     05-6847
     U.S.A. v. Kilkenny


 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                                _______________
 5
 6                               August Term, 2006
 7
 8         (Submitted October 27, 2006              Decided July 5, 2007)
 9
10                             Docket No. 05-6847-cr
11
12                                _______________
13
14                           United States of America,
15
16                                                  Appellee,
17
18                                         v.
19
20                             Patrick J. Kilkenny,
21
22                                                  Defendant-Appellant.
23
24                                _______________
25
26   Before:
27                        CARDAMONE, WALKER, and STRAUB,
28                                Circuit Judges.
29
30                                _______________
31
32        Defendant Patrick Kilkenny appeals from an amended judgment
33   of conviction entered in the United States District Court for the
34   Northern District of New York (Hurd, J.) on December 8, 2005,
35   after pleading guilty to bank fraud in violation of 18 U.S.C.
36   § 1344(2), mail fraud in violation of 18 U.S.C. §§ 1341, 1342 and
37   structuring a financial transaction to evade currency reporting
38   requirements in violation of 31 U.S.C. § 5324(a)(3). Defendant
39   was sentenced to 216 months in prison, five years of supervised
40   release, restitution of $7,860,321.39, and a special assessment
41   of $300.
42
43            Remanded for resentencing.
44
45                                _______________
 1                            _______________
 2
 3   Terence L. Kindlon, Kindlon and Shanks, P.C., Albany, New York,
 4        filed a brief for Defendant-Appellant.
 5
 6   Sara M. Lord, Assistant United States Attorney,   Albany, New York
 7        (Glenn T. Suddaby, United States Attorney,   Brenda K. Sannes,
 8        Assistant United States Attorney, Northern   District of New
 9        York, Albany, New York, of counsel), filed   a brief for
10        Appellee.
11
12                            _______________
1    CARDAMONE, Circuit Judge:

2         Patrick Kilkenny (defendant or appellant) appeals from an

3    amended judgment of conviction entered on December 8, 2005 in the

4    United States District Court for the Northern District of New

5    York (Hurd, J.).   The conviction followed Kilkenny's plea of

6    guilty to three counts of an information charging him with bank

7    fraud in violation of 18 U.S.C. § 1344(2), mail fraud in

8    violation of 18 U.S.C. §§ 1341, 1342, and structuring a financial
9    transaction to evade currency reporting requirements in violation

10   of 31 U.S.C. § 5324(a)(3).

11        Applying the 2002 version of the United States Sentencing

12   Guidelines (Guidelines or U.S.S.G.), the district court sentenced

13   Kilkenny principally to a term of 216 months imprisonment.

14   Kilkenny appeals this judgment alleging, inter alia, that the

15   district court's use of the 2002 version of the Guidelines

16   violated the Ex Post Facto Clause of Article I of the

17   Constitution.    U.S. Const. art. 1, § 9, cl. 3.   We think that
18   application of the 2002 version of the Guidelines was in error

19   and therefore remand the case for resentencing.     We have

20   considered defendant's other arguments and find them to be

21   without merit.

22                                BACKGROUND

23        The facts underlying this appeal are largely uncontested.

24   On July 25, 2003 Kilkenny waived indictment and pled guilty to

25   each of three counts in a felony information.      The plea agreement

26   that defendant entered into with the government on that date

                                       2
1    included a detailed set of stipulated facts that formed the

2    factual predicate for the guilty plea.      Although Kilkenny

3    admitted to having fraudulently obtained over a dozen bank loans

4    and to having committed various other crimes, only three criminal

5    counts were charged against him in the information.

6         Count One charged him with executing a scheme "[f]rom in or

7    about September 2000 through on or about May 8, 2002" to defraud

8    M&T Bank.   The government alleged, and defendant admitted, that
9    on September 19, 2000 he applied for and subsequently received a

10   loan from M&T Bank in the amount of $467,541.      In his loan

11   application, Kilkenny grossly overstated his assets and income,

12   submitted fraudulent personal and corporate income tax returns,

13   and failed to report more than $1.3 million in debts.      As a

14   result of these misrepresentations, M&T Bank was forced to

15   foreclose on the loan on May 8, 2002 and in so doing suffered a

16   monetary loss of more than $450,000.      Count Two charged defendant

17   with defrauding 22 individuals of $910,000 by inducing them to
18   invest in Panamanian bonds which Kilkenny was not authorized to

19   issue and which were not valid instruments.      The government

20   alleged and defendant admitted that this scheme took place from

21   February 2000 through June 2001.       Finally, in Count Three of the

22   information, the government charged defendant with structuring

23   certain cash deposits on July 24, 2001 to avoid currency

24   reporting requirements.

