*1 H43 3—611(b) de- § for these protections and understood 18— known have should sheriff all re- interpretation, this Under to cisions. if we were Even 1120. Id. at this.” for cause made must be rank ductions it does Lucero, that we find rely on hearing, for a opportunity an after prob- crux of the the address adequately part of an made as disciplinary or the fact that whether Despite the in this case. lem Although we reorganization. office demoted before was in Lucero plaintiff language unqualified the that concluded exclu- terminated, addressed the court was 18-3-611(b) interpreta- third § makes the is- employment discharge sively the clear it was not persuasive, Also, tion the most the at 1119-20. See id. sue. interpre- acceptable only this the that was mis- allegedly discharged plaintiff reassigned. plaintiff was at the time tation depart- cases, result of a a handling urges himself fact Greene See id. at reorganization. mental law interpretation different protections the only thus dealt Lucero this conclu- underscores only above adopt 3—611(b) address did not §of IS— language neither the Consequently, sion. proper (e), forth sets the IS—3—611 § clearly estab- § nor Lucero 18-3-611 to a pursuant made discharges handling of deputy sher- in a interest property lished reorganization. office sheriffs reorganization. in the case of rank iffs us, employment the the case before In addition, uncovered our own research In rank, allegedly decision, a reduction authority weight of clearly established no This reorganization. ato pursuant made ques- this to pertaining other courts reorga- the of whether question raises plaintiff has hold We therefore tion. 18-3-611(e) applies §of exception nization property the asserted failed to show reductions, a question rank case of at time clearly established right above, Wyoming Su- that, as discussed Accordingly, his rank. reduced defendant in Lucero. not address did Court preme im- qualified to is entitled attention turn our therefore We § 1983 claim. plaintiffs munity from § 18-3- While § 18-3-611. language of reorganization 611(e) expressly addresses Conclusion to how respect it is silent with discharges, above, we reasons discussed For in rank. reductions institute sheriffs order of AFFIRM re- in this ambiguous find statute in favor judgment summary granting gard. defendant. § 18-3-611 ambiguity, of this light ways. least three interpreted be can 3—611(e) asserts, § First, plaintiff 18— but also discharges, only to apply not could Plaintiff contends in rank. reductions rank implement a sheriff requires this America, re- to an office pursuant made STATES
reductions UNITED Second, as de- seniority. by Plaintiff-Appellee, organization 3—611(e) apply asserts, may fendant 18— an pursuant made rank reductions ENSMINGER, Elvin Warren it dictates but reorganization, office Defendant-Appellant. “lowest in order of be made decisions such No. 98-6179. id., first,” rather ranking deputies defendant, Greene According to seniority. Appeals, States Court three the other rank as the same had- Tenth Circuit. superior had no and therefore lieutenants 19, 1999. April others. position vis-a-vis right to his 18-3-611(e)’s re- rank silence on Finally, legislature’s represent
ductions exception from grant
decision not *2 Lacy,
Paul Antonio Assistant Federal Defender, Public City, Oklahoma Okla- homa, for Defendant-Appellant. Hockeimer, Jr., Hank Assistant United (Patrick States Attorney Ryan, M. States Attorney, with briefs), him the Oklahoma, City, Oklahoma for Plaintiff- Appellee. ANDERSON, KELLY,
Before
BRISCOE,
Judges.
Circuit
H45
8, 1998.
April
sentencing hearing on
at the
Jr.,
Judge.
KELLY,
Circuit
PAUL
the amount
contended that
ap-
Elvin
Warren
Defendant
calculated
be
of intended
sentence
eighteen-month
peals Ms
question
properties
full value
of 18
violation
in-
on the one-ninth
($540,700),but rather
statements).
(false
The dis-
§ 1001
U.S.C.
