                                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                                        Pursuant to Sixth Circuit Rule 206
                                                 File Name: 04a0375p.06

                          UNITED STATES COURTS OF APPEALS
                                            FOR THE SIXTH CIRCUIT
                                              _________________


                                                        X
                                   Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                         -
                                                         -
                                                         -
                                                             No. 04-5018
          v.
                                                         ,
                                                          >
 JAMES RONNIE ROTHWELL,                                  -
                                Defendant-Appellant. -
                                                        N
                         Appeal from the United States District Court
                    for the Eastern District of Tennessee at Chattanooga.
                      No. 03-00125—Curtis L. Collier, District Judge.
                                                Argued: June 8, 2004
                                      Decided and Filed: October 29, 2004
                 Before: MARTIN and SUTTON, Circuit Judges; QUIST, District Judge.*
                                                 _________________
                                                      COUNSEL
ARGUED: William T. Alt, Chattanooga, Tennessee, for Appellant. Gary Humble, UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee. ON BRIEF: William T. Alt, Chattanooga,
Tennessee, for Appellant. Gary Humble, Harry S. Mattice, Jr., UNITED STATES ATTORNEYS,
Chattanooga, Tennessee, for Appellee.
                                                 _________________
                                                     OPINION
                                                 _________________
        QUIST, District Judge. This appeal raises a question of interpretation of the United States
Sentencing Guidelines. The issue is whether the district court erred in determining the amount of loss
attributable to the defendant, James Ronnie Rothwell ("Rothwell"), a contractor with a Small Business
Administration disaster relief loan, who filed a false request for progress payments (“Borrower’s Progress
Certification”) in the amount of $103,370. Rothwell later ostensibly expended in excess of the fraudulently
obtained funds to complete the construction project. For the reasons set forth below, we reverse the decision
of the district court.




   *
    The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by designation.


                                                             1
No. 04-5018                United States v. Rothwell                                                                Page 2


                                                         I. Facts
        In November 1996, Rothwell, a general contractor by occupation, purchased two adjacent properties
in Chattanooga, Tennessee. One of the properties, located at 2312 28th Street, had a building on it which
was destroyed by a storm in March 1997. Rothwell applied for, and was granted, a disaster relief loan from
the SBA to replace the 2312 28th Street property. The SBA determined the replacement value of the
building to be $470,021. Costs of debris removal and working capital totaled $107,533. The SBA approved
a loan in the total amount of $577,600, to be used only on the 2312 28th Street property. The SBA later
approved an increase in the loan amount to a total of $784,600.
        As is typical with construction loans, advances of the loan proceeds were made during the course
of the construction of the building at 2312 28th Street. The applications for progress payments were
supported by invoices and payroll records and by the signature of Rothwell certifying that the submitted
documents reflected expenses actually incurred in the effort to reconstruct the damaged property. At the
time the building at 2312 28th Street was being reconstructed, Rothwell began to erect an identical building
on the site adjacent to 2312 28th Street.
        The parties agree that on at least two occasions, Rothwell submitted at least four invoices that did
not represent costs incurred on the 2312 28th Street     property. The SBA advanced about $103,370 in
reliance upon the false invoices and certification.1 In all likelihood, at least a portion of the money
advanced in reliance upon the false certification was used to build the property adjacent to 2312 28th Street.
        The SBA disbursed a total of $670,148 on the 2312 28th Street property loan, and Rothwell claims
that he spent a total of $742,118.59 (inclusive of the SBA loan) on the building. Thus, in spite of the false
certification and invoices, Rothwell claims that he ultimately replaced the funds that he fraudulently
obtained from the SBA and that such funds were used in the construction of the building, as envisioned
under the terms of the SBA loan agreement, because his total expenses exceeded the loan amount by
$71,971. Rothwell made 23 monthly installment payments on the loan, but he defaulted on the loan when
he was unable to find tenants for the 2buildings. The SBA foreclosed on the property and, on October 5,
2001, sold the property for $125,000. Therefore, the SBA’s loss on the project was about $545,000.
        Rothwell was indicted for three counts of mail fraud and one count of false statement in connection
with the SBA loan. Rothwell pled guilty to Count 4 for having made a false, fictitious, and fraudulent
material statement and representation in violation of 18 U.S.C. § 1001. The charge and the conviction
related solely to the false Borrower’s Progress Certification by which Rothwell obtained the $103,370.
        The Presentence Investigation Report stated that the amount of the loss to be determined under
U.S.S.G. § 2B1.1(b) should be $103,370, the amount the SBA paid in reliance upon Rothwell's false
certification and invoices. Rothwell objected, arguing that the SBA’s loss on the project was not $103,370
because the money that he obtained by false statements had actually been spent on the project prior to the
Government's discovery of the fraud. Therefore, Rothwell concluded, the intended loss under the applicable
Guideline was zero. The Government advocated that the actual loss be set at the amount paid by the SBA
in reliance upon the false certification and invoices - $103,370.
        The district court first determined to look at actual loss rather than intended loss. But the district
court did not simply determine the amount of the loss based upon the amount paid on the false certification
during the course of the project. Rather, the district court accepted Rothwell’s counsel’s word that the

