229 F.3d 975 (10th Cir. 2000)
UNITED STATES OF AMERICA ,   Plaintiff-Appellee,v.ANTHONY A. NICHOLS ,   Defendant-Appellant.
No. 99-6335
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
October 5, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT  FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 99-CR-34 )[Copyrighted Material Omitted]
Submitted on the briefs:*
Vicki Zemp Behenna, Esq., Assistant United States Attorney and Daniel G.  Webber, Jr., Esq., United States Attorney, Oklahoma City, Oklahoma, for  Plaintiff - Appellee.
Rand C. Eddy, Esq., Eddy & Jones, P.C., Oklahoma City, Oklahoma, for  Defendant - Appellant.
Before SEYMOUR, Chief Judge, KELLY, and HENRY, Circuit Judges.
KELLY, Circuit Judge.


1
Petitioner-Appellant Anthony Allan Nichols pled guilty to using a false  social security number with the intent to deceive for the purpose of obtaining  checking accounts at two Oklahoma banks in violation of 42 U.S.C. §  408(a)(7)(B).  He was sentenced to twenty-one months imprisonment, three years  supervised release, and ordered to pay restitution of $2,530.89.  Mr. Nichols  appeals the sentence imposed, alleging that the trial court erred in overstating the  loss that Mr. Nichols intended to impose and that it erred in denying Mr. Nichols  a two-level reduction for acceptance of responsibility.  We affirm in part, reverse  in part, and remand to the trial court for resentencing.

Background

2
Early in 1997, Mr. Nichols found himself with a poor credit history, due, in  part, to the failure of a business venture he had started.  He responded to a  newspaper advertisement offering a manual which gave instructions on how to  obtain a second social security number.  Following the manual's instructions, Mr.  Nichols applied for an Employer Identification Number (EIN) with the Internal  Revenue Service.  Mr. Nichols was assigned the EIN of XX-XXXXXXX, and began  representing this as his social security number.  In what he claims was an effort to  reestablish a good credit history, Mr. Nichols began using this number in  applications for loans and credit cards.  Using this and other false social security  numbers, Mr. Nichols obtained a mortgage and bought a house, attempted to  purchase a car on credit, opened credit card accounts and various bank accounts,  and secured a home-repair loan through a financing corporation.  In calculating  his offense level under the Guidelines, the trial court determined that the specific  offense characteristics warranted a six-level addition pursuant to USSG  §2F1.1(b)(1)(G), because Mr. Nichols intended to cause loss in excess of $70,000  but less than $120,000.  The district court rejected Mr. Nichols' contention that  he did not intend to cause any losses, finding that his actions belied such intent  and rejecting his testimony as incredible.  Specifically, the court relied upon the  following facts:  (1) Mr. Nichols used four different social security numbers,  including his daughter's social security number on one occasion, (2) on over half  the credit applications, he used some variation of his true name (Anthony Allan  Nichols), i.e., Allen A. Nichols, or Allan A. Nichols, (3) he defaulted on several  of the loans, and the presence of collateral does not negate his intent, and (4) but  for the false social security numbers, the loans would not have been made.


3
Mr. Nichols objected to the trial court's calculation, and appeals on this  basis.  We consider various challenged components of the calculation  individually.  We then address Mr. Nichols' contention that the trial court erred in  denying him a reduction of his offense level for acceptance of responsibility.

Discussion

4
We review the trial court's application of the Sentencing Guidelines de  novo, but review its underlying findings of fact for clear error.  See United States  v. Burridge, 191 F.3d 1297, 1301 (10th Cir. 1999).  The trial court's factual  findings will be accepted unless the record does not support them or unless,  "'after reviewing all the evidence, we are left with the definite and firm  conviction that a mistake has been made.'"  United States v. McAlpine, 32 F.3d  484, 488 (10th Cir. 1994) (citation omitted).  We review the denial of a reduction  for acceptance of responsibility for clear error.  See id. at 489.