*3
have received
Ensminger would
terest Mr.
level calcu-
offense
adopted
court
trict
had
estate
beneficiary
his mother’s
of
as a
report
presentence
in the
lation contained
Alternatively,
successful.
his scheme
(1997),
gov-
§ 2F1.1
under USSG
no
that there was
argued
Ensminger
Mr.
deceit,
and
involving fraud
offenses
erns
successful,
being
his scheme
of
possibility
for an
enhancement
a ten-level
including
loss
the amount of
and thus
$540,700
a two-level
and
of
loss
that a
argued
further
He
be zero.
should
plan-
minimal
than
for more
enhancement
enhancement
planning
minimal
than
more
addition,
court im-
the district
ning.
In
The
to his case.
applied
not be
probation, in-
of
posed several
and
arguments
rejected his
court
district
Ensminger’s
Mr.
monitoring of
cluding
eighteen
Ensminger
Mr.
arises
sentenced
jurisdiction
Our
dealings.
financial
years
two
of
and
imprisonment
in
reverse
months
and we
under
U.S.C.
supervised release.
in part.
affirm
part and
contending
appeals,
Ensminger
Mr.
Background
(1)
his
enhancing
in
court erred
district
only deals
appeal
Ensminger’s
Mr.
Since
of
an intended loss
based on
level
offense
and
his
of
sentence
propriety
with the
(2)
level
offense
$540,700;
enhancing his
conditions,
briefly set out
minimal
finding of more
on a
based
Mr. En-
this case.
of
background
factual
(3)
special condi-
imposing
and
planning;
counts.
on three
indicted
sminger
fi-
relating to
release
supervised
of
tions
him with
charged
one and two
Counts
and restrictions.
disclosures
nancial
in
interest
ownership
obtain an
submitting
through
property
real
certain
Discussion
of
in violation
instruments
bogus financial
the district
review
appeal, “[w]e
On
Ensminger
1341. Mr.
§§ 2 and
18 U.S.C.
guide
of the
interpretation
legal
court’s
false mon-
at least- six
purchased
allegedly
of
findings
novo,
its
review
lines de
to differ-
of them
mailed two
ey orders
error,
due deference
giving
clear
fact
outstanding
banks,
pay off
in order
ent
of
district court’s
to the
his mother.
notes executed
promissory
facts.” United
to the
guidelines
presenting
him with
charged
three
Count
Cir.
Janusz,
Office
Marshal’s
to the U.S.
a document
omitted).
1998) (citations
pre-
that he
indicated
falsely
the Farm
against
a civil action
vailed in
Loss
Intended
of
A. Amount
Kansas,
Wichita,
in
when
of
Credit Bank
Mr.
court sentenced
the action
knew that
fact,
Ensminger
Mr.
value
on the uncontested
based
document, Ensminger
This
dismissed.
had been
$540,700,
at
that he
properties,
“Special Ex-
entitled
Ensminger
which Mr.
Marshal seize.
the U.S.
to have
tempted
for Pos-
Assistance
of
and Order
ecution
the district
argues
lawsuit
Ensminger
Mr.
session,”
indicated
also
upon
based
sentencing him
certain real
erred
possession
him
entitled
$500,000,
Major County, Okla-
greater
located
an intended
properties
2Fl.l(b)(l)(K),
pled guilty
there
Mr.
homa.
see USSG
for the dismissal
exchange
occurring
count three
of loss
possibility
was no
one and two.
and Order
“Special
of counts
Execution
his
result
He asserts
Possession.”
Assistance for
objections
filed several
be
causing loss
“incapable of
that he
report, and
presentence
over
control
governmental
objections
cause
argument on these
court heard
civil
process
execution
judicial
inter- Ensminger attempted
$540,-
to obtain was
Aplt.
vention.”
Brief
Apit.
12-13,
see
Brief at
there is also
dispute
way
Mr. Ensminger
no
that there was no
in which
upon
relies
our decisions
the scheme could have been successful.
Galbraith,
States v.