    1
      The indictment and plea agreement both indicate that Rothwell submitted one false Borrower's Progress Certification. It
is not clear from the record whether there were other certifications that covered the fraudulently advanced funds.
    2
    The SBA bid the property in at $250,000 at foreclosure and ultimately resold the property for $125,000. The SBA credited
Rothwell $250,000 on the loan.
No. 04-5018             United States v. Rothwell                                                      Page 3


taxpayers actually lost $500,000 on the project and then concluded, “I do think that it is fair to attribute to
him some percentage of that actual loss. And I think that roughly 20 to 25 percent of that would be fair.”
That brought the district court to a loss of about $103,000, but by a different route than advocated by the
Presentence Investigation Report.
       Using the 2002 version of the Sentencing Guidelines, the district court then determined Rothwell's
Guideline Offense Level to be 6 pursuant to U.S.S.G. § 2B1.1(a), with another 8 points added pursuant to
U.S.S.G. § 2B1.1(b)(1)(E), which requires an 8 point enhancement if the loss sustained by the victim is
more than $70,000 but less than $120,000. After deducting two points for acceptance of responsibility
under U.S.S.G. § 3E1.1, the district court sentenced Rothwell to five months imprisonment, plus two years
of supervised release with five months home detention. The district court also ordered restitution in the
amount of $103,370.
         Rothwell filed a timely appeal contesting only the district court’s determination of the amount of
loss attributable to his having filed the false certification and invoices to obtain the progress payments.
                                               II. Discussion
        Rothwell’s argument on appeal is essentially the same as he presented to the district court: that the
false certification made to the SBA “can only be seen to have caused a portion of the total loan to be
advanced prematurely. As to those funds, he replaced them voluntarily.” (Appellant's Br. at 7.) Rothwell
further asserts that there was "no basis to causally connect [his] offense with the fact that there was an
eventual default on the loan.” (Id. at 11.) Therefore, he argues, there is no loss. And, if there is no loss,
then he was wrongfully assessed the eight offense level points pursuant to U.S.S.G. § 2B1.1(b)(1)E).
        Under the Sentencing Guidelines, the district court is to determine the amount of loss by a
preponderance of the evidence, and the district court’s findings are not to be overturned unless they are
clearly erroneous. United States v. Guthrie, 144 F.3d 1006, 1011 (6th Cir. 1998). However, "whether those
facts as determined by the district court warrant the application of a particular guideline provision is purely
a legal question and is reviewed de novo by this court." United States v. Garner, 940 F.2d 172, 174 (6th
Cir. 1991).
        U.S.S.G. § 2B1.1 is the Guideline to be used in determining Rothwell’s sentence. This Guideline,
as is pointed out earlier in this Opinion, adds levels depending upon the amount of loss caused by a
defendant’s fraud. U.S.S.G. § 2B1.1(b)(1). Application Note 2 to § 2B1.1 provides guidance for the
determination of loss. The application note states that "loss is the greater of actual loss or intended loss."
U.S.S.G. § 3B1.1, cmt. (n.2) (2002). "Actual Loss" is "the reasonably foreseeable pecuniary harm that
resulted from the offense," and "Intended Loss" is "the pecuniary harm that was intended to result from the
offense . . . includ[ing] intended pecuniary harm that would have been impossible or unlikely to occur."
U.S.S.G. § 3B1.1, cmt. (n.2(A)(i) and (ii)). In situations where the losses occasioned by financial frauds
are not easy to quantify, the district court need only make a reasonable estimate of the loss, given the
available information. U.S.S.G. § 3B1.1, cmt. (n.2(C)). Such estimates "need not be determined with
precision." United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).
         As noted above, the district court determined the loss in this case by taking the $500,000 loss which
the SBA realized on the foreclosure of the property and assigning a percentage of that loss as representing
the portion of the actual loss caused by Rothwell's false statement to the SBA. The $103,370 which the
district court determined to be the portion of the actual loss attributable to Rothwell was about equal to the
intended loss identified in the Presentence Investigation Report. The district court's actual loss analysis was
faulty, however, because it ignored the causation requirement inherent in the rules for determining loss. See
United States v. Hicks, 217 F.3d 1038, 1048 (9th Cir. 2000) ("Like the other courts to consider this
provision, we believe that the term 'resulted from' establishes a causation requirement."); United States v.
Marlatt, 24 F.3d 1005, 1007 (7th Cir. 1994) (applying a causation analysis to the determination of loss
No. 04-5018                 United States v. Rothwell                                                                     Page 4


