
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2452                                    UNITED STATES,                                      Appellee,                                          v.                                    RICHARD GUYON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Breyer,* Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                _____________________               Stephen J. Weymouth on brief for appellant.               ___________________               Kevin  J. Cloherty,  Assistant United  States Attorney,  and               __________________          Donald K. Stern, United States Attorney, on brief for appellee.          _______________                                 ____________________                                    June 27, 1994                                 ____________________                                        ____________________          *   Chief Judge Stephen Breyer heard oral argument in this matter          but did not  participate in the drafting  or the issuance  of the          panel's  opinion.   The remaining  two panelists  therefore issue          this opinion pursuant to 28 U.S.C.   46(d).                    TORRUELLA, Circuit Judge.  On April 12, 1989, a federal                               _____________          grand jury returned a one-count indictment charging Richard Guyon          with bank  fraud in violation of  13 U.S.C.   1344.   Following a          jury  trial,  Guyon   was  convicted  in  absentia.    Guyon  was                                                ____________          subsequently apprehended, placed in federal custody, and returned          to  Massachusetts.  The court  then sentenced Guyon  to 30 months          incarceration.  Guyon now  challenges his conviction and sentence          on several grounds.   We find that none of  these grounds warrant          reversal and thus affirm the district court.                                      BACKGROUND                                      BACKGROUND                                      __________                    A.  Statement of Facts                    A.  Statement of Facts                        __________________                    The indictment  alleged that from February  24, 1987 to          approximately  August  14, 1988,  Guyon  willfully and  knowingly          executed  a scheme to defraud  the Bank of  Boston of $76,756.40.          The testimony  and other  evidence properly introduced  at trial,          viewed in the  light most favorable  to the verdict,  established          the following facts.   See United States v.  Rivera-Santiago, 872                                 ___ _____________     _______________          F.2d 1073, 1078-79 (1st Cir.), cert. denied, 492 U.S. 910 (1989).                                         ____________                    Guyon applied for  a series of  student loans from  the          Bank  of Boston, called Alliance  loans, listing his  own name as          the student  applicant.    In  addition, Guyon  applied  for  and          received Alliance loans  in the  name of 1)  his father,  Raymond          Guyon; 2)  Mary Garber;  and 3) Tonya  Mayes.   Guyon forged  the          applications  and   signatures  for   these  loans.     The  loan          applications  also  contained  the  forged  certifications  of  a          purported University official.                                         -2-                    In  addition  to  these Alliance  loans,  evidence  was          introduced   regarding  other   loan  applications   which  Guyon          fraudulently  filed. These  other  loans, however,  were not  the          subject  of  the   indictment.    This  evidence  included:    1)          applications for two Massachusetts Higher Education Loans through          the Bank of Boston in November 1988, which were not granted; 2) a          fraudulent application for a $20,000 Excel  student loan filed in          September  1988;  3)  fraudulent  applications  for  two  $15,000          "Consern"  loans from  the National  Bank of  Washington, one  in          Guyon's own name and one in  the name of Mary Garber, as well  as          an application for a $25,000 "Consern" loan  in the name of Tonya          Mayes; 4) a fraudulent application for a guaranteed  student loan          for  $7,500 through the First Security Bank of Idaho, which Guyon          did in fact receive.                    B.  The Proceedings in the District Court                    B.  The Proceedings in the District Court                        _____________________________________                    Guyon  was arraigned on June 29, 1989.  On November 16,          1989,  Guyon filed a motion to  dismiss the indictment based on a          failure to  comply with the  Speedy Trial Act.   At a  hearing on          December  8,  1989,  Guyon   withdrew  this  motion  because  the          government  stated it was going  to dismiss the  indictment.  The          case was never dismissed.  On  February  1,  1991, the  case  was          reassigned to Judge  Robert Keeton.   Prior to reassignment,  the          case  was  "inadvertently"  closed  by the  U.S.  District  Court          Clerk's office,  but was then  reopened upon being  reassigned to          Judge Keeton.                    