1147
he
informed that
and,
he was
after
Office
v. Is
(1998);
States
United
150
L.Ed.2d
processing
money for
(5th Cir.1996);
additional
needed
moila,
380, 396-97
F.3d
100
person resubmit
fees,
had another
Robinson, 94 F.3d
later with
weeks
three
However,
document
Cir.1996).2
1328
up
awith
fees;
this
he followed
proper
by the
is bound
of this
panel
“one
Office, a
Marshal’s
telephone call
en
panel absent
earlier
precedent
who had
judge
the district court
letter
con
superseding
or a
reconsideration
banc
case,
civil
his
over
Court,”
presided
earlier
Supreme
the U.S.
decision
trary
demanding ac-
the U.S. Marshal
letter
Rev
Internal
v. Commissioner
LeFever
at 19-20.
4 R.
See
Cir.1996),
on the seizure.
tion
enue,
not an iso-
“This is
court concluded:
apply
Galbraith.
are bound
where several
a case
It is
instance.
lated
Planning
given
Minimal
Than
Mr.
B. More
times
different
con-
his
out of
criminal
back
chance
contends
next
simply
it’s also
but
thing
for one
duct
enhancing
court erred
oppor-
more
that were
repeated acts
levels
by two
level
offense
his base
R.
tune.”
pursuant
planning”
minimal
“more
According to Mr.
2Fl.l(b)(2)(A).
his
actions
Ensminger argues
USSG
*5
prove
failed
to the U.S.
government
the
the
presenting
document
Ensminger,
after
considered,
planning
in more
not be
engaged
he
Office
Marshal’s
offense
committing the
was made
necessary for
false statement
the
district
the
Because
How
presented.
simple form.
in its
the document was
when
factual, we
essentially
court
is
district
finding
ever,
agree
the
court’s
done
repeated
clear error.
acts
only for
it
were
review
actions
those
to fraud
his central
of
furtherance
mini-
“more
regard
The Guidelines
See United
properties.
the
ulently obtain
case in-
“in any
present
planning”
mal
65-
59
Channapragada,
v.
States
of
period
a
acts over
repeated
volving
Cir.1995) (affirming enhancement
instance
each
clear that
time,
it is
unless
mis
acts”
“repeated
where
§ 1B1.1
USSG
opportune.”
purely
re
and
collateral
of
value
represented
(1997).
rul-
1(f)
its
n.
commentary at
times). Therefore,
it three more
peated
enhancement,
court
the district
ing on the
adjustment
two-level
court’s
conduct:
following
the
considered
clearly erroneous.
was not
U.S. At-
a form
the
took
into his
it
adapted
and
torney’s Office
Probation
Special Conditions
C.
document,
and Order”
Execution
“Special
chal
Finally, Mr.
descrip-
property
complete with detailed
special
of
imposition
the
lenges
the
document
tions;
the
presented
financial
relating
release
supervised
convinced
and
office
clerk’s
court
He contends
restrictions.3
and
disclosures
it;
submit-
he then
sign
deputy clerk to
a
re-
reasonably
are not
that the conditions
Marshal’s
U.S.
to the
the document
ted
hearing, the
sentencing
the end
3. At
cir-
other
cites cases
The dissent also
following special condi-
imposed the
holding
narrow
"recognize the
cuits which
release:
supervised
on his term
However,
tions
of those cases
each
Galbraith.”
possibility
some
scheme had
defendant's
liabilities
and
assets
all
will disclose
You
success,
by police inter-
thwarted
but was
transfer,
You will
probation office.
contrast,
Here,
police interven-
by
vention.
any
convey
sell,
away
otherwise
give
unnecessary,
Mr. En-
totally
tion was
pro-
consulting with
first
without
asset
incapable of
inherently
sminger’s scheme
will,
request
upon
You
office.
bation
proper-
sale of
causing
a
due
office,
release
authorize
parties.
to third
ties
records,
rec-
tax
income
all financial
and
will
You
Security records.
and Social
ords
your
checking account in
single
maintain
lated to the crime of conviction.
re-
However,
strictions.
in Edgin we noted
view for abuse of discretion. See
that a
father generally “has a fundamental
Edgin,
liberty interest
in maintaining his familial
Cir.1996).
