                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 3 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-6318
                                                    (D.C. No. 99-CR-56-C)
    DESHAUN LAMONT LAWS,                                 (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and ANDERSON, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument is not necessary. See Fed. R. App. P. 34(f); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted on the briefs.

         On April 7, 1999, defendant Deshaun Lamont Laws pleaded guilty to one

count of knowingly defrauding a financial institution in violation of 18 U.S.C.

§ 1344. He received a sentence of thirty-seven months’ imprisonment and three


*
      This order and judgment is not binding precedent, except under the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.
years’ supervised release. He was also ordered to pay restitution in the amount of

$15,964.96. In this appeal, he challenges the district court’s loss calculation

under USSG § 2F1.1(b)(1)(G) and its failure to afford him a downward departure

under § 3B1.2. We affirm.

      Between February 3 and 5, 1998, Mr. Laws and three additional

accomplices passed a total of sixty-two counterfeit checks at NationsBank branch

locations throughout the Oklahoma City area. Each member of the group was

given an alias, as well as a fictitious employee identification card, from Mr.

Kenyatta Lyles, the leader of the operation. The checks, all written on a

legitimate commercial business account, were identical.

      Operating in pairs, the participants moved to each location representing

themselves as employees cashing payroll checks. With the exception of Mr.

Laws, they also opened personal accounts using the aliases which Mr. Lyles

provided. False deposits totaling approximately $28,000.00 were submitted to

those accounts. Personally, Mr. Laws cashed sixteen checks totaling $15,964.96.

In combination, the other three participants cashed checks totaling $62,292.59.

      First we will turn to the district court’s loss calculation. Mr. Laws

maintains the loss figure for his criminal activity should be based only on the

amount of money he withdrew personally. In essence, his challenge is two-fold.

First, he argues he should not be held accountable for the criminal conduct of the


                                         -2-
                                          2
other participants. In addition, he maintains it was error to use an intended loss

figure which incorporated the fictitious deposits. In this regard, we review the

district court’s application of the guideline de novo, but review its underlying

factual findings for clear error. See United States Schluneger, 184 F.3d 1154,

1159 (10th Cir. 1999), cert. denied, 120 S.Ct. 800 (2000).

      We agree with the trial court that Mr. Laws can be held accountable for the

culpable conduct of the other participants. See USSG § 1B1.3(a)(1)(B) (noting a

defendant may be held responsible for “all reasonably foreseeable acts” taken in

furtherance of joint criminal activity). The members of this group stayed at the

same hotel and executed this scheme together at the various branch locations.

They cashed the counterfeit checks in tandem and, quite clearly, were well aware

of what each member was doing. The loss calculation is, therefore, properly

defined as the loss occasioned by the entire enterprise.

      Moreover, in defining that loss, the district court may use either the actual

or intended figure, whichever is the greater amount. See USSG § 2F1.1(b)(1),

comment (n.7); see also United States v. Smith, 951 F.2d 1164, 1166 (10th Cir.

1991) (noting that “where actual loss is less than the loss the defendant intended

to inflict, intended or probable loss may be considered”). Here, the court

combined the false deposits with the cash withdrawals to come to an intended loss




                                         -3-
                                          3
figure of $106,296.59. That finding directed an increase of six to the base

offense level under § 2F1.1(b)(1).

      The district court found that opening the fictional personal accounts

furthered the conspiracy and was part of the participants’ plan to avoid detection

for as long as possible. The court noted that the success of this plan hinged, in

large part, on the participants’ ability to move in and out of the area quickly

without detection. Withdrawing cash from a legitimate business account, and

opening seemingly legitimate personal accounts at the same time, furthered that

goal. Consequently, using an intended loss figure which incorporated the

fictitious deposits was not in error. We hold the loss calculation was proper. 1

      Mr. Laws also maintains the district court erred in denying him a downward

departure under USSG § 3B1.2. Under that section, the court may decrease the

offense level based on the extent of the defendant’s participation in the criminal

enterprise. The section allows a four level decrease for minimal participation and

a two level decrease for minor participation. Mr. Laws urges that if he is held

responsible for the intended losses of the entire group, then he should likewise be

entitled to a decrease under this section because he was not as culpable as the

other participants.


1
       Moreover, we note, as did the district court, that even if only the total
withdrawals of the four individuals are used to calculate loss, the increase to the
base offense level is the same. See USSG § 2F1.1(b)(1)(G).

                                          -4-
                                           4
      Our review of this issue requires analysis of whether the trial court properly

applied the Sentencing Guidelines to the factual findings. See United States v.

Caruth, 930 F.2d 811, 812 (10th Cir. 1990). “‘A finding that a defendant is or is

not a minimal participant is itself a finding of fact, not a legal conclusion.’” Id. at

812 (10th Cir. 1991) (quoting United States v. Calderon-Porras, 911 F.2d 421,

422 (10th Cir. 1990)) (additional citations omitted). As a consequence, we will

accept the district court’s findings unless they are clearly erroneous. Caruth, 930

F.2d at 812.

      Essentially, Mr. Laws maintains that because he did not know or appreciate

the true national scope of Mr. Lyles’ counterfeiting scheme, he is eligible for a

reduction. The district court rejected this argument, noting that he cashed sixteen

checks in two days as part of what he clearly knew was a wider plan to defraud

NationsBank in Oklahoma City. The court noted Mr. Laws’ participation was

consistent with the other individuals executing Mr. Lyles’ scheme.

      Upon reviewing the record, we agree. “[B]eing comparatively less culpable

than the other [co-conspirators] and obtaining minimal participant status are not

necessarily synonymous.” Id. at 815. While there is no question Mr. Lyles was

the leader of this operation, Mr. Laws’ participation was equal to the other

members of the group. The record provides that he participated fully in the plan

and was not less culpable than the other individuals.


                                           -5-
                                            5
     Accordingly, the judgment of the United States District Court for the

Western District of Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




                                       -6-
