Guideline Sentencing: An Outline of Appellate Case Law on ...

Section II: Offense Conduct
42 F.3d 755, 758–59 (2d Cir. 1994) (enhancement under §2B1.1(b)(5) was clearly
erroneous—facts show that theft did not involve more than minimal planning but
was more likely “a spontaneous, reckless caper”). However, the guidelines and case
law provide some rules <strong>of</strong> thumb to guide district courts. For example, the Second
Circuit noted that “it is safe to say that fraudulent loans in any substantial amount
seldom result from minimal planning.” U.S. v. Brach, 942 F.2d 141, 145 (2d Cir.
1991). See also U.S. v. Fox, 889 F.2d 357, 361 (1st Cir. 1989) (“We cannot conceive
<strong>of</strong> how obtaining even one fraudulent loan would not require more than minimal
planning.”).
1. More Planning Than Typical
“‘More than minimal planning’ means more planning than is typical for commission
<strong>of</strong> the <strong>of</strong>fense in a simple form.” USSG §1B1.1, comment. (n.1(f)). The Eighth
Circuit relied on this note to affirm the enhancement where defendant did more
than simply write a check on a closed account: defendant opened two bank accounts
under different aliases, involved a third party, and coordinated the closing
<strong>of</strong> accounts to avoid making good on the check. U.S. v. Starr, 986 F.2d 281, 282 (8th
Cir. 1993). See also U.S. v. Walsh, 119 F.3d 115, 120 (2d Cir. 1997) (affirmed: concocting
fraudulent lease involved more planning than typical loan application fraud);
U.S. v. Harrison, 42 F.3d 427, 432–33 (7th Cir. 1994) (affirmed in food stamp theft
by custodial worker in post <strong>of</strong>fice because he “formed an intent to commit the crime
in advance” and “took the time prior to the thefts to discover where [the valuable]
items were kept”); U.S. v. Barndt, 913 F.2d 201, 204–05 (5th Cir. 1990) (affirmed:
defendant “formed an intent to commit the crime in advance” and ensured that
telephone cables—from which he stole copper wire—were not in service). But cf.
U.S. v. Tapia, 59 F.3d 1137, 1144 (11th Cir. 1995) (remanded: error to impose enhancement
on defendant who led assault in prison on government informant—he
“did not formulate a sophisticated plan or an elaborate scheme” or take any other
steps warranting enhancement, but only made phone call immediately before attack
to ascertain that informant planned to testify against friend <strong>of</strong> defendant).
The Seventh Circuit reversed an enhancement in a check kiting case, in part,
because writing a second check to cover the first was not only not more planning
than is typical for the <strong>of</strong>fense, it was the <strong>of</strong>fense. The court also stated that “[t]he
‘<strong>of</strong>fense’ is the crime <strong>of</strong> which the defendant has been convicted, not <strong>of</strong> the particular
way in which he committed it. Thus the district court should compare the circumstances
<strong>of</strong> this case with other fraud <strong>of</strong>fenses, and not only with frauds committed
by kiting checks.” U.S. v. Bean, 18 F.3d 1367, 1370 (7th Cir. 1994). Compare
Phath in previous section.
2. Steps to Conceal Offense
Application Note 1(f) also states that “‘[m]ore than minimal planning’ exists if
significant affirmative steps were taken to conceal the <strong>of</strong>fense, other than conduct
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