                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 15 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 02-6372
v.                                            (Western District of Oklahoma)
                                                 (D.C. No. 02-CR-27-R)
MICHELE RENEE BERRY,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      After examining the briefs and appellate record, this court 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). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
I.    Introduction

      After a jury trial, appellant Michelle Renee Berry was found guilty of six

counts of wire fraud, in violation of 18 U.S.C. §§ 2(b) and 1343. A Presentence

Investigation Report (“PSR”) was prepared and Berry filed written objections.

The district court considered Berry’s objections, sustaining one but overruling

the others. The court sentenced Berry to twenty-four months’ incarceration on

each count to be served concurrently. The court also ordered Berry to pay

restitution in the total amount of $188,225.15. In this appeal, Berry does not

challenge her convictions but appeals the sentence imposed by the district court.

Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a), this court   affirms .

II.   Background

      In August 1997, Berry became a sales person for an Oklahoma corporation

known as Radios Unlimited, Inc. (“Radios Unlimited”). Radios Unlimited was

under contract to sell cellular telephones for Nextel, Inc. (“Nextel”). During the

course of her employment with Radios Unlimited, Berry created subscriber

agreements using fictitious corporate names and addresses in order to obtain a

supply of pre-approved cellular telephones. These records were transmitted to

Nextel via interstate communication devices. Nextel thereafter activated the

cellular telephones and mailed them to Berry.




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      At trial, the government presented evidence that Berry established fifteen

fraudulent accounts and received approximately 300 cellular telephones. Berry

sold the telephones to individuals and directed the purchasers to mail their

payments for monthly service directly to her post office box address. Berry

deposited the air time payments into her personal bank account; she forwarded

only $1500 to Nextel.

      Berry was convicted of six counts of wire fraud, in violation of 18 U.S.C.

§§ 2(b) and 1343. Applying U.S.S.G. § 2F1.1 (1997), the PSR calculated Berry’s

base offense level at six and recommended a seven-level increase in the base

offense level because the loss resulting from the fraud exceeded $120,000.00.

U.S.S.G. § 2F1.1(b)(1)(H) (1997). At sentencing, the district court overruled

Berry’s objection to the seven-level increase. Berry’s total offense level was set

at seventeen and her criminal history category at I. She was sentenced to twenty-

four months’ incarceration on each count, to be served concurrently.

      Berry then brought this appeal. She does not challenge her convictions but

asserts that the district court erred in overruling her objection to the calculation

of the amount of the loss.




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III.   Discussion

       A.    Standard of Review

       This court reviews “the district court’s determination of a U.S.S.G. § 2F1.1

loss [] for clear error, but the factors which the district court may consider in

determining the loss are reviewed de novo.”      United States v. Keifer , 198 F.3d

798, 800 (10th Cir. 1999). Because Berry objected to the calculation of the loss

amount in the PSR, the government was required to prove the facts underlying

the calculation by a preponderance of the evidence at the sentencing hearing.         Id.

       B.    Amount of Loss

       The 1997 edition of the Guidelines Manual was used to calculate Berry’s

sentence. Pursuant to § 2F1.1, her offense level was affected by the value of the

loss caused by her criminal conduct. Loss was defined as “the value of the

money, property, or services unlawfully taken.” U.S.S.G. § 2F1.1, cmt. n.7

(1997) (cross-referencing U.S.S.G. § 2B1.1 for a more detailed definition of

loss). “Ordinarily, when property is taken or destroyed the loss is the fair market

value of the particular property at issue.” U.S.S.G. § 2B1.1, cmt. n.2 (1997).

       At the sentencing hearing, FBI Special Agent Tim Akins testified for the

government. Agent Akins stated that he provided Nextel with the fifteen




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fraudulent account numbers.   1
                                  In response, Nextel sent Akins “adjustment

sheets” for all fifteen accounts and invoices for some of the accounts. From this

information, Akins was able to determine the amount of bad-debt loss Nextel

wrote off for each account and the amount of any payments Nextel received on

the accounts after the loss was written off.

      Akins summarized the information he received from Nextel on two charts

which were introduced at the sentencing hearing. The first chart listed each

account number, account name, number of telephones, amount of the bad debt

written off by Nextel, date the debt was written off, and adjustments to the

amount written off. The second chart compared the invoice balances and write-

off dates with the adjustment sheet balances and write-off dates. Akins testified

that based on his review of the records provided by Nextel, the actual loss

sustained by Nextel as a result of Berry’s fraudulent acts was $174,181.42.

Akins was the only witness at the sentencing hearing who testified about amount

of loss.

