       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2      United States v. Quigley        Nos. 03-2495; 04-1160
    ELECTRONIC CITATION: 2004 FED App. 0285P (6th Cir.)
                File Name: 04a0285p.06                                        _________________
                                                                                  OPINION
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                          KENNEDY, Circuit Judge. Defendant appeals his sentence
                _________________                         pursuant to a plea agreement in a wire fraud case. Defendant
                                                          argues that the district court erred in its determination of the
 UNITED STATES OF AMERICA , X                             loss amount for the purposes of identifying the sentencing
             Plaintiff-Appellee, -                        guidelines range. While we agree that the district court erred
                                    -                     in its determination, we affirm the sentence imposed because
                                    -  Nos. 03-2495;      the corrected loss amount would still keep Defendant in the
            v.                      -  04-1160            same range.
                                     >
                                    ,                                           BACKGROUND
 KENNETH QUIGLEY,                   -
          Defendant-Appellant. -                            This case arises out of a scheme to defraud which occurred
                                   N                      from approximately May 1997 through May 1998. The
       Appeal from the United States District Court       government described the scheme as follows:
      for the Eastern District of Michigan at Detroit.
  No. 01-80992—John Corbett O’Meara, District Judge.          The fraud occurred when defendants, through their
                                                              mortgage company, First Finance, Inc., used funds
               Submitted: August 5, 2004                      borrowed from their warehouse lender, Pinnacle
                                                              Mortgage Warehouse (“Pinnacle”) for purposes other
          Decided and Filed: August 30, 2004                  than closing mortgage loans. Sterling Bank & Trust
                                                              (“Sterling”) was the ultimate source of the warehouse
   Before: KENNEDY, SUTTON, and COOK, Circuit                 funds, and therefore the victim for purposes of
                    Judges.                                   restitution.

                  _________________                       First Finance, Inc. (“First Finance) was a Michigan
                                                          corporation with its principal place of business located in
                       COUNSEL                            Bloomfield Hills, Michigan. It was founded in 1993 by
                                                          Randall Sage, who was charged separately for his conduct.
ON BRIEF: Michael J. Rex, Walter J. Piszczatowski,        From about 1993 until May 1998, First Finance engaged in
HERTZ, SCHRAM & SARETZKY, Bloomfield Hills,               the business of originating and selling residential mortgage
Michigan, for Appellant. Jennifer M. Gorland, ASSISTANT   loans. In 1994, Defendant became an investor in First
UNITED STATES ATTORNEY, Detroit, Michigan, for            Finance. In the fall of 1996, he became a working partner and
Appellee.                                                 shareholder. At that point, the three principal shareholders of


                            1
Nos. 03-2495; 04-1160             United States v. Quigley        3    4     United States v. Quigley           Nos. 03-2495; 04-1160

First Finance were Randall Sage, Robert Geissbuhler,1 and              close. Over the course of its relationship with Pinnacle, First
Defendant. A Voting Agreement executed between the three               Finance, instead of closing mortgage loans with the money
reflected that each became a one-third owner of the                    that had been specifically deposited into the settlement trust
corporation with Randall Sage holding 51 percent of the                account, frequently transferred that money from the
voting stock. All three were signatories on the Surety                 settlement trust account into its general operating account in
Agreement that accompanied the Mortgage Warehouse and                  order to cover, on a temporary basis, general operating
Security Agreement between Pinnacle and First Finance                  expenses, including the payment of salaries, benefits, and
(“MWS Agreement”).                                                     other expenses.