25        Following defendant's guilty plea, the United States

26   Probation Office prepared a presentence investigation report

                                        3
1    (PSR) using the 2002 version of the Guidelines.    The PSR

2    calculated a base-offense level of six pursuant to U.S.S.G.

3    § 2B1.1(a) (2002) and recommended five enhancements:    (1) a 20-

4    level enhancement for the amount of loss, id. at

5    § 2B1.1(b)(1)(K); (2) a four-level enhancement for the number of

6    victims, id. at § 2B1.1(b)(2)(B); (3) a two-level enhancement for

7    obtaining more than $1 million from financial institutions, id.

8    at § 2B1.1(b)(12)(A); (4) a two-level enhancement for obstruction
9    of justice, id. at § 3C1.1; and (5) a two-level enhancement for

10   defendant's supervision of a criminally responsible participant,

11   his bookkeeper, Melanie Ramsey, id. at § 3B1.1(c).     The resulting

12   total offense level was 36, with a Guidelines range between 188

13   and 235 months imprisonment.

14        At a sentencing hearing on December 12, 2003 defense counsel

15   made several objections to the PSR.   First, defense counsel took

16   issue with the version of the Guidelines used to calculate

17   defendant's sentence.   Kilkenny contended that instead of the
18   2002 Guidelines, the 2000 Guidelines should have been applied

19   because all of the conduct relating to the offenses of conviction

20   occurred before November 1, 2001 when the 2001 version of the

21   Guidelines went into effect.   Second, defense counsel objected to

22   the two-level enhancement for Kilkenny's supervision of a

23   criminally responsible participant.   Third, the defense asserted

24   a three-level reduction was warranted for acceptance of

25   responsibility.   The sentencing court was not persuaded by these

26   objections.   Applying the 2002 version of the Guidelines, which

                                      4
1    are in all relevant respects identical to the 2001 version, the

2    court sentenced Kilkenny to 235 months in prison, followed by

3    five years of supervised release, and restitution in the amount

4    of $7,327,854.36.

5            While defendant's first appeal to this Court was pending,

6    the Supreme Court handed down United States v. Booker, 543 U.S.

7    220 (2005), which rendered advisory the sentencing range

8    calculated under the Guidelines.       In a summary order, we remanded
9    the case for resentencing pursuant to Booker and declined to

10   reach the other issues defendant raised on appeal.        United States

11   v. Kilkenny, No. 03-1775 (2d Cir. March 15, 2005).

12           Defendant was resentenced on November 28, 2005.    The

13   district court again applied the 2002 version of the Guidelines,

14   finding that the offense of conviction continued through May 8,

15   2002.    In particular, it concluded that, although Kilkenny

16   applied for and received the M&T bank loan in September 2000, his

17   subsequent failure to make payments on the loan extended the
18   offensive conduct until the bank initiated foreclosure

19   proceedings in 2002.     The trial judge stated that in applying the

20   2002 date he was "relying on the entire range of conduct" and

21   that Kilkenny's conduct of fraud and deception extended "actually

22   even into 2003 in relation to additional individual victims which

23   were not specifically charged but detailed in the presentence

24   report."    The court also noted that "the May 8, 2002 date is

25   specifically charged in Count One of the Information."       Applying

26   the 2002 Guidelines, it resentenced Kilkenny to a total term of

                                        5
1    216 months imprisonment, 19 months less than the sentence it had

2    originally imposed, followed by five years of supervised release,

3    restitution of $7,860,321.39, and a special assessment of $300.

4         From this judgment, Kilkenny appeals.     For the reasons set

5    forth below, we remand the case to the district court with

6    instructions to resentence defendant under the 2000 version of

7    the Guidelines.

