United States v. Lahood

United States Court of Appeals
Fifth Circuit
F I L E D
October 9, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-30271
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GEORGE J. LAHOOD, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 1:05-CR-10011-DDD-JDK
______________________________
Before JONES, Chief Judge, and
SMITH and STEWART, Circuit Judges.
PER CURIAM:*
George Lahood pleaded guilty to one count
of conspiracy to commit bank fraud in viola-
tion of 18 U.S.C. § 371. He attacks the
amount of loss used to calculate his sentence.
Finding no error, we affirm.
I.
Lahood and his wife own Eaglevision Com-
munications Products, Inc. (“Eaglevision”).
Lahood had signatoryauthorityon the corpora-
tion’s checking account at Red River Bank.
Iyad Samara operated several businesses with
checking accounts at Cottonport Bank and
Union Bank and had signatory authority on the
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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accounts. Samara enlisted Lahood and two
others in a check kiting scheme,1 and from
June 2002 through January 2003 Lahood and
Samara regularlyexchanged checks and money
orders to inflate their account balances. Dur-
ing this time, Lahood conducted transactions
totaling approximately $1,000,000.
The check kiting scheme was discovered in
January 2003, and in February 2003 Red River
Bank filed a Suspicious Activity Report re-
garding the Eaglevision account. At the time
of the discovery Samara’s account at Cotton-
port Bank was overdrawn by $52,000 as a re-
sult of the scheme; Lahood’s account had no
overdraft.
A portion of the $52,000 overdraft was col-
lected from Samara’s other accounts at Cot-
tonwood Bank; he paid the remainder with
$10,000 cash and a $23,000 loan. At the time
of sentencing the balance on the loan was ap-
proximately $6,200.
II.
Lahood was named in three counts of a
118-count indictment: one count of conspiracy
to commit bank fraud in violation of 18 U.S.C.
§ 371 and two counts of bank fraud in viola-
tion of 18 U.S.C. §§ 1344 and 2. He pleaded
guilty to the conspiracy charge.
The presentence investigation report
(“PSR”) identified a $52,000 loss from the
conspiracy. Lahood objected to the loss
amount, and the district court received oral
argument and witnesses at sentencing. Testi-
mony was heard from FBI agent Randolph
Deaton and Beth Pucheu, the internal auditor
of Cottonwood Bank.
The district court found that the amount of
loss for sentencing purposes was at least
$33,000 because the actual loss by the bank
was covered by a $10,000 cash deposit and a
$23,000 loan.2 This resulted in an offense lev-
el of 12, which was adjusted to 10 for accep-
tance of responsibility. The guideline range
was 6 to 12 months’ imprisonment, and La-
hood was sentenced to 8 months’ incarceration
followed by 3 years’ supervised release, plus a
$10,000 fine and restitution of $6,200.
III.
Lahood makes three arguments regarding
the loss amount. First, not all the loss was at-
tributable to his actions. Second, the court
selected the wrong date on which to calculate
the amount. Finally, even if the correct date
was used, based on the testimony at sentencing
the amount should be $23,000.
We review de novo the application of the
sentencing guidelines, but we review factual
findings for clear error. United States v. Haas,
171 F.3d 259, 268 (5th Cir. 1999). A finding
of fact is not clearly erroneous “[a]s long as it
is plausible in light of the record read as a
1 “Check kiting is a systematic scheme to de-
fraud, whereby nonsufficient checks are traded or
cross deposited between two or more checking ac-
counts in order to artificially inflate the bank ac-
count balances. This is accomplished by using the
float time in the bank system. Once bank accounts
are artificially inflated, checks that would normally
be returned for nonsufficient funds are, in fact,
paid or honored by the issuing banks.” United
States v. Abboud, 438 F.3d 554, 563 n.1 (6th Cir.
2006).
2 Whether the loss amount is $52,000 or
$33,000 is immaterial to Lahood’s sentence, be-
cause the guidelines impart an offense level in-
crease of six points if the loss is between $30,000
and $70,000. U.S.S.G. § 2B1.1 (b)(1)(D). Thus,
the increase in offense level is the same for each
amount.