   First Finance dealt directly with the consumer by                      As part of the MWS Agreement, First Finance assigned to
processing loan applications and arranging for financing.              Pinnacle as security each and every mortgage or evidence of
Sterling provided the loan money through Pinnacle, which               indebtedness, right, title, or interest in any insurance; all
acted as an administrator for the mortgage funding. Upon               property of First Finance in possession of Pinnacle; and all
notification by First Finance that a loan note had been signed         causes of actions, claims, or demands that First Finance had
by an individual borrower, Pinnacle wired funds for the loan           or might acquire in connection with the mortgages. Pinnacle,
from an account in New York to a settlement trust account              in turn, assigned to Sterling all its rights, title, and interest in
that First Finance maintained. First Finance would then                the Participation Agreements (which included mortgage loans
disburse the funds when the mortgage closed. Money was                 originated by First Finance as security) as part of a
advanced to First Finance pursuant to the terms of the MWS             Participation Purchase Agreement between the two parties.
Agreement. That agreement specified that First Finance was             Accordingly, Sterling had a security interest (through
to use the funds for the purpose of closing loans it originated.       Pinnacle) in each of the loans closed by First Finance. It also
The agreement also required First Finance to return the funds          retained a security interest in each and every instance of
to Pinnacle if the closing did not occur as scheduled. Sterling        indebtedness, loan, and asset belonging to First Finance.
funded about 98 percent of each loan that First Finance
originated. First Finance advanced the other 2 percent (the              First Finance ceased its business operations in May of
“haircut), expecting to recoup not only the haircut, but also an       1998. At that time, Sterling immediately executed its rights
additional premium of 4 to 8 percent of the loan value when            under its Participation Purchase Agreement, which was cross-
it ultimately sold the loan to another company, typically              collateralized through the MWS Agreement between Pinnacle
Advanta Mortgage.                                                      and First Finance, and obtained all First Finance originated
                                                                       loans. It later sold these loans at a profit.
  Due to a high volume of mortgages that First Finance was
closing, Pinnacle funded them in groups (or clusters). Some               On December 4, 2001, the government filed an Information
mortgages would close on time, some would be delayed, and              charging Defendant Kenneth Quigley with one count of wire
some would not close at all. Often, First Finance did not              fraud in violation of 18 U.S.C. § 1343. On February 4, 2002,
immediately return the money for the mortgages that did not            Defendant appeared before the magistrate judge, signed a
                                                                       formal waiver of indictment, and was arraigned on the
                                                                       Information. On June 13, 2002, Defendant appeared before
    1                                                                  the district court and entered a plea of guilty to the charge.
      Robert Geissbuhler was not named as a co-defendant to the wire   After extensive negotiations, the plea was entered pursuant to
fraud charge.
Nos. 03-2495; 04-1160          United States v. Quigley      5    6    United States v. Quigley         Nos. 03-2495; 04-1160

a Rule 11 plea agreement (“Agreement) in which the parties        exercised its rights under the two cross-collateralized
agreed on all sentencing guideline factors, except for U.S.S.G.   agreements, it obtained receivables in excess of $20 million.
§ 2F1.1(b)(8)(B) (relating to offenses from which the             This amount represented not only the principal amount of the
defendant derived more than $1,000,000 in gross receipts)         loans that Sterling funded, but also a premium in the 6 percent
and U.S.S.G. § 2F.1.1(b)(1)(N) (relating to the amount of         to 8 percent range, plus recovery of the 2 percent “haircut,”
loss). Prior to sentencing, the government concluded that         the amount initially funded by First Finance. Sterling also
§ 2F1.1(b)(8)(B) did not apply in this case and, accordingly,     seized another $5,806,510 worth of loans originated by First
it was not factored into the guideline calculation. The           Finance and funded them directly, thereby eliminating
Agreement contained a sentencing agreement of no more than        Pinnacle’s involvement and guaranteeing recovery of the
41 months’ imprisonment with an understanding that the            entire premium on those loans. In addition, the Memorandum
government would file a motion for downward departure             identified a number of wire transfers from Advanta Mortgage
based on substantial assistance and recommend a sentence          directly to Sterling, which reflected the payment of the
range of 18 to 24 months, “or a similar percentage reduction      principal amount loaned by Sterling on a number of
if the court determines a lower guideline range is applicable.”   mortgages, in addition to the premium that would have gone
The Agreement also provided that the district court would         to First Finance had it not ceased operations.
