United States v. Buck

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-60050
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUBY BUCK,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________
March 17, 2003
Before GARWOOD, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ruby Buck was convicted of misapplying
federal funds and submitting false documents.
She appeals her conviction on the ground that
the district court erred in admitting a summary
chart into evidence; she appeals her sentencing
on several grounds. We dismiss a portion of
the appeal for want of jurisdiction and affirm
on the remaining issues.

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2
I.
A.
Buck worked for Mississippi Action for
Community Education (“MACE”) beginning in
1976. She held various positions until No-
vember 1995, when she became interim presi-
dent and CEO of MACE; she was appointed
to the po sition permanently in July 1996 and
held the position until her resignation in May
2001.
MACE was a nonprofit rural development
organization funded in part by federal grants
under the Corporation for National Service
AmeriCorps Program (“AmeriCorps”). The
Congressional Hunger Center (“CHC”), a non-
profit corporation, received AmeriCorps
grants and sub-granted these funds to several
groups, including MACE. From 1996 to
2000, MACE received $660,423.93 through
AmeriCorps grants that were intended to pro-
vide living stipends for AmeriCorps members
working in MACE’s Anti-Hunger Partnership
and Empowerment Program.
Instead, a significant portion of the grants
was used to pay all or part of the salaries of
MACE employees that were ineligible for
AmeriCorps funding. Even the mayor of Met-
calfe, Mississippi, a member of the Board of
Directors of MACE, received a stipend as an
AmeriCorps volunteer. Many of these individ-
uals testified that they did no AmeriCorps
work. Buck was responsible for submitting
numerous documents that facilitated the illegal
payments.
B.
Buck was convicted of one count of misap-
plication of federal funds in violation of
18 U.S.C. § 666(a)(1)(A) and fourteen counts
of submitting false documents stating that thir-
teen recipients of funds were AmeriCorps vol-
unteers in violation of 18 U.S.C. § 1001(a).
The false statements resulted in the misapplica-
tion of $116,751.67 in AmeriCorps funds.
Buck was sentenced to forty-one months’
imprisonment.
II.
A.
Buck challenges the admission into evi-
dence of a summary diagram that depicted the
connections between her and the misapplied
payments.1 She argues that the summary
amounted to “propaganda” because it drew an
arrow from a logo representing MACE to her
name without making any reference to others
involved in authorizing the expenditures, sug-
gesting that Buck directed the improper ex-
penditures. She states that evidence presented
at trial contradicted this implication.
Where a sufficient objection is made to the
evidence, we review for abuse of discretion.
United States v. Hart, 295 F.3d 451, 454 (5th
Cir. 2002). “If the court errs in its evidentiary
ruling, the error can be excused if it was harm-
less. In applying this rule, we have stated: A
nonconstitutional trial error is harmless unless
it had substantial and injurious effect or influ-
ence in determining the jury’s verdict.” Id. at
454-55 (citations and quotation marks omit-
ted).
1 The MACE logo was placed near the center of
the summary, with fifteen lines drawn from the
logo to the names of fifteen MACE employees.
The summary listed the number of checks and total
amount received by each employee. Above the
MACE logo was a red line pointing to two cap-
tions,“MACE Board of Directors” and “Ruby
Buck, CEO/President.” Buck’s picture was includ-
ed above the caption, but the district court required
that it be covered with tape, leaving only her name
and title visible.

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3
Although Buck describes the summary as
having been admitted under FED. R. EVID.
10062 and argues the issue in terms of that rule
and related caselaw, no rule was cited by ei-
ther side or the court during the arguments
over admissibility. The government argues the
case on appeal under rule 1006 and FED. R.
EVID. 611.3
B.
The summary diagram was not admissible
under rule 611(a) or rule 1006:
Rule 1006 allows admission of sum-
maries in lieu of having the voluminous
originals presented at trial. This use of
summaries in this manner should be
distinguished from charts and summaries
used only for demonstrative purposes to
clarify or amplify argument based on
evidence that has already been admitted
. . . . Although some Courts have con-
sidered such charts and summaries under
Rule 1006, the Rule is really not applica-
ble because pedagogical summaries are
not evidence. Rather, they are demon-
strative aids governed by Rules 403 and
611.
