                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         JUN 15 1999
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT                        PATRICK FISHER
                                                                             Clerk



UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                        No. 98-6189
v.                                               (W. District of Oklahoma)
                                                  (D.C. No. CR-97-208-A)
MICHAEL BRANDON LUTZ,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this three-judge panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

We therefore honor the parties’ requests and order the case submitted without oral

argument.



      *
       This order and judgment is not binding precedent, except under the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.
       A federal grand jury handed down a three-count indictment charging

Michael Lutz with stealing approximately $2.6 million from a Loomis/Fargo

Armored Carriers (“Loomis”) armored car. In particular, the indictment alleged

that Lutz conspired to steal the money and transport it in interstate commerce in

violation of 18 U.S.C. § 371; stole money belonging to the Oklahoma City,

Oklahoma, Federal Reserve Bank in violation of 18 U.S.C. § 2113(b); and

transported the stolen money in interstate commerce in violation of 18 U.S.C.

§ 2314.

      Lutz entered a plea of guilty to all three counts of the indictment. Pursuant

to the sentencing calculations set out in the Presentence Report, the district court

sentenced Lutz to a term of imprisonment of fifty-one months on each of the three

counts and ordered that the terms all run concurrently with one another. Lutz

appeals the sentence imposed, contending the district court erred in the following

particulars: (1) increasing Lutz’s base offense level by two points pursuant to

United States Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(4) because Lutz

engaged in “more than minimal planning”; and (2) increasing Lutz’s base offense

level by four points pursuant to U.S.S.G. § 2B1.1(b)(6)(B) because Lutz derived

more than $1,000,000 and the theft “affected a financial institution.” This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and

affirms.


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      Lutz recognizes that this court recently rejected the identical arguments

raised in this appeal in affirming the sentence of Lutz’s co-conspirator. See

United States v. Negri, No. 98-6178, 1999 WL 157423 (10 th Cir. March 23, 1999).

Lutz further recognizes that the decision in Negri controls the resolution of this

case but notes that he raises the issues here simply to preserve his right to petition

the Supreme Court. This court agrees that the decision in Negri controls the

disposition of this case and thus AFFIRMS Lutz’s sentence for those reasons set

out in Negri, 1999 WL 157423, at *2-*5.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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