enter an Order of Restitution in an amount “up to
$2,353,151.00, less those amounts recovered by Pinnacle              The government did not respond to Defendant’s Sentencing
Warehouse Mortgage or Sterling Bank & Trust.”                     Memorandum but did file a Combined Motion and Brief for
                                                                  a Downward Departure pursuant to U.S.S.G. § 5K1.1. Citing
   Following Defendant’s plea, the Probation Department           the Probation Department’s calculated guideline range of 24
prepared the Presentence Investigation Report (“PSI”) in          to 30 months for Defendant, the government recommended
which it determined that Defendant’s total offense level was      that the court depart downward and sentence Defendant to a
21 (including a twelve-level adjustment under                     term of imprisonment between 12 to 15 months due to the
§ 2F1.1(b)(1)(N) for loss exceeding $1,500,000.) The PSI          substantial assistance that Defendant rendered.
listed the total loss to Sterling as $2,353,151 for sentencing
purposes. Defendant filed numerous objections to the PSI,           On October 24, 2003, Defendant appeared for sentencing.
including an objection to the amount of loss, arguing that the    The defense counsel attempted to address Defendant’s
figure did not reflect the profits Sterling made on the sale of   objection to the loss, an objection that was specifically
the collateralized mortgages it acquired when First Finance       preserved in the Rule 11 Plea Agreement. The court did not
ceased operations. The Probation Department responded by          permit the defense counsel to make that argument, ruling that
saying that “the amount was provided by the government and        the issue had been already raised and resolved the previous
the case agent,” that the issue “will be decided by the Court,”   day during the sentencing of Randall Sage. The defense
and that the report will remain unchanged. Prior to               counsel informed the court that there was a significant
sentencing, Defendant filed his Sentencing Memorandum,            difference between the two defendants because Defendant
addressing a number of issues, including the loss figure. The     Quigley had specifically preserved the issue whereas his co-
Memorandum explained the manner in which Sterling was             defendant Sage had not. The trial court acknowledged that
protected through its Participation Purchase Agreement with       the restitution figure, to be determined at a later hearing,
Pinnacle and the MWS Agreement between Pinnacle and               would be substantially smaller than the loss figure, but
First Finance. The Memorandum showed that when Sterling           indicated that it was not going to do anything different from
Nos. 03-2495; 04-1160                 United States v. Quigley             7    8       United States v. Quigley               Nos. 03-2495; 04-1160

what it had previously indicated it would do, namely grant the                  collateralization agreements ($803,409.90). Defendant also
Motion for Downward Departure.                                                  insisted that the restitution figure should be offset by 6
                                                                                percent of an additional $5,806,510 in loans that had been
   When the trial court asked the government if it wanted to                    listed on the “Sterling Advantage Line,” or $384,390. On
add anything, the government argued that the $2.3 million                       January 20, 2004, the parties appeared at the restitution
loss figure represented the loss intended by the defendants.                    hearing where they stipulated to credit Defendant with offsets
The government also argued that the false loan application                      reducing the restitution figure from $2,413,788.50 to
cases2 Defendant cited in support of his position that the loss                 $907,251.84 (or an offset of $1,506,536.66).4 The court then
figure should be offset by that which was recouped by                           considered the allocation of restitution among the parties and
security or pledge had no bearing on the present case. The                      ordered that Defendant be held responsible for 50 percent of
trial court reiterated that it was not going to do anything                     the total restitution, or $453,625.92.