On  February  1,  1991,  the parties  jointly  filed  a                                         -3-          "Status Report and Motion for Continuance Under the Speedy  Trial          Act," and this report  informed the court that the case was still          pending  because subsequent to the December  8, 1989 hearing, the          parties  had learned that Guyon was the subject of a separate but          related criminal  investigation by the U.S.  Attorney's Office in          Virginia,  and  as  a result  the  parties  had  then engaged  in          negotiations to resolve potential charges in both districts.  The          parties additionally requested a continuance from the court until          such  a resolution  had been  achieved and  asked that  the court          designate all  time from the date of  indictment until resolution          of the negotiations as excludable delay.                    On  February   15,  1991,  the  court   held  a  status          conference, at which it  issued an order excluding all  time from          the  date  of  indictment  through  February  15 because  of  the          previous stay pending plea negotiations.  Defense counsel did not          object.                    On  June  3, 1991,  new  counsel  for  Guyon, Mr.  Evan          Slavitt,  filed a  motion to  dismiss the  indictment based  on a          violation  of the Speedy Trial Act.   On June 13, 1991, the court          held a  hearing with respect to this  motion, and after the court          explained its excludable delay orders, denied the motion.                    Trial  commenced  on  June  17,  1991,  and  Guyon  was          represented by  a third counsel.   On June 26, the  fourth day of          trial, the court adjourned  for the day while the  government was          in the middle of its cross-examination of Guyon, who testified in          his own defense.   On June 27, Guyon did not  appear in court and                                         -4-          the case was continued until the next day.  On June 28, the court          held an evidentiary hearing  regarding Guyon's continued absence.          Following this hearing, the court determined that Guyon's absence          was voluntary and the  court ordered that the trial  be completed          with Guyon in absentia.  The court found:                     ___________                      [O]n the  evidence before  me  I find  it                      overwhelming    that   Mr.    Guyon   has                      voluntarily  absented  himself from  this                      trial,   so   in  accordance   with  Rule                      43(b)(1),  I find that  he is voluntarily                      absent after the trial is commenced and I                      will order that the  proceedings continue                      through the  return  of a  verdict  under                      Rule 43 proceedings.          Defense counsel refused to waive redirect of Guyon, and moved for          a  mistrial.   The court  denied  the motion.   The  defense then          rested, and the trial  was completed that day.  The jury returned          a guilty verdict.                    Law enforcement officials apprehended Guyon on July 15,          1991, in Wyoming, and returned him to Massachusetts.  On December          10,  1991, the court  sentenced Guyon to  30 months imprisonment.          Guyon now raises several issues on appeal.                              GUYON'S MOTION TO DISMISS                              GUYON'S MOTION TO DISMISS                              _________________________                    Guyon claims  that  the  district  court  violated  his          statutory and due process rights by failing to rule on his motion          to dismiss based  on a violation of  the Speedy Trial Act.   As a          basis  for this argument,  Guyon claims that  he originally filed          the motion to dismiss  on November 16, 1989, and that this motion          was  never heard or decided  by the court  because the government                                         -5-          requested,  and  the court  granted,  a dismissal  of  the case.1          Guyon claims  that the case  was then "reopened"  fourteen months          later  in February 1991,  but the court  failed to  rule upon the          November 16, 1989 motion to dismiss.                    The government contends that Guyon's argument is  based          on an incorrect statement of the record below, and that the court          did address and resolve the Speedy Trial Act issue.                    Guyon's contention that the district court deprived him          of  his statutory and due  process rights is  unfounded.  Guyon's          initial November  16, 1989 motion to dismiss  was never expressly          ruled  upon because  he  withdrew that  motion  from the  court's          consideration, based  on the government's  representation that it          would dismiss  the  indictment.   When  the  government  did  not          dismiss the indictment, Guyon's counsel filed a  second motion to          dismiss, which reargued some of Guyon's original Speedy Trial Act          contentions.    