                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 01-2960




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Recommended Citation
"USA v. Hinton" (2003). 2003 Decisions. Paper 746.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/746


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                                          NOT PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        NO. 01-2960


              UNITED STATES OF AMERICA

                              v.

        HAYWOOD HINTON a/k/a AMEER HASAN

                       Haywood Hinton
                          Appellant




        On Appeal From the United States District Court
                  For the District of New Jersey
             (D.C. Crim. Action No. 00-cr-00125)
         District Judge: Honorable Jerome B. Simandle


                   Argued February 3, 2003

BEFORE: SLOVITER, RENDELL and STAPLETON, Circuit Judges

               (Opinion Filed: March 12, 2003)




                    Joseph R. Donahue (Argued)
                    Brickfield & Donohue
                    70 Grand Avenue
                    River Edge, NJ 07661
                     Attorney for Appellant

                    George S. Leone
                                          Gail Zweig (Aargued)
                                          Office of the United States Attorney
                                          970 Broad Street - Room 700
                                          Newark, NJ 07102
                                           Attorneys for Appellee




                                      OPINION OF THE COURT




STAPLETON, Circuit Judge:

                Haywood Hinton appeals the sentencing determination of the United States

District Court for the District of New Jersey.

                At the time of Hinton’s sentencing, U.S.S.G. § 2F1.1 increased the offense

level depending on the monetary “loss” associated with certain crimes involving fraud or

deceit. Application Note 8 of § 2F1.1 required the loss intended by the fraud to be used if

it was greater than the actual loss caused by the fraud. See United States v. Titchell, 261

F.3d 348, 353 (3d Cir. 2001). The government must prove loss by a preponderance of the

evidence. United States v. Evans, 155 F.3d 245, 252 (3d Cir. 1998). Although the loss

question “need not be determined with precision,” id., United States v. Titchell teaches that

it is error to “simply equate[] potential loss with intended loss without deeper analysis.”

Titchell, 261 F.3d at 353 (internal quotations omitted).

                Here, the District Court found that Hinton’s method of operation was to

perpetuate a scheme of bank fraud in which “individuals who were confederates of Mr.

Hinton were instructed [by Hinton] to deposit the checks and to split the proceeds and to

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receive back a fraction of the proceeds of the checks [from the bank].” BA 408. The court

then concluded that the intended loss was the full face value of the deposited checks based

on the following analysis:

                I’m satisfied from the government’s response that the balances in these
                accounts at the end of the fraud was zero or less than zero, that there wasn’t
                some sort of residual amount, nor could there have been because there was
                never any real money put in there to begin with. Even if a paper balance was
                reflected, and I have no evidence that there was a positive paper balance at the
                end, the fact that that balance would have been created by fraudulent check
                itself would render that balance zero. So, the intended loss was the entire
                amount of these deposited false checks.

Id. at 409.

                As in Titchell, the District Court’s determination of the intended loss is

without persuasive foundation. The District Court incorrectly reasoned that because the

deposited checks were bogus, and the accounts ultimately had a zero balance, the face value

of the bogus checks was necessarily the amount of loss intended by Hinton. This seems to

contradict the District Court’s express finding that Hinton’s method of operation was to

defraud banks by means of a split deposit, where only a portion of the deposited checks was

actually withdrawn from the bank, and the zero balance resulted not from a taking of all the

funds but, rather, from the bank’s discovery that the checks were bogus. The correct

analysis should focus on the amounts that Hinton intended to steal, not the value of the

worthless checks deposited at the bank.

                It may well be, as the prosecution insists, that Hinton intended to abscond

with the entire amount of the deposited checks, or as close to the entire amount as he



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could. See United States v. Geevers, 226 F.3d 186, 193 (3d Cir. 2000). However, the

District Court has not adequately explored the issue of intended loss and explained its

finding. Contrary to the government’s suggestion, the record contains no finding by the

Court that Hinton intended for there to be any withdrawals from the accounts other than the

initial withdrawals. Accordingly, the Court’s finding regarding the intended loss cannot

stand, and we must remand to the District Court for further analysis. We leave to the

District Court’s sound discretion whether the record relevant to the intended loss should be

supplemented.

                Hinton also challenges the District Court’s findings regarding relevant

conduct under U.S.S.G. § 1B1.3(a) and the two level enhancement for obstruction of justice

under U.S.S.G. § 3C1.1. The charged conduct and the conduct found relevant were, indeed,

part of the same course of conduct and common plan or scheme – having similar modus

operandi, and showing the requisite similarity, proximity, and regularity. Additionally, the

District Court did not clearly err in finding that Hinton had obstructed justice.

Accordingly, we will decline to disturb the District Court’s findings concerning relevant

conduct and obstruction of justice.

                The judgment of the District Court will be reversed, and this matter will be

remanded for resentencing only.




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TO THE CLERK:

          Please file the foregoing not precedential opinion.




                                              /s/Walter K. Stapleton
                                              Circuit Judge




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