                                 REVISED

                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 97-30246



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                 versus


ANTOINE M. SAACKS, JR.,

                                               Defendant-Appellant.



            Appeal from the United States District Court
                for the Eastern District of Louisiana



                           December 16, 1997


Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

WIENER, Circuit Judge:

       Following his jury conviction on charges of bankruptcy fraud,

Defendant-Appellant Antoine M. Saacks, Jr. was sentenced to twenty-

four    months   imprisonment,    a   $7,000    fine,    and   payment   of

restitution.     In appealing his sentence to this court, Saacks

complains that the district court misapplied several of the United

States Sentencing Guidelines (the Guidelines).          More specifically,

he asserts that the district court erred in (1) determining that,
for purposes of § 2F1.1(b)(1)(G), the total amount of debts that he

caused to be listed in the bankruptcy petition of Jimmy C’s Sports

Bar and Grill, Ltd. (Jimmy C’s) was a proper measure of the loss

that Saacks intended to inflict on the creditors of Jimmy C’s, the

debts of which Saacks had assumed personally; (2) imposing a two-

level increase under § 2F1.1(b)(2)(B) after concluding that those

creditors constitute “multiple victims”; and (3) deducing that

bankruptcy fraud constitutes a violation of a judicial “process,”

thereby requiring a two-level increase under § 2F1.1(b)(3)(B).

Convinced      that   the   district   court    did   not   err   reversibly   in

sentencing Saacks, we affirm.

                                        I

                             FACTS AND PROCEEDINGS

       Saacks and his family owned Jimmy C’s.           Representing all co-

owners, Saacks sold the corporation for about $76,700.               Saacks and

his father executed a “counter letter” to the purchaser specifying

that they “do hereby agree that such liabilities [of Jimmy C’s]

owed and due as of this signing are [the Saacks’] responsibility.”

The Saacks subsequently made no payments on Jimmy C’s pre-sale

debts even though the creditors were referred to Saacks by his

vendee.

       Although the parties disagree whether Saacks acted with or

without authority, none contest that in April 1992, he filed a

voluntary petition on behalf of Jimmy C’s, seeking relief under

Chapter 7 of the Bankruptcy Code.              The petition listed debts to

more    than    seventy-five     individual     creditors     constituting     an


                                        2
aggregate indebtedness of $74,520.11.         The petition listed no

assets for Jimmy C’s despite the fact that Saacks had signed a

corporate tax return filed eleven days before the filing of the

bankruptcy petition, which return listed assets worth approximately

$118,000.    The bankruptcy petition identified Saacks and his

relatives as the shareholders, failing to disclose that they had

previously sold Jimmy C’s for over $75,000 cash and that Saacks and

his father had assumed responsibility for its pre-sale debts by

virtue of the counter letter.

     At a § 314 creditors’ meeting held during the month following

the filing of the bankruptcy petition, Saacks testified under oath

that (1) he was authorized to file the bankruptcy petition, (2) the

corporation had no assets, and (3) the purchaser of Jimmy C’s had

been allowed to acquire and operate the establishment without

making any payment to Saacks or his relatives.           In reliance on

these   mendacious   representations,   the    trustee    declared   the

bankruptcy to be a no-asset case.

     The gravamen of the government’s bankruptcy fraud case was

that Saacks had (1) concealed from the creditors, the bankruptcy

trustee, and the officers of the bankruptcy court, the significant

facts that the debtor corporation had assets, that it had been

sold, and that Saacks was personally liable for the pre-sale debts

of the corporation; and (2) made false reports on the Bankruptcy

Schedules and Statement of Financial Affairs.       A jury convicted

Saacks of seven counts of bankruptcy fraud for which he was

eventually sentenced.   His sentence was calculated by adding (1) a


                                 3
base offense level of six for fraud, pursuant to § 2F1.1(a); (2) a

six-level increase because the scheme comprised a loss of over

$70,000, pursuant to § 2F1.1(b)(1)(G); (3) a two-level increase for

violating a judicial or administrative order or process, pursuant

to § 2F1.1(b)(3)(B); and (4) a two-level increase for targeting

multiple victims of the fraud, pursuant to § 2F1.1(b)(2)(B).

