Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2002

USA v. Bowie
Precedential or Non-Precedential:

Docket 99-3495




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Recommended Citation
"USA v. Bowie" (2002). 2002 Decisions. Paper 17.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/17


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                                              NOT-PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                          __________

                         NO. 99-3495
                          __________

                   UNITED STATES OF AMERICA

                              v.

                     CHARLES TYRONE BOWIE

                      Charles T. Bowie,
                                Appellant
                          _________

       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
               (D.C. Criminal No. 98-cr-00285)
         District Judge: Honorable Thomas I. Vanaskie
                          __________

          Submitted Under Third Circuit LAR 34.1(a)
                       January 8, 2002

    Before: MANSMANN, RENDELL, and FUENTES, Circuit Judges

                   (Filed January 15, 2002)
                          __________

                      MEMORANDUM OPINION
                          __________

RENDELL, Circuit Judge.
     On January 26, 1999, Charles Bowie entered a plea of guilty to one
count of bank
fraud in violation of 18 U.S.C.   1344. As part of his plea agreement,
Bowie agreed to
make full restitution. Pursuant to the agreement, related state charges
pending against
him were dropped. He was sentenced to 21 months imprisonment and five
years
supervised release, as well as required to pay restitution of $13,198.86.
Bowie requested
counsel to file an appeal, and Bowie's counsel has filed a brief pursuant
to Anders v.
California, 

(1967), requesting to withdraw as counsel.
Counsel has averred
that there are no non-frivolous issues to be raised on appeal, and, as
Anders requires, he
has directed us to the three possible challenges to his sentencing Bowie
might raise.
     First, the base offense level of 6 that is applicable to offenses
under 18 U.S.C.
1344 was raised by four levels pursuant to the Sentencing Guidelines.
Bowie contends
that, using the restitution figure as the loss figure, the offense level
should have been
raised only three levels. This argument is without merit. Following
2F1.1, Application
Note 8 provides: "Consistent with the provisions of     2X1.1 (Attempt,
Solicitation, or
Conspiracy), if an intended loss that the defendant was attempting to
inflict can be
determined, this figure will be used if it is greater than the actual
loss." The commentary
to   2F1.1 of the Sentencing Guidelines is binding. See, e.g., United
States v. Geevers,

, 189 (3d Cir. 2000). Because the intended loss is calculated
using the total
amount of the checks he deposited, in this case $32,687.04, there is no
error in applying
the enhancement for amounts more than $20,000 rather than the enhancement
for
amounts over $10,000, as would have been the case if the loss were
calculated using only
the restitution amount.
     Second, Bowie contends that he was entitled to a one-point reduction
under
3E1.1 of the Guidelines because he provided the government with timely
information as
to his and others' involvement. Bowie was credited the two offense levels
applicable
under   3E1.1(a), but the credit under 3E1.1(b) is applicable only if the
offense level
prior to calculating the credit under    3E1.1(a) was sixteen or higher.
Prior to the
adjustment, Bowie's offense level was only 12, and he thus did not qualify
for the
additional credit.
     Third, Bowie urges that we find the supervised release of five years
to be
excessive. 18 U.S.C.    1344 is a Class B Felony. Because neither the
statutory maximum
of five years, (see 18 U.S.C.    3583(b)(1)), nor the guideline maximum,
also of five years
(see 5D1.2) were exceeded, this argument is likewise without merit.
     As required by Anders, notice of withdrawal was provided to Bowie,
who has not
exercised his option to file a pro se brief with this Court. After
carefully reviewing the
briefs and the presentence report, we will affirm the conviction and
sentence, and we will
grant counsel's motion to withdraw. We are convinced that counsel
conducted a
conscientious review of the record and correctly concluded that there were
no non-
frivolous issues to be raised on appeal. He has complied with all the
procedures
mandated by Anders. Our independent review has likewise uncovered no non-
frivolous
issues for review.
     For the foregoing reasons, we will AFFIRM the Order of the District
Court and
GRANT counsel's request to withdraw.
_________________________
TO THE CLERK OF COURT:
     Please file the foregoing Memorandum Opinion.



                                        /s/ Marjorie O. Rendell
                                        Circuit Judge

Dated:   January 15, 2002