8                                DISCUSSION
9                          I   Standard of Review

10        We review a sentencing court's interpretation and

11   application of the Guidelines de novo.    United States v. Sloley,

12   464 F.3d 355, 358 (2d Cir. 2006).    Findings of fact are reviewed

13   under the clearly erroneous standard.    Id.   A finding is clearly

14   erroneous if, "although there is evidence to support it, the

15   reviewing court on the entire evidence is left with the definite

16   and firm conviction that a mistake has been committed."     Anderson

17   v. Bessemer City, 470 U.S. 564, 573 (1985).
18                        II   Ex Post Facto Laws

19        The premise of this opinion rests on an application of that

20   provision in Article I of the United States Constitution that

21   prohibits Congress from passing any "ex post facto Law."     See

22   U.S. Const. art. I, § 9, cl. 3; see also art. I, § 10, cl. 1

23   (prohibiting states from passing any ex post facto law).     For

24   that reason it is helpful to state first our understanding of

25   what that constitutional clause means.   It is hard to improve on

26   the definition of the Ex Post Facto Clause set out in an early

                                      6
1    Supreme Court case, Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).

2    In that case Justice Chase described the following kind of

3    legislation as prohibited

 4               1st. Every law that makes an action done
 5               before the passing of the law, and which was
 6               innocent when done, criminal; and punishes
 7               such action.
 8
 9               2d. Every law that aggravates a crime, or
10               makes it greater than it was, when committed.
11
12               3d. Every law that changes the punishment,
13               and inflicts a greater punishment, than the
14               law annexed to the crime, when committed.
15
16               4th. Every law that alters the legal rules of
17               evidence, and receives less, or different
18               testimony, than the law required at the time
19               of the commission of the offence, in order to
20               convict the offender.
21
22   Id. at 390.

23          The reason for the clause's adoption in the Constitution

24   was, as the Supreme Court has explained, to restrain Congress

25   from enacting "arbitrary or vindictive" laws.    See Miller v.

26   Florida, 482 U.S. 423, 429 (1987).    The clause also ensures that
27   individuals are given "fair warning" of a law's effect.     Id. at

28   430.   Examples from history vividly illustrate the importance of

29   these dual functions.   Perhaps the most dramatic example of a

30   vindictive law unconstrained by any ex post facto prohibition

31   occurred in pre-World War II Germany.   After an arsonist burned

32   the Reichstag in Berlin in February 1933, the newly empowered

33   Nazi government authorized increasing the punishment for arson

34   from imprisonment to death.    See 2 Morris Ploscowe, Crime and

35   Criminal Law 70-71 (1939).    The arsonist was duly executed.     Id.

                                       7
1    Blackstone illustrates the second purpose of the Ex Post Facto

2    Clause, providing fair warning, by looking to the policies of the

3    Roman despot Caligula.           See 1 William Blackstone, Commentaries on

4    the Laws of England 46 (1765).          Caligula had laws written in fine

5    print and hung them high up on pillars so that they were not

6    available to nor readable by the Roman citizens affected by such

7    laws.     Id.    They provided no fair warning and so, like laws made

8    ex post facto, they would not have provided citizens fair notice
9    to refrain from the criminalized conduct.          Sash v. Zenk, 439 F.3d

10   61, 64 (2d Cir. 2006) (notice problems arise when retrospective

11   changes are made in laws upon which citizens are entitled to

12   rely).

13           Thus, the Ex Post Facto Clause enshrines in the Constitution

14   a basic presumption of our law, that is, legislation in the

15   criminal law "is not to be applied retroactively."          See Johnson

16   v. United States, 529 U.S. 694, 701 (2000).

17                   III   Which Version of the Guidelines Applies?
18                               A.    General Principles

19           With that background, we turn to the case at hand.

20   Ordinarily a sentencing court must apply the version of the

21   Guidelines in effect on the date of the defendant's sentencing.

22   United States v. Keller, 58 F.3d 884, 889 (2d Cir. 1995); see

23   also United States v. Keigue, 318 F.3d 437, 442 (2d Cir. 2003)

24   (remanding because district court applied expired version of

25   Guidelines when no ex post facto problem was raised by

26   application of Guidelines in effect at time of sentencing).          At

                                             8
1    the same time we have recognized an exception to this general

2    rule.    When the application of the Guidelines in effect at the

3    time of sentencing would result in a more severe penalty than

4    would application of the Guidelines in effect at the time the

5    offense was committed, the Ex Post Facto Clause requires the use

6    of the earlier version of the Guidelines.       Keller, 58 F.3d at

7    889.

