                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2005

USA v. Gretzinger
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2793




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Recommended Citation
"USA v. Gretzinger" (2005). 2005 Decisions. Paper 1303.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1303


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                           NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEAL
       FOR THE THIRD CIRCUIT


                 No. 04-2793


      UNITED STATES OF AMERICA,

                      v.

           HARRY GRETZINGER;
            DARLENE BAKKALI

              Harry Gretzinger,

                           Appellant


On Appeal from the United States District Court
    for the Middle District of Pennsylvania
       (D.C. Criminal No. 98-cr-00324)
    District Judge: Hon. William J. Nealon


                 No. 04-2833


      UNITED STATES OF AMERICA,

                      v.

           HARRY GRETZINGER,

                           Appellant


On Appeal from the United States District Court
    for the Middle District of Pennsylvania
       (D.C. Criminal No. 02-cr-00204)
                         District Judge: Hon. A. Richard Caputo


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 5, 2005

               BEFORE: BARRY, AMBRO and COWEN, Circuit Judges

                                 (Filed: April 28, 2005)


                                        OPINION


COWEN, Circuit Judge.

       Harry Gretzinger appeals the District Court’s order (Case No. 04-2793) accepting

his plea of guilty to a bank fraud charge and imposing a sentence of thirty-months

imprisonment. He also appeals the District Court’s order (Case No. # 04-2833) imposing

a sentence of thirty-three months after the Court revoked his supervised release on a

previous conviction and directing it to run consecutive to the thirty-month sentence

imposed for the bank fraud that formed the basis for the revocation. He argues that the

District Court committed the following errors: (1) accepting his involuntary and

unintelligent plea where the Government’s factual basis was insufficient to support each

element of the crime of bank fraud, (2) making his sentence for a supervised release

violation consecutive with the offense giving rise to the violation and (3) imposing

enhancements to his sentence.

       The District Court had jurisdiction under 18 U.S.C. § 3231 and we have



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jurisdiction pursuant to 28 U.S.C. § 1291. As we write solely for the parties, we only

provide a brief recitation of the facts.

       Gretzinger pled guilty to willfully and knowingly defrauding a trust company when

Darlene Bakkali Linares, his domestic partner, deposited two credit card cash advances

drawn on the account of an individual who did not authorize the use of the card. He was

sentenced to a term of thirty months imprisonment, and supervised release for a period of

five years. Because Gretzinger was on supervised release at the time he committed the

crime, he had a violation hearing before the judge who had originally sentenced him.

Finding that Gretzinger’s violation of his supervised release was significant and similar to

the original crime, the District Court sentenced him to a term of thirty-three months to run

consecutive to his sentence for the bank fraud.

       We review the District Court's finding of a factual basis for a plea for abuse of

discretion. United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir. 2000).1 Gretzinger

challenges the validity of his plea, arguing that it was involuntary and unintelligent. He

contends that the Government failed to set forth sufficient facts to satisfy the false

representation element required for a conviction under § 1344: “The proffer did not

include any description of any false statement made to the bank and that the check itself

cannot be a false representation.” (Appellant’s Br. at 7.)



   1
    The Government contends that Gretzinger’s failure to raise this issue before the
District Court necessitates plain error review. We need not decide this issue, which is
subject to some disagreement in the courts, in light of our disposition.

                                              3
       The federal bank statute makes it a crime to “knowingly . . . execute, or attempt to

execute, a scheme or artifice—(1) to defraud a financial institution; or (2) to obtain any of

the moneys, funds, credits, assets, securities, or other property owned by, or under the

custody or control of, a financial institution, by means of false or fraudulent pretenses,

representations, or promises.” United States v. Khorozian, 333 F.3d 498, 503 (3d Cir.

2003) (explaining that the test must be read conjunctively).

       The record establishes that during the plea colloquy the Court set forth each

element of the offense. Further, the Government proffered that Gretzinger, directly or

indirectly, made unauthorized use of the identity of Ronald Katner to attempt to gain

access to Katner’s bank accounts. This was done by presenting fraudulent and false

credit card checks drawn on these accounts. The Government specifically stated that

Katner “did not know and never authorized use of his credit card account for cash

advance checks.” (App. at 32.)

       Based on this proffer, the District Court did not abuse its discretion by finding that

the Government set forth a sufficient factual basis to support the “false or fraudulent

pretenses, representations, or promises” element of the crime. Accordingly, we will

affirm the District Court’s conclusion and uphold the conviction.

       Gretzinger also challenges his sentence under United States v. Booker, 543 U.S.

___, 125 S. Ct. 738 (2005). In light of the determination of the judges in this Court that

the sentencing issues raised are best determined by the District Court in the first instance,



                                              4
we vacate the sentences and remand for resentencing in accordance with Booker. The

District Court should consider the sentences imposed for the bank fraud in Case No. 04-

2793 and for violation of supervised release in Case No. 04-2833. The Court should also

consider whether the sentences should be consecutive or concurrent. We express no

opinion as to what the sentences should be, or whether they should run consecutively or

concurrently.

      For the foregoing reasons, the judgments of the District Court entered on June 23,

2004, and June 28, 2004, will be affirmed as to the convictions. The sentences will be

vacated and the matters remanded to the District Court for resentencing in accordance

with Booker.




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