators to purchase First Bank of Balch Springs, another
Texas bank, also failed.
In August 1988, the conspirators planned to purchase the Bank
of Kerrville. Godfrey set up a meeting between co-conspirators
Manchester and Bernstein to arrange for escrow. At the meeting,
the conspirators agreed that the purchaser would be Metric
Financial ("Metric"), a shell corporation created by the conspira-
tors of which Godfrey was listed as the vice-president. Godfrey
attended what was to have been the closing on the sale. The
closing fell through when the Bank's representatives discovered
that a financial statement for one of the conspirators' shell
corporations had been falsified.3
3 The conspirators sought to make the Bank of Kerrville's
purchase, for $28 million, of a $35-million-face-value debenture
from Land Corporation of America ("Lancor"), a shell corporation,
a condition of the sale. The Bank of Kerrville's representatives
asked for a financial statement from Lancor. Barrus provided a
financial statement that falsely represented that Lancor had some
$1.3 billion in assets. Upon investigation, the Bank of
Kerrville's agents discovered that the accounting firm that had
purportedly prepared the financial statement did not exist.
3

The conspirators tried again a month later. This time their
target was Texana National Bank ("Texana"). Godfrey and Bernstein
arranged for James Epley and Jere Sink to purchase Texana for
$250,000. Texana, once under their control, was to purchase a
$1.55 million debenture from Interim Financial Network ("Interim"),
a shell corporation co-owned by Godfrey. The purchase was closed
on September 23, 1988, following which Epley arranged for Texana to
purchase the debenture from Interim. The proceeds of the debenture
sale were funnelled through various shell corporations to
Manchester, Bernstein, and Godfrey. Godfrey's personal share was
approximately $326,000.
In October 1988, Godfrey negotiated the purchase of Resource
Bank for $611,000, and arranged for the bank to purchase a
debenture from Land Corporation of America ("Lancor"), another
shell corporation. To finance the purchase, Epley caused Texana to
purchase a new debenture for $2.5 million, of which $650,000 was
wired to Manchester, who used it to pay the stockholders of
Resource Bank. Godfrey, Barrus, and Harwood attended the closing
of the sale of Resource Bank. Resource Bank then purchased for $16
million a $20 million face value debenture from Lancor. Barrus
wired a portion of the funds to the conspirators' shell
corporations.
A handful of other financial transactions occurred before the
Office of the Comptroller of the Currency (OCC) stepped in and
issued a temporary cease and desist order against the conspirators.
Godfrey and his co-conspirators were then charged on a multiple-
4

count indictment with a variety of federal crimes. Godfrey reached
a plea agreement with the prosecutors whereby he pleaded guilty to
the conspiracy charge in exchange for the dismissal of the other
counts. Godfrey also provided substantial assistance to the
government following his plea bargain.
Godfrey's sentence was calculated as follows. To the base
offense level of six,4 the court added ten levels because it
determined that Godfrey was responsible for a loss between
$2,000,001 and $5 million.5 It then added two levels for Godfrey's
more than minimal planning and involvement in a scheme to defraud
more than one victim,6 added four levels for Godfrey's role as a
leader or organizer,7 and subtracted two levels for Godfrey's
acceptance of responsibility.8 With a total offense level of 20
and a criminal history category of I, the guideline range was 33-41
months imprisonment. The district court overruled Godfrey's
objections to the sentencing recommendations of the presentence
investigation report (PSR). The government moved for a downward
departure on the grounds that Godfrey had provided substantial
4 See U.S.S.G. § 2F1.1(a) (1988 Manual).
5 Id. § 2F1.1(b)(K). The district court accepted the
probation officer's recommendation of a ten-level increase, but
noted that even a thirteen- or fourteen-level increase would have
been appropriate.
6 Id. § 2F1.1(b)(2)(A), (B).
7 Id. § 3B1.1(a).
8 Id. § 3E1.1(a).
5

