F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 17 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-6423
                                                    (D.C. No. 00-CR-87-C)
    ANTHONY MIMS,                                        (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Judge, PORFILIO, and ANDERSON, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered 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      This order and judgment is not binding precedent, except under the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.
      Defendant Anthony Mims pleaded guilty to two counts of intent to defraud

in violation of 18 U.S.C. §§ 514(a)(1) and (2) for making and passing false and

fictitious financial instruments. He was sentenced to forty-one months’

imprisonment under the U.S. Sentencing Guidelines Manual (USSG). He appeals

the four-level upward adjustment of his sentence for loss exceeding $20,000

under USSG § 2F1.1(b)(1), the two-level upward adjustment for more than

minimal planning under USSG § 2F1.1(b)(2), and the district court’s refusal to

grant his request for a two-level downward adjustment under USSG § 3B1.2. We

affirm.

      The facts are set forth in the presentence report. Defendant and his three

co-defendants, Mr. Jones, Ms. Lewkowsky, and Ms. Tolbert, traveled from

Kansas to Oklahoma City and spent the night in adjacent hotel rooms. The next

day, the defendant and the two women obtained false Oklahoma driver’s licenses

using false names and identification information. Then Jones drove them to a

local bank where, using their false identification, they cashed counterfeit checks

totaling $3,154.35. The check that defendant cashed was worth $954.00. Shortly

thereafter, the four were pulled over for a traffic violation. The women consented

to a search of their purses, in which police discovered the false identifications and

sixteen additional counterfeit checks with a total face value of $18, 378.32.

Several of these checks were made payable to the alias name that defendant used


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to obtain a false driver’s license. Police also discovered two laptop computers in

the vehicle containing digital images of counterfeit checks. Police later

discovered additional check counterfeiting equipment--namely, a word processor,

a check program, and blank check stock--in one of the two adjacent hotel rooms

in which the co-defendants had spent the night.

      At sentencing, the district court added the actual loss of $3,154.35 to the

intended loss of $18,378.32 to arrive at the conclusion that the total loss exceeded

$20,000, thereby warranting a four-level increase to defendant’s base offense

level pursuant to USSG § 2F1.1(b)(1)(E). Defendant claims he should only be

responsible for the $954 counterfeit check that he cashed, and should not be

charged with the loss related to checks of the co-defendants that he did not cash

or the uncashed counterfeit checks found in his co-defendants’ purses. We reject

defendant’s contention.

      USSG § 2F1.1, comment. (n.8), directs the sentencing court to use the

method for valuation of loss prescribed under USSG § 2B1.1. Under USSG

§ 2B1.1, comment. (n.2), “‘[l]oss’ means the value of the property taken,

damaged, or destroyed” and states, by way of example, that “[i]n the case of a

theft of a check or money order, the loss is the loss that would have occurred if

the check or money order had been cashed.” Thus, under the plain language of




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the sentencing guidelines, the loss for sentencing purposes is the total face value

of all the counterfeit checks, regardless of whether they were cashed.

      It was also proper under USSG § 1B1.3 to hold defendant accountable for

the culpable conduct of the other co-defendants, even though he was not charged

with conspiracy. See USSG § 1B1.3, comment. n. 2. Under USSG § 1B1.3, a

district court must consider all relevant conduct and the scope of relevant conduct

includes “all reasonably foreseeable acts and omissions of others in furtherance of

the jointly undertaken criminal activity that occurred during the commission of

the offense of conviction.” § 1B1.3(a)(1)(B); United States v. Melton, 

, 1403 (10th Cir. 1997).

      Here, there was evidence that defendant left Kansas with the co-defendants

for the purpose of cashing counterfeit checks in Oklahoma; he was present in the

hotel room with the check counterfeiting equipment and supples; he was aware of

the making of numerous counterfeit checks; and he executed the entire counterfeit

check cashing scheme in Oklahoma City with the co-defendants. We agree with

the district court that this evidence was sufficient to hold defendant accountable

for the culpable conduct of the other co-defendants.

      Defendant also argues that because he only cashed one counterfeit check,

the evidence was insufficient to support the sentence enhancement imposed under

§ 2F1.1(b)(2) for more than minimal planning. Under USSG § 1B1.1, comment.


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(n.1 (f)), more than minimal planning occurs if the offense involved “more

planning than is typical for commission of the offense in a simple form.” As

noted, defendant drove from Kansas to Oklahoma City with the co-defendants for

the purpose of cashing counterfeit checks; he was aware of the elaborate

counterfeit check-making equipment used by the co-defendants; he was successful

in obtaining a false driver’s license under a false name; counterfeit checks were

made payable to his alias; he cashed counterfeit checks with these co-defendants;

and there were numerous additional counterfeit checks made out to defendant’s

alias name, ready to be cashed in Oklahoma. The district court’s finding that

defendant’s participation in the check counterfeiting scheme involved more than

minimal planning was not clearly erroneous.

      Finally, defendant contends that he should have received a two-level

downward adjustment under § 3B1.2. Subsection 3B1.2(b) permits a two-level

reduction if the defendant acted as a “minor participant” in the offense.

Defendant contends he was just a minor participant and was less culpable than his

co-defendants. He bases this on evidence that the three co-defendants were

involved in counterfeiting activity in Colorado prior to coming to Kansas.

However, defendant’s participation in the counterfeiting scheme in Oklahoma was

no less culpable than his co-defendants: they were all involved in obtaining the

fraudulent identification and in cashing the counterfeit checks. Accordingly, the


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district court did not clearly err in refusing to grant defendant a two-level

reduction under § 3B1.2.

      The defendant’s sentence is AFFIRMED.



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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