relationship
son,” id.,
with his
and stated
the district court must “fine-tune”
Although a district court has broad dis-
restrictions of such
liberty
interest
cretion in setting
supervised
conditions of
meet
goals
§of
3553(a)(2)(B)-(D).
release,
see id. at
any condition cho-
Here no such fundamental
interests are
sen must
involved, and thus the same level of “fine-
(1) [be] reasonably related to the factors
tuning” is
required.
set
forth
3553(a)(1),
section
(a)(2)(B),
3583(d),
Under
special
(a)(2)(C),
condition of
(a)(2)(D);4
supervised release must be reasonably re-
(2)
greater
involve[] no
deprivation of
lated to “the nature and circumstances of
liberty than is necessary for
pur-
the offense and the history and character-
poses set forth in
3553(a)(2)(B),
section
istics of
defendant,”
18 U.S.C.
(a)(2)(C),
(a)(2)(D);
§ 3553(a)(1), and must involve no greater
(3) [be]
with any
consistent
pertinent
deprivation of liberty than is reasonably
policy statements
issued
the Sentenc-
necessary in light of the need
protect
“to
ing
pursuant
Commission
to 28 U.S.C.
public
from further crimes of the de-
944(a).
fendant.” All three counts of the indict-
3583(d)(l)-(3).
18 U.S.C.
ment relate to Mr. Ensminger’s attempts
The district court imposed the special
to defraud financial institutions.
2See R.
conditions at the end of the sentencing
at 3. Mr. Ensminger belongs to an organi-
hearing, after it had
all
objec-
resolved
zation, “We The People,” which “does not
tions to
presentence
report and after
*6
believe the federal banking system has
Mr. Ensminger
made his final
authority after they ceased being backed
statement. Mr. Ensminger
object
did not
gold
the
standard.”
the enterprise [sic]. ment.”
H49 stolen, and sub $4,800, had value con- special imposition and planning mal $11,000 “stolen” for the a claim mitting the ditions, REMAND in involved acquaintance Because car. and resentence its sentence to VACATE au enforcement law notified the scheme opinion. this accordance After not succeed. thorities, did scam the because ANDERSON, occurred actual loss Circuit that no noting H. STEPHEN the intervention, that we held police part: dissenting Judge, $4,800 was loss” probable [and] “intended en- the ten-level reverses majority The not would company “insurance the $540,- loss intended for an hancement $4,800 blue car’s the paid more have decisions prior our 000, finding that Santia any circumstances.” value book Galbraith, States United 524, 526.1 F.2d go, 977 v. Santi- Cir.1994) and to- Galbraith Santiago and Cir.1992), Considering in- are ago, 977 intended the that not believe I compel gether, do this case from distinguishable is loss actual the whenever zero is loss loss intended the that conclusion where, here, scheme zero, even those deci- conclude I Because zero. beginning. doomed is defraud com- and do distinguishable are sions scheme, a between distinction is a There conclusion, dissent respectfully I pel structurally and is as in majority opinion. A of Part loss causing incapable inherently sting government involved Galbraith in- operation sting (an reverse undercover attempt- defendant in which operation, ato stock overvalued sale of volving the drive company, ain stock purchase toed such a scheme entity) and non-existent European it to then sell price, up the extremely which, while Ensminger’s defen- fund. Unbeknownst pension loss, nonetheless in any to result unlikely fund did pension dant, European a loss occasioned sting terminated the FBI exist opines majority succeeded. be- the defendant and arrested operation incapable Ensminger’s plan sold. actually bought or any stock fore because, he had success- while of success “The case that held in sign clerk deputy persuaded fully because: zero” loss was probable document, proper- Execution” “Special subjectively *7 to third been sold fact had in ties if controlling is not cause to there- Ensminger would parties, Be- loss. inflicting that incapable them. obtain to unable been have fore op- sting an undercover ivas cause this in Santiago, no different that is But sell to structured which eration au- had notified acquaintance not that did pension stock to fund insurance thorities, notified then who occa- have exist, could in would the defendant company, so the scheme even any loss