                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4579



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LISA WILSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph Robert Goodwin,
District Judge. (6:05-cr-00254-ALL)


Submitted:   September 29, 2006           Decided:   October 27, 2006


Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Joanne Vella Kirby, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Lisa Wilson pled guilty to embezzlement of bank funds by

a bank employee.      On appeal, she challenges the district court’s

loss calculation under the Sentencing Guidelines. She also asserts

that her sentence was unreasonably harsh.                We vacate the loss

determination and remand for further proceedings.

            Wilson was employed by Branch Banking and Trust (“BB&T”)

as a relationship banker who assisted customers with Certificate of

Deposit (“CD”) accounts. After two customers complained that money

had been removed from their CD accounts without permission, BB&T

conducted an investigation which showed that Wilson had conducted

twenty-eight improper transactions with customers’ CD accounts,

involving a total of $58,760.39.          Of that amount, $40,560.39 came

from withdrawals, while $18,200 constituted deposits into customer

accounts.     The amount of money Wilson actually removed from the

accounts for her personal use was $22,360.59.             Wilson stated that,

after   embezzling     that   amount     of   money,   she    made    fraudulent

transfers from one CD account to another in order to “fix” the

problem.

            At    sentencing,   Wilson    argued   for    a   loss    amount    of

$22,360.59,      representing   the    amount   removed      from    BB&T.     The

district court overruled the objection, stating that “the money was

used to perpetrate the fraud.          It was part of the money that was

put at risk . . . I think we ought to measure this by the entire


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sum of money that was misappropriated, regardless of whether some

of it was placed in another depositor’s account in an attempt to

cover    it    up.”      Thus,    the     court    calculated    the    loss   to   be

$40,560.39, representing all of the withdrawals, including the

withdrawals that were transferred into other customers’ accounts.

The court imposed a sentence of eight months.1                         Wilson timely

appeals.

              Because there are no factual disputes in this case, we

review the district court’s interpretation of the term “loss” de

novo.    See United States v. Hughes, 401 F.3d 540, 557 (4th Cir.

2005).        “Loss” is defined as “the greater of actual loss or

intended      loss.”      USSG    §   2B1.1,      cmt.    (n.3(A)).      Defendants’

sentences should reflect “the nature and magnitude of the loss

caused or intended . . . [L]oss serves as a measure of the

seriousness         of   the     offense    and     the     defendant’s     relative

culpability.”         USSG § 2B1.1, cmt. (backg’d).

              The     district    court    correctly      determined    that   Wilson

should be responsible for all funds she “put at risk.”                    See United

States v. Johnson, 993 F.2d 1358, 1359 (8th Cir. 1993); United

States v. Brach, 942 F.2d 141, 143 (2d Cir. 1991).                          However,

contrary to the district court’s conclusions, the funds transferred



     1
      The district court sentenced Wilson at the low end of the
guideline range. Had the court adopted Wilson’s argument regarding
the loss amount, the guideline range would have been four to ten
months imprisonment.

                                          - 3 -
from one account to another were never “at risk.”              There is no

evidence that any of Wilson’s deposits gave a customer access to

more money than had been in their accounts originally.             Thus, even

if   every   customer   who    had   benefitted   from   Wilson’s   deposits

withdrew all the funds in their accounts, BB&T would still have

only suffered a loss of $22,360.59.2         Because Wilson never removed

more than $22,360.59 from BB&T and because she never intended to

remove    more   than   that   amount,3   the   district   court    erred   in

determining that she placed over $40,000 “at risk.”           See Johnson,

993 F.2d at 1359 (holding that “misapplied funds” which were never

removed from the credit union were never “at risk” and should have

been excluded from loss calculation).4


      2
      Wilson essentially removed $22,360.59 from CD accounts for
her own use. She then moved $18,200 from other accounts into the
pilfered accounts. Thus, the only loss to BB&T was $22,360.59.
The remaining withdrawals and deposits merely changed the accounts
from which this money was missing, not the amount missing.
      3
      The Government argues that, even if Wilson did not remove
$40,560.39 from BB&T, she intended to do so. There is no evidence
to support this conclusion.         The PSR states that, after
fraudulently obtaining funds that she used for personal expenses,
Wilson “realized she had to ‘fix’ the situation and began making
other fraudulent withdrawals from other customer accounts to
replace that which she had taken.” In addition, she voluntarily
left her employment with BB&T prior to her crimes being discovered,
so there was no intent to inflict any future harm. The Government
presented no evidence at the sentencing hearing to contradict these
conclusions.
      4
      The Government argues that Johnson is no longer good law in
light of United States v. Hulshof, 23 F.3d 1470 (8th Cir. 1994).
However, in Hulshof, the funds that were misapplied were actually
put at risk. The defendant “improperly indebted the line of credit
of a bank customer . . . and improperly credited that amount to the

                                     - 4 -
              Accordingly, we vacate Wilson’s sentence and remand for

further proceedings consistent with this opinion.               We decline to

address her second argument concerning the reasonableness of her

sentence at this time.       We dispense with oral argument because the

facts   and    legal   contentions   are     adequately   presented    in   the

materials     before   the   court   and     argument   would   not   aid   the

decisional process.



                                                        VACATED AND REMANDED




loan accounts of two other bank customers.”    Although the bank
suffered no actual loss in the end, that was only “because of the
recovery of the farm economy in 1998, which enabled the defendant
to reverse the entries which he had previously made.”      Id. at
1471-73.

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