8       B.    Is This an Ex Post Facto Application of the Guidelines?
9            To decide whether a criminal law is ex post facto, we apply

10   a two-part test:    first, the law must be retrospective, applying

11   to events that occurred before its enactment; second, the law

12   must be disadvantageous to the individual affected by it.

13   Miller, 482 U.S. at 430; Keller, 58 F.3d at 889.       In this case,

14   it is not disputed that defendant was disadvantaged by the

15   application of the 2002 Guidelines.      If appellant had been

16   sentenced under the 2000 Guidelines, he would have been subject

17   to a recommended Guidelines range of 97 to 121 months
18   imprisonment.    Under the 2002 Guidelines, he was subject to a

19   recommended range of 188 to 235 months.      That is roughly 8 to 10

20   years compared to 16 to 20 years.

21           Our inquiry is thus focused on the first prong of the ex

22   post facto test:    Was the application of the 2002 Guidelines to

23   Kilkenny's crimes retrospective?       The application of a particular

24   version of the Guidelines is retrospective if the version went

25   into effect after the last date of the offense of conviction.

26   See United States v. Fitzgerald, 232 F.3d 315, 318-19 (2d Cir.

                                        9
1    2000) (per curiam).    The district court determined the last date

2    of offensive conduct in this case was May 8, 2002.      This finding

3    rested on the following bases:    (1) the statement in the

4    information that the M&T Bank fraud scheme lasted "[f]rom in or

5    about September 2000 through on or about May 8, 2002;" (2)

6    Kilkenny's failure to make payments on the M&T Bank loan until

7    the loan was foreclosed on May 8, 2002; and (3) the "entire range

8    of conduct" which extended into 2003.    We address each of these
9    bases in turn.

10                    1.   The Statement in the Indictment

11        To determine the last date of the offense of conviction, a

12   sentencing court looks at the conduct charged in the information

13   or indictment.     See United States v. Broderson, 67 F.3d 452, 456

14   (2d Cir. 1995); U.S.S.G. § 1B1.11 cmt. n.2.    Like any other

15   factual determination made by a sentencing court, the finding of

16   the last date of the offense of conviction must withstand clear

17   error review.    See, e.g., United States v. Carter, 410 F.3d 1017,
18   1027 (8th Cir. 2005); United States v. Nash, 115 F.3d 1431, 1441

19   (9th Cir. 1997).

20        Because a sentencing court may not consider uncharged or

21   acquitted conduct in determining the last date of the offense of

22   conviction, see United States v. Zagari, 111 F.3d 307, 324-25 (2d

23   Cir. 1997), the dates alleged in the charging instrument will

24   generally be determinative for ex post facto purposes, see

25   Broderson, 67 F.3d at 456.    However, circumstances may arise

26   where a date in the charging instrument clearly exceeds the

                                       10
1    offensive conduct.     See, e.g., United States v. Foote, 413 F.3d

2    1240, 1250 & n.6 (10th Cir. 2005) (finding that "uncontradicted

3    evidence" established that offense ended on December 7, 1998

4    despite statement in indictment that conspiracy continued until

5    October 2000).    In such circumstances, it is clearly erroneous

6    for a sentencing court to rely on the date charged in the

7    indictment to determine the last date of the offense of

8    conviction.    For example, in Nash, the Ninth Circuit had a case
9    before it in which the indictment charged that the defendant's

10   fraudulent scheme continued until 1988, but all of the specific

11   incidents described in the indictment occurred before November 1,

12   1987.    115 F.3d at 1441.   The Nash court upheld the district

13   court's determination that, contrary to the statement in the

14   indictment, the offense was completed prior to November 1, 1987.