5 STEPHEN A. SALTZBURG ET AL., FEDERAL
RULES OF EVIDENCE MANUAL § 1006.02[5],
at 1006-6 (8th ed. 2002) (footnotes omitted).4
The diagram was plainly a pedagogical aid.
It was not introduced, per the proper use of
rule 1006, to summarize documents or other
evidence too voluminous to present effectively
and efficiently to the jury.5 Rather, the dia-
gram summarized evidence that had already
been presented. See United States v. Griffin,
2003 U.S. App. LEXIS 4080, at *33-*41 (5th
2 Rule 1006 provides:
The contents of voluminous writings,
recordings, or photographs which cannot
conveniently be examined in court may be
presented in the form of a chart, summary,
or calculation. The originals, or duplicates,
shall be made available for examination or
copying, or both, by other parties at reason-
able time and place. The court may order
that they be produced in court.
3 Rule 611(a) provides:
The court shall exercise reasonable
control over the mode and order of inter-
rogating witnesses and presenting evidence
so as to (1) make the interrogation and pre-
sentation effective for the ascertainment of
the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from har-
assment or undue embarrassment.”
4 “The confusion about summaries occurs
where pedagogical devices, used as illustrative
aids, such as information presented on a chalk-
board, flip chart, or drawing, and the like, are used
to summarize or illustrate evidence such as doc-
uments.” 2 CHARLES E. WAGNER, FEDERAL
RULES OF EVIDENCE CASE LAW COMMENTARY, at
1006-5 (2002-2003 ed.)
5 See United States v. Meshack, 225 F.3d 556,
581 (5th Cir. 2000) (stating that summary charts
admitted under rule 1006, as contrasted with rule
611, apply to the contents of voluminous writings
that have been previously admitted and that are so
extensive that in-court review by the jury would be
difficult, inconvenient, or imposible); cf. United
States v. Posada-Rios, 158 F.3d 832, 869 (5th Cir.
1998) (“Since the government did not offer the
charts into evidence and the trial court did not
admit them, we need not decide whether . . . they
were not admissible under Fed. R. Evid. 1006.
Where, as here, the party using the charts does not
offer them into evidence, their use at trial is not
governed by Fed. R. Evid. 1006.”).

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4
Cir. Mar. 10, 2003) (No. 01-20368).
It was proper for the diagram to be shown
to the jury, to assist in its understanding of
testimony and documents that had been pro-
duced, but the diagram should not have been
admitted as an exhibit6 or taken to the jury
room.7 Moreover, “[w]here a chart or sum-
mary is introduced solely as a pedagogical
device, the jury should be instructed that it is
not to be considered as evidence but only as an
aid in evaluating the evidence.” 5 SALTZBURG
ET AL., supra, § 1006.02[5], at 1006-6 to
1006-7 (footnote omitted). Needless to say,
there was no such instruction here, because the
court admitted the diagram into evidence.
Despite the fact that it was an error of law,
and therefore an abuse of discretion, to admit
the diagram, it was harmless, because the dia-
gram accurately summarized testimony and
other evidence that had been properly admitted
and therefore was already before the jury.8
Pedagogical charts not admitted under rule
1006 may be presented to the jury (though not
admitted into evidence) under rule 611 if they
are consistent with the evidence and not mis-
leading. Pierce, 753 F.2d at 431.
Under rule 611 or rule 1006, “[t]he essen-
tial requirement is not that the charts be free
from reliance on any assumptions, but rather
that these assumptions be supported by evi-
dence in the record.”9 The summary witness
testified that Buck was the individual named as
applying for the grant and signing all certifica-
tions. Previously admitted documents and tes-
timony supported the existence and accuracy
of each of the more than three hundred checks
that were summarized and showed that Buck
had signed all but one. Some of the other indi-
viduals that were involved in processing the
checks were present during only part of the
relevant time period, whereas Buck was a
constant.