assistance to the prosecution.9 The district court departed
downward and sentenced Godfrey to 21 months imprisonment. Godfrey
appealed his sentence to this Court.
II.
A.
Standard of Review
When reviewing a sentence, we ask whether the district court
correctly applied the Sentencing Guidelines to factual findings
that are not clearly erroneous.10 The district court's application
and interpretation of the Sentencing Guidelines are matters of law
subject to de novo review.11
B.
"Double Counting" for Leadership and Planning
Godfrey first contends that the district court improperly
"double counted" in adjusting his sentence level upward by four
levels for being a leader or organizer under U.S.S.G. § 3B1.1(a)
and by two levels for more than minimal planning and for
involvement in a scheme to defraud more than one victim under
§ 2F1.1(b)(2).
9 See id. § 5K1.1.
10 United States v. Montoya-Ortiz, 7 F.3d 1171, 1179 (5th
Cir. 1993). A factual finding is clearly erroneous if it is not
plausible in light of the record taken as a whole. See Anderson
v. City of Bessemer City, 470 U.S. 564, 573-76 (1985).
11 Montoya-Ortiz, 7 F.3d at 1179.
6

We have previously noted that the Sentencing Guidelines do not
forbid all double counting.12 Double counting is impermissible
only when the particular guidelines in question forbid it.13
Because neither § 3B1.1 nor § 2F1.1 forbid double-counting with
each other, increases under both of those sections are permitted.
This is also the conclusion reached by most of the other circuits
to address this question.14 Previous unpublished decisions of this
Court agree.15
We consider Godfrey's reliance on the Sixth Circuit's decision
in United States v. Romano16 misplaced. In Romano, the Sixth
Circuit reversed a sentence that the district court had enhanced
under both sections 3B1.1(a) and 2F1.1(b)(2) of the Sentencing
Guidelines. The majority in Romano concluded that "by its very
nature, being an organizer or leader of more than five persons
12 United States v. Gonzales, 996 F.2d 88, 93 (5th Cir.
1993).
13 See id. at 93-94.
14 See United States v. Myerson, 18 F.3d 153, 163-64 (2d
Cir. 1994); United States v. Smith, 13 F.3d 1421, 1429 (10th Cir.
1994); United States v. Aideyan, 11 F.3d 74, 76 (6th Cir. 1993);
United States v. Willis, 997 F.2d 407, 418-19 (8th Cir. 1993),
cert. denied, --- U.S. ---, 114 S. Ct. 704, 126 L. Ed. 2d 670
(1994); United States v. Kelly, 993 F.2d 702, 704-05 (9th Cir.
1993); United States v. Curtis, 934 F.2d 553, 556 (4th Cir.
1991); United States v. Boula, 932 F.2d 651, 654-55 (7th Cir.
1991).
15 See United States v. Grube, 20 F.3d 469 (5th Cir. 1994)
(table) (manuscript opinion at 3-6); United States v. Walker, 981
F.2d 1255 (5th Cir. 1992) (table) (manuscript opinion at 3).
16 970 F.2d 164 (6th Cir. 1992).
7

necessitates more than minimal planning",17 but the Sentencing
Commission did not intend to punish the same conduct cumulatively
under more than one provision of the Guidelines.18 Therefore, the
majority concluded, adjustments under both §§ 3B1.1(a) and
2F1.1(b)(2) were impermissible.
Even if we thought the rule of Romano could be squared with
the jurisprudence of this Circuit (and we have serious doubts that
it can), we find Romano distinguishable from Godfrey's case.
Section 2F1.1(b)(2) allows a two-level increase if the defendant
(A) engaged in more than minimal planning or (B) engaged in a
scheme to defraud more than one victim. Only the first of those
two options was at issue in Romano. The district court found,
however, that Godfrey's conduct fitted either of the two options
under § 2F1.1(b)(2). In such circumstances, even the Sixth Circuit
does not follow the Romano rule, but instead permits cumulative
increases under §§ 2F1.1(b)(2) and 3B1.1(a).19 The enhancement in
Godfrey's case plainly was permissible.
C.
Godfrey's Role as an Organizer or Leader
We next review for clear error the district court's finding
that Godfrey acted as an organizer or leader of a criminal activity
involving five or more participants, warranting a sentence level
increase under U.S.S.G. § 3B1.1(a).
17 Id. at 167.
18 Id.
19 See Aideyan, 11 F.3d at 76.
8