5
Sentencing Guideline § 2F1.1 governs crimes involving fraud and deceit,  including violations of 42 U.S.C. § 408(a)(7)(B).  Under this guideline, the  offense level is calculated based in part on the dollar value of the loss involved  in the criminal conduct.  See USSG § 2F1.1(b)(1).  If an intended loss can be determined and it exceeds the actual loss, the court should use the intended loss  to calculate the defendant's offense level.  See id., comment. (n.8); United  States  v. Smith; 951 F.2d 1164, 1166 (10th Cir. 1991).  The reason the intended loss  figure is used, even if it is significantly greater than actual loss, is to measure the  magnitude of the crime at the time it was committed.   See United States v.  Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998).  The fact that a victim has  recovered part of its loss after discovery of a fraud does not diminish a  defendant's culpability for purposes of sentencing.  See id. (citing United  States  v. Johnson, 941 F.2d 1102, 1114 (10th Cir. 1991); United States v.  Westmoreland, 911 F.2d 398, 399 (10th Cir. 1990)).  It is not error for a district  court to count the full amount taken through fraud as an intended loss, where the  victim recovers the loss through a civil suit, as opposed to through any voluntary  action on the part of the defendant.  See Burridge, 191 F.3d at 1301; United  States v. Pappert, 112 F.3d 1073, 1079 (10th Cir. 1997).  Similarly, the mere  presence of collateral securing an item that was fraudulently obtained does not  automatically reduce the loss calculation under §a2F1.1 where it can be shown  that the defendant intended to permanently deprive the creditor of the collateral  through concealment.  See United States v. Banta, 127 F.3d 982, 984 (10th Cir.  1997).  At the same time, our cases have insisted that calculations under §a2F1.1  accord with "economic reality," particularly considering the value of security  given when the loan was made.  See United States v. Moore, 55 F.3d 1500,  1502  (10th Cir. 1995); Smith, 951 F.2d at 1167-69.


6
Mr. Nichols contends that the district court erred in finding that he  intended to inflict the various losses attributed to him.  Although we defer to the  district court's factual findings, see United States v. Ensminger, 174 F.3d 1143,  1145 (10th Cir. 1999), the government bears the burden of proving the amount of  loss.  See McAlpine, 32 F.3d at 487.  "To meet the requirements of the  Guideline, . . . the record must support by a preponderance of the evidence the  conclusion that [the defendant] realistically intended a [particular] loss, or that a  loss in that amount was probable."  Smith, 951 F.2d at 1168 (emphasis  added). We agree with Mr. Nichols that the record does not support such a finding in  several of the instances in which the trial court found he intended to cause a loss,  rendering the trial court's findings in those instances clearly erroneous.

A.  Note Secured by Home Mortgage

7
In September 1997, Mr. Nichols purchased a home in Oklahoma City.  He  executed an FHA mortgage securing the loan amount of $87,515.  In his  application, Mr. Nichols represented his social security number to be nsa-ul-xkib which was  different from his employer identification number, XX-XXXXXXX,  the next to last two digits being transposed.  He also identified himself as Allan  A. Nichols, rather than Anthony A. Nichols.  The rest of the information Mr.  Nichols put on his application, such as his address and telephone number, was  valid.  Several months after purchasing the home, Mr. Nichols fell behind on his  mortgage payments.  He was unable to make payments for approximately one  year, during which time he filed for Chapter 13 bankruptcy for the purpose of  paying the arrearage and resuming monthly payments, so that he could keep his  residence.


8
The trial court found that Mr. Nichols intended to deprive the lender of the  full amount of the loan, $87,515.  This finding is simply not supported by the  record.  The government failed to prove by a preponderance of the evidence that  Mr. Nichols either realistically intended such a loss, or that a loss in that amount  was probable.  The home loan was fully secured by the mortgage, and in 1997,  the home had been appraised at $95,000.  Although the district court determined  that the availability of collateral does not reduce the loss calculation, we feel it is  error to ignore the contemporaneous exchange of security for the note in  considering the economic reality of the transaction and any intended loss in  excess of the actual loss.  The security of the loan is a valid consideration in  evaluating a defendant's realistic intent and the probability of inflicting the loss. See Pappert, 112 F.3d at 1078; Smith, 951 F.2d at 1169.


