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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-7138
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONALD EDWARD HIPPS and PHYLLIS ELAINE HIPPS,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Mississippi
(CA J90 0421 (W))
(December 22, 1992)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges:
PER CURIAM:*
Donald Edward Hipps and Phyllis Elaine Hipps pleaded guilty to
one count of conspiracy to commit offenses against the United
States in violation of 18 U.S.C. § 371 and transportation of stolen
monies in violation of 18 U.S.C. § 2314. They were sentenced to
ten years imprisonment on one count and five years probation on the

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other. They did not file a direct appeal. Instead, they filed
section 2255 motions challenging their guilty pleas.
The Hipps' § 2255 motions alleged that their guilty pleas were
involuntary because their counsel misrepresented the amount of time
they would serve and because they were not informed until the last
moment that they would not be allowed to plead no contest. They
also alleged that their counsel was ineffective because he failed
to challenge factual inaccuracies in the presentence report. They
argued a double jeopardy violation based on the fact that they
pleaded guilty to conspiracy and the underlying substantive
offense. In a supplemental motion, they alleged that there was no
factual basis for the $5,000 jurisdictional amount required by 18
U.S.C. § 2314. The district court denied their § 2255 motions.
Notice of appeal
The government alleges in its brief that the notice of appeal
was not timely filed; but, the allegation is incorrect. The order
denying the § 2255 motion was entered on February 19, 1992. The
notice of appeal was filed on March 2, 1992. Claims brought under
§ 2255 are civil actions governed by the sixty-day appeal period of
Fed. R. App. P. 4(a)(1). United States v. Buitrago, 919 F.2d 348,
349 (5th Cir. 1990). The Hipps' notice of appeal was timely.
Factual basis and ineffective assistance
On appeal, the only issues which the Hipps raised in their
original brief was that there was no factual basis for the $5,000
value and that their attorney was ineffective for counseling them
to plead guilty. Although they did not raise these issues in a

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direct appeal, the government did not raise a claim of procedural
bar in the district court, and so this Court can consider these
issues. See United States v. Drobny, 955 F.2d 990, 995 (5th Cir.
1992).
The factual basis for the Hipps' guilty pleas was read aloud
at the plea hearing. The government stated that it would prove
that from May 1986 to October 1987, the Hipps conspired with each
other to execute a scheme to defraud federally insured banks and to
transport in interstate commerce checks of the value of $5,000 or
more, knowing that the checks had been stolen. In executing the
scheme, the Hipps would go to various retail establishments, and
while Donald Hipps distracted the employee of the store, Phyllis
Hipps would steal blank personal or business checks and blank
deposit tickets. They would then go to a branch of the bank that
issued the checks which they had stolen and make a deposit into the
victim's account using other stolen or forged checks to make the
deposit. After the deposit was made, they would make a cash
withdrawal from the victim's account using one of the stolen checks
that they had taken from the victim. The government alleged that
the Hipps had transported in interstate commerce checks with a
value of $5,000 or more.
The Hipps accepted the facts as stated by the government and
pleaded guilty. At the sentencing hearing, their attorney argued
that although they did not dispute that they had stolen about
$340,000, only $30,000 should be used for sentencing because that

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was the amount contained in the counts to which they pleaded
guilty.
Now the Hipps argue that there was no factual basis for the
$5,000 value required under 18 U.S.C. § 2314 because the checks
which they stole and forged were actually "worthless." They
apparently got this idea from a presentence report prepared on
charges against Mrs. Hipps in the Northern District of Florida,
which described the checks which she deposited as "worthless
checks."
The district court found that there was a sufficient factual
basis for the $5,000 value. The district court treated it as a
factual issue, and did not address the legal aspect of the issue.
The district court also did not address the ineffective assistance
aspect because the Hipps did not really develop that part of their
argument in the district court. They made the statement in their
supplemental motion that they were induced to plead guilty to a
charge which was not clarified to them by either their trial
counsel or the district court at their plea hearing.
This court reviews a district court's factual findings in a
§ 2255 proceeding for clear error. United States v. Briggs, 965
F.2d 10, 12 (5th Cir. 1992). From a reading of the factual basis
at the plea hearing and counsel's statements at the sentencing
hearing, the district court's finding that there was a sufficient
factual basis for finding that the Hipps had transported over
$5,000 in stolen checks was not clearly erroneous. However, this
does not answer the legal argument. Their legal argument is that

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they did not know at the time they pleaded guilty that they could
not be guilty of the crime because the checks actually had no
value, i.e., they were "worthless."
The Hipps have posed the issue as "whether the checks when
stolen, had an individual face value of $5,000 or more, and
"whether the independent face value of each check [could] be
aggregated to establish the accumulative value of $5,000 or more."
This is the same type of legal argument made in United States v.
Briggs, 939 F.2d 222 (5th Cir. 1991). The Hipps' guilty pleas
cannot be considered voluntary if they did not understand that
their conduct did not actually constitute the crime charged.
As for the first argument, this Circuit's interpretation of §
2314 makes it clear that "value may be determined not only at the
time of the theft, but at any time the stolen property was in the
possession or control of the defendants." United States v.
Laughlin, 804 F.2d 1336, 1339 (5th Cir. 1986). Furthermore, the
fact that the checks may be described as worthless because they are
forgeries does not affect the determination of their value under
§ 2314. In United States v. Kelly, 569 F.2d 928, 933-34 (5th
Cir.), cert. denied, 439 U.S. 829 (1978), the defendant was
convicted under § 2314 for obtaining cash and other valuable assets
with "worthless" shares of stock in a fraudulently created mutual
fund which had no assets. Under § 2314, "intrinsic value" is not
the standard of value employed. One must look to the value of what
the defendant was able to obtain with the forged checks. See
United States v. Sarkisian, 545 F.2d 1237, 1238 (9th Cir. 1976).

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Here, the defendants were able to make withdrawals of cash from the
victims' bank accounts in the amount of $209,452, as verified by
their fingerprints on the checks. The Hipps' argument has no
merit.
As to the second argument, the Hipps are correct that amounts
charged in separate counts of an indictment cannot be aggregated to
reach the $5,000 jurisdictional amount. United States v. Markus,
721 F.2d 442, 444 (3rd Cir. 1983). However, the principle in
Markus does not apply because the one of the counts to which the
Hipps pleaded guilty, Count VI, did charge specifically $5,000 or
more and did not rely on aggregation of checks charged in separate
counts.
Because there was a sufficient factual basis for their guilty
pleas, both legally and factually, their attorney cannot be
considered to have been ineffective for counseling them to plead
guilty.
We AFFIRM the judgment of the trial court.

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