The evidence amply supports the district court's finding.
Godfrey helped organize the planned 1987 takeover of a domestic
bank and an offshore bank, recruiting and directing Allan Swan and
Jedd Jones to accomplish the task. Godfrey helped organized the
planned takeover of the Bank of Kerrville in August 1988. With
Bernstein, he led the planned purchase of Texana National Bank the
following month, directing the actions of James Epley and Jere
Sink. He was a co-owner of the shell corporation from which Texana
was induced to purchase a worthless debenture, and pocketed almost
a third of a million dollars from the proceeds. He led the
conspirators' purchase of Resource Bank in October 1988. On these
facts, we cannot conclude that the district court's finding that
Godfrey acted as a leader or organizer was clearly erroneous.20
D.
The Amount of the Loss Attributable to Godfrey
Finally, Godfrey challenges the district court's finding that
a loss of $2,867,952 was attributable to his conduct, warranting a
ten-point increase in his sentencing level under U.S.S.G.
20 The commentary to U.S.S.G. § 3B1.1(a) suggests several
factors for the courts to consider in making the determination of
whether a particular defendant was an organizer or leader. We
consider the evidence that Godfrey acted as an organizer or
leader so overwhelming that there would be no point in testing it
against each of the enumerated factors, but of course we approve
of their use by the district court.
To the extent Godfrey's argument can be read as a challenge
to the district court's reliance on the findings of fact in the
Presentence Investigation Report (PSR), we reject it. We have
previously held that "a presentence report generally bears
sufficient indicia of reliability to be considered as evidence by
the trial court in making the factual determinations required by
the Guidelines". United States v. Robins, 978 F.2d 881, 889 (5th
Cir. 1992).
9

§ 2F1.1(b)(K). The district court calculated this amount by adding
the $650,000 loss suffered by Imperial Savings to the $2,217,952
net loss to Resource Bank.21 Godfrey contends that he could not
reasonably have foreseen these losses.
We consider this challenge frivolous. The Guidelines provide
that a conspirator is accountable for the reasonably foreseeable
actions of his or her co-conspirators.22 Foreseeability, however,
is not at issue when the defendant is held responsible for his own
conduct, rather than the actions of his co-conspirators.23 Both of
the financial transactions for which Godfrey was held accountable
were organized and carried out by Godfrey himself. We see no clear
error in the district court's finding that a loss of $2,867,952 was
attributable to Godfrey.
Godfrey's sentence is AFFIRMED.
21 Resource Bank originally disbursed approximately $31.2
million to buy worthless debentures from the conspirators, but
all but $2,217,952 of that amount was later recovered when the
Office of the Comptroller of the Currency stepped in.
22 See U.S.S.G. § 1B1.3(a)(1)(B) & cmt. 2; United States v.
Devine, 934 F.2d 1325, 1337 (5th Cir.), reh'g denied, 943 F.2d
1315 (5th Cir. 1991), cert. denied, --- U.S. ---, 112 S. Ct. 349,
116 L. Ed. 2d 288 (1991), --- U.S. ---, 112 S. Ct. 911, 116 L.
Ed. 2d 811 (1992), --- U.S. ---, 112 S. Ct. 952, 117 L. Ed. 2d
120 (1992), --- U.S. ---, 112 S. Ct. 954, 117 L. Ed. 2d 121
(1992), --- U.S. ---, 112 S. Ct. 1164, 117 L. Ed. 2d 411 (1992),
--- U.S. ---, 112 S. Ct. 1197, 117 L. Ed. 2d 437 (1992).
23 Compare U.S.S.G. § 1B1.3(a)(1)(B) with id.
§ 1B1.3(a)(1)(A).
10