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U.S. v. WEAVER

December 8, 2005.

UNITED STATES OF AMERICA,
v.
EVAN R. WEAVER.



The opinion of the court was delivered by: TERRENCE McVERRY, District Judge

TENTATIVE FINDINGS AND RULINGS

Defendant Evan R. Weaver ("Defendant") has filed his POSITION OF THE DEFENDANT WITH RESPECT TO PRESENTENCE REPORT ("Statement of Position") (Document No. 10) in which he objects to the recommended application of the United States Sentencing Guidelines ("USSG") as set forth in the Presentence Investigation Report ("PSI"). The government has filed the POSITION OF THE GOVERNMENT WITH RESPECT TO THE PRESENTENCE REPORT ("Government's Position") (Document No. 9) in which it objects to the recommended application of the Guidelines.

Defendant has also filed DEFENDANT'S MOTION FOR SENTENCING OUTSIDE OF THE SUGGESTED RANGE OF THE UNITED STATES SENTENCING GUIDELINES, with brief in support ("Motion" and "Brief," respectively; Document Nos. 13 & 14), and the government has filed a response in opposition thereto (Document No. 16).

  Although the recent decision of United States Supreme Court in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), has held that the Sentencing Guidelines are no longer mandatory, the "remedial majority" opinion in the case instructs that the Sentencing Guidelines must still be taken into account pursuant to 18 U.S.C. § 3553(a) when fashioning an appropriate sentence. See Booker, 125 S. Ct. at 757. It remains appropriate, therefore, in this case to consider and resolve any Sentencing Guidelines disputes in order to determine a recommended sentencing range for Defendant, which will be one of the § 3553(a) factors to be considered in the imposition of an appropriate sentence.

  In accordance with § 6A1.3 of the USSG and Local Criminal Rule of Court 32.1(H), the Court issues the following Tentative Findings and Rulings with respect to the applicability of the USSG sentencing factors in dispute: 1. On July 14, 2005, pursuant to a written plea agreement, Defendant waived his right to an indictment and entered a plea of guilty to a two-count Information. Both counts of the Information charged Defendant with Bank Fraud, in violation of 18 U.S.C. § 1344(1).

  2. Count I charged that in 1999, Defendant, without authorization, opened a checking account with PNC Bank in the name of Family Practice Medical Associates South ("FPMAS"), which was his employer at the time.*fn1 Defendant thereafter deposited checks payable to FPMAS into the account and withdrew approximately $25,581.03 from the account. Said funds were withdrawn through the use of automatic teller machines, an account check card, and withdrawal slips, and were ostensibly converted to Defendant's personal use.

  3. Count II charged that from September 4, 2001 to January 3, 2002, Defendant used five blank checks to withdraw a total of $9,269.67 from the FPMAS account. Again, Defendant ostensibly converted said funds to his personal use.

  4. A Presentence Investigation Report ("PSI") was prepared by the Probation Office on September 8, 2005, with an Addendum to the PSI on October 5, 2005.

  5. In the plea agreement "[t]he parties stipulate that the 2000 Edition of the Sentencing Guidelines apply in this case, and that the loss for calculation of the offense level under the Sentencing Guidelines in this case is more than $120,000.00 but not more than $200,000.00." However, the PSI calculated Defendant's potential sentence under the 2001 edition of the Guidelines, which resulted in an increased total offense level. PSI at ¶ 14; Stmt. of Pos. at ¶ 9.*fn2 The plea agreement also provides that "[t]he facts relevant to sentencing shall be determined initially by the United States Probation Office and finally by the United States Court by a preponderance of the evidence." 6. Defendant contends that "the 2000 edition is correct in that it was stipulated to by the parties and the use of the 2000 edition of the [Guidelines] was an essential element in Mr. Weaver's decision to enter a guilty plea." Stmt. of Pos. at ¶ 9. Defendant also asserts that "[t]he 2000 edition more accurately reflects the extent of Mr. Weaver's criminal activity." Id. at ¶ 10. The government "contends that the court should use the 2000 Edition of the guidelines manual . . .," and observes that "in working out an appropriate plea agreement in this case, it was believed that the 2000 edition was more fair and appropriate since only an isolated part of the charged criminal conduct extended beyond November 1, 2001." Gov't. Pos. at ¶ 1.*fn3

  7. The default rule is that "[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced." USSG § 1B1.11(a) (2004). However, "[i]f the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." USSG § 1B1.11(b)(1).*fn4 Additionally, "[t]he Guidelines Manual in effect on a particular date shall be applied in its entirety," and "[t]he court shall not apply, for example, one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual." USSG § 1B1.11(b)(2).*fn5 The Court observes that the parties' stipulation as to the applicable edition of the Guidelines is not binding on the Court. See United States v. Griswold, 57 F.3d 291, 294 & n. 3 (3d Cir. 1995).

  8. The Court finds and rules that it is appropriate to apply the 2000 edition of the Guidelines in this case. Both parties urge the Court to apply the 2000 edition, the plea agreement expressly provides for its application, it is clear to the Court that the 2000 edition covers the overwhelming majority of the time frame at issue, and the Court can identify no countervailing reason to apply the 2001 edition.*fn6 Accordingly, Defendant's sentence will be calculated under the 2000 edition of the Guidelines.

  9. Defendant objects to paragraph 6 of the PSI, which reflects that he was terminated from his position with FPMAS. Defendant contends that he voluntarily resigned his position, and the Addendum "concedes that FPMAS did indeed state that the defendant resigned to take another position . . ." However, no finding regarding this issue is necessary because this controverted matter will not affect or be taken into account in determining Defendant's sentence. See Fed.R.Crim.P. 32(3)(B) (a sentencing court "must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing").

  10. Defendant "objects to the characterization that he opened PNC account number 1009095338 without the knowledge of the owners" of FPMAS. Stmt. of Pos. at ¶ 4. Defendant "further denies that he forged the signatures of the president and secretary of the company on the signature card." Id. These objections are somewhat surprising and disconcerting insofar as the Information to which Defendant pled guilty expressly charges that "the defendant . . . without the knowledge or authority of the officers or owners of FPMAS, caused PNC to open a business checking account, number 1009095338, in the name of FPMAS at PNC." Information at ¶ 6. The Information also expressly charges that "the defendant . . . provided an account signature card for account number 1009095338 to PNC which contained the signature of the defendant and the forged signatures of the president and the secretary of FPMAS, each of whom was to be an approved signatory on the account." Id. at ¶ 7. 11. There is some authority in the Third Circuit that indirectly stands for the proposition that Defendant cannot challenge the facts set forth in an Information after a plea of guilty has been entered. See United States v. Gallagher, 183 F.2d 342, 344 (3d Cir.), cert. denied, 340 U.S. 913 (1951) ("Here the appellant . . . pleaded guilty to the indictment. That plea constituted an admission of his guilt, a waiver of all nonjurisdictional defects and defenses, and admitted all the facts averred in the indictment. The appellant, therefore, could not be heard to challenge those facts in a habeas corpus proceeding.").

  12. Irrespective of how the scheme was executed, these disputed facts are not material to Defendant's guilt,*fn7 the degree of his overall culpability for the offenses, or the sentence which will ultimately be imposed. Therefore, no finding is actually necessary because this controverted matter will also not affect or be ...


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