Glaringly  absent   from  Guyon's  brief  is  any          reference  to this second "Motion to Dismiss for Violation of the                                        ____________________          1   Guyon makes much  of the  fact that at  the December 8,  1989          hearing,  the  government  stated   that  it  would  dismiss  the          indictment, and Guyon concludes that the case must have therefore          been  dismissed.   Guyon's reading  of the  record is  incorrect.          While the government  indicated orally  in the  December 8,  1991          hearing  that it  would  dismiss the  indictment, the  court then          stated  that it  would entertain  a  dismissal if  the government          filed it in  writing.  The  government never  did file a  written          dismissal  because   it  subsequently  learned   that  the   U.S.          Attorney's  Office  in  the  Eastern  District  of  Virginia  was          investigating similar  charges against  Guyon.  The  parties then          attempted to  negotiate a resolution of all charges against Guyon          before any dismissal  was filed in the  District of Massachusetts          or  any other  action was  taken.   The indictment  was therefore          never dismissed.   Confusion regarding  the record may  stem from          the fact that the Clerk's office inadvertently closed its file in          this case and thereafter clerically "reopened" the case.                                         -6-          Speedy  Trial Act (18  U.S.C.   3161  et. seq.)" which   Attorney          Slavitt filed  on June 3, 1991.  On June 13, 1991, the court held          a  hearing with respect  to this  motion.   At this  hearing, the          court  reminded  Guyon  that  the  court  had  entered  an  order          excluding all time from the indictment until February 15 based on          the stay pending plea negotiations, and that Guyon did not object          to  this order.2  The court then appropriately denied the motion.          We are at a complete loss to understand how Guyon can argue that,          based  on the  particular travels  of this  case, he  was somehow          denied his statutory or due process rights.                   PROCEEDING WITH THE TRIAL WITH GUYON IN ABSENTIA                   PROCEEDING WITH THE TRIAL WITH GUYON IN ABSENTIA                   ________________________________________________                    A criminal  defendant has a constitutional  right to be          present at  his trial.  This  right is rooted in  the due process          clause and the confrontation clause of the  Constitution.  United                                                                     ______          States v. Latham, 874 F.2d 852,  857 (1st Cir. 1989).  The United          ______    ______          States Supreme Court has held, however, that during the course of          a  trial, if  a defendant  voluntarily  absents himself  from the          proceedings, it  "operates as a waiver of his right to be present          and  leaves the  court free  to proceed  with the  trial in  like          manner and  with like effect as if he were present."  Latham, 874                                                                ______          F.2d at  857 (quoting  D az v. United  States, 223 U.S.  442, 455                                 ____    ______________                                        ____________________          2  Guyon does not challenge the court's order excluding this time          on  appeal, nor could he  because Guyon's counsel  failed to take          exception to the entry of the court's order in the district court          and he  has therefore  waived his  right to  object.  See  United                                                                ___  ______          States v. Brown,  736 F.2d 807, 808 n.1 (1st  Cir. 1984) (stating          ______    _____          that  the  government's failure  to  object to  court's  order of          excludable  delay  resulted  in  binding the  government  to  the          district court's unchallenged computation), appeal  after remand,                                                      ____________________          770 F.2d 241 (1st Cir. 1985), cert. denied, 474 U.S. 1064 (1986).                                        ____________                                         -7-          (1912)); United States  v. Lochan,  674 F.2d 960,  967 (1st  Cir.                   _____________     ______          1982).  Fed. R. Crim.  P. 43(b) also permits a court  to continue          with   a  trial  if  a  defendant,   who  is  initially  present,          voluntarily absents himself after the trial has commenced.3                    When a court is faced with  the issue of whether or not          to proceed with a  trial, the court must first  determine whether          the  defendant  is,  in   fact,  "voluntarily"  absent  from  the          proceedings.  Lochan,  674 F.2d at 967; Latham, 874  F.2d at 857.                        ______                    ______          If so,  the court must next analyze  a "complex of issues," which          include:  the ability to apprehend the defendant; the  difficulty          of rescheduling the trial until the defendant is present; and the          burden on the government in holding two trials.  