      Berry raises three challenges to the government’s evidence of loss. She

first argues that the information Akins received from Nextel and upon which he



      1
        Berry’s argument on appeal is confined to the amount of Nextel’s loss.
She does not argue that the government failed to prove by a preponderance of the
evidence the amount of loss suffered by Radios Unlimited or the five individuals
identified in the judgment.

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based his loss calculation was unreliable for several reasons: (1) it did not

include any explanation of how Nextel arrived at its loss; (2) it did not indicate

whether billed minutes were included in any promotional price; (3) it did not

indicate how many minutes were included in the promotional price; (4) it did not

indicate when the promotion offer ended; (5) it was not derived from a full set of

invoices; (6) it did not indicate whether Nextel’s write-off minimized its losses;

(7) it did not indicate whether Nextel was intentionally keeping the fraudulent

accounts active in order to increase its losses and the amount it could recover in

restitution; (8) it did not indicate how many accounts Nextel received payments

on or how much money Nextel received; and (9) it did not indicate who made

payments on the accounts. We are not convinced by any of Berry’s arguments.

      Akins testified that Nextel arrived at its loss by determining the amount it

wrote off as an uncollected bad debt for each of the fraudulent accounts. The

issues raised by Berry relating to the promotional period for each telephone are

irrelevant. Nextel determined the amount of its loss by reference to the amounts

billed for service but uncollected. Akins testified that Nextel had purged the

complete set of invoices for the fraudulent accounts. Nextel, however, combined

the uncollected amounts from those individual invoices into a single amount from

which it determined the total bad debt. As to Berry’s arguments that Nextel’s

write-off may have decreased its loss and that Nextel may have intentionally kept


                                         -6-
the fraudulent accounts active, Berry has not substantiated these bald allegations.

Finally, the government    did present evidence at the sentencing hearing that

payments were received on some of the fraudulent accounts. These payments

were deducted from Nextel’s loss. The identity of the person making the

payment is irrelevant.

       This court has previously held that a sentencing court may consider hearsay

evidence to determine loss if that evidence bears indicia of reliability.   United

States v. Moore , 55 F.3d 1500, 1501 (10th Cir. 1995). Akins testified that he

received information directly from Nextel in response to his inquiry. The district

court was entitled to rely on the accounting information supplied to Akins by

Nextel particularly when, as in this case, there is simply nothing in the record

indicating that this information was fabricated or falsified. The alleged

deficiencies asserted by Berry are either wholly unfounded or have no bearing on

the reliability of the information provided to Akins by Nextel.

       Berry next contends, for some of the same reasons she advances above,

that the government did not have adequate information from which it could

ascertain a correct loss amount. Its calculation and the district court’s finding,

she therefore contends, are erroneous. Specifically, she reasserts her arguments

that Akins did not know whether payments were being made on specific

accounts, the specific terms of any promotional period, how many minutes were


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used by each telephone, or why certain accounts were not closed until several

months after the fraud was discovered. As we stated,    supra , Akins testified

regarding payments made on several of the fraudulent accounts. Nextel provided

Akins with the total amount billed to each account for monthly service but not

collected. Berry does not argue that Nextel did not make air time available for

each telephone on a monthly basis. She therefore, fails to explain how the terms

of any promotion period or the number of minutes used by each telephone are

relevant to the amount of Nextel’s loss.   See U.S.S.G. § 2B1.1, cmt. n.2 (1997)

(“[W]hen property is taken or destroyed the loss is the fair market value of the

particular property at issue.”). Berry has also failed to substantiate her assertion

that Nextel benefitted from keeping the fraudulent accounts open until Berry’s

sentencing because the failure to terminate service to the telephones resulted in

an increased restitution award. Akins testified that the nature of Berry’s

fraudulent scheme made it difficult for Nextel to determine which accounts were

fraudulent and how many telephones were associated with the fraudulent

accounts.

       Finally, Berry summarily argues that the government did not prove the

amount of the loss by a preponderance of the evidence. Because we find Berry’s

more specific arguments to be meritless, this argument also fails.




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IV.   Conclusion

      “For the purposes of [§ 2F1.1(b)(1)], the loss need not be determined with

precision. The court need only make a reasonable estimate of the loss, given the

available information.” U.S.S.G. § 2F1.1, cmt. n.8 (1997). This court concludes

that the factual findings relating to amount of loss made by the district court at

Berry’s sentencing hearing are supported by reliable information in the record

and are not clearly erroneous. Accordingly, the sentence imposed by the district

court is hereby affirmed .

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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