9
In Banta, the defendant purchased two vehicles worth almost $50,000 by  submitting fraudulent loan applications.  The trial court found an intent to  defraud for the full $50,000 amount, despite the fact that the loans were secured  by the vehicles.  See id., 127 F.3d at 983.  But several factors distinguish Banta from this case.  The first is the mobility of vehicles as opposed to a residence.  In Banta, if defendant had desired, he could have permanently deprived the bank of  the collateral by concealing the vehicles, something that could not be done with a  house.  Even considering the mobility of vehicles, we do not presume intent to  cause a total loss.  See Moore, 55 F.3d at 1503.  Second, there was evidence in Banta that the defendant likely intended such concealment.  Not only did he  provide a false social security number on the loan application, he also used an  incorrect address, telephone number, and place of employment, making locating  the vehicles quite difficult.  During the time he possessed the vehicles, he never  made a single legitimate payment on the loan.  The defendant made only one  payment with a worthless check.  See Banta, 127 F.3d at 984.


10
In this case, it is uncontroverted that an incorrect social security number  was used and we must accept the district court's findings that Mr. Nichols'  transposition of his first and middle names is indicative of an intent to deceive,  and that the loan would not have been made but for the false information.  The  fact that the loan was made under these circumstances, however, does not mean  that Mr. Nichols intended to deprive the lender of the full amount of the loan. Were that the case, every false loan application would result in an intended loss  in the full amount of the loan.  That surely is not the case under the Guideline  and our cases.


11
Mr. Nichols provided mostly correct information on his loan application,  and he made a number of payments on the house.  While it is true that he did not  make payments on the house for one year pending Chapter 13 bankruptcy, he  continued making payments even after learning that he was going to be  prosecuted for using a false social security number.  The house was, and  continues to be, the sole residence for Mr. Nichols and his family.  Nowhere did  the government demonstrate that Mr. Nichols intended to deprive the lender of  the full value of its loan, or that such a deprivation was probable.  The  government theorized in its brief that Mr. Nichols' use of a false social security  number and the transposed name made it "very possible that Nichols could obtain  the full proceeds of any sale of the mortgaged property to a third party and at the  same time put the collateral beyond the reach of the lender."  Aplee. Br. at 13. This is sheer speculation, not supported by any facts in the record, and certainly  not enough to convince us that a loss in the amount of $87,515 was "probable." Smith, 951 F.2d at 1168.  Accordingly, we remand to the trial court with  instructions to recalculate Mr. Nichols' offense level without including the  mortgage amount as an intended loss.

B.  Vehicle Loan

12
The trial court also found that Mr. Nichols intended to cause a loss in the  amount of $10,209 in connection with his purchase of a vehicle in April 1998. The trial court found that Mr. Nichols intended to deprive the lender of the full  value of the vehicle.  As with the house, this finding is not supported by the  record.


13
In March 1998, Mr. Nichols applied for a vehicle loan.  In the application,  he used a false social security number and his middle name rather than his first  name.  All other information was correct, such as his address, place of  employment, and home and business telephone numbers.  He also made a $1,000  down payment.  After taking possession of the vehicle and driving it for three  weeks, Mr. Nichols was notified by the dealer that the lender would not accept  the contract.  He promptly and voluntarily returned the vehicle undamaged.  No  actual or intended loss for this transaction occurred.


14
In April 1998, Mr. Nichols signed a contract with another lender, made an  additional down payment of $792, and chose another vehicle.  After  approximately three weeks, the lender discovered the false social security number  and repossessed the vehicle.  The government failed to demonstrate any intent on  the part of Mr. Nichols to deprive the lender of the value of the vehicle.  No  evidence was presented showing that Mr. Nichols failed to make payments on the  loans or damaged the vehicles or did any act consistent with concealment.  In  fact, the accurate information Mr. Nichols provided on his loan application  allowed the lender to easily repossess the second vehicle.  This case is plainly  distinguishable from Banta for the reasons discussed in the previous section.  The  government did not show, by a preponderance of the evidence, that Mr. Nichols  realistically intended to deprive the lender of the full value of the vehicle, nor  was it shown that such a loss was probable.  As such, the trial court's finding was  clearly erroneous and we remand with the instructions to recalculate Mr. Nichol's  offense level without including the value of the vehicle as an intended loss.