Latham, 874 F.2d                                                           ______          at  857-58.  The court should only  allow the trial to proceed if          the interest of the  public in proceeding with the  trial clearly          outweighs the interest of the absent  defendant.  Id. at 857.  We                                                            __          review a district court's  decision to proceed with trial  for an          abuse of discretion.  See   Latham, 874 F.2d at 857;  Lochan, 674                                ___   ______                    ______          F.2d at 968.                                        ____________________          3  Fed. R. Crim. P. 43(b) provides in pertinent part:                      The further  progress of the trial to and                      including the return of the verdict shall                      not  be prevented and the defendant shall                      be considered to have waived the right to                      be   present    whenever   a   defendant,                      initially present,                      1) is voluntarily absent after  the trial                      has   commenced   (whether  or   not  the                      defendant has been  informed by the court                      of  the obligation  to remain  during the                      trial), . . .                                          -8-                    Guyon  contends  that  the district  court  abused  its          discretion  by   proceeding  with  the  trial   after  Guyon  had          "voluntarily absented" himself from the trial proceedings.  Guyon          apparently  does not  take issue  with the  court's  finding that          Guyon's  absence from  the proceedings  was voluntary.4   Rather,          Guyon  contends  that the  court  committed  reversible error  by          failing to inquire into  the "complex of issues" to  determine if          the trial should proceed.                    The  government   concedes  that  the  court   did  not          explicitly articulate  its findings or reasoning  with respect to          this second  inquiry, but argues  that the facts  clearly support          the  court's  decision  to  proceed  with  the  trial under  this          analysis.                    Despite  the  absence  of  an express  finding  by  the          district court with respect  to the "complex of issues"  inquiry,          the facts support  the court's  decision to  proceed with  trial.          See,  e.g., United States v. Muzevsky,  760 F.2d 83, 85 (4th Cir.          ___   ____  _____________    ________          1985).   The public's interest  in proceeding with  trial clearly          outweighed Guyon's interest in  delaying the proceedings.  First,          there appeared to be little possibility that the trial could soon          take  place  with Guyon  present.   The  evidence that  Guyon was          voluntarily   absent   was,   as  the   district   court   noted,                                        ____________________          4   A trial court's  finding pursuant to  Fed. R. Crim.  P. 43(b)          that  a defendant  has  voluntarily absented  himself from  trial          should be upheld unless  clearly erroneous.  Lochan, 674  F.2d at                                                       ______          967.    There is  ample  evidence in  the  record to  support the          court's finding that after the fourth day of trial, Guyon checked          out of his hotel room and fled.                                         -9-          "overwhelming."    The  record  indicates that  after  the  court          postponed the  trial for one day in order to locate Guyon, an FBI          agent testified that Guyon had checked out of  the hotel where he          had been  staying  on  June 27,  1991.   Moreover,  the  FBI  had          conducted a thorough, yet unsuccessful, search to find Guyon, and          there  was  no  indication  that  government  agents  would  soon          apprehend him.                    There  also  would have  been  a  heavy  burden on  the          government to retry this  case.  Guyon fled at the  end of a five          day  trial.   The  government  had  rested, after  presenting  18          witnesses, a number of whom were from out of state.  Guyon made a          number  of admissions on direct examination, and then fled in the          middle of his own cross-examination.  For example, Guyon admitted          forging school certifications.  He also admitted that he obtained          multiple  loans in the name  of other individuals.   To retry the          case,  the  government  would   be  required  to  remarshall  its          resources and repeat its entire presentation.                    Guyon's interest in delaying the trial did not outweigh          the public's  interest in  having  the case  proceed to  verdict.          Guyon  fled at  the  eleventh hour,  in  an apparent  attempt  to          manipulate the trial  process in  the exact manner  that Fed.  R.          Crim. P. 43(b)  is designed  to prevent.   See  Crosby v.  United                                                     ___  ______     ______          States,  113 S. Ct.  748, 751 (1993)  (Fed. R. Crim.  