                                            II

                                      ANALYSIS

       Two of the three sentencing issues of which Saacks complains

can be disposed of with relative ease; the third requires a bit

more analysis.          We address the two straight-forward issues first

and reserve the more complex one for last.

A.     Loss Caused by Fraud

       Section 2F1.1 of the Guidelines specifies a base offense level

of six for fraud and provides for incremental increases in the

offense level depending on, inter alia, the amount of loss caused

by the fraud.1          Application Note 7 to § 2F1.1 defines loss in a

case involving fraud as “the value of the money, property, or

services unlawfully taken,” and specifies that “[i]f an intended

loss       that   the    defendant   was        attempting    to   inflict     can   be

determined, this figure will be used if it is greater than the

actual loss.”2          The district court’s calculation of loss need not

be   determined         with   precision;       it   need   only   be   a   reasonable

       1
                  United States v. Smithson, 49 F.3d 138, 143 (5th Cir.
1995).
       2
            U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2F1.1
App. Note 7.

                                            4
estimate.3

       We review the sentencing court’s determination of loss for

clear error.4         “[A]s long as the determination is plausible in

light of the record as a whole, clear error does not exist.”5

Saacks emphasizes, though, that the question presented by his

assignment of error regarding loss is not the amount of the loss

vel non but the method used by the district court to calculate the

loss.       As thus framed, Saacks’ complaint implicates an application

of the Guidelines, which we review de novo.6

       Although we agree with Saacks that the total of the debts

listed in a fraudulent bankruptcy petition is not necessarily an

appropriate measure of the loss intended, we disagree that the

sentencing court’s use of that figure under the circumstances of

this case is error.            As noted, Saacks had (1) signed a tax return

under penalty of perjury listing assets worth some $118,000 only

days        before    filing     the   corporation’s   bankruptcy   petition;

(2) concealed the fact that he and his father had personally

guaranteed all pre-sale debts of Jimmy C’s; and (3) withheld the

fact that he and his family received roughly $75,000 in payment for


        3
           United States v. Chappell, 6 F.3d 1095, 1101 (5th Cir.
1993), cert. denied by Mitchem v. United States, 510 U.S. 1183
(1994) and Shephard v. United States, 510 U.S. 1184 (1994).
        4
           United States v. Ismoila, 100 F.3d 380, 396 (5th Cir.
1996), cert. denied by Debowale v. United States, 117 S. Ct. 1712
(1997) and Lawanson v. United States, 117 S. Ct. 1858 (1997).
       5
                Id.
       6
               United States v. Krenning, 93 F.3d 1257, 1270 (5th Cir.
1996).

                                          5
Jimmy C’s.     In light of all the facts and circumstances, Saacks’

contention that the only loss intended was the $2,000 to $12,000 in

used assets of the corporation is unavailing.              Moreover, Saacks

sought to gain through the bankruptcy artifice full insulation of

the sales price of $75,000 received for, inter alia, his personal

liability for debts owed by Jimmy C’s to its pre-sale creditors.

Regardless of whether we were to review for clear error or de novo,

we   would   affirm   the   district   court’s      assignment    of    loss    for

sentencing purposes.

B.    Multiple Victims

      The weakest contention advanced by Saacks is that the district

court erred in determining that his machinations involved “a scheme

to defraud more than one victim.”           Without citation to authority,

Saacks contends that the bankruptcy estate alone, and not the

myriad pre-sale creditors of Jimmy C’s, was the victim of the fraud

for purposes of § 2F1.1(b)(2)(B).            As urged by the government,

however,     the   plain    language   of     the    Guidelines        cannot   be

disregarded.       We agree with the reasoning of the Ninth Circuit

which, in upholding a district court’s findings that the creditors

and the bankruptcy trustee were victims of bankruptcy fraud,

stated:

      Clearly, the false statement [the defendant] made in
      relation to his bankruptcy case was intended to result in
      an undervaluation of the estate in bankruptcy and thus
      the availability of less money to satisfy the demands of
      the creditors.      Thus, [the defendant] would have
      “obtained something of value from more than one person,”
      that being whatever portion of the estate to which they
      as creditors were entitled but which was hidden by the



                                       6
     false statement.7

As with the amount of loss, we find no reversible error and

therefore affirm the district court’s two-level increase under

§ 2F1.1(b)(2)(B) for defrauding multiple victims.