caused by the defendant's failure to disclose that the titles to condominiums were heavily encumbered by
liens). This court has also recognized that the Sentencing Guidelines import the legal concept of a causal
relationship between the defendant's conduct and the determined loss. United States v. Chary, Nos. 97-
6394, 97-6395, 1999 WL 236189 (6th Cir. Apr. 14, 1999), applied Tennessee law to determine whether the
defendant's actions caused the loss:
         The proximate cause of an injury generally is that act or omission which immediately causes
         or fails to prevent the injury or an act or omission occurring or concurring with another
         which, but for that act or omission, the injury would not have occurred. And the proximate
         cause is not necessarily that which is next or last in time or place, but which is a procuring,
         efficient, and predominant cause; the term means closeness in causal relation.
Id. at *3 (quoting Solomon v. Hall, 767 S.W.2d 158, 161 (Tenn. App. 1988) (citing Tri-State Transit Co.
v. Duffey, 173 S.W.2d 706, 712 (Tenn. App. 1940)). Causation includes two distinct principles, cause in
fact, or what is commonly known as "but for" causation, and legal causation. Fedorczyk v. Caribbean
Cruise Lines, Ltd., 82 F.3d 69, 73 (3d Cir. 1996). While the former is always a necessary condition of
causation which often is easily satisfied, the ultimate question is whether the cause in fact is legally
sufficient "to warrant imposing liability upon the actor." Farwell v. Un, 902 F.2d 282, 290 (4th Cir. 1990).
See also Marlatt, 24 F.3d at 1007 (stating that "the presence of but-for causation is ordinarily a necessary
condition but rarely a sufficient one").
        Rothwell's act of fraudulently obtaining one or more progress payments in an otherwise legitimate
loan transaction cannot3 reasonably be considered to have caused the SBA's loss under either a "but for" or
a legal cause analysis. The SBA incurred the loss on foreclosure because Rothwell was unable to make
the loan repayments. In fact, Rothwell made payments on the loan for 23 months and then defaulted.
Neither the district court nor the Government provided any explanation of why or how Rothwell's fraudulent
conduct  during the construction of the building made it more likely that Rothwell would later default on the
loan.4 There are myriad explanations for the default – an unsound business risk, a poor economy, excess
warehouse or office space in the local market, or developments in unrelated transactions affecting Rothwell's
ability to5 repay the SBA loan – all of which are more likely causes than the fraud-induced progress
payment.
       Although Rothwell concedes that the $103,370 he obtained through the fraudulent invoices
represents the intended loss, he argues that the district court should have reduced the loss to zero because
the construction costs of the project exceeded the loan amount. Application Note 2(E)(i) to U.S.S.G.
§ 2B1.1 provides:




