U.S.A. v. Kilkenny

05-6847
U.S.A. v. Kilkenny
UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2
3 _______________ 4
5 August Term, 2006 6
7 (Submitted October 27, 2006 Decided July 5, 2007) 8
9 Docket No. 05-6847-cr 10
11 _______________ 12
13 United States of America, 14
15 Appellee, 16
17 v. 18
19 Patrick J. Kilkenny, 20
21 Defendant-Appellant. 22
23 _______________ 24
25 Before: 26 CARDAMONE, WALKER, and STRAUB, 27 Circuit Judges. 28
29 _______________ 30
31 Defendant Patrick Kilkenny appeals from an amended judgment 32 of conviction entered in the United States District Court for the 33
Northern District of New York (Hurd, J.) on December 8, 2005, 34 after pleading guilty to bank fraud in violation of 18 U.S.C. 35 § 1344(2), mail fraud in violation of 18 U.S.C. §§ 1341, 1342 and 36 structuring a financial transaction to evade currency reporting 37 requirements in violation of 31 U.S.C. § 5324(a)(3). Defendant 38 was sentenced to 216 months in prison, five years of supervised 39 release, restitution of $7,860,321.39, and a special assessment 40 of $300. 41
42 Remanded for resentencing. 43
44 _______________ 45

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_______________ 1
2 Terence L. Kindlon, Kindlon and Shanks, P.C., Albany, New York, 3 filed a brief for Defendant-Appellant. 4
5 Sara M. Lord, Assistant United States Attorney, Albany, New York 6 (Glenn T. Suddaby, United States Attorney, Brenda K. Sannes, 7 Assistant United States Attorney, Northern District of New 8 York, Albany, New York, of counsel), filed a brief for 9 Appellee. 10
11 _______________ 12

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2
CARDAMONE, Circuit Judge: 1
Patrick Kilkenny (defendant or appellant) appeals from an 2
amended judgment of conviction entered on December 8, 2005 in the 3
United States District Court for the Northern District of New 4
York (Hurd, J.). The conviction followed Kilkenny's plea of 5
guilty to three counts of an information charging him with bank 6
fraud in violation of 18 U.S.C. § 1344(2), mail fraud in 7
violation of 18 U.S.C. §§ 1341, 1342, and structuring a financial 8
transaction to evade currency reporting requirements in violation 9
of 31 U.S.C. § 5324(a)(3). 10
Applying the 2002 version of the United States Sentencing 11
Guidelines (Guidelines or U.S.S.G.), the district court sentenced 12
Kilkenny principally to a term of 216 months imprisonment. 13
Kilkenny appeals this judgment alleging, inter alia, that the 14
district court's use of the 2002 version of the Guidelines 15
violated the Ex Post Facto Clause of Article I of the 16
Constitution. U.S. Const. art. 1, § 9, cl. 3. We think that 17
application of the 2002 version of the Guidelines was in error 18
and therefore remand the case for resentencing. We have 19
considered defendant's other arguments and find them to be 20
without merit. 21
BACKGROUND 22
The facts underlying this appeal are largely uncontested. 23
On July 25, 2003 Kilkenny waived indictment and pled guilty to 24
each of three counts in a felony information. The plea agreement 25
that defendant entered into with the government on that date 26

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3
included a detailed set of stipulated facts that formed the 1
factual predicate for the guilty plea. Although Kilkenny 2
admitted to having fraudulently obtained over a dozen bank loans 3
and to having committed various other crimes, only three criminal 4
counts were charged against him in the information. 5
Count One charged him with executing a scheme "[f]rom in or 6
about September 2000 through on or about May 8, 2002" to defraud 7
M&T Bank. The government alleged, and defendant admitted, that 8
on September 19, 2000 he applied for and subsequently received a 9
loan from M&T Bank in the amount of $467,541. In his loan 10
application, Kilkenny grossly overstated his assets and income, 11
submitted fraudulent personal and corporate income tax returns, 12
and failed to report more than $1.3 million in debts. As a 13
result of these misrepresentations, M&T Bank was forced to 14
foreclose on the loan on May 8, 2002 and in so doing suffered a 15
monetary loss of more than $450,000. Count Two charged defendant 16
with defrauding 22 individuals of $910,000 by inducing them to 17
invest in Panamanian bonds which Kilkenny was not authorized to 18
issue and which were not valid instruments. The government 19
alleged and defendant admitted that this scheme took place from 20
February 2000 through June 2001. Finally, in Count Three of the 21
information, the government charged defendant with structuring 22
certain cash deposits on July 24, 2001 to avoid currency 23
reporting requirements. 24
Following defendant's guilty plea, the United States 25
Probation Office prepared a presentence investigation report 26