C.   Violation of Judicial or Administrative Order or Process

     Saacks’ most vociferous complaint targets the district court’s

two-level increase for violating “any judicial or administrative

order, injunction, decree or process not addressed elsewhere in the

Guidelines,” pursuant to § 2F1.1(b)(3)(B).                The sentencing court

reasoned that Saacks’ “conduct involved a fraud on the bankruptcy

system, which resulted in a violation of a judicial `process.’”

     As   Saacks    correctly       notes,   this    is   an    issue     of   first

impression in this circuit and one on which there is a split among

the other circuits that have ruled on the question.                    And, as this

issue clearly involves application of the Guidelines, we review the

determination of the district court de novo.

     Again, our base point in this analysis is § 2F1.1, the general

sentencing provision for all fraud.                 In this context we find

important the observation that in neither § 2F1.1 nor any other

section of the Guidelines is there either a base offense level or

an   enhancement      provision       for    bankruptcy        fraud     as    such.

Consequently,      were   we   to    stop    with   the    general       sentencing

provisions for fraud, we would fail to make any distinction between

the most pedestrian federal fraud offense and bankruptcy fraud with


     7
          United States v. Nazifpour, 944 F.2d 472, 474 (9th Cir.
1991) (per curiam) (quoting U.S.S.G. § 2F1.1 App. Note 3).

                                        7
all of its implications of a scheme to dupe the bankruptcy court,

the trustee, and the creditor or creditors of the debtor, i.e., the

entire federal system of bankruptcy.                 If we imagine, for example,

some simple fraud with a federal nexus implicating one defrauder’s

attempt    to   defraud    two    individuals        (“multiple         victims”   under

§ 2F1.1(b)(2)(B)) for a targeted amount of $70,000 (the same level

as   the   instant   case    for    purposes         of   §   2F1.1(b)(1)(G)),       our

hypothetical defrauder would be sentenced under precisely the same

offense level as Saacks, whose skulduggery directly affected the

federal bankruptcy system and thus some seventy-five creditors, a

bankruptcy trustee, and a bankruptcy judge.                      In casting about to

see if the Guidelines contain any provision that would distinguish

Saacks’ conduct from our hypothetical simple defrauder we, like the

district    court      before      us,     focus         first    and     foremost    on

§    2F1.1(b)(3)(B),      which    calls       for   a    two-level      increase    for

violation of a judicial or administrative order or process.

       Saacks insists that § 2F1.1(b)(3)(B) cannot have been intended

to add two levels to fraud’s base offense level of six in every

sentencing of every person found guilty of bankruptcy fraud.                         Yet,

he urges, that would be the result of deeming the standing orders

of the bankruptcy court an “order” and the bankruptcy system a

“process” for purposes of the subject subsection of the Guidelines.

The principal thrust of Saacks’ argument comes from his invoking

Application Note 5, which states:

       Subsection (b)(3)(B) provides an adjustment for violation
       of any judicial or administrative order, injunction,
       decree or process. If it is established that an entity
       the defendant controlled was a party to the prior

                                           8
     proceeding and the defendant had knowledge of the prior
     decree, this provision applies even if the defendant was
     not a specifically named party in that prior case. For
     example, a defendant whose business was previously
     enjoined from selling a dangerous product, but who
     nonetheless engaged in fraudulent conduct to sell the
     product, would be subject to this provision.8

Although an Application Note is not entitled to the same weight as

a Guideline, it is considered authoritative.9             Saacks insists that

the plain language of the Application Note makes clear that the

Sentencing Commission intended for this provision to apply in

limited   circumstances     only,    i.e.,   when     a   particular   order,

injunction,    decree,    or   process     existed    previously     and   was

subsequently violated.