    3
    The record does not indicate whether the $103,700 was included entirely in a single payment or was part of two or more
payments.
    4
      The Government argues in its brief that the district court was entitled to estimate the loss caused by the false invoices
because "[d]etermining the amount of loss was complex because of the defendant's confusion of his business records and lack
of adequate record keeping." (Appellee's Br. at 9.) This argument misses the point because the district court was permitted to
estimate the amount of loss only if it bore a legally sufficient causal relationship to Rothwell's conduct.
    5
      One argument, though attenuated, could be that because he failed to put all of the loan proceeds into the project, Rothwell
was "upside down" in the sense that the project could not generate the level of rents needed to repay the loan. But, given the
district court's acceptance of the Presentence Investigation Report's findings that the construction costs exceeded the loan amount
and that an April 20, 1998, appraisal of the property valued the property at $850,000, there is no factual basis for the argument.
No. 04-5018             United States v. Rothwell                                                      Page 5


       (E)     Credits Against Loss. – Loss shall be reduced by the following:
       (i)     The money returned, and the fair market value of the property returned and the services
               rendered, by the defendant or other persons acting jointly with the defendant, to the victim
               before the offense was detected. The time of detection of the offense is the earlier of (I) the
               time the offense was discovered by a victim or government agency; or (II) the time the
               defendant knew or reasonably should have known that the offense was detected or about to
               be detected by a victim or government agency.
Id.
         The district court accepted Rothwell's claimed construction expenditures as part of its acceptance
of the factual findings in the presentence report. Because the district court did not question or delve into
this factual assertion at the sentencing hearing, we have no reason to review this finding on appeal.
Although it accepted this fact, the district court did not credit the expenditures in calculating the loss. The
district court did not give a specific explanation for its refusal to do so, but its reasoning seems to be that
no credit should be given because regardless of the amount Rothwell spent on the project, in the end the fair
market value was several hundred thousand dollars less than what the parties had expected. This is
essentially the Government's position on appeal, which we reject because it shifts the risk of loss to
Rothwell without justification. That is, if a bank loans a borrower $1000 to purchase a car having a value
of only $500, it may be a bad business decision by the bank but it is not fraud in the absence of a
misrepresentation by the borrower affecting the initial loan decision. We are not presented with a situation
where the borrower misrepresented the value or nature of the collateral or where the bank changed its
position because of the borrower's fraudulent misrepresentations. Because the expenditures on the project
exceeded the amount envisioned under the loan agreement, Rothwell returned or replaced the money he
improperly obtained before the offense was detected and is thus entitled to a credit equal to the amount of
the replaced funds – $103, 370.
       Finally, we conclude that the district court erred in ordering restitution. "An award of restitution
must be based on the amount of loss actually caused by the defendant's conduct." United States v. Liss, 265
F.3d 1220, 1231 (7th Cir. 2001). We have determined that Rothwell's fraudulent conduct did not cause the
SBA's loss resulting from the default. Accordingly, there is no basis for an award of restitution.
                                              III. Conclusion
       For the foregoing reasons, we REVERSE the judgment of the district court and remand for
recalculation of Rothwell's sentence in accordance with this opinion.
