UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4849

PETER ANDREW GALLO,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CR-99-40)

Submitted: June 27, 2000

Decided: September 18, 2000

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Edwin C. Walker, Acting Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Scott L. Wilkinson, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Peter Andrew Gallo pled guilty to bank fraud in violation of 18
U.S.C. §§ 1344, 2 (1994), and received a sentence of forty-one
months imprisonment. Gallo appeals his sentence, contending that the
district court erred in finding that he was not entitled to a three-level
reduction for an attempt under U.S. Sentencing Guidelines Manual
§ 2X1.1(b)(1) (1998). We affirm.

From December 1996 until March 1998, Peter Gallo carried out a
scheme to defraud a number of banks in and near Wilmington, North
Carolina, by posing as an account holder under different names at dif-
ferent banks. Using false identification documents that were manufac-
tured using information obtained from stolen mail, Gallo managed to
obtain $58,541. Gallo's last and most ambitious scheme was con-
ducted on March 4 and 5, 1998. Gallo telephoned a NationsBank
branch in Southport, North Carolina, and represented himself as
"Wayne Corley," a partner in the McNair Law Firm in Columbia,
South Carolina, which had an account at the bank. Gallo said the firm
was handling a closing in the area. He said he wanted funds wired to
several different accounts and asked the bank to prepare several offi-
cial checks drawn on the law firm's trust account. The next day, Gallo
faxed a letter to the bank on the letterhead of McNair and Sanford,
requesting that seven checks totaling $182,743 be debited against the
law firm's trust account. Gallo provided the correct trust account
number and said that "H.L. Pollack" would come to the bank to pick
up the checks. He gave a description of Pollack, then went to the
bank, identified himself as Pollack, and said he was there to pick up
the checks. Bank personnel had in the meantime called the McNair
Law Firm, talked to the real Wayne Corley, and learned that the sta-
tionery Gallo had used was out of date and that the firm was not han-
dling any closings in the area. They also discovered that the fax had
originated at an Office Depot.

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When Gallo came into the bank, he was told that the checks were
not yet ready. Bank personnel called the sheriff and asked for imme-
diate assistance. After waiting for a while, Gallo got up and began to
leave the bank. Two employees assured Gallo that he would be waited
on in a few moments, but Gallo said he had an errand to do and that
he would return in thirty minutes. He was arrested in the bank parking
lot.

After his guilty plea to bank fraud, Gallo filed an objection to the
presentence report in which he asserted that he was entitled to a three-
level reduction in his offense level pursuant to USSG § 2X1.1(b)(1).
That guideline section states:

          If [the offense is] an attempt, decrease [the offense level] by
          3 levels, unless the defendant completed all the acts the
          defendant believed necessary for successful completion of
          the substantive offense or the circumstances demonstrate
          that the defendant was about to complete all such acts but
          for apprehension or interruption by some similar event
          beyond the defendant's control.

USSG § 2X1.1(b)(1). At sentencing, Gallo argued that he had volun-
tarily abandoned an unsuccessful attempt to defraud the bank. How-
ever, the district court determined that § 2X1.1(b)(1) did not apply
because Gallo was about to complete the fraud when he arrived at the
bank, and left the bank only because he anticipated that he might be
caught.

We review the district court's application of a guideline de novo,
and review the factual findings underlying the guideline application
for clear error. See United States v. Blake, 81 F.3d 498, 503 (4th Cir.
1996). First, we are unable to say that the district court clearly erred
in finding that Gallo had completed all the acts necessary to complete
the offense before his arrest. Gallo had made elaborate arrangements
to induce the bank to turn over $182,743 to him and had come to the
bank to collect the checks. Because he had completed frauds for smal-
ler amounts in the course of his scheme, it is unlikely that he had a
change of heart. Instead, the circumstances indicate that he left the
bank because he sensed that he was being stalled and feared arrest.

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Moreover, the background commentary to § 2X1.1 states:

          In most prosecutions for conspiracies or attempts, the sub-
          stantive offense was substantially completed or was inter-
          rupted or prevented on the verge of completion by the
          intercession of law enforcement authorities or the victim. In
          such cases, no reduction of the offense level is warranted.
          Sometimes, however, the arrest occurs well before the
          defendant or any co-conspirator has completed the acts nec-
          essary for the substantive offense. Under such circum-
          stances, a reduction of 3 levels is provided under
          § 2X1.1(b)(1) or (2).

USSG § 2X1.1, comment. (backg'd) (emphasis added). Gallo's arrest
occurred after he had completed the acts necessary for the substantive
offense. Therefore, no reduction was available to him. See United
States v. Torres, 209 F.3d 308, 312 (3d Cir. 2000) (attempt to with-
draw fraudulently deposited funds that was thwarted because bank
suspected fraud was not incomplete attempt).

We therefore affirm the sentence. 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.

AFFIRMED

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