Buck concedes that “[t]here was nothing
improper about the chart’s depiction of the
trail of the Americorps money that went
through MACE and was paid to various indi-
viduals.” Because the summary is not factually
inaccurate, Buck’s complaint rests on the
6 Though the prosecutor did not invoke Rule
1006 when introducing the summary, he unambig-
uously “move[d] its introduction into evidence[.]”
7 United States v. Taylor, 210 F.3d 311, 315
(5th Cir. 2000) (stating that although charts may
be used as pedagogical devices within the court’s
discretion under rule 611, jury must be warned that
the chart is not evidence and may not go into jury
room, absent consent); Pierce v. Ramsey Winch
Co., 753 F.2d 416, 431 (5th Cir. 1985)
(distinguishing between summaries that are admit-
ted under rule 1006 and “other visual aids that
summarize or organize testimony or documents
that have already been admitted in evidence” and
concluding that summaries admitted under Rule
1006 should go to the jury room but that other
visual aids should not, absent parties’ consent).
8 Because any error is harmless and hence not
reversible, we do not dwell on whether the ob-
jection to admissibility that Buck raised at trial was
sufficiently articulated for preservation on appeal.
See FED. R. EVID. 103(a)(1). Moreover, the
government does not assert that the objection was
inadequate.
9 United States v. Diez, 515 F.2d 892, 906 (5th
Cir. 1975) (considering a summary under rule
611); accord United States v. Jennings, 724 F.2d
436, 442 (5th Cir. 1984) (considering a summary
under rule 1006).

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5
argument that it is misleading because it im-
plies that she was responsible for each transac-
tion and that no one else was involved. Even
if the jury could infer this from the summary,
Buck had ample opportunity to present evi-
dence demonstrating the involvement of other
parties and had the chance to cross-examine
the summary witness concerning the involve-
ment of others.10 Accordingly, the admission
of the summary into evidence did not occasion
undue prejudice and was harmless.
III.
In regard to her sentence, Buck presents
two challenges to the decision to add a two-
level increase to her offense level for “abuse of
trust” under U.S.S.G. § 3B1.3 (2000).11 She
argues that fraud inherently includes the abuse
of trust element, and therefore it is inappropri-
ate to apply the enhancement. She also con-
tends that to be eligible for the enhancement,
a defendant must be in a position of trust with
respect to the victim of the crimeSSin this case
the governmentSSand she avers that she was
not in such a position.
We review findings of fact for clear error
and the application of the sentencing guide-
lines de novo. United States v. Scurlock, 52
F.3d 531, 539 (5th Cir. 1995). “‘A factual
finding is not clearly erroneous as long as the
finding is plausible in light of the record as a
whole.’” Id. (quoting United States v. Brown,
7 F.3d 1155, 1159 (5th Cir. 1993)).
A.
Buck argues that the abuse of trust en-
hancement is inapplicable to fraud convictions.
The enhancement applies “[i]f the defendant
abused a position of public or private trust, or
used a special skill, in a manner that signifi-
cantly facilitated the commission or conceal-
ment of the offense[.]” § 3B1.3. “This adjust-
ment may not be employed if an abuse of trust
or skill is included in the base offense level or
specific offense characteristic.” Id. (emphasis
added). Buck reasons that all fraud sentenced
under § 2F1.1 inherently includes an abuse of
trust, because the perpetrator must somehow
mislead or trick the victim, rendering further
sentence enhancement for abuse of trust inap-
propriate.
Although this court has affirmed an abuse
of trust enhancement to a sentence for fraud
under § 2F1.1, see., e.g., Scurlock, 52 F.3d at
541, it has not addressed Buck’s specific argu-
ment that all fraud includes an abuse of trust.
In United States. v. Fisher, 7 F.3d 69, 70 (5th
Cir. 1993), we determined that § 3B1.3 may
apply to embezzlement convictions, sentenced
under U.S.S.G. § 2B1.1, because abuse of
10 The record indicates that Buck took advan-
tage of these opportunities, reducing the chance of
any prejudice. See United States v. Winn, 948
F.2d 145, 159 & n.36 (5th Cir. 1991); see also
United States v. Norton, 867 F.2d 1354, 1363
(11th Cir. 1989) (“Furthermore, where, as here, the
defense conducted a thorough cross examination of
the witness concerning the disputed matters, and
also had the opportunity to present its own version
of those matters, the likelihood of any error in ad-
mitting summary evidence diminishes.”) (citing
Jennings, 724 F.2d at 442; United States v.