P. 43(b) is          ______          designed   to   preclude  a   defendant  from   manipulating  the          proceedings against  him  by voluntarily  absenting himself  from          trial, thus thwarting  a trial  that has already  begun).   Guyon                                         -10-          argues that  the court's decision to  proceed unfairly prejudiced          him because his testimony on redirect examination could have been          "particularly significant" to his defense.  Guyon fails, however,          to  shore up this speculation and state what testimony would have          been  elicited on redirect which would have aided his defense and          would have explained,  rebutted or otherwise  counterbalanced the          damaging admissions he made  during the course of his  own direct          examination.   Based on these facts,  we do not believe  that the          court abused its discretion by proceeding with the trial, and any          error  the court made in  failing to make  explicit findings with          respect to the "complex of issues" analysis was harmless.               FEDERAL RULE OF EVIDENCE 404(b) - OTHER CRIMES EVIDENCE               FEDERAL RULE OF EVIDENCE 404(b) - OTHER CRIMES EVIDENCE               _______________________________________________________                    Guyon   argues  that  the  district  court  abused  its          discretion by admitting evidence  of applications for loans which          were not charged in the indictment, as evidence of other acts and          crimes pursuant to Fed. R. Evid. 404(b).  Guyon contends that the          court  failed to  engage in  the  appropriate two  prong analysis          under Fed.  R. Evid. 404(b) when it admitted the evidence.  Guyon          further  argues that  the  evidence was  unduly prejudicial,  and          therefore,  the  court's decision  to admit  it  was an  abuse of          discretion.    Guyon  also  claims  that  the  court  abused  its          discretion by admitting evidence of his credit history.                    The  government argues that  Guyon's contentions ignore          the record below, and that the challenged evidence was admissible          pursuant to Fed. R. Evid. 404(b).                    Evidence is admissible under  Fed. R. Evid. 404(b) when                                         -11-          it satisfies a two step analysis by the district court.5   First,          the court must determine if the evidence is being offered to show          something other than that the defendant acted in  conformity with          a  "bad" character.  United States v. Rivera-Medina, 845 F.2d 12,                               _____________    _____________          15 (1st Cir.), cert.  denied, 488 U.S. 862 (1988);  United States                         _____________                        _____________          v.  Gonz lez-S nchez,  825 F.2d  572,  579-80  (1st Cir.),  cert.              ________________                                        _____          denied,  484 U.S.  989 (1987).     The court  must find  that the          ______          "evidence  has some  'special'  probative  value showing  intent,          preparation, knowledge or absence of  mistake."  United States v.                                                           _____________          Garc a, 983 F.2d 1160, 1172 (1st Cir. 1993) (citations  omitted);          ______          Rivera-Medina, 845 F.2d at 15; Gonz lez-S nchez, 825 F.2d at 579.          _____________                  ________________          Second,  the  court  must  balance  the  probative  value of  the          evidence against the  danger of undue prejudice to the defendant,          which may arise from admitting the evidence.  Garc a, 983 F.2d at                                                        ______          1172;  Rivera-Medina, 845  F.2d at  15-16; Gonz lez-S nchez,  825                 _____________                       ________________          F.2d at 580.  The decision to admit Fed. R. Evid. 404(b) evidence          is committed to the  sound discretion of the district  court, and          we will only disturb such a  ruling on appeal if the court abused          its discretion.  Garc a, 983 F.2d at 1172.                           ______                    Pursuant  to  Fed.  R.  Evid.  404(b),  the  government          introduced  evidence at  trial  of Guyon's  applications for  the                                        ____________________          5  Fed. R. Evid. 404(b) provides in pertinent part:                      Evidence of other crimes, wrongs, or acts                      is not admissible  to prove the character                      of a  person in  order to show  action in                      conformity therewith.   It may,  however,                      be admissible for other purposes, such as                      proof  of  motive,  opportunity,  intent,                      preparation, plan, knowledge . . .                                          -12-          Massachusetts  Higher  Education  Loans,   the  Excel  loan,  the          "Consern" loans,  and the  First Security  Bank of  Idaho student          loans.   