                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 19, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 07-5038
          v.                                           (N.D. Oklahoma)
 K A REN K . WA SSO N ,                         (D.C. No. 06-CR-171-01-CV E)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The court, therefore,

honors the parties’ requests and orders the case submitted without oral argument.

I.    Introduction

      Defendant Karen W asson pleaded guilty to three counts of theft,

embezzlement, or misapplication by a bank employee in violation of 18 U.S.C.


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 656, arising out of her employment with Bank of America. Considering only

the conduct to which W asson pleaded guilty, Bank of America suffered a $60,000

loss. Nevertheless, considering both charged and related conduct, the Presentence

Report (“PSR”) concluded the actual loss to Bank of America was $339,809.88.

W asson filed a written objection to the PSR, arguing it incorrectly included

uncharged conduct which did not result in an actual loss to the bank. The district

court denied the objection. W asson made a timely appeal to this court.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this

court affirm s.

II.   Background

      W asson was employed by Bank of America for fourteen years in

W ellington, Florida. 1 In her capacity as senior personal banker, W asson was

authorized to directly submit loans for bank customers and access customer

Certificates of Deposits. She also had access to the General Ledger (“GL”)

account, which consists of the bank’s funds and is routinely used to cover loan

disbursements when customers need immediate funds.

      In August of 2004 W asson embezzled, stole or misapplied Bank of America

funds which resulted in this conviction. W asson previously sold her house but

discovered that her home equity line of credit w ith the bank had not been closed.



      1
      This case was transferred from the Southern District of Florida to the
Northern District of Oklahoma pursuant to Fed. R. Crim. P. 20(a).

                                         -2-
She borrowed $50,000 against the line of credit to consolidate her personal debts.

W hen the title company involved in the sale of her home discovered this loan, she

was advised that the account must be closed. To do so, W asson cashed in a Bank

of America customer’s $50,000 CD. To cover the depleted CD, W asson

transferred funds from the GL account to replenish the CD account. In addition

to the $50,000, W asson stole $10,000 from Bank of A merica; $7,000 in the form

of a cashier’s check which she used to pay off her American Express account and

$3,000 in cash. To hide this transaction, she used GL funds and misappropriated

a customer’s CD to clear the GL account.

      The PSR also took into account two other, uncharged incidents in which

W asson misappropriated funds. As a result of unauthorized loans, the PSR

calculated an additional loss of $279,809.88. Specifically, W asson issued a

cashier’s check to Todd M inikus on July 29, 2004, for $150,197.57. The funds

for this loan came from the GL account. However, Bank of America had not yet

approved the loan. W hen, after a hurricane-related delay, the loan application

materials came through, W asson realized M inikus’ collateral was only sufficient

to support a $97,500 loan. In order to clear the GL account, W asson used a

$200,030.80 CD belonging to a Bank of America customer, transferring the

money into the GL account.

      W asson objected to the use of the M inikus loan to calculate the total loss,

claiming it was not relevant conduct under the sentencing guidelines because

                                         -3-
there was no actual or intended loss. 2 M inikus has since signed loan documents

and has agreed to pay the entire $150,197.57. In rejecting this argument, the

district court found that at the time W asson’s offense was detected, the bank had

not recovered any of its loss. Further, the defendant did not mitigate the loss.

Only through Bank of America’s efforts and M inikus’ cooperation is the bank

expected to recoup its losses.

III.   Discussion

A. Standard of Review

       Post-Booker, this Court reviews sentencing decisions for abuse of

discretion, asking whether it is reasonable under the 18 U.S.C. § 3553(a) factors.

United States v. Garcia-Lara, No. 06-3054, 2007 W L 2380991, at *1 (10th Cir.

Aug. 22, 2007). Reasonableness has procedural and substantive components.

United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). For a sentence to

be procedurally reasonable, the district court must consider, inter alia, a properly

calculated guideline range. Id. W asson challenges only the method by which the

district court calculated her advisory guidelines range; she makes no argument

that the length of the sentence imposed was unreasonable. Thus, she alleges only

procedural unreasonableness. See, e.g., United States v. Rom ero, 491 F.3d 1173,



       2
        W asson does not challenge the PSR’s consideration of a similar “loan” she
issued to Delories Yin in which the bank sustained a loss of $129,112.31.
W asson acknowledges Bank of America incurred an actual loss as Yin has refused
to return the funds or make any payments.

