Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 94-10935
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HENRY DAVID AKIN III
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________________
August 18, 1995
Before GARWOOD, DUHÉ, and PARKER, Circuit Judges.
DUHÉ, Circuit Judge:
Henry David Akin III asserts two errors from his sentence for
pleading guilty to one count of check kiting. Under U.S.S.G. §
2F.1.1, a sentencing court bases a sentence on the victim's actual
monetary loss. First, Akin appeals the district court's
unwillingness to reduce the loss by the amount of Akin's
presentence payments of restitution. Second, Akin appeals the
court's unwillingness to depart downwards from the applicable
guideline range for his participation in an alcohol rehabilitation
program. We affirm.
BACKGROUND

The district court calculated the victim bank's loss to be
$19,806.21 at the time it detected Akin's check-kiting scheme. As
part of Akin's sentence, the court ordered him to pay restitution
in that amount. Before sentencing, however, Akin made voluntary
payments to the bank that partially satisfied his restitution
obligation. At the sentencing hearing, Akin argued that the bank's
loss should be reduced to the amount he had yet to repay. The
court overruled his objection, stating that presentence payment of
restitution does not reduce the amount of loss.
Akin has a long history of alcohol and drug abuse, and he has
been convicted numerous times for driving while intoxicated,
obtaining a controlled substance by fraud, and prescription fraud.
He has participated in nine treatment programs previously. Akin
offered evidence that he admitted himself voluntarily to his
current alcohol rehabilitation program and that the program's
director was pleased with his progress. Currently, Akin attends
Alcoholics Anonymous meetings three times a week, and he meets once
a week with a therapist. Akin asked the court to depart downwards
on the basis of his participation in the current treatment program.
The court believed that it lacked the authority to depart downwards
on this basis, but further stated that it would not depart
downwards in this case even if the court had discretion to do so.
DISCUSSION
We uphold a sentence unless it is imposed in violation of law,
results from a misapplication of the guidelines, or is an
unreasonable departure from the applicable guideline range. United
2

States v. Buenrostro, 868 F.2d 135, 139 (5th Cir. 1989), cert.
denied, 495 U.S. 923 (1990). We review a district court's refusal
to depart from the Guidelines only if the refusal is a violation of
law. Id. A refusal to depart violates law only if the court
refuses to depart under the mistaken assumption that it does not
have the authority to do so. United States v. Burleson, 22 F.3d
93, 95 (5th Cir.) (per curiam), cert. denied, 115 S. Ct. 283
(1994). If the district court finds that the circumstances do not
warrant a downward departure, we review that finding for clear
error. Id. at 94.
I.
We use U.S.S.G. § 2F1.1 to sentence a defendant convicted of
check kiting. United States v. Frydenlund, 990 F.2d 822, 825 (5th
Cir.), cert. denied, 114 S. Ct. 192 (1993), and cert. denied, 114
S. Ct. 337 (1993). The district court bases its sentence on the
amount of loss sustained by the victim bank. See U.S.S.G. §
2F1.1(b)(1). As with other theft offenses, the loss from a check-
kiting scheme is the value of the victim's actual loss. Id.
commentary n.7 (citing U.S.S.G. § 2B1.1); Frydenlund, 990 F.2d at
826.
Akin believes that the district court had the authority in
this case to reduce the bank's loss by the amount of his
presentence payments. We disagree. Payment of restitution after
discovery of the loss does not affect the district court's
calculation of loss in a check-kiting case. United States v.
3