     Recognizing that a majority of the circuits are of a different

persuasion, Saacks attempts to distinguish the cases that have held

that bankruptcy fraud warrants an increase under § 2F1.1(b)(3)(B).

Saacks describes as “tautological” the Eight Circuit’s reasoning in

United States v. Lloyd, the first case to address the issue, which

concluded   that   even   though    the   defendant    “did   not   violate   a

specific judicial order, injunction or decree . . . [he] did

violate a judicial process by fraudulently concealing assets from

bankruptcy court officers.”10       In criticizing Lloyd, Saacks notes


     8
            U.S.S.G. § 2F1.1 App. Note 5 (emphasis added).
     9
           United States v. Alexander, 100 F.3d 24, 26 (5th Cir.
1996), cert. denied, 117 S. Ct. 1273 (1997) (“[W]here the
commentary to a guideline section functions to interpret that
section or to explain how it is to be applied, a sentencing court
is bound to consider its implications, unless it is plainly
erroneous or inconsistent with the guidelines.”).
     10
              947 F.2d 339, 340 (8th Cir. 1991).

                                      9
that the court cited neither Application Note 5 nor any other

authority for its position.                Saacks also faults the Eleventh

Circuit’s         decision   in   United   States   v.   Bellew   for   the   same

reasons.11         And, Saacks likewise takes issue with the Seventh

Circuit’s majority opinion in United States v. Michalek.12

     Further castigating the line of cases that apply the subject

enhancement, Saacks insists that this constitutes double-counting.

In support of his contention, he urges us to adopt the reasoning of

the dissent in Michalek, which states:

     The error of the majority is particularly clear in this
     case, where the defendant’s only violation was the core
     violation —— bankruptcy fraud —— upon which his base
     offense was calculated. The defendant did not violate a
     bankruptcy “process” in addition to or while committing
     bankruptcy fraud.    He did not do any act except the
     commission of bankruptcy fraud to trigger application of
     this enhancement.     The district court’s use of this
     enhancement derogated the very structure of the
     Sentencing Guidelines whereby the core crime corresponds
     to the base offense level and the enhancements correspond
     to the particular facts of the crime as it was committed
     by the defendant.13

             11
                    35 F.3d 518, 521 (11th Cir. 1994) (per
curiam)(concluding that the defendant had violated a “judicial
order” by disobeying the “mandate of the Bankruptcy Rules and
Official Forms that a debtor truthfully disclose assets and
liabilities”).
       12
              54 F.3d 325 (7th Cir. 1995) (concluding that the
enhancement is applicable); see also United States v. Mohammad,
53 F.3d 1426 (7th Cir. 1995).
      13
             Michalek, 54 F.3d at 336 (Ferguson, J., dissenting)
(citations omitted).    Saacks contends that the Seventh Circuit
retreated from the majority view in Michalek when it decided United
States v. Gunderson, 55 F.3d 1328 (7th Cir. 1995), in which the
court looked to Application Note 5 and stated: “From [the language
of Application Note 5]. Gunderson concludes that `it appears that
the two-point enhancement at issue here is designed to apply when
a defendant has had a previous warning.’ We agree.” Id. at 1333.
As Gunderson had been given such a previous warning, however, the

                                           10
      Consistent with his position that the Seventh Circuit has

backed off from the position of the majority in Michalek, Saacks

argues that a growing minority of the circuits —— including the

First Circuit14 and the Second Circuit15 —— have retreated from the

automatic enhancement and now take the position that, without more,

§   2F1.1(b)(3)(B)   does   not   automatically   mandate     a    two-level

increase in every bankruptcy fraud sentencing.