15   Id.

16           Admittedly, we have not always made perfectly clear that

17   dates in an indictment are not necessarily dispositive.     In
18   Broderson, for example, we stated, "[t]he last date of the

19   offense, as alleged in the indictment, is the controlling date

20   for ex post facto purposes."     67 F.3d at 456.   Read in context,

21   however, this language only stands for the unsurprising

22   proposition that a sentencing court must look to the conduct

23   alleged in the count of the charging instrument under which the

24   defendant was convicted to determine the last date of offensive

25   conduct.    The defendant in Broderson was charged with illegally

26   transmitting an interstate wire communication on October 1, 1990.

                                       11
1    Id.   On appeal, Broderson asserted the government could have

2    charged the crime differently, but he did not contest that he had

3    transmitted the wire communication on that date.      Id. at 456-57.

4    We ruled that the district court had correctly determined the

5    last date of offensive conduct was October 1, 1990, as charged in

6    the indictment.      Id. at 457.   Broderson thus did not consider or

7    decide the question of whether a district court should rely on a

8    date in a charging instrument that clearly exceeds the offensive
9    conduct.     We now hold that it may not.

10           The time period provided for in the charging instrument in

11   this case clearly exceeds the offensive conduct.      Although the

12   information states that Kilkenny executed the M&T bank fraud

13   scheme from "in or about September 2000 through on or about May

14   8, 2002," neither the information nor the stipulated facts

15   accompanying the plea agreement describe any offensive conduct

16   taken by Kilkenny with respect to the M&T bank fraud scheme after

17   2000.      It is instead uncontested that the M&T loan was applied
18   for and received by Kilkenny in September 2000 and that he took

19   no further action with respect to that loan -- apart from failing

20   to repay it -- after September 2000.      There is no evidence that

21   any offensive conduct regarding the M&T bank fraud scheme

22   occurred after 2000.     It was therefore clear error for the

23   district court to rely on the May 8, 2002 date.

24         2.    Failure to Repay the Fraudulently Obtained Bank Loan

25           The district court's finding that Kilkenny failed to repay

26   the bank loan in 2002 does not change this result.      Failure to

                                         12
1    repay a fraudulently obtained bank loan does not constitute

2    conduct for the offense of bank fraud.     Under the federal bank

3    fraud statute, it is a crime to "knowingly execute[ ], or

4    attempt[ ] to execute, a scheme or artifice . . . to obtain any

5    of the moneys, funds, credits, assets, securities, or other

6    property owned by, or under the custody or control of, a

7    financial institution, by means of false or fraudulent pretenses,

8    representations, or promises."   18 U.S.C. § 1344.    The language
9    of § 1344 punishes each execution of a fraudulent scheme, not

10   each act in furtherance of such a plan.      United States v. Harris,

11   79 F.3d 223, 232 (2d Cir. 1996).      Although the statutory text

12   does not define "execution," there is helpful case law

13   interpreting that term.   In analyzing when a fraudulent scheme

14   was executed, courts look to a number of factors, including the

15   overall contours of the fraudulent scheme and -- perhaps most

16   importantly -- the point at which the financial institution was

17   put at risk of financial loss.     See United States v. De La Mata,
18   266 F.3d 1275, 1287-88 (11th Cir. 2001) ("[A] bank fraud offense

19   is complete upon the 'execution,' or attempted execution of the

20   scheme. . . . [E]ach part of the scheme that creates a separate

21   financial risk for the financial institution constitutes a

22   separate execution."); United States v. Anderson, 188 F.3d 886,

23   888 (7th Cir. 1999) ("[T]he crime of bank fraud is complete when

24   the defendant places the bank at a risk of financial loss, and

25   not necessarily when the loss itself occurs."); United States v.

26   Rimell, 21 F.3d 281, 287 (8th Cir. 1994) (stating that to

                                      13
1    determine what constitutes an execution of a bank fraud scheme

2    one must first "ascertain the contours of the scheme"); United

3    States v. Hord, 6 F.3d 276, 282 (5th Cir. 1993) (finding that

4    bank fraud plan was executed with each deposit of a bogus check

5    in part because "it was the deposits that put the bank at risk");

6    see also United States v. Reitmeyer, 356 F.3d 1313, 1318 (10th

7    Cir. 2004) (holding, in the context of the Major Fraud Act, that

8    determining when a scheme is executed will depend on factors
9    including the goal of the plan, its nature, the benefits

10   intended, and whether the conduct created a new and independent

11   financial risk.).

