Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Crim. No. 93-00104-01).
Before: Sloviter, Chief Judge, Hutchinson And Seitz, Circuit Judges.
Reginald Hallman ("Appellant") appeals a sentence imposed on him by the district court. The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction under 18 U.S.C. § 3742(a).
On September 9, 1992, appellant used a stolen check to pay for a room at the Korman Suites in Philadelphia, Pennsylvania. At the request of federal investigators, local authorities arrested the appellant and located stolen mail after he consented to a search of his vehicle.
Appellant pled guilty to a state forgery charge and was sentenced to three years probation and restitution of $6,400. Appellant remained incarcerated, however, because he was identified as a fugitive from Justice in Atlanta, Georgia and having charges pending against him in Delaware County (PA) Court.
On February 11, 1993, appellant was taken into federal custody pursuant to a four-count federal indictment. It appeared that, using various aliases, appellant deposited stolen and forged checks into an account and then withdrew the funds therefrom (Count 1). One of the checks deposited in this account was a check made out to the Internal Revenue Service (Count 2). Appellant forged one of the stolen checks he possessed to purchase an automobile in the State of Alabama for approximately $14,000 (Count 3). Lastly, the appellant was found to have been in possession of approximately sixty-one stolen pieces of mail (Count 4).
Appellant entered a plea of guilty on all four counts. After receipt of the Pre-Sentence Report and a hearing thereon, the defendant was duly sentenced. He now appeals.
The standard and scope of review of the district court's interpretation and application of the Sentencing Guidelines is plenary. United States v. Murillo, 933 F.2d 195, 196 (3d Cir. 1991). However, where the district court's application is based on factual analysis, we will reverse the district court only if its Conclusion is clearly erroneous. United States v. Ortiz, 878 F.2d 125, 127 (3d Cir. 1989).
A search of the appellant's car after his arrest on the Korman Suites' forgery charge resulted in the recovery of sixty-one pieces of stolen mail, mostly checks, that underlie Count 4.*fn1 Appellant objects to the calculation of "loss" in this count, which added $25,152.36 to the loss amount and one (1) point to his offense level. Under USSG § 2F1.1, adjustments are made to the base offense level if the monetary loss exceeds certain levels. Under § 2F1.1(a), the base offense level is six. The Probation Officer calculated the losses to be $73,419.36. This was arrived at by adding the losses suffered by the bank in Count 1 ($34,282), the amount of the check in Count 3 ...