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U.S. v. Peck

United States Court of Appeals, Ninth Circuit
Aug 12, 2003
73 F. App'x 917 (9th Cir. 2003)

Opinion


73 Fed.Appx. 917 (9th Cir. 2003) UNITED STATES of America, Plaintiff--Appellee, v. Kyle K. PECK, Defendant--Appellant. No. 02-30403. D.C. No. CR-02-00004-DWM. United States Court of Appeals, Ninth Circuit. August 12, 2003

Submitted June 13, 2003.

This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant was convicted in the United States District Court for the District of Montana, Donald W. Molloy, J., of bank fraud, and he appealed. The Court of Appeals held that: (1) district court did not clearly err in including all of defendant's fraudulently obtained loans in calculation of amount of loss, and (2) imposition of sentencing enhancement based on defendant's targeting of vulnerable victims was not clear error.

Affirmed.

Page 918.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding.

Before SKOPIL, FERGUSON, and BOOCHEVER, Circuit Judges.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Kyle K. Peck appeals from his sentence for bank fraud in violation of 18 U.S.C. § 1344. We affirm.

Peck claims that the district court improperly included all his fraudulently obtained loans in the calculation of the amount of loss, which increased his offense level by nine. See U.S. S.G. § 2F1.1(b)(1)(J) (2000). He argues that the amount should have been limited to the amount he actually gained by the scheme, and that the fraudulent loans he paid off with other fraudulent loans should not have been included. We review the district court's calculation of loss for clear error. See United States v. King, 257 F.3d 1013, 1025 (9th Cir.2001).

The district court did not clearly err. The "core rule" is that "loss is the greater of the actual or intended loss." United States v. McCormac, 309 F.3d 623, 627 (9th Cir.2002) (quotations omitted); U.S. S.G. § 2F1.1, cmt. n. 8(b). The court properly included the amounts of fraudulently obtained loans paid off with other fraudulent loans in the intended loss, as each loan was part of the scheme to defraud and no legitimate payments were made. See United States v. Blitz, 151 F.3d 1002, 1012 (9th Cir.1998) (proper to include amounts refunded or returned as prizes to victims of fraudulent telemarketing scheme in amount of loss, as refunds and prizes were not legitimate services and enabled defendants to avoid detection).

Peck also argues that his offense level was improperly enhanced by two for his targeting of vulnerable victims under U.S. S.G. § 3A1.1(b). We review for clear error. See United States v. Medrano, 241 F.3d 740, 743 (9th Cir.2001). Evidence was introduced that two of Peck's victims were bank customers of his in difficult financial and personal circumstances, which led them to put more confidence in Peck as their loan officer and to rely on him for sound advice, and that Peck was aware of their situations. The prosecutor argued that the victims lacked financial acumen and were less likely to discover the fraud. It was not clear error to conclude that these victims were vulnerable. See id. at 744.

AFFIRMED.


Summaries of

U.S. v. Peck

United States Court of Appeals, Ninth Circuit
Aug 12, 2003
73 F. App'x 917 (9th Cir. 2003)
Case details for

U.S. v. Peck

Case Details

Full title:UNITED STATES of America, Plaintiff--Appellee, v. Kyle K. PECK…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 12, 2003

Citations

73 F. App'x 917 (9th Cir. 2003)