                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                IN THE UNITED STATES COURT OF APPEALS           February 17, 2004
                         FOR THE FIFTH CIRCUIT
                        _____________________                 Charles R. Fulbruge III
                                                                      Clerk
                           No. 03-50098 c/w
                             No. 03-50109
                        _____________________

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

                               versus

ANNETTE FRANCES PATRICK and
GWENDOLYN A. WHEELER-McCAMMON,

                                            Defendants - Appellants.

_________________________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
                         Austin Division
_________________________________________________________________

Before JOLLY and WIENER, Circuit Judges, and WALTER, District
Judge.*

PER CURIAM:**

     Annette Frances Patrick (“Patrick”) and Gwendolyn A. Wheeler-

McCammon   (“Wheeler-McCammon”)   each   appeal    70-month     sentences

imposed following guilty-plea convictions on a one-count bill of

information for theft, embezzlement, and misapplication of money

and funds of the Bank of America, in violation of 18 U.S.C. § 656



     *District Judge for the Western District of Louisiana, sitting
by designation.

     **Pursuant to Fifth Circuit Rule 47.5, the Court has
determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
and 18 U.S.C. § 2.                 Specifically, Patrick and Wheeler-McCammon

challenge     the       district         court’s           application      of     a    two-level

enhancement       under         U.S.S.G.       §    2B1.1(b)(12)(A)         for    deriving     $1

million or more in gross receipts from a financial institution as

a result of the offense.

     A sentence will be upheld unless it was imposed in violation

of law, was an incorrect application of the sentencing guidelines,

or is outside the range of the applicable sentencing guideline.

United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).                                     This

court reviews the district court’s application of the Sentencing

Guidelines de novo and its factual findings for clear error.                                   Id.

     Under U.S.S.G. § 2B1.1(b)(12)(A), the offense level is to be

increased    by       two       levels    if       “the    defendant     derived       more    than

$1,000,000       in     gross       receipts             from   one    or    more      financial

institutions       as       a    result    of        the    offense.”        The       sentencing

guideline’s application notes make clear that, “[f]or the purpose

of subsection (b)(12)(A), the defendant shall be considered to have

derived more          than       $1,000,000         in    gross   receipts        if   the    gross

receipts    to     the       defendant         individually,          rather      than    to   all

participants, exceeded $1,000,000." U.S.S.G. § 2B1.1(b)(12)(A) n.

9(A) (emphasis added). This commentary is authoritative “unless it

violates the Constitution, or a federal statute, or is inconsistent

with or a plainly erroneous reading of the guidelines.”                                      United




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States v. Frazier, 53 F.3d 1105, 1112 (10th Cir. 1995) (citing

Stinson v. United States, 508 U.S. 36, 42-45 (1993)).

       The burden of persuasion of enhancement is not a stringent

one.      “The    government     must     prove      factors   for      enhancement     of

sentencing by a preponderance of the evidence.”                       United States v.

Hill, 258 F.3d 355, 357 (5th Cir. 2001). This simply means that the

trier of fact must believe that the existence of a fact is more

probable than its nonexistence.                 Metropolitan Stevedore Co. v.

Rambo, 521 U.S. 121, 137 n. 9 (1997) (citing Concrete Pipe &

Products of Cal., Inc. v. Construction Laborers Pension Trust for

Southern Cal., 508 U.S. 602, 622 (1993)). As earlier indicated, we

review findings of fact for clear error.

       The defendants argue that the district court misapplied the

guidelines       because   there    was    insufficient        evidence        that   each

defendant    derived       $1    million       as    a    result   of    the    offense.

Considering that the nature and complexity of the defendants’

scheme    required     the      cooperation         and    joint   efforts      of    both

defendants and that the defendants took equal risks, the district

court could reasonably believe that it was more likely than not

that each defendant derived more than $1 million as a result of the

offense.    Over the course of the scheme $2,638,702 was taken from

the vaults of Bank of America.                      Wheeler-McCammon’s vault was

missing     approximately          $1,300,000,            Patrick’s      was     missing

approximately $450,000, and the origin of approximately $850,000 is



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unknown.   As we have noted, the scheme required the knowledge and

cooperation of both defendants to be successful.

     Although the audit of the conspiracy showed that most of the

money was missing from Wheeler-McCammon’s vault, Patrick, who was

Wheeler-McCammon’s    supervisor,   used   her   position   as   customer

service manager to cover Wheeler-McCammon’s thefts.         Moreover, at

times when Patrick did not control a vault -- and was unable

personally to steal money -- Wheeler-McCammon would provide her

with a division of the money stolen by Wheeler-McCammon.              In

schemes such as this, where the right hand necessarily knows what

the left is doing and the parties encounter equal risk, we cannot

say that the district court was clearly erroneous in concluding

that it was more likely than not that the proceeds were split on a

fairly equal basis.

     Accordingly, we find that the government sufficiently proved,

by a preponderance of the evidence, that both defendants derived at

least $1 million as a result of the offense.      The district court’s

enhancement of the defendants’ sentences is, therefore, AFFIRMED.




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