                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 17 1999
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,

               v.                                        No. 98-5166
                                                   (D.C. No. 98-CR-009-K)
 BOBBY LEE JOHNSON; JIMMY                                (N.D. Okla.)
 DEAN JOHNSON,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, 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(a)(2); 10th Cir. R. 34.1(G). Therefore, the

case is ordered submitted without oral argument.

      The government appeals the sentences imposed by the district court on

defendants Bobby Lee Johnson and Jimmy Dean Johnson for manufacturing


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
counterfeit currency and aiding and abetting, in violation of 18 U.S.C. §§ 471 and

2. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse and remand

for resentencing.

      Defendants purchased a color copier and produced over $2,600 worth of

counterfeit currency in various denominations. They passed approximately

$1,700 in counterfeit currency at convenience stores and restaurants in Oklahoma,

Arkansas, and Missouri. After indictment, defendants pleaded guilty to

manufacturing counterfeit currency and aiding and abetting, and each was

sentenced to three months’ imprisonment and two years’ supervised release.

      The government challenges the district court’s calculation of defendants’

base offense levels. Although the presentence reports recommended base offense

levels of fifteen, in accordance with U.S.S.G. § 2B5.1(b)(2), the court reduced the

base offense levels to nine.

      We review a sentencing court’s factual findings for clear error, giving

deference to the court’s application of the sentencing guidelines to the facts, and

review de novo questions of law regarding application of the guidelines.    United

States v. Lacey , 86 F.3d 956, 967 (10th Cir. 1996)

      Section 2B5.1(a) of the Guidelines establishes a base offense level of nine

for crimes involving counterfeit bearer obligations of the United States. Under

subsection (b), the base offense level is increased to fifteen “[i]f the defendant


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manufactured or produced any counterfeit obligation or security of the United

States.” U.S.S.G. § 2B5.1(b)(2). A background note to the section indicates “an

enhancement is provided for a defendant who produces, rather than merely passes,

the counterfeit items.” U.S.S.G. § 2B5.1, comment (backg’d). An application

note provides: “Subsection (b)(2) does not apply to persons who merely

photocopy notes or otherwise produce items that are so obviously counterfeit that

they are unlikely to be accepted even if subjected to only minimal scrutiny.”

U.S.S.G. § 2B5.1, comment (application note 4)

      At the sentencing hearing, the government presented testimony from a

Secret Service agent that the counterfeit currency was of “passable quality,” and,

in fact, was of higher quality than some counterfeit currency the agent had seen

produced with an offset press. The district court concluded the currency was

“passable,” but found application note 4 applied.

             It appears to me the application note means nothing if we have
      reached the point where all color copiers are capable of making
      passable quality money. You know, I know there were some early
      attempts to just limit application note 4 to saying that it doesn’t apply
      to persons who merely photocopy notes or otherwise produce items.
      But you know then it was “the otherwise produced items that are so
      obviously counterfeit they’re unlikely to be accepted, even if
      subjected to only minimum scrutiny,” that kind of became the test.
             From your testimony today, that test doesn’t exist anymore.
      These machines are capable of producing money that is certainly
      going to be passable, certainly acceptable. They have reached that
      point where the quality is so good that, I admit, I couldn’t tell. Mr.
      Johnson talks about being a little too green or a little dark or a little
      this or that. You know, it looks like money. And if you’re in a store

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      that takes money, why you’re likely to accept it.
              Now, it’s my interpretation, and you’re welcome – of course,
      you always have a right to go to the Tenth Circuit, but you’d have my
      blessing if you wanted to go and get the latest reading on this, but it
      seems like to me it only makes sense that this 2B5.1(b) to be
      interpreted to mean something more than a copier bought off of the
      floor of a retail store and ordinary bond paper.
              ....
              It’s as unsophisticated as this crime can be committed. You
      have a few beers and you decide to go buy a photo copier and you
      run off some notes and you run around and pass it. I mean, it’s so
      stupid it’s ludicrous. And I don’t see how – I just don’t see how this
      makes any sense if we enhance that base level of conduct.
              I’d be much – I just think what needs to happen is the
      Sentencing Commission needs to look at this, and we either ought to
      have a base level of 9 for just use of a photo copier and bond paper
      and nothing else, or we ought to have a base offense level of 15 for
      this.
              So I’m going to grant the – both defendants’ objections with
      regard to 2B5.1(b)(2). I don’t think that is appropriate under these
      circumstances, and I don’t think the – to hold otherwise, this
      application note 4 would become totally meaningless. And I’m going
      to try to give some credit to the Commission for having something in
      mind when they put that application note in there.

App. IV at 52-54.

      Given the district court’s finding that the counterfeit currency produced by

defendants was of passable quality, it is clear the court erred in interpreting and

applying subsection (b)(2) and application note 4. In particular, the court read a

“sophistication” requirement into the subsection and application note that is not

there. As the language of subsection (b)(2) clearly indicates, a base offense level

of fifteen is required if a defendant is involved in the manufacture or production

of counterfeit currency. The sole exception to this requirement, as outlined in

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application note 4, occurs when the counterfeit currency produced was “so

obviously counterfeit that [it was] unlikely to be accepted even if subjected to

only minimal scrutiny.” Because that exception did not apply here, given the

district court’s finding with respect to the quality of the counterfeit currency, the

court was required to impose a base offense level of fifteen. See United States v.

Bruning, 914 F.2d 212, 213 (10th Cir. 1990) (refusing to interpret the application

note as excluding from subsection (b)(2) all persons who produce counterfeit

notes by photocopying).

      Although the district court was apparently concerned the application note

had been rendered null by new photocopy machines that make it easy for the

average person to produce passable quality counterfeit currency, we do not share

that concern. Even assuming a state-of-the-art copy machine makes the

counterfeiter’s task easier, it is not inevitable that passable quality counterfeit

currency will be produced. As defendants’ own admissions in this case indicate,

it still takes some effort on the part of the counterfeiter to produce a passable

quality product. If copier technology some day actually nullifies the application

note, it would be “the role of the Sentencing Commission, not the courts, to . . .

revise the Guidelines as needed.” United States v. Jones, 158 F.3d 492, 505 n.9

(10th Cir. 1998).

      The judgment of the district court is REVERSED and the case is


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REMANDED to the district court for resentencing in accordance with this

opinion.

                                            Entered for the Court

                                            Mary Beck Briscoe
                                            Circuit Judge




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