As  a  preliminary  matter, the  record  belies  Guyon's          contention  that the  district court  applied an  incorrect legal          standard by  failing to  engage in  the second  step of  the Rule          404(b)  analysis,  which  requires  that the  court  balance  the          probative value of the evidence against  its prejudicial impact.           When  the court addressed the admissibility of the uncharged loan          evidence generally  at a hearing  before trial, the  court stated          that it would "address 404(b) problems with a twofold  analysis,"          making it clear that  the court was cognizant of  the appropriate          mode  of evaluation.    Moreover, on  one occasion  when specific          uncharged  loan evidence  was offered  during the  course  of the          trial  and  then  objected  to  by  defense  counsel,  the  court          indicated that the probative value of the evidence outweighed any          prejudice.                    The court did not abuse its discretion by admitting the          uncharged  loan  evidence.   First,  the  evidence had  "special"          relevance  in that  it was  probative of  Guyon's intent  when he          applied for the various loans.  Intent was a disputed  issue that          was  central  to  this  case.    During  trial,  Guyon's  counsel          repeatedly argued that  Guyon did not  intend to defraud  anyone.          To counter this defense and prove its allegations, the government          proffered evidence of the uncharged loans to establish intent and          modus  operandi.   There  was a  striking similarity  between the          _______________          evidence of charged and uncharged loans, and this evidence helped                                         -13-          show  that  Guyon   was  engaged  in   a  widespread  scheme   to          fraudulently  apply for a number of loans, using the same pattern          of  activity in each instance, in order to defraud various banks.          For example, Guyon  forged the  name of "Tonya  Mayes" and  "Mary          Garber"  on both charged  and uncharged loan  applications.  This          evidence was therefore precisely  the type of evidence that  Fed.          R.Evid. 404(b)permits inorder tohelp proveGuyon's planand intent.                    With  respect to  the second  step  in the  Rule 404(b)          analysis,   Guyon  argues   that  this   evidence  was   unfairly          prejudicial to  him, and  he argues that  the jury was  likely to          have   attributed  much  significance   to  this  uncharged  loan          evidence.   We  agree  that  this evidence,  like  most  evidence          offered against  a  defendant,  is prejudicial.    That  is  not,          however,  the  issue.    Rather,  the  question  is  whether  the          probative value  of the evidence was  substantially outweighed by          the  danger of  unfair  prejudice.   Garc a,  983 F.2d  at  1173;                                               ______          Gonz lez-S nchez, 825 F.2d at 581.          ________________                    The  district court concluded  that the probative value          of   the   evidence   outweighed   the   possibility   of  unfair          consideration by the jury.   We believe that the  record supports          the court's conclusion, and that the court's instructions  to the          jury  regarding the  limited purpose  of this  evidence,  to show          intent, cushioned the impact  and reduced any possible prejudice.          We will therefore not disturb the ruling.                    Guyon next argues that  the court abused its discretion          in admitting  evidence of the two  uncharged Massachusetts Higher                                         -14-          Education  loans that  Guyon  applied  for  through the  Bank  of          Boston,  which  included credit  reports  compiled  by the  bank.          Guyon's  counsel  objected  to  the  admission  of  these  credit          reports, arguing  that adverse credit information  in the reports          was unfairly  prejudicial.  Counsel  additionally requested  that          the  credit  histories  be redacted.    The  court  overruled the          objection, but gave a limiting instruction  that the only purpose          of  the evidence was to help understand what information the bank          had when it decided whether or not to make the loan.                    With respect to the Rule 404(b) two prong analysis,  we          agree that the evidence was relevant as to how the Bank of Boston          made its loan  decisions, and  the evidence was  not admitted  to          show that Guyon had a bad character.  Second, the probative value          of this  evidence  was not  outweighed by  any unfair  prejudice.          Credit  histories are  fairly routine  evidence, and are  not the          type of  evidence that  typically elicits an  irrational reaction          from  the  jury.   Moreover, Guyon  has  not pointed  to anything          specific in his credit history that was particularly prejudicial.          Consequently,  Guyon  has not  shown  that the  court  abused its          discretion in  admitting the evidence.   We therefore  uphold the          district court's ruling.                   