Means, 695 F.2d 811, 817 (5th Cir. 1983)).
11 Buck was sentenced under the 2000 version
of the guidelines, because the district court de-
termined that sentencing under the 2001 guidelines
would result in a longer sentence and violate the ex
post facto clause of the Constitution. Some
holdings in this opinion may not be relevant to
subsequent versions of the guidelines, given that
the guideline section for fraud, U.S.S.G. § 2F1.1
(2000), has been deleted and consolidated with
U.S.S.G. § 2B1.1 effective November 1, 2001.
See U.S.S.G. app. C, amend. 617 (2001).

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6
trust is not included in the base offense level
for embezzlement. In so holding, we found
support in the reasoning of three sister circuits
distinguishing between breach of trust, which
is implicit in embezzlement, and abuse of trust,
which requires more egregious conduct.12 We
should view fraud similarly, distinguishing
between the breach of trust necessary to com-
mit fraud and more egregious conduct and
discretion necessary to trigger an abuse of
trust enhancement.
Buck argues that other circuits have pro-
scribed application of the enhancement for
fraud convictions. She principally cites United
States v. Broderson, 67 F.3d 452, 456 (2d Cir.
1995), holding that a defendant convicted of
making false statements was not eligible for an
abuse of trust enhancement. The defendant,
an employee of a NASA contractor, failed to
notify NASA that its interest rate on some fi-
nanced equipment had gone down since its last
submission, and later certified that its submis-
sions were “accurate, complete, and current,”
resulting in a cost estimate that was incorrect
by $2.1 million. Id. at 454-55. The court held
that “Broderson’s fraudulent conduct was
signing the certificate stating that Grumman
had complied with TINA and FAR. Any abuse
of trust was therefore ‘included in the base
offense level’ of six for fraud and deceit.” Id.
at 456.
Broderson does not stand for the proposi-
tion that the abuse of trust enhancement can
never be applied to a fraud sentence; rather, it
is limited to its facts, and any breach of trust
arose only from the submission of a false state-
ment, which was minimally necessary to com-
mit fraud. After Broderson, the Second Cir-
cuit, in affirming an abuse of trust enhance-
ment to a sentence for mail fraud, held:
An abuse of trust enhancement may
not be imposed on a defendant convict-
ed of fraud solely because of a violation
of a legal obligation to be truthful and a
victim’s reliance on a misrepresentation.
Every fraud involves these elements. In-
stead, a court must determine the extent
to which the defendant’s position pro-
vides the freedom to commit a diffi-
cult-to-detect wrong. In other words,
we have said, the defendant’s position
must involve discretionary authority.
United States v. Hirsch, 239 F.3d 221, 227
(2d Cir. 2001) (citations and quotation marks
omitted).13 We adopt this portion of Hirsch
12 Fisher, 7 F.3d at 70 (citing United States v.
Christiansen, 958 F.2d 285, 287-88 (9th Cir.
1992); United States v. Milligan, 958 F.2d 345,
347 (11th Cir. 1992); United States v. Georgiadis,
933 F.2d 1219, 1225 (3d Cir. 1991)). In Chris-
tiansen, the court noted that the commentary to the
guidelines specifically contemplates the application
of § 3B1.3 to an embezzlement case. 958 F.2d at
287. “It follows that, at least in those instances in-
volving embezzlement by someone in a significant
position of trust, the enhancement may be applied.”
Id.
The commentary to the 2000 guidelines con-
tains similar language. After describing what fac-
tors demonstrate a position of trust, it states that
“[t]his adjustment does not apply to the case of an
embezzlement or theft by an ordinary back teller or
hotel clerk because such positions are not charac-
terized by the above-described factors.” § 3B1.3,
cmt. n.1 (2000).
13 The other case relied on by Buck, United
States v. Garrison, 133 F.3d 831, 843 (11th Cir.