12        There are of course situations where conduct for the offense

13   of bank fraud occurs after the point at which the bank is first

14   put at risk of financial loss.     Our decision in United States v.

15   Duncan, 42 F.3d 97 (2d Cir. 1994), provides a useful illustration

16   of such a situation.    In Duncan, several directors of a savings

17   and loan association conspired to purchase two parcels of real
18   estate in order to lease or sell the property back to the bank at

19   a profit.   Id. at 99-100.     The transactions were orchestrated so

20   as to hide the conspirators' interest in the real estate from the

21   other bank directors.    Id.    After his conviction for bank fraud,

22   Duncan raised an ex post facto challenge on appeal.      He contended

23   the bank fraud was complete once the conspirators agreed to

24   secretly purchase the property.      Id. at 103-04.   We rejected that

25   characterization, holding instead that the offensive conduct was

26   not complete until the real estate was sold back to the bank.

                                        14
1    Id. at 104.   Key to the result in Duncan was the fact that the

2    sale of these properties to the bank was the "central object of

3    the charged criminal conduct."     Id. (emphasis added).   Notably,

4    the resale of the properties to the bank in Duncan posed a risk

5    of financial loss that was separate and independent from the

6    defendant's initial usurpation of the corporate opportunity.      See

7    id. (stating that conspirators intended to both "seize for

8    themselves two pieces of property at a bargain" and "sell the
9    properties to the bank at a premium").

10        There are no facts in the case presently before us analogous

11   to those at issue in Duncan.     It is clear that the main purpose

12   of Kilkenny's bank fraud scheme was to obtain the M&T bank loan

13   on false pretenses.   The bank was put at risk of financial loss

14   as soon as Kilkenny had submitted the fraudulent loan application

15   and obtained the funds.   The information alleges no further

16   conduct on Kilkenny's part that created a new or additional risk

17   of loss.
18        The government insists that, by failing to make payments on

19   the fraudulently obtained loan, appellant extended the life of

20   the illegal plan through his enjoyment of the proceeds.     Adopting

21   this approach would go too far, potentially extending the offense

22   of bank fraud indefinitely.    No doubt, the vast majority of bank

23   fraud schemes entail not only obtaining but also retaining the

24   ill-gotten gains.   But when the proceeds of a criminal venture

25   are spent may not be viewed as part of a plan to defraud.       See

26   Anderson, 188 F.3d at 891.    To rule otherwise and hold that

                                       15
1    failure to repay a fraudulently obtained bank loan constitutes

2    conduct for the offense of bank fraud would extend the life of

3    the offense so indefinitely as to render the ex post facto

4    prohibition ineffective.   The Supreme Court has cautioned against

5    such a result in other contexts.      See Grunewald v. United States,

6    353 U.S. 391, 402 (1957) (holding a conspiracy to conceal should

7    not be inferred from acts of concealment because "every

8    conspiracy will inevitably be followed by actions taken to cover
9    the conspirators' traces" and the opposite result would "extend

10   the life of a conspiracy indefinitely").

11         Kilkenny's M&T bank fraud scheme was executed no later than

12   when he received the funds from his fraudulent loan application.

13   Consequently, it was error for the district court to treat

14   defendant's subsequent failure to repay the fraudulently obtained

15   bank loan as conduct that was part of the offense of bank fraud.

16            3.   The Relevance of the Entire Range of Conduct

17         Finally, the district court based its decision to apply the
18   2002 Guidelines on the entire range of conduct committed in the