differently since it had granted the downward departure
motion. The court imposed a sentence of incarceration of                                                      ANALYSIS
twelve months and one day in the custody of the Bureau of
Prisons. Additionally, the court ordered restitution in the                       We review a district court’s findings under the Guidelines
amount to be determined at a later hearing.                                     under the clearly erroneous standard. United States v. Clay,
                                                                                346 F.3d 173, 178 (6th Cir. 2003). The application of the
  For the purposes of determining the restitution figure, the                   Guidelines to factual findings is a question of law subject to
government started with a loss figure of $2,413,788.50.3 This                   de novo review. United States v. Finkley, 324 F.3d 401, 403
amount represented 46 separate mortgages for which money                        (6th Cir. 2003).
had been wired into the settlement trust account, but had
never closed. The government, however, acknowledged that                          Defendant argues on this appeal that the district court erred
this figure should be offset by (1) the payments Sterling                       when it failed to make the requisite findings of fact
received for loans that were originated by First Finance and                    concerning the amount of loss used in arriving at the
subsequently sold to Advanta Mortgage and for which a 4                         sentencing guideline range. The government presents two
percent premium and a 2 percent “haircut” were realized and                     distinct arguments for affirming Defendant’s sentence. For
paid directly to Sterling instead of First Finance                              the reasons stated below, we reject those arguments.
($373,768.28); and (2) the amount realized through the
seizure of First Finance Loans pursuant to the cross-                             First, the government argues that the district court was not
                                                                                required to resolve the factual dispute concerning the amount
                                                                                of loss from Defendant’s fraud because the ultimate sentence
    2                                                                           would not be affected. According to the government,
      False, or fraudulent, application cases involve situations where the      Defendant was sentenced to twelve months and one day,
creditor lies about the value of the collateral to obtain a more favorable
loan.

    3                                                                               4
       It is unclear why the restitution c alculatio n started with a                It is unclear how the parties arrive d at that figure since it represents
$2,413,788.50 loss rather than a $ 2,35 3,15 1 loss id entified in PSI. We do   an offset gre ater tha n wha t the government acknowledged
not resolve this ambiguity because it does not affect the o utcom e of this     ($1,177,178.18) but less than what the government acknowledged
case. W e proceed on the assumption that $2,413,788.5 is the proper             coupled with what Defendant additionally insisted upon ($1,561,568 .18).
starting point for the loss amount calculation.
Nos. 03-2495; 04-1160          United States v. Quigley      9    10   United States v. Quigley          Nos. 03-2495; 04-1160

making him eligible for “good conduct time” credits awarded       where the bank was able to satisfy at least one part of the debt
by the Bureau of Prisons to prisoners who receive a sentence      by foreclosing on the underlying collateral. See, e.g., United
of more than 12 months. 28 C.F.R. § 523.20 (an inmate earns       States v. Wright, 60 F.3d 240, 241 (6th Cir. 1995) (loss
54 days of “good conduct time” credits for each year served).     amount should be offset by assets pledged to secure the loan).
The government, therefore, argues that Defendant would            The government insists that those cases have no relevance
actually only serve 312 days under his current sentence. On       here because Defendant’s “fraud in this case was the use of
the other hand, if the trial court had accepted Defendant’s       the funds for purposes other than the purchase of an asset or
argument on the loss amount, the government would have            other collateral.” Appellee Br. at 13 (citing U.S.S.G. § 2F1.1,
been obligated to recommend a sentence in the range of 10 ½       Application Note 8(b) (reducing the amount of loss by “any
to 13 ½ months. Relying on the fact that the district court       assets pledged to secure the loan” that was obtained through
sentenced Defendant to 12 months and 1 day when the               a fraudulent application). We agree that the fraudulent loan
government recommended a sentence between 12 and 15               application cases are technically different from the case at
months, the government argues that the district court, if it      hand. However, we find them (and the Application Notes
accepted Defendant’s argument, would have sentenced               related to them) extremely relevant to the question of the
Defendant to at least 10 ½ months, or 315 days, or 3 days         valuation of an intended loss. In both types of cases, a
longer than his current sentence. We reject this argument         Defendant obtains a loan under false pretenses while
because, as Defendant points out, the district court may have     providing the lender with some collateral. The lender is thus
a number of sentencing options available to it that would         able to offset some of his loss through the use of the
affect either the term or the conditions of the sentence. We      collateral. The Guidelines provide that in the case of a false
cannot categorically reject such a possibility.                   loan application, the district court should reduce the amount
                                                                  of loss by the amount recovered. We see no reason, nor have
  Second, the government argues that the district court           we been provided with one by either the district court or the
properly used the “intended loss” amount of $2,413,788.50         government, as to why the district court in this case should
for the sentencing purposes. The absence of a district court      not have reduced the $2,413,788.50 loss by the amount
opinion and a very perfunctory brief from the government          recovered by reason of the cross-collateralization agreement.