1998), also fails to support her argument that the
abuse of trust enhancement is unavailable for fraud
(continued...)

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and uphold the application of the abuse of
trust enhancement to a fraud sentence where
the defendant employed discretionary authority
given by her position in a manner that facili-
tated or concealed the fraud.14
B.
Buck challenges the determination that she
was in a position of trust, arguing that she was
not in such a position with respect to the gov-
ernment, the primary victim, because her deal-
ings with the government passed through
CHC, and her duties were limited to following
government regulations. We have never held,
however, nor do the guidelines explicitly re-
quire, that the determination whether a defen-
dant occupied a position of trust must be as-
sessed from the perspective of the victim.15
Several other circuits have reached this con-
clusion.16 We conclude that Buck did abuse a
position of trust with respect to the govern-
ment, and, in the alternative, that her abuse of
the position of trust with respect to CHC suf-
fices to sustain the district court’s decision.
Buck maintained significant direct ties to
the government in directing the AmeriCorps
program. The grant was originally awarded
directly by AmeriCorps in 1996, while Buck
was interim CEO and President of MACE.
Though MACE’s submissions were reviewed
and administered by CHC, they were also cer-
tifications to the government. All of the data
submitted by MACE was forwarded to Ameri-
Corps; CHC often served as a passthrough,
with AmeriCorps reviewing the forms to de-
termine eligibility. AmeriCorps relied on the
accuracy of these submissions, because neither
it nor CHC could easily verify the validity ex-
istence of MACE’s grant recipients. Many
records prepared by MACE were also subject
to on-site inspection by AmeriCorps workers.
13(...continued)
convictions. In fact, the Eleventh Circuit has cited
Garrison in affirming an abuse of trust enhance-
ment to a fraud sentence. See United States v.
Liss, 265 F.3d 1220, 1229-30 (11th Cir. 2001).
14 This is consistent with our approach in Fisher
and with the guidance of the commentary to
§ 3B1.3, which states that a position of public or
private trust is “characterized by professional or
managerial discretion” and advises that “for this
adjustment to apply, the position of public or pri-
vate trust must have contributed in some significant
way to facilitating the commission or concealment
of the offense[.]” § 3B1.3, cmt. n.1.
15 This requirement, however, has been implied
in some of our opinions. For example, in United
States v. Iloani, 143 F.3d 921, 922 (5th Cir.
1998), we stated:
In this Circuit, it is settled that a § 3B1.3
enhancement is appropriate for a physician
who abuses the trust of his patients. How-
ever, this Circuit has never considered
(continued...)
15(...continued)
whether a physician who acts in concert
with his patients to conduct a fraudulent
billing scheme may be assessed a § 3B1.3
enhancement for abuse of a position of trust
on the basis of the physician's relationship
with an insurance company.
(Citations omitted.)
16 See., e.g., United States v. Thorn, 317 F.3d
107, 120 (2d Cir. 2003); United States v. Mackey,
114 F.3d 470, 475 (4th Cir. 1997); United States
v. Zaragoza, 123 F.3d 472, 481 (7th Cir. 1997);
United States v. Hill, 915 F.2d 502, 506 n.3 (9th
Cir. 1990); United States v. Trammell, 133 F.3d
1343, 1355 (10th Cir. 1998); United States v. Gar-
rison, 133 F.3d 831, 837 (11th Cir. 1998).

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8
Buck again points to Garrison, in which the
court did not find a position of trust, in part
because the defendant
did not hold a position of discretion con-
cerning her crime of false reporting to
Medicare, as required for application of
the abuse-of-trust enhancement. As her
counsel explained at sentencing, Gar-
rison lacked the discretion and ability to
conceal the false cost reports submitted
for Medicare reimbursement and relied
on others to accomplish this deception.
Garrison, 113 F.3d at 841. The court also
credited Garrison’s contention that her false
statements were made in reliance on financial
experts, id. at 841 n.19, which mitigated
against finding that she had a position of trust.
By comparison, Buck was in perhaps the
best position, in terms of discretion and ability,
to conceal her false reports from the govern-
ment. All the false certifications passed
through her. Her relationship to those assist-
ing her was employer-employee, giving her
significant leverage to gain the complicity of
others. Notwithstanding the presence of CHC
as intermediary, there is ample support in the
record for a finding that Buck occupied a posi-
tion of trust with respect to the government.