Shaffer, 35 F.3d 110, 115 (3d Cir. 1994); United States v. Carey,
895 F.2d 318, 323 (7th Cir. 1990).
In Carey, a check-kiting defendant who had defrauded a bank
$220,000 repaid it $200,000 before the Government indicted him.
The Seventh Circuit refused to reduce the loss by the amount of the
defendant's repayments because the bank's loss was due entirely to
the defendant's actions and not to extrinsic reasons beyond his
control. Carey, 895 F.2d at 323 (citing U.S.S.G. § 2F1.1
commentary n.10).1 The defendant's restitution did not decrease
the seriousness of the crime he had committed; rather, voluntary
payment of restitution is a factor the sentencing court considers
in determining whether the defendant is entitled to a reduction for
acceptance of responsibility. Id. (citing U.S.S.G. § 3E1.1
commentary n.1(c)).
We followed Carey's reasoning in Frydenlund to reject the
argument that actual loss should be calculated at a time other than
when the kite is discovered. Frydenlund, 990 F.2d at 826. We
expressly adopt Carey here and hold that payments of restitution do
not allow a district court to reduce its calculation of loss.
Akin's voluntary repayments to the bank are commendable;
nevertheless, they do not decrease the seriousness of his crime.
1 Application Note 10 details when a downward departure may be
warranted: "In a few instances, the loss [calculation] may
overstate the seriousness of the offense. This may occur, for
example, where a defendant attempted to negotiate an instrument
that was so obviously fraudulent that no one would seriously
consider honoring it." U.S.S.G. § 2F1.1 commentary n.10; see also
id. § 5K2.0 (allowing the sentencing court to depart from the
Guidelines when unusual circumstances exist).
4

We conclude that the district court properly refused to reduce its
calculation of loss by the amount of the restitution.2
II.
The district court stated that it was not authorized to depart
downwards on the basis of Akin's participation in an alcohol
rehabilitation program. Although our circuit has yet to address
the question whether such a departure is authorized, a number of
other circuits have addressed this issue with differing results.3
The district court, however, also stated that it would not depart
from the Guidelines even if it had discretion to do so. Therefore,
we need not consider whether the district court was authorized to
2 The district court denied Akin a § 3E1.1 reduction for
acceptance of responsibility because he failed to provide the
probation officer with a complete record of his prior criminal
history. Akin does not appeal this ruling.
3 Five circuits allow a downward departure for a defendant's
extraordinary
presentence
efforts
at
alcohol
or
drug
rehabilitation. See United States v. Williams, 37 F.3d 82, 86 (2d
Cir. 1994); United States v. Williams, 948 F.2d 706, 710-11 (11th
Cir. 1991); United States v. Harrington, 947 F.2d 956, 962 (D.C.
Cir. 1991); United States v. Sklar, 920 F.2d 107, 116 (1st Cir.
1990); United States v. Maddalena, 893 F.2d 815, 818 (6th Cir.
1989).
The six other circuits do not allow a downward departure for
alcohol or drug rehabilitation. See United States v. Ziegler, 1
F.3d 1044, 1049 (10th Cir. 1993); United States v. Desormeaux, 952
F.2d 182, 185-86 (8th Cir. 1991); United States v. Bruder, 945 F.2d
167, 173 (7th Cir. 1991) (en banc); United States v. Martin, 938
F.2d 162, 164 (9th Cir. 1991), cert. denied, 503 U.S. 988 (1992);
United States v. Pharr, 916 F.2d 129, 132 (3d Cir. 1990), cert.
denied, 500 U.S. 959 (1991); United States v. Van Dyke, 895 F.2d
984, 987 (4th Cir.), cert. denied, 498 U.S. 838 (1990).
We have held that a defendant's rehabilitive potential is not
a valid basis for a downward departure. United States v. O'Brien,
950 F.2d 969, 971 n.1 (5th Cir. 1991) (citing United States v.
Lara-Velasquez, 919 F.2d 946, 955 (5th Cir. 1990)), cert. denied,
113 S. Ct. 64 (1992). Nevertheless, we express no view as to
whether a defendant's extraordinary presentence efforts at
rehabilitation would warrant a downward departure.
5

depart; rather, we review the district court's factual finding that
a departure was not warranted.
Because Akin has been through numerous treatment programs in
the past, the Government argued to the district court that it was
too soon to determine whether his treatment will be successful.
The district court agreed and denied Akin a downward departure.
The court suggested that once Akin completes his prison time he
could continue his treatment during his supervised release. In
view of Akin's history of alcohol and drug abuse and his previous
failed attempts at treatment, we cannot say that the district
court's refusal to depart downwards, even if it had authority to
depart, was clearly erroneous.
CONCLUSION
For the foregoing reasons, Akin's sentence is AFFIRMED.
6