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whole.” United States v. Betancourt, 422
F.3d 240, 245 (5th Cir. 2005) (quoting United
States v. Morris, 46 F.3d 410, 419 (5th Cir.
1995)).
In calculating the loss caused by fraud, the
sentencing court “need only make a reasonable
estimate.” U.S.S.G. § 2B1.1 comment.
(n.3(C)).3 We give the district court wide lati-
tude to determine the amount of loss, United
States v. Cothran, 302 F.3d 279, 287 (5th Cir.
2002), because “the sentencing judge is in a
unique position to assess the evidence and es-
timate the loss based upon that evidence.”
U.S.S.G. § 2B1.1 comment. (n.3(C)). The de-
termination of the loss amount is a factual
finding and thus is shielded by the clearly er-
roneous rule on appeal. United States v. Glin-
sey, 209 F.3d 386, 393 (5th Cir. 2000).4
A.
Lahood contends that of the loss amount in
the PSR, only $16,000 is directly attributable
to his actions. We disagree.
Lahood pleaded guilty of conspiracy to
commit bank fraud. Under the sentencing
guidelines the conduct of others can be used to
determine the sentencing range if such conduct
is reasonably foreseeable and in furtherance of
jointly undertaken criminal activity. U.S.S.G.
§ 1B1.3(a)(1)(B). The goal of the conspiracy
was to defraud banks with a check kiting
scheme. The scheme succeeded, and check
kiting by conspiracy members resulted in a loss
to Cottonport Bank. Even if the particular
loss was entirely on account of the actions of
Samara or other conspiracy members, it can
properly be used to sentence Lahood because
the conductSScheck kitingSS was both reason-
ably foreseeable and in furtherance of the
conspiracy.
B.
Lahood argues that the loss amount must
be calculated on the date he withdrew from the
conspiracy, which he claims is January 30,
2003. This argument is unavailing.
The amount of loss resulting from a check
kiting scheme is measured at the time the
scheme is discovered. United States v. Fry-
denlund, 990 F.2d 822, 825-26 (5th Cir.
1993). Restitution following the scheme’s dis-
covery does not warrant a decrease in the loss
amount. Id. at 826.
Deaton, who investigated the case for the
FBI, testified that at the time of the scheme’s
discovery the overdraft on Sarama’s account
was approximately $52,000, which was par-
tially recovered from other accounts. The re-
maining overage was paid with a $10,000 cash
deposit and a loan for “20,000 and change.”
Pucheu testified that the check kite was dis-
covered at the end of January 2003 and that on
January 28 Samara’s account had a shortfall of
$33,000 based on the check-kiting scheme.
The shortfall was repaid with a $10,000 cash
deposit and $23,000 loan. Lahood did not
present testimonycontradicting these facts, but
on cross-examination he elicited responses
showing that the amount of overdraft on Janu-
ary 30 was never measured.
The correct time to measure the loss is not
3 “[C]ommentary in the Guidelines Manual that
interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly errone-
ous reading of, that guideline.” Stinson v. United
States, 508 U.S. 36, 38 (1993).
4 Glinsey dealt with a loss amount resulting
from fraudulent conduct under U.S.S.G. § 2F1.1.
That section, however, was consolidated with
§ 2B1.1 in November 2001.

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the date on which Lahood withdrew from the
conspiracy, but the date when the kite is dis-
covered. Also, we have never held that the
loss must be calculated as of the exact date of
the discovery.5 Viewing the record as a
whole, one will conclude that it is plausible
that a reasonable estimate of the loss at the
time of the scheme’s discovery was $33,000,
so there is no clear error.
C.
Lahood argues that even if the district court
calculated the loss as of the proper date, the
loss amount should be $23,000, because Pu-
cheu testified that “it is fair to say that the
bank was only out $23,000.” This attempt to
alter the meaning of the testimony by removing
it from context fails: Pucheu maintained
throughout her testimony that the loss amount
was $33,000, which was recovered after the
scheme’s discovery by Samara’s $10,000 cash
deposit and $23,000 loan.6
D.
The government asks us to hold that the
loss amount for sentencing purposes is the
float at its highest point during the course of
the check kite.7 Because it is not squarely be-
fore us in this case, we need not, and do not,
decide that question.
The judgment of sentence is AFFIRMED.8
5 See United States v. Akbani, 151 F.3d 774,
778 (8th Cir. 1998) (“It would make little sense,
therefore, to fashion a rule that requires a sentenc-
ing court to look only at the exact date on which
the scheme is discovered.”).
6 The full testimony is as follows:
Q: So I guess it would be fair to say that on that
date, in using the government’s snapshot, the
bank was out $23,000.
A: That would be fair, yes.
Q: Be a fair statement, right?
A: Well, other than the only other thing is the
$10,000 that he deposited.
7 “Float” is the amount of money in checks that
have not cleared because of the time delay between
when a check is written and when funds to cover it
are deducted from an account.
8 Lahood also appeals the denial of his motion
to remain on bond during appeal. Because we af-
firm, this claim is denied as moot.

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