                                         -4-
1175–76 (10th Cir. 2007). In reviewing the district court’s application of the

Sentencing Guidelines, this court reviews factual findings for clear error and legal

determinations de novo. United States v. Serrata, 425 F.3d 886, 906 (10th Cir.

2005).

B. Amount of Loss

         Pursuant to United States Sentencing Guideline § 2B1.1(b)(1), W asson’s

offense level was affected by the value of loss caused by her criminal conduct.

Under the guidelines, “loss” constitutes both actual and intended loss and is

calculated as the greater of the two. U.S.S.G. § 2B1.1, cmt. n.3(A). Actual loss,

which is the only loss relevant here, is defined as “the reasonably foreseeable

pecuniary harm that resulted from the offense.” Id. § 2B1.1, cmt. n.3(A )(i).

“Reasonably foreseeable pecuniary harm” is defined as “pecuniary harm that the

defendant knew or, under the circumstances, reasonably should have known, was

a potential result of the offense.” Id. § 2B1.1 cmt. n.3(A)(iv).

         The base offense level for convictions under 18 U.S.C. § 656 is based on

the amount of loss. Twelve points are added to the base offense level for losses

in excess of $200,000, as was the case here. U.S.S.G. § 2B1.1(b)(1)(G). Loss

can be reduced by “the money returned, and the fair market value of the property

returned and the services rendered, by the defendant or other persons acting

jointly with the defendant, to the victim before the offense was detected.” Id.

§ 2B1.1, cmt. n.3(E)(i).

                                          -5-
      On appeal, W asson renews her claim that the district court erred in using

the M inikus loan to calculate the loss Bank of America incurred. She argues the

M inikus loan cannot constitute actual loss because she did not know, nor should

she have known, the bank would sustain a loss of $150,197.57 as the result of her

actions. W asson contends that because M inikus’ loan was later approved for a

lesser amount, the loan application appeared viable to W asson’s “trained eye.”

She was therefore advancing a loan based on a reasonable assumption that it

would be approved. W asson further claims that because the bank did not, in fact,

lose money from the transaction, the district court’s finding of actual loss is

clearly erroneous.

      W asson’s arguments are unavailing. First, at the time her theft was

discovered, Bank of America was exposed to the full loss of the $150,197.57

W asson advanced to M inikus. No loan documents had been signed and M inikus

was under no obligation to pay back the “loan.” W asson’s argument is further

belied by her actions; upon realizing that M inikus’ collateral was insufficient she

cashed a CD , belonging to a Bank of America customer, worth over $200,000 and

transferred the money into the GL account from which the M inikus “loan” was

funded. As a trained banker, W asson should have known she was subjecting her

employer to a loss by advancing funds on a loan which had not yet been approved

and then attempting to cover her tracks by shifting funds.




                                          -6-
      W asson’s contentions that M inikus’ agreement to pay his loan resulted in

no loss to Bank of A merica must also fail. W asson cannot benefit from a third

party’s cooperation and willingness to pay the loss. Under § 2B1.1, cmt. n.3(E)(i)

the loss can only be reduced if the defendant herself, not some third party, paid

the loss before the crime was detected. M inikus only began paying the loan after

W asson’s misapplication of bank funds was detected. As this court has held,

there is no credit against a loss when payments are made after the detection of the

offense. United States v. Swanson, 360 F.3d 1155, 1169 (10th Cir. 2004); see

also United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998) (“[T]he

purpose of the loss calculation under the Sentencing Guidelines is to measure the

magnitude of a crime at the time it was committed.”). M inikus’ subsequent loan

payments, therefore, are irrelevant to the calculation of loss.

IV.   Conclusion

      The Bank of America was exposed to actual loss on the M inikus “loan” at

the time W asson’s crimes w ere detected. Accordingly, the district court properly

considered the M inikus loan in calculating the actual loss to Bank of America and

properly calculated W asson’s advisory guidelines range. The sentence imposed

by the district court is hereby affirm ed.

                                        ENTERED FOR THE COURT


                                        M ichael R. M urphy
                                        Circuit Judge

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