Alternatively, there is little doubt that Buck
occupied a position of trust with respect to
CHC. In United States v. Sidhu, 130 F.3d
644, 655-56 (5th Cir. 1997), we affirmed a
§ 3B1.3 enhancement where the position of
trust was not held with respect to the main vic-
tim of the crime. There, a doctor defrauded
various government programs and insurance
companies by billing patients for services that
were not performed or were not performed
appropriately. Id. at 647. We based our af-
firmance on the defendant’s abuse of his pa-
tients’ trust. This holding may be explained by
our determination, for purposes of another
sentencing enhancement, that although the
government and insurers may have been the
“primary victims of his criminal conduct,” the
patients also were victims of the fraud. Id.
at 655.
We interpret Sidhu to allow the enhance-
ment whenever any victim of a criminal
scheme placed the defendant in a position of
trust that significantly facilitated the crime.17
The CHC, as sub-grantor, also was injured by
Buck’s fraud, as it was unable to distribute the
17 In United States v. Bhagavan, 116 F.3d 189,
193 (7th Cir. 1997), the court took a similar ap-
proach, holding that the government is not neces-
sarily the only victim in a tax evasion scheme, and
that the § 3B1.3 enhancement can apply if any
identifiable victim of the overall scheme to evade
taxes put the defendant in a position of trust that
facilitated the commission or concealment of the
offense. Similarly, in United States v. Cianci, 154
F.3d 106, 110-13 (3d Cir. 1998), the court held
that enhancement was appropriate in a tax evasion
case where the defendant abused a position of trust
with his company to embezzle unreported income.
Although the defendant had not been charged for
any crime in relation to his employer, the abuse of
trust could be considered as “relevant conduct”
under the guidelines. Id. at 112-13.
In United States v. Duran, 15 F.3d 131, 132-33
(9th Cir. 1994) (per curiam), the court affirmed an
enhancement, allowing a sheriff’s use of a position
of trust to embezzle money to support an en-
hancement for the illegal structuring of the finan-
cial transactions to avoid reporting requirements.
This was allowed despite the fact that the jury
failed to reach a verdict on the underlying theft
charge, because the theft was part of a common
scheme or plan with the illegal structuring under
U.S.S.G. § 1B1.3(a)(2). Id. at 133.

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9
AmeriCorps funds to deserving sub-grantees
that supported its mission. Buck’s position of
trust with respect to CHC suffices to support
the enhancement.
Whether viewed in terms of the government
or CHC, the record supports the finding that
Buck abused her position of trust. “[T]o de-
termine whether the position of trust ‘signifi-
cantly facilitated’ the commission of the of-
fense, [a] court must decide whether the de-
fendant occupied a superior position relative to
all people in a position to commit the offense,
as a result of [her] job.” Fisher, 7 F.3d at
70-71.
Buck’s abuse of trust was not merely sign-
ing the false forms; it extended to her decisions
to have employees perform tasks not allowed
under the grants and to convince others to
falsify numerous documents to defraud the
government. Buck was distinguished from her
employees by the broad discretion, autonomy,
and ability to conceal the falseness of her
claims from the government and CHC pro-
vided by her position as President and CEO;
her responsibility to certifying each employee’s
validity; and her status as the applicant for the
grant. The district court properly enhanced
Buck’s sentence for abusing a position of
trust.18
IV.
Though Buck was convicted of misapplica-
tion of $116,751.67 in AmeriCorps funds, evi-
dence of a similar but separate incident, in-
volving misapplication of approximately
$88,000 of Department of Labor Welfare-To-
Work (“DLWTW”) grant funds, was intro-
duced pursuant to FED. R. EVID. 404(b).19 The
district court added this $88,000 when deter-
mining the amount of the loss for sentencing
purposes under § 2F1.1(b)(1). Buck argues
that this conduct was insufficiently related to
the fraud to be considered in sentencing.
“The district court’s determination of what
constitutes relevant conduct for sentencing
purposes is a factual finding.” United States v.