complicate our review in this case. However, as explained
below, we find that the district court clearly erred in             Having concluded that the district court erred by not
determining the loss amount.                                      reducing the $2,413,778.50 loss amount, we now undertake
                                                                  a de novo analysis of what that offset should have been. We
  “In challenging the court’s loss calculation, [the appellant]   do so because Defendant has admitted to all facts relevant to
must carry the heavy burden of persuading this Court that the     the legal question presented. Sterling obtained three
evaluation of the loss was not only inaccurate, but was           categories of assets when it exercised its rights under the
outside the realm of permissible computations.” United            cross-collateralization agreements: (1) cash that represented
States v. Jackson, 25 F.3d 327, 330 (6th Cir. 1994).              the profit from loans originated by First Finance, fully
Defendant argued before the district court and before this        funded, and subsequently sold to Advanta ($373,768.28); (2)
Court that the loss amount should have been reduced to the        loans that were originated by First Finance and were fully
restitution amount because the victim bank was able to use        funded, but were not yet sold to Advanta; (3) loans that were
other collateral to offset its losses. As support for his         originated by First Finance but were not yet funded, and,
argument, Defendant cites fraudulent loan application cases       therefore, not yet sold to Advanta. Of the three categories, we
Nos. 03-2495; 04-1160           United States v. Quigley     11    12   United States v. Quigley    Nos. 03-2495; 04-1160

find that only the first one is relevant to the offset             Defendant’s sentence under the Guidelines. Accordingly,
determination.                                                     there is no need to remand for resentencing.
  We agree with Defendant that the $373,768.28 of cash                                 CONCLUSION
should be used to offset the gross loss amount because it
cannot be said that First Finance intended to deprive Sterling       For the reasons stated above, we affirm Defendant’s
of the entire $2.4 million when it knew, with absolute             sentence in this case.
certainty, that Sterling had a fully-enforceable security
interest in that amount as the proceeds from the sale of the
underlying loans.
  The situation, however, is different with respect to
categories (2) and (3). With respect to category (2), Sterling
obtained loans in the amount of $13 million that First Finance
originated, fully funded, and was about to sell to Advanta.
Defendant argues that he is entitled to an offset equal to the
profit that First Finance would have made had it been allowed
to sell the loans to Advanta ($803,409.90). We disagree.
Unlike cash in category (1), the profit on the sale of loans was
a mere expectancy. First Finance was virtually assured of the
profit because of its contractual relationship with Advanta,
but it was not guaranteed that the sale would take place or
that the amount realized would be as expected. It is possible
that some event may have intervened to prevent First Finance
from making the profit, thereby depriving Sterling of the
funds. With respect to category (3), Sterling obtained loans
in the amount of approximately $5.8 million that were
originated by First Finance. Sterling then funded those loans
and sold them to Advanta resulting in a “lost profit” to First
Finance of $384,390. As with category (2), we find that
Defendant is not entitled to an offset that represents a profit
that First Finance may have earned if it funded the loans and
sold them.
  Since we find that the only appropriate offset is for
$373,768.28, the proper loss amount for the sentencing
purposes is approximately $2 million. This amount is within
the same range ($1.5 million to $2.5 million) as the loss
amount ($2.4 million) that the district court used to establish
