            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 05a0039n.06
                       Filed: January 12, 2005

                                       No. 04-3557

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                      ON APPEAL FROM THE
                                                      UNITED STATES DISTRICT
v.                                                    COURT FOR THE SOUTHERN
                                                      DISTRICT OF OHIO
RICARDO HILL,

           Defendant-Appellant.
____________________________________/

BEFORE: GIBBONS, and ROGERS, Circuit Judges; BELL, District Judge.*

      PER CURIAM. Defendant entered a guilty plea to one count of bank theft, in

violation of 18 U.S.C. § 2113. Defendant appeals his sentence of five months incarceration,

and three years supervised release, five months of which is to be spent under home

incarceration. In addition, a restitution order of $13,925.08 was imposed. Jurisdiction is

proper under 28 U.S.C. § 1291.

                                            I.

      The underlying events giving rise to Defendant’s prosecution occurred while he was

employed as a branch manager at Northside Bank and Trust, located in Cincinnati, Ohio. On



      *
      The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
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United States v. Ricardo Hill

March 18, 2002, Defendant authorized a $22,000 loan to the Sunshine Center. In early

September 2002, bank officials conducted an internal investigation of the loan and learned

that Defendant himself negotiated the $22,000 check issued to the Sunshine Center, using

the money to pay his own personal debts. When confronted, Defendant resigned from the

bank and admitted that he obtained the loan fraudulently. In addition, in July or August

2002, Defendant’s brother, Wally, applied for an $11,000 loan. The loan was issued to

Wally’s business, Hill’s Auto. Defendant, however, admitted the loan was also used to pay

his personal debts.

       At the initial sentencing hearing on April 12, 2004, Defendant requested a departure

for aberrant behavior under U.S.S.G. § 5K2.20.1 The court stated that such a departure is

appropriate only when a defendant commits a single criminal act or transaction. The court

reconvened the sentencing hearing on April 29, 2004, in order to determine if the $11,000

loan was relevant conduct in the case. At the hearing, the government presented the

testimony of Defendant’s supervisor, Vice President and Consumer Loan Manager Toni

Headley. Headley testified that she denied the loan to Hill’s Auto due to the familial relation,

but that Defendant, without authority, issued the check anyway. Hill contradicted Headley’s

testimony, stating that Headley did approve the loan and that the loan was a legitimate loan



       1
        The applicable version of U.S.S.G. § 5K2.20(b) reads: “The court may depart
downward under this policy statement only if the defendant committed a single criminal
occurrence or single criminal transaction that (1) was committed without significant
planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant
from an otherwise law-abiding life.” U.S. SENTENCING GUIDELINES MANUAL § 5K2.20(b)
(2003).
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United States v. Ricardo Hill

to Hill’s Auto. Defendant did admit that upon receiving the loan, his brother was going to

give Defendant the loan proceeds to help him pay his personal debts.

       After weighing the evidence, the court concluded that the $11,000 loan was relevant

conduct for purposes of calculating Defendant’s offense level. In addition, the court noted

that it had “previously ruled on the issue of aberrant behavior,” and concluded that the only

basis for downward departure was that the bank might suffer from Defendant’s incarceration,

in that it would affect his ability to fulfill his restitution obligation. The court acknowledged

that it could depart based on Defendant’s ability to pay restitution, but ultimately decided

against granting a departure. The court sentenced Defendant to five months imprisonment

and three years supervised release, the first five months of which were to be served in home

confinement. Thereafter, Defendant filed a timely notice of appeal to this court.

                                               II.

       Defendant challenges his sentence on two grounds. First, Defendant argues that the

district court erred as a matter of law in determining that it lacked authority to grant a

departure for aberrant behavior under U.S.S.G. § 5K2.20. Second, Defendant argues that the

district court erred in concluding that the $11,000 loan to Hill’s Auto was relevant conduct

for sentencing purposes under U.S.S.G. § 1B1.3.

       Generally, a court’s decision not to grant a discretionary downward departure is

unreviewable. United States v. Moore, 225 F.3d 637, 643 (6th Cir. 2000). This court,

however, may review a district court’s determination that it lacked the authority for a
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United States v. Ricardo Hill

downward departure under the Sentencing Guidelines under an abuse of discretion standard.2

United States v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999) (citing Koon v. United States,

518 U.S. 81, 99-100 (1996)). “A district court by definition abuses its discretion when it

makes an error of law.” Id.

       Defendant argues that the district court erred as a matter of law by concluding that an

aberrant behavior departure is inappropriate when there is more than a single criminal act or

transaction. In support, Defendant cites United States v. Duerson, 25 F.3d 376 (6th Cir.

1994), in which this Court reviewed various circuits' interpretations of “single acts of

aberrant behavior” delineated in U.S.S.G. ch. 1, pt. A, subpart 4(d). 25 F.3d at 380-82.

