Rodney Burns pled guilty to one count of violating 18 U.S.C. § 1029(a)(2) (fraudulent use of access device) and appeals from the resulting 30-month sentence.
Using fraudulently obtained credit card numbers, Burns ordered computer equipment. Before he was apprehended, he had obtained goods for which billings exceeded $107,423. He contends inter alia that his peculations were improperly calсulated because sales tax and shipping charges should not have been included in the “loss” column. He says the victim seller did not “lose” these amounts. His other attacks on the sentence аre equally ingenious and equally unpersuasive.
The presentence report prepared in Burns’s case calculated his base level as six and, pursuant to Sentencing Guideline § 2F1.1(b)(1)(G), added six mоre points because the loss was between $100,001 and $200,000. Another two points were added because Burns’s scheme defrauded more than one victim and involved more than minimal planning, and two pоints were deducted for acceptance of responsibility. The total offense level was therefore twelve. As an ex-convict, Burns had a criminal history category of VI. The applicable guideline sentence range was therefore 30-37 months.
Burns challenged the probation report, claiming that the loss involved was no more than $50,000. He also asked that his sentence be made concurrent to the one he was serving after violating probation for the state offenses of which he had previously been convicted.
A. Inclusion of Sales Tax and Shipping Costs under 2F1.1
18 U.S.C. § 3742(a)(2) provides for review of sentences imposed as a result of an incorrect application of the Sentencing Guidelines (“the Guidelines”). The interpretation of “loss” under § 2B1.1 of the Guidelines is a question of law.
Offenses involving fraud оr deceit are covered under Guideline § 2F1.1. The base offense level assessed for crimes under this section varies with the amount of the loss occasioned by the offender. Under 2FL-1(b)(1)(G), if the loss incurred is between $100,001 and $200,000, six points are added to the offense level; if between $50,001-$100,000, five points are added.
Loss under § 2F1.1 incorporates the definition of loss discussed in the Commentary to § 2B1.1. The Commentary to 2B1.1 de *336 fines “loss” as “the value of the property taken, damaged, or destroyed.” It goes on to say that, “[o]rdinarily, when property is taken or destroyed, the loss is the fair market value of thе particular property at issue.” Burns argues that the common understanding of fair market value is “the amount a willing buyer will pay for an item.” By this definition, he says, sales tax and shipping costs must be excluded because those portions of the buyer’s payment go to a third party, not to the seller.
Burns fails to recognize that in ordinary retail trade the amount that a willing buyer is prepared to pay includes the tax and shipping costs, regardless of who ultimately receives that fraction of the purchase price. Moreover, other parts of the Commentary to § 2B1.1 contradict the suggestion that the Sentencing Commission meant to exclude tax and shipping charges in the calculation of loss. Application Note 4 of the Commentary to 2B1.1 states that “[t]he loss includes any unauthorizеd charges made with stolen credit cards” (emphasis added), and Application Note 3 provides that “[t]he loss need not be determined with precision, and may be determined from any reasоnably reliable information available.” See also Application Note 7, Commentary to § 2F1.1 (the probable or intended loss that the defendant meant to inflict should be used if it is larger than the actual loss). There is no indication from the Commission’s commentaries that it intended the district judge to engage in the kind of parsing of the loss figure that Burns’s position would require.
In addition, as the government points out, Burns failed to present the district court with any calculation of the applicable shipping costs. This court will not allow a pleader to make his first presentation of material figures to this court, when he had ample opportunity to do so in the trial court.
See United States v. Monaco,
B. Evidence of Burns’s Attempt to Order Additional Computer Equipment
As noted in the preceding section, the district court is directed under the Sentencing Guidelines to use the amount of the probable or intended loss that the defendant was attempting to inflict for sentencing purposes, if that amount can be determined and it is larger than the аctual loss. Application Note 7, Commentary to § 2F1.1.
See also United States v. Wills,
This court reviews а finding of fact underlying a sentence determination for clear error.
Wills,
Because the addresses to which the additional equipment was to be sent were the same ones used by Burns for the shipments he had previously received, the district court concluded that Burns had ordered the additional equipment. The court was entitled to consider that fact in its sentencing determination.
Burns also claims that thе information in the Secret Service report was unreliable and uncorroborated hearsay which the district court was not entitled to consider. Section 6A1.3 of the Guidelines allows the
*337
judge tо consider any information in his sentencing determination, “so long as it has ‘sufficient indicia of reliability to support its probable accuracy.’ ” Commentary to § 6A1.3,
quoting United States v. Marshall,
C. Imposition of the Consecutive Sentence
After he pled guilty to one count in this case, but prior to sеntencing, Burns’s state court probation was revoked and he was sentenced to two years in state custody. Burns contends that under Guideline § 5G1.3, the district court should have made the sentence impоsed in this case run concurrently with the state sentence.
§ 5G1.3 states that:
If, at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentence for the instant оffense[s] shall run consecutively to such unexpired sentences, unless one or more of the instant offense[s] arose out of the same transactions or occurrences as the unexpired sentences. In the latter case, such instant sentences and the unexpired sentences shall run concurrently, except as otherwise required by law.
Under this section, if the offense with which Burns is сharged here “arose out of the same transactions or occurrences” as the unexpired sentences he must serve as a result of the probation revocation, then the sentences should run concurrently. Burns claims that the revocation of his probation was based on his federal crime and that the district court therefore erred in mandating that his sentence for the violation of 18 U.S.C. § 1029(a) run consecutively to the unexpired sentences on the state charges.
Contrary to Burns’s claim, however, the evidence established, and the district court found, that the prоbation revocation was based on Burns’s failure to make restitution as ordered in the state cases. The court found that revocation was not based on the federal charges against Burns in the instant case. Given the absence of any contradictory evidence, the district court’s finding on this issue was not clearly erroneous. 18 U.S.C. § 3742(d) (Supp. II 1984).
See United States v. Darud,
Moreover, as the government points out, even if the two sentences had arisen out of the same transactiоn or occurrence, the sentence imposed here would be upheld. This court has recently ruled that, although Guideline § 5G1.3 appears to
require
concurrent sentences if the same transaction is involved, it is subservient to 18 U.S.C. § 3584(a), which makes the decision whether to impose a consecutive or concurrent sentence a matter of the trial judge’s discretion.
Wills,
AFFIRMED.