19   case that continued "actually even into 2003 in relation to

20   additional individual victims which were not specifically charged

21   but detailed in the presentence report."     However, the law in

22   this Circuit is plain that uncharged conduct occurring after the

23   conduct of conviction cannot be considered when determining which

24   version of the Guidelines to apply.     See Zagari, 111 F.3d at 324-

25   25.   Commentary to the Guidelines, which we have found to be



                                      16
1    highly persuasive evidence of the Sentencing Commission's intent,

2    addresses this precise issue

 3               Under subsection (b)(1), the last date of the
 4               offense of conviction is the controlling date
 5               for ex post facto purposes. For example, if
 6               the offense of conviction (i.e., the conduct
 7               charged in the count of the indictment or
 8               information of which the defendant was
 9               convicted) was determined by the court to
10               have been committed between October 15, 1991
11               and October 28, 1991, the date of October 28,
12               1991 is the controlling date for ex post
13               facto purposes. This is true even if the
14               defendant's conduct relevant to the
15               determination of the guideline range under
16               § 1B1.3 (Relevant Conduct) included an act
17               that occurred on November 2, 1991 (after a
18               revised Guideline Manual took effect).
19
20   U.S.S.G. § 1B1.11 cmt. n.2.    Reliance on defendant's uncharged

21   conduct in 2002 and 2003 was accordingly in error.

22        Application of the 2002 version of the Guidelines was both

23   retrospective and disadvantageous to the defendant.    As a

24   consequence, we remand to the district court for resentencing

25   under the 2000 Guidelines.

26          IV   Defendant's Objections to Sentence Enhancements
27        Appellant raises two final objections to his sentence,

28   neither of which have merit.    First, Kilkenny maintains the

29   district court erred in imposing a two-level enhancement for his

30   supervision of a criminally responsible participant.    Under

31   U.S.S.G. § 3B1.1(c), a two-level enhancement may be applied if

32   the "defendant was an organizer, leader, manager, or supervisor

33   in any criminal activity."    We review the district court's

34   finding that Kilkenny acted as the supervisor of a criminally


                                      17
1    responsible participant under the clearly erroneous standard.

2    See United States v. Brinkworth, 68 F.3d 633, 641 (2d Cir. 1995).

3         Defendant declares there was no evidence his bookkeeper,

4    Melanie Ramsey, was a criminally responsible participant.    To the

5    contrary, the uncontested evidence is that Ramsey, under

6    Kilkenny's supervision and at his direction, prepared fraudulent

7    tax forms and other documents that were used in the bank fraud

8    scheme.   Ramsey also assisted Kilkenny's bank fraud plan by
9    writing a letter to a bank misrepresenting herself as the

10   regional manager of a financial group and falsely stating that

11   Kilkenny earned a monthly average of $115,000 in commissions.

12   The deliberate deception entailed in drafting such a letter to a

13   financial institution supports the trial court's finding that

14   Ramsey was not an unwitting participant in Kilkenny's fraudulent

15   activities.   See Brinkworth, 68 F.3d at 641-42 (finding that an

16   accountant who knowingly prepared fraudulent tax returns was a

17   criminally responsible participant).    Thus, the finding that
18   appellant was the supervisor of a criminally responsible

19   participant is not clearly erroneous.

20        Kilkenny's final point is that the two-level enhancement he

21   received for having derived more than $1 million dollars from a

22   financial institution, U.S.S.G. § 2B1.1(b)(12)(A) (2002) (now

23   codified at U.S.S.G. § 2B1.1(b)(13)(A)), constituted

24   impermissible double-counting because the amount of loss had

25   already been taken into account in determining the offense level

26   under U.S.S.G. § 2B1.1(b)(1)(K).     We have previously ruled that

                                     18
1    the cumulation of the dollar amount enhancement and the financial

2    institution enhancement do not constitute impermissible double-

3    counting because the two enhancements serve different purposes.

4    See United States v. Lauersen, 348 F.3d 329, 343 (2d Cir. 2003),

5    vacated on other grounds by 543 U.S. 1097, 125 S. Ct. 1109, 160

6    L. Ed. 2d 988 (2005); see also United States v. Campbell, 967

7    F.2d 20, 25 (2d Cir. 1992) ("[D]ouble counting is legitimate

8    where a single act is relevant to two dimensions of the
9    Guidelines analysis.").   Although we noted in Lauersen that there

10   is a substantial overlap between the two enhancements that might

11   justify a downward departure in some circumstances, Lauersen, 348

12   F.3d at 344, any such departure would be discretionary.   The

13   district court was well within its discretion in finding that no

14   downward departure was warranted here.

15                               CONCLUSION

16        Accordingly, for the reasons stated above, this case is

17   remanded to the district court for resentencing in accordance
18   with this opinion.




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