Nevels, 160 F.3d 226, 229 (5th Cir. 1998).
This finding must be supported by a prepon-
derance of the evidence and is reviewed for
clear error. Id. For fraud, the guidelines pro-
vide a broad reach in including relevant con-
duct.20 “All acts and omissions committed,
aided, abetted, counseled, commanded, in-
duced, procured, or willfully caused by the de-
fendant,” § 1B1.3(a)(1)(A), “that were part of
the same course of conduct or common
scheme or plan as the offense of conviction,”
§ 1B1.3(a)(2), should be considered. “For
two or more offenses to constitute part of a
common scheme or plan, they must be sub-
stantially connected to each other by at least
one common factor, such as common victims,
18 The district court did not state whether it
viewed Buck’s position of trust in terms of CHC or
the government. But, “when the judgment of the
district court is correct, this court may affirm for
reasons not given by the district court and not ad-
vanced to it.” United States v. Giraldo, 111 F.3d
21, 24 n.12 (5th Cir. 1997).
19 Rule 404(b) allows the admission of evidence
of other crimes for several purposes, “such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident[.]”
20 See United States v. Pinnick, 47 F.3d 434,
438 (D.C. Cir. 1995) (comparing the broad reach
of the Guidelines for fraud to that for “most of-
fenses, [where] the Guidelines require the sentenc-
ing court to consider only conduct intrinsic to the
offense of conviction in determining the defendant’s
guideline range.”).

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10
common accomplices, common purpose, or
similar modus operandi.” § 1B1.3, cmt.
n.9(A) (emphasis added).
Offenses that do not qualify as part
of a common scheme or plan may none-
theless qualify as part of the same
course of conduct if they are sufficiently
connected or related to each other as to
warrant the conclusion that they are part
of a single episode, spree, or ongoing
series of offenses. Factors that are ap-
propriate to the determination of wheth-
er offenses are sufficiently connected or
related to each other to be considered as
part of the same course of conduct in-
clude the degree of similarity of the of-
fenses, the regularity (repetitions) of the
offenses, and the time interval between
the offenses. When one of the above
factors is absent, a stronger presence of
at least one of the other factors is re-
quired.
§ 1B1.3, cmt. n.9(B).
It does not matter that Buck was never
charged with the misapplication of DLWTW
grant funds. The “Background” portion of
§ 1B1.3 specifically advises that
the applicability of subsection (a)(2)
does not depend upon whether multiple
counts are alleged. Thus, in an embez-
zlement case, for example, embezzled
funds that may not be specified in any
count of conviction are nonetheless in-
cluded in determining the offense level if
they were part of the same course of
conduct or part of the same scheme or
plan as the count of conviction.
With both the DLWTW and Americorps
frauds, Buck used MACE to defraud the gov-
ernment out of social services funds; with
both, she certified that she would abide or had
abided by the various requirements of the
programs. Buck used the funds acquired by
both frauds to pay for numerous activities re-
lating to the operation of MACE, rather than
for the limited purposes for which the grants
were specified.
Both frauds therefore shared a common
purpose: to prop up the cash-strapped MACE.
The common victim, common purpose, and
similar modus operandi paired the two frauds
in a common scheme. The two crimes are
distinguished by obvious differences, but the
evidence does not so differentiate them to ren-
der the district court’s ruling clearly errone-
ous.
V.
Buck argues that the $11,580.96 that went
to the mayor of Metcalfe under the Ameri-
Corps grant should have been deducted from
the loss amount, because Allen’s involvement
in several community service projects “went
toward the ultimate goals of the program.”
We review the inclusion of these funds for
clear error. United States v. Kimbrough, 69
F.3d 723, 733 (5th Cir. 1995).
Buck’s argument is meritless. AmeriCorps
funds may not be used to fund programs that
already exist. See 45 C.F.R. § 2540.100(e)
(2001). Allen testified that all the programs in
question were already in existence before she
began receiving AmeriCorps grants, that they
had independent funding, and that her involve-
ment was limited.