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4
(PSR) using the 2002 version of the Guidelines. The PSR 1
calculated a base-offense level of six pursuant to U.S.S.G. 2
§ 2B1.1(a) (2002) and recommended five enhancements: (1) a 20- 3
level enhancement for the amount of loss, id. at 4
§ 2B1.1(b)(1)(K); (2) a four-level enhancement for the number of 5
victims, id. at § 2B1.1(b)(2)(B); (3) a two-level enhancement for 6
obtaining more than $1 million from financial institutions, id. 7
at § 2B1.1(b)(12)(A); (4) a two-level enhancement for obstruction 8
of justice, id. at § 3C1.1; and (5) a two-level enhancement for 9
defendant's supervision of a criminally responsible participant, 10
his bookkeeper, Melanie Ramsey, id. at § 3B1.1(c). The resulting 11
total offense level was 36, with a Guidelines range between 188 12
and 235 months imprisonment. 13
At a sentencing hearing on December 12, 2003 defense counsel 14
made several objections to the PSR. First, defense counsel took 15
issue with the version of the Guidelines used to calculate 16
defendant's sentence. Kilkenny contended that instead of the 17
2002 Guidelines, the 2000 Guidelines should have been applied 18
because all of the conduct relating to the offenses of conviction 19
occurred before November 1, 2001 when the 2001 version of the 20
Guidelines went into effect. Second, defense counsel objected to 21
the two-level enhancement for Kilkenny's supervision of a 22
criminally responsible participant. Third, the defense asserted 23
a three-level reduction was warranted for acceptance of 24
responsibility. The sentencing court was not persuaded by these 25
objections. Applying the 2002 version of the Guidelines, which 26

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5
are in all relevant respects identical to the 2001 version, the 1
court sentenced Kilkenny to 235 months in prison, followed by 2
five years of supervised release, and restitution in the amount 3
of $7,327,854.36. 4
While defendant's first appeal to this Court was pending, 5
the Supreme Court handed down United States v. Booker, 543 U.S. 6
220 (2005), which rendered advisory the sentencing range 7
calculated under the Guidelines. In a summary order, we remanded 8
the case for resentencing pursuant to Booker and declined to 9
reach the other issues defendant raised on appeal. United States 10
v. Kilkenny, No. 03-1775 (2d Cir. March 15, 2005). 11
Defendant was resentenced on November 28, 2005. The 12
district court again applied the 2002 version of the Guidelines, 13
finding that the offense of conviction continued through May 8, 14
2002. In particular, it concluded that, although Kilkenny 15
applied for and received the M&T bank loan in September 2000, his 16
subsequent failure to make payments on the loan extended the 17
offensive conduct until the bank initiated foreclosure 18
proceedings in 2002. The trial judge stated that in applying the 19
2002 date he was "relying on the entire range of conduct" and 20
that Kilkenny's conduct of fraud and deception extended "actually 21
even into 2003 in relation to additional individual victims which 22
were not specifically charged but detailed in the presentence 23
report." The court also noted that "the May 8, 2002 date is 24
specifically charged in Count One of the Information." Applying 25
the 2002 Guidelines, it resentenced Kilkenny to a total term of 26

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216 months imprisonment, 19 months less than the sentence it had 1
originally imposed, followed by five years of supervised release, 2
restitution of $7,860,321.39, and a special assessment of $300. 3
From this judgment, Kilkenny appeals. For the reasons set 4
forth below, we remand the case to the district court with 5
instructions to resentence defendant under the 2000 version of 6
the Guidelines. 7
DISCUSSION 8
I Standard of Review 9
We review a sentencing court's interpretation and 10
application of the Guidelines de novo. United States v. Sloley, 11
464 F.3d 355, 358 (2d Cir. 2006). Findings of fact are reviewed 12
under the clearly erroneous standard. Id. A finding is clearly 13
erroneous if, "although there is evidence to support it, the 14
reviewing court on the entire evidence is left with the definite 15
and firm conviction that a mistake has been committed." Anderson 16
v. Bessemer City, 470 U.S. 564, 573 (1985). 17
II Ex Post Facto Laws 18
The premise of this opinion rests on an application of that 19
provision in Article I of the United States Constitution that 20
prohibits Congress from passing any "ex post facto Law." See 21
U.S. Const. art. I, § 9, cl. 3; see also art. I, § 10, cl. 1 22
(prohibiting states from passing any ex post facto law). For 23
that reason it is helpful to state first our understanding of 24
what that constitutional clause means. It is hard to improve on 25
the definition of the Ex Post Facto Clause set out in an early 26

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Supreme Court case, Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). 1
In that case Justice Chase described the following kind of 2
legislation as prohibited 3
1st. Every law that makes an action done 4 before the passing of the law, and which was 5 innocent when done, criminal; and punishes 6 such action. 7
8 2d. Every law that aggravates a crime, or 9 makes it greater than it was, when committed. 10
11 3d. Every law that changes the punishment, 12 and inflicts a greater punishment, than the 13 law annexed to the crime, when committed. 14
15 4th. Every law that alters the legal rules of 16 evidence, and receives less, or different 17 testimony, than the law required at the time 18 of the commission of the offence, in order to 19 convict the offender. 20
21 Id. at 390. 22
The reason for the clause's adoption in the Constitution 23
was, as the Supreme Court