sioned if any insur- collect unable to fact have been completed. pres- Indeed, if a person proceeds. ance add- (emphasis 1059 Galbraith, at with 20 F.3d a bank to an instrument ents $100,000,but ed). it defrauding intent of has person money, the no has in fact bank Santi- in on part we relied holding, In so fraud, intended attempted no less to attempted the defendant in ago, which loss no in loss, though even falsely by company fact insurance his defraud have, occurred.2 book” car, a “blue with that his reporting C, U.S.S.G.App. amend. deleted. Santiago ble” loss “probable” reference 1. The that, prior fact stems Galbraith 1991, 7 1, Application note November is in- Galbraith suggests that majority 2. The "probable referred § 2F1.1 10 note consistent 1991, 1, “proba- November Effective loss.” de- 2F1.1, a downward authorizes 1150 Other courts have recognized the nar- even though intended victim demonstrated row holding of Indeed, Galbraith. in to IRS tax return was bogus). United Studevent, States v. 1559, sum, rather than implicitly criticize 1564 (D.C.Cir.1997), the expressed Galbraith, our holding as does the ma- disagreement
its with what it viewed as jority, I would simply confine Galbraith to Galbraith’s holding but noted that Gal- its narrow factual setting. And, braith itself was correctly following decided under Santiago, any view I loss: would calculate the intended Galbraith-a, loss of Ensminger’s victim in pension not at fund zero, to which as does majority, but, overvalued stock was to be as did the sold-was court, Potemkin institution fabricat- the fair market value of ed law enforcement officials. Gal- the real property which object was the braith thus never could have defrauded his attempted fraud. anyone. Studevent, hand, the other stole checks from real entities and thus potential real victims who could
have been defrauded but for the inter-
vention of the FBI.
Studevent, 116 F.3d 3; at 1563 n. see also Rizzo, 121 F.3d 802
(1st Cir.1997) (“Unlike the fictitious victim the intended victims of Riz-
zo’s counterfeit check scheme were actual corporations.”); United Coffman, States v. 94 Cir.1996) F.3d (“[E]ven if MONCRIEF, Jr., W.A. independent ... [Galbraith ] were decided correctly, personal executor and representative [it] would not carry day for the defen of the Estate Moncrief, of W.A. de dants[] [because it is a case] where ceased; Moncrief, W.A. Jr., individual fraud would done no harm even if the ly, as Trustee Wiley Lee Mon defendants had not been interrupted[ ] Trust, crief as Trustee for the Tom O. [whereas h]ere the fraud had a real victim Trust, Moncrief 1967 and as Trustee sights its but was interrupted before it for the William Alvin Moncrief III could do any harm.”); United States v. Trust; Moncrief, Charles B. individu Falcioni, (2d Cir.1995) (not ally independent and as executor and ing Galbraith’s “limited exception to use personal representative Estate the intended figure” and stating Moncrief, W.A. deceased; Richard plan “Falcioni’s loss, failed to result in Moncrief, W. independent because his victim was executor a non-existent *8 personal entity, representative but rather because of the Es acquain [an tate tance] Moncrief, notified law W.A. deceased, enforcement authori ties”); Sheets, United States v. Trustee for the Trust; RWM 1988 cf. (8th Cir.1995) 753-54 (holding Moncrief, Michael defen J. individually and dant liable for intended loss created Trustee for the Michael J. Moncrief filing false tax return else, for someone Trust; Grantor’s Richard Barto Mon parture "where a attempted to ne- success still is different from structural and gotiate an instrument that was so obviously absolute impossibility. The fact fraudulent that no one would seriously con- scheme's may depend success stupidity on the sider honoring it.” If a departure downward naivete others does not mean it is is authorized for obviously incapable fraudulent of success. Even the most hare- scheme, argument so the goes, guidelines brained may, perchance, succeed, of schemes must have assumed that the unlikelihood government whereas a sting of the sort em- success is irrelevant to the calculation in- ployed never, Galbraith under tended loss. But the extreme circumstance, unlikelihood of result in a anyone. loss to