The jury credited this testimony, finding
that Buck had misappropriated funds, because
Allen was not authorized to receive grants un-

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der the AmeriCorps program. The district
court did not err in considering the loss of
those unauthorized grants at sentencing.
VI.
Buck maintains that the district court erred
by not granting a downward departure on
numerous grounds offered at sentencing, in-
cluding her lack of pecuniary gain from the
offenses, the obstacles of poverty and preju-
dice she had overcome, and her charitable and
public service work. We have jurisdiction to
review the district court’s refusal to grant a
downward departure from the Guidelines only
if the refusal was based on an error of law.
United States v. Palmer, 122 F.3d 215, 222
(5th Cir. 1997).
Thus, we have jurisdiction if a district
court’s refusal to depart downward is
premised upon the court’s mistaken con-
clusion that the Guidelines do not permit
such departure, but we have no jurisdic-
tion if the court’s refusal is based on its
determination that departure is not war-
ranted on the facts of the case. A defen-
dant’s mere dissatisfaction with the trial
court’s refusal to depart downward
forms no basis for an appeal.
Id. (citation omitted). Even where jurisdiction
is found, “the appellate court rarely should re-
view de novo a decision to depart from the
Sentencing Guidelines, but instead should ask
whether the sentencing court abused its discre-
tion.” United States v. Walters, 87 F.3d 663,
672 n.10 (5th Cir. 1996).
The district court could grant a downward
departure under U.S.S.G. § 5K2.0 if it found
“there exist[ed] an aggravating or mitigating
circumstance of a kind, or to a degree, not ad-
equately taken into consideration by the Sen-
tencing Commission in formulating the guide-
lines.” 18 U.S.C. § 3553(b) (1996). The sen-
tencing court must consider a factor in its
given circumstances and “decide whether it is
sufficient to take the case out of the Guide-
line’s heartland.” Koon v. United States, 518
U.S. 81, 96 (1996).
Buck urges that the district court was un-
aware that it could depart and that we should
remand because of the district court’s mistake
of law. The court, however, displayed a firm
understanding of the law. Indeed, it had re-
cently read Koon and Walters, as well as other
cases and the applicable portions of the guide-
lines, and recited in detail the standards it was
to apply.
A careful reading of the sentencing hearing
indicates that the court considered every one
of Buck’s points but reluctantly decided they
did not rise to the level necessary to justify a
departure. The court did not believe it was
unable to make a downward departure under
the law, but rather concluded that Buck’s ar-
guments did not merit such a departure.
For example, with respect to Buck’s con-
tention that a downward departure was appro-
priate because she did not experience pecuni-
ary gain and therefore the loss calculation
“overstates the seriousness of the particular
defendant’s conduct,” the court reviewed Wal-
ters, in which we upheld a six-month down-
ward departure where the defendant received
no personal benefit and the lower court deter-
mined that the “guideline calculation over-
states the seriousness of [Walter’s] involve-
ment.” Walters, 87 F.3d at 672. The victim,
a Louisiana parish, had been unaware of illegal
fees included in its insurance payments, but
ultimately received insurance at the price it had
negotiated. Id. at 668.

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The district court determined that the gov-
ernment did not get the benefit of AmeriCorps
volunteers as it had been led to believe, and
potential AmeriCorps volunteers were denied
grants as a result of Buck’s fraud. Therefore,
in the district court’s judgment, despite the
lack of direct pecuniary gain by Buck,21 “[t]he
seriousness of the offense has not been over-
stated by either the sentencing guidelines or
the presentence investigation report.”
The district court made similar determina-
tions in weighing each of Buck’s arguments
for a downward departure. Because the court
understood its authority and declined to de-
part, we are without jurisdiction to review its
determinations. This portion of Buck’s appeal
is dismissed.
We therefore AFFIRM Buck’s conviction
and sentence on all issues except the district
court’s denial of a downward departure under
§ 5K2.0, as to which issue we DISMISS the
appeal for want of jurisdiction.
21 It is also questionable to assert that Buck did
not benefit pecuniarily when the fraud helped keep
afloat the struggling nonprofit of which she was
CEO and President. Presumably she paid herself
a salary that would have disappeared had MACE
failed.

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