      Not   surprisingly,   the   government   urges    us   to    adopt   the

majority view that bankruptcy fraud violates a judicial process,

thereby justifying the two-level increase.             In addition to its

reliance on Lloyd, Michalek, and Bellew, the government undergirds

its position with the recent Tenth Circuit opinion in United States

v. Messner, which adopted the majority view by reasoning that:

      Bankruptcy fraud undermines the whole concept of allowing
      a debtor to obtain protection from creditors, pay debts
      in accord with the debtor’s ability, and thereby obtain
      a fresh start. When a debtor frustrates those objectives
      by concealing the very property which is to be utilized
      to achieve that purpose, the debtor works a fraud on the
      entirety of the proceedings.16

Embracing the Messner logic, the government posits that, as the

Bankruptcy Rules and Official Forms require a debtor to disclose

all assets and liabilities truthfully,17 Saacks violated a judicial


court determined that the increase was applicable.           Id.
     14
            United States v. Shadduck, 112 F.3d 523 (1st Cir. 1997).
       15
              United States v. Carrozzella, 105 F.3d 796 (2d Cir.
1997).
      16
             107 F.3d 1448, 1457 (10th Cir. 1997).
      17
             See, e.g., Bankruptcy Rules 9009 and 9011, 11 U.S.C.A.


                                    11
order or process within the meaning of the subject Guideline by

fraudulently concealing assets and relevant information in the

bankruptcy proceedings.18    Thus, argues the government, it was not

necessary   for   any   particular    prior     order   to   issue   from   the

bankruptcy court and then be violated; the mandated standing rules,

policies and procedures are laid out for all filers and thus exist

prior to the filing of petitions.19

     Disagreeing    with    Saacks,       the   government     insists      that

increasing the offense level for those convicted of bankruptcy

fraud will not result in double-counting:           As § 2F1.1 is a broad

guideline covering a variety of crimes besides fraud, including

deceit and forgery, adjustment of an offender’s sentence based on

the specific characteristic of his offense, such as the bankruptcy

element of bankruptcy fraud, is appropriate.20                The government

further bolsters its position in support of the sentencing court’s

two-level increase for Saacks by noting that, even if we were to

find that bankruptcy does not constitute a judicial process, it

must be an administrative process, to which § 2F1.1(b)(3)(B)

applies with equal force.

     18
            See, e.g., Bellew, 35 F.3d at 521.
    19
           See id.; see also United States v. Welch, 103 F.3d 906,
907-08 (9th Cir. 1996).
      20
             See Michalek, 54 F.3d at 331. This is the point at
which we, like the Michalek majority, diverge from Judge Ferguson’s
dissent in that case.    He insists that bankruptcy fraud is the
“core violation.”    Even if this is true for the conviction, we
cannot see it that way for purposes of sentencing.       Within the
Guidelines, the “core violation” is fraud, plain and simple;
bankruptcy fraud is a specialized, considerably more egregious type
of fraud.

                                     12
     On this matter of first impression in this circuit, the margin

of the majority of the other circuits is admittedly less than

overwhelming.   And Saacks is far from frivolous in urging that we

cast our lot with the significant minority position which rejects

adding two levels to the base offense level for fraud every time it

is used in the sentencing calculus for bankruptcy fraud.              Perhaps

his most compelling argument is the triple reference in Application

Note 5 to “prior” proceedings, decrees, and cases. We nevertheless

remain unconvinced and therefore elect to join the majority which

recognizes bankruptcy fraud as implicating the violation of a

judicial   or   administrative         order   or    process    within    the

contemplation of § 2F1.1(b)(3)(B).          We find sound the reasoning of

those circuits constituting the majority position, which emphasizes

the fact that, even when the fraudulent debtor takes the very first

act by filing his petition in bankruptcy, he is acting subsequently

to the previously adopted and promulgated standing orders and

standard   forms,   all   of   which    command     complete   and   truthful

disclosure.

                                   III

                                CONCLUSION

     Irrespective of the standard of review under which we analyze

Saacks’ challenges to the district court’s factual bases and legal

application of the Guidelines, we are convinced that no reversible

error infected that court’s determination of the sentence it

imposed on Saacks: The loss he intended to inflict on the creditors

of Jimmy C’s exceeded $70,000; the intended victims were multiple;


                                       13
and his fraud on those creditors, the bankruptcy trustee, the

bankruptcy     court,   and   thus   the   entire   bankruptcy   regime,

constituted a violation of judicial or administrative orders or

process.     For the foregoing reasons, Saacks’ sentence is, in all

respects,

AFFIRMED.




                                     14