CALCULATING LOSS UNDER THE SENTENCING GUIDELINES                   CALCULATING LOSS UNDER THE SENTENCING GUIDELINES                   ________________________________________________                    At   sentencing,   the   court   determined   that  the          appropriate guideline to  be applied  in this case  was the  1988          version  of  U.S.S.G.    2F1.1,  for crimes  involving  fraud and          deceit.    The court found  that the loss involved  in this case,                                         -15-          including  consummated and unconsummated loans, exceeded $200,001          and  was less than $500,000, and therefore pursuant to U.S.S.G.            2F1.1(b)(1)(H), the base offense level of six was to be increased          seven  levels.   Guyon objected  to the  court's  calculation and          argued that the court should  not include unconsummated loans  in          the loss calculation.  Accordingly, Guyon argued that the correct          figure  was $200,000 or less,  thus yielding an  increase of only          six levels.  The court then made the following findings:                      [W]hen    I    look   at    the   offense                      characteristics and take account  of what                      the  other victims  of the  offenses that                      were part of  this pattern, excluding the                      Virginia  offenses,  have suffered,  it's                      pretty  clear it  gets above  two hundred                      thousand.          In  deciding to include the  unconsummated loans, the court found          as a factual matter that  Guyon intended to defraud the banks  of          the  amount of the loan applications and refused to discount this          amount  by assuming that had Guyon actually obtained the loan, he          would have used the proceeds  to pay off other loans.   The court          stated:                      I  am  very  clear  that  at  least   the                      guidelines authorize me  in the  exercise                      of discretion to take those  into account                      and  when  I  do  we're   way  above  the                      $200,001 floor.                    On appeal, Guyon now raises the issue of the meaning of          "loss"  in  the  sentencing  guidelines covering  fraud.    Guyon          seemingly  argues that  the court  committed an  error of  law by          measuring  loss  by  the amount  that  Guyon  intended to  obtain                                                        ________          fraudulently  from  the  various  banks.   Guyon  maintains  that                                         -16-          instead the  correct legal basis for increasing  the sentence was          the actual loss resulting from his criminal conduct.              ______                    The court did not commit any error in  calculating loss          on the  basis of  intended loss.    U.S.S.G.    2F1.1 applies  to          crimes  involving  fraud  and   deceit,  and  the  offense  level          increases  commensurately  with   the  magnitude  of   the  loss.          U.S.S.G.   2F1.1(b)(1)(H)  (1988) mandates  an increase of  seven          levels  to  the base  offense level  when  the "loss"  is between          $200,001 and $500,000.   Application Note 7 of the  Commentary to          this  Guideline deals  with  the valuation  of  loss.   The  1988          version of Application Note 7 provided in pertinent part:                      In keeping with  the Commission's  policy                      on  attempts, if  a probable  or intended                      loss that the defendant was attempting to                      inflict  can  be determined,  that figure                      would be  used if it was  larger than the                      actual loss . . .          U.S.S.G.    2F1.1,  comment (n.7)  (1988).   The court  therefore          correctly applied  the law and  acted well within  its discretion          when it calculated loss on the basis of intended loss instead  of          actual loss, and found that the unconsummated loans Guyon applied          for should have been included in the intended loss figure.6                                        ____________________          6   On  appeal, Guyon  seemingly does  not challenge  the court's          factual  finding with  respect to  the unconsummated  loans, that          Guyon intended  to cause the  banks loss  in the  amount that  he          requested  in the loan  applications, and the  court's refusal to          accept  Guyon's contention  that  he  would  have used  the  loan          proceeds to pay off  other loans.  Even  assuming that Guyon  did          make such a challenge,  the court's factual finding would  not be          disturbed  unless it was clearly erroneous.  18 U.S.C.   3742(e);          United States v. Ruiz, 905 F.2d  499, 507 (1st Cir. 1990).  There          _____________    ____          is evidence in the  record which supports this finding  and we do          not believe that it is clearly erroneous.                                         -17-                    For the foregoing reasons, we affirm Guyon's conviction                    _______________________________________________________          and sentence.          ____________                                         -18-