Specifically, Defendant relies upon this Court’s statement declining to rule on the issue. Id.

at 382 (“As to the ‘single act’ question, the issue is an open one in this circuit, and we are

content to let it remain so for a while longer.”). Defendant also relies upon the historical

notes to the 2000 amendment to U.S.S.G. § 5K2.20 in which the Commission recognizes the

conflict over the interpretation of “a single act of aberrant behavior.” U.S. SENTENCING

GUIDELINES MANUAL app. C, vol. II, amt. 603, at 76-77 (2003). Further, the historical notes

state that the reason for the amendment was to allow a more flexible description of aberrant


       2
         The government contends that the district court was aware of its discretion to depart
based on Defendant’s aberrant behavior; therefore, it argue that the district court’s decision
on this issue is not cognizable on appeal. See Moore, 225 F.3d at 643. We find that the
government’s reading of the district court’s decision is erroneous. The district court found
that it did not have the discretion to depart based on aberrant behavior. The government
contends that the district court specifically stated that it had the discretion to depart but
elected not to do so. Viewed in context, however, the statement cited by the government
refers to the court’s discretion to depart based on Defendant’s ability to pay restitution. J.A.
at 107.
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United States v. Ricardo Hill

behavior and to “slightly relax” the “single act” rule. Id. at 76. Defendant argues this

Court’s statement in Duerson coupled with the commentary provided in the 2000 amendment

demonstrates that aberrant behavior can encompass more than a single act, therefore, the

district court erred in finding that it lacked the authority to depart on this basis.

       While the case law is not clear, we find that the district court correctly concluded, that

“the law in this circuit is aberrant behavior is a single act.” J.A. at 103. We cannot find any

applicable precedent extending the aberrant behavior principle to encompass situations, such

as this, where the defendant commits more than one criminal act. The evidence showed that

Defendant engaged in more than one criminal transaction. Defendant fraudulently took out

a $22,000 loan, then fraudulently took out a second loan for $11,000. The second loan

precluded the district court from considering a downward departure under § 5K2.20. Further,

we note that while Defendant correctly cites the Commission’s effort to interpret aberrant

behavior more flexibly, he overlooks the portion of the historical notes stressing that an

aberrant behavior departure is available “only in an extraordinary case” and that the

amendment was not meant to “broadly expand departures for aberrant behavior.” U.S.

SENTENCING GUIDELINES MANUAL app. C, vol. II, amt. 603, at 76-77 (2003). Moreover,

Defendant fails to acknowledge the, more recent 2003 amendment that “significantly

restructures §5K2.20” and “further restricts the availability of departures based on aberrant

behavior.” Id., amt. 651, at 364. The 2003 amendment also clarifies “that repetitious or

significant, planned behavior does not meet the requirements for receiving a departure under

§ 5K2.20.” Id. Consequently, the current version of the Guidelines makes clear that the
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United States v. Ricardo Hill

district court did not err by concluding that the law in this circuit did not allow an aberrant

behavior departure where the defendant committed more than a single act; thus, the court did

not abuse its discretion.

       Defendant also argues that the district court erred in finding that the $11,000 loan was

relevant conduct for sentencing purposes under U.S.S.G. § 1B1.3. Defendant contends that

the district court’s findings regarding the $11,000 loan were not supported by a

preponderance of the evidence. Under U.S.S.G. § 1B1.3, a district court can increase a

defendant’s base offense level based on relevant conduct, including conduct that was “part

of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.

SENTENCING GUIDELINES MANUAL § 1B1.3(a)(2) (2003). A district court may consider

uncharged criminal conduct in determining a defendant’s offense level under the Sentencing

Guidelines provided that the government proves that such conduct has occurred by a

preponderance of the evidence. United States v. Comer, 93 F.3d 1271, 1284 (6th Cir. 1996)

(citing United States v. Aideyan, 11 F.3d 74, 76 (6th Cir. 1993)). “A district court’s findings

with respect to relevant conduct should not be disturbed unless clearly erroneous.” United

States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996) (citing United States v. Moored, 997

F.2d 139, 143 (6th Cir. 1993)).

       We cannot say that the district court’s finding that the $11,000 loan was relevant

conduct for sentencing purposes was clearly erroneous. The district court convened a

hearing and heard testimony from both sides regarding the $11,000 loan. Ultimately, the

district court concluded that the testimony of Ms. Headley was more credible than the
No. 04-3557                                     7
United States v. Ricardo Hill

testimony of the Defendant regarding the $11,000 loan. This was not clearly erroneous. See

FED. R. CIV. P. 52(a) (“Findings of fact . . . shall not be set aside unless clearly erroneous, and

due regard shall be given to the opportunity of the trial court to judge of the credibility of the

witnesses.”). Further, after hearing the evidence the district court explicitly found that the

second loan followed Defendant’s modus operandi and that the purpose of both loans was

to pay off his personal debts. “For two or more offenses to constitute part of a common

scheme or plan, they must be substantially connected to each other by at least one common

factor, such as common victims, common accomplices, common purpose, or similar modus

operandi.” U.S. SENTENCING GUIDELINES MANUAL § 1B1.3, application note 9(A) at 30

(2003) (first emphasis added). In this case, the district court found that two of the factors

were present. Therefore, the district court’s determination that the $11,000 loan was relevant

conduct was not clearly erroneous.

       Accordingly, for the foregoing reasons, we AFFIRM Defendant’s sentence.