C.  Empire Funding Corp. Loan

15
In October of 1997, Mr. Nichols applied for a $4,200 loan with Empire  Funding Corp. to pay for the repair of a sewer line in his new home.  In the  application, Mr. Nichols used a false social security number and an alternate  spelling of his middle name rather than his first name.  All other information was  correct.  He was granted the loan, and had the repairs made.  Mr. Nichols made  monthly payments on the loan for almost two years, and was current on paying  back the loan at the time of sentencing.  The government presented no evidence  to dispute the fact that Mr. Nichols made every loan payment.  The trial court  made no specific findings concerning this loan, but determined that Mr. Nichols  intended to inflict a loss in the full amount of $4,200.  This finding is likewise  clearly erroneous, and we remand with the instructions to recalculate Mr.  Nichols' offense level without including the value of this $4,200 loan as an  intended loss.

D.  MasterCard

16
In February 1997, Mr. Nichols obtained a MasterCard under the name  "Allen A. Nichols," using the employer identification number previously  obtained.  He put up a security deposit of $1,000 to obtain the card.  The district  court included the high balance on the card, $2,002, as the intended loss, which  was greater than the actual loss at the time the account was closed of $1,441.50. Mr. Nichols claims that, at the time of sentencing, he had been making payments  on the card for over two years.  The government claims that its evidence shows  that he stopped making payments almost two years prior to sentencing, and the  lender was required "to resort to self-help recoupment" to repay a portion of the  debt.  Aplee. Br. at 30.  For reasons discussed previously, the district court's  failure to consider the $1,000 security deposit given prior to issuance of the card  is error; it appears that this is a secured credit card, and that should be considered  on remand in determining the loss.

E.  Bank of Oklahoma

17
In November of 1997, Mr. Nichols opened a checking account with Bank  of Oklahoma, using a false social security number.   He wrote a number of bad  payroll checks, causing the bank to lose $2,438.70.  Mr. Nichols made full  restitution to the bank by March 1998, before he became aware of any criminal  charges.  The trial court determined that Mr. Nichols intended a loss in the full  amount of $2,438.70.  Mr. Nichols contends that the trial court erred in making  this finding, because he had already made full restitution before even being aware  of potential charges.  We cannot say that such a finding by the trial court was  clearly erroneous.  The purpose of the intended loss rules is to measure the  magnitude of the crime at the time it was committed.  See Janusz, 135 F.3d at  1324.  The fact that Mr. Nichols later made restitution, even before learning of  criminal charges, does not absolve him.  His citations to Janusz and United States  v. Gennuso, 967 F.2d 1460, 1462 (10th Cir. 1992) for the proposition that a court  must deduct from the loss calculation any value the defendant gave the victim at  the time of the fraud is unavailing, because the restitution was made after the  fraud, not in connection with it.

F.  NationsBank

18
The trial court found Mr. Nichols responsible for a $4,420.85 loss from  bad checks cashed or deposited at NationsBank.  Mr. Nichols admits writing bad  checks in the amount of $2,530.89, but claims the additional amount should not  be attributed to him, because the evidence did not show that he intended the  additional loss.  We cannot say that the trial court's findings attributing the full  amount to Mr. Nichols were clearly erroneous.  The record indicates that Mr.  Nichols cashed or deposited $4,420.85 in bad checks in an account that he had  opened using a false social security number.  The reason that the bank only had  an actual loss of $2,530.89 is that is was able to recover the difference by  removing it from Mr. Nichols' account.  Just as Mr. Nichols' voluntary  restitution discussed in the previous section did not prevent the court from  finding an intended loss in the full amount of the bad checks, the fact that the  bank was able to recover some of its loss on the bad checks through a setoff does  not render the trial court's findings clearly erroneous.

G.  Acceptance of Responsibility

19
The trial court denied Mr. Nichols an adjustment for acceptance of  responsibility, finding that his testimony was not credible.  We review a trial  court's refusal to grant an adjustment for acceptance of responsibility for clear  error.  See United States v. Cruz Camacho, 137 F.3d 1220, 1226 (10th Cir.  1998)  (noting that the trial court has "broad discretion" to determine whether to give a  reduction under USSG § 3E1.1).  We cannot say that the trial court's judgment  on this issue was clearly erroneous.

Conclusion

20
For the foregoing reasons, we REVERSE with respect to the trial court's  findings of intended loss concerning the loan amount secured by the home  mortgage, the vehicle loan, the Empire Funding loan and the MasterCard high  balance.  We AFFIRM in all other respects.  We REMAND with instructions to  recalculate the amount of intended loss in accordance with this opinion.



Notes:


*
 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); 10th Cir. R. 34.1 (G).  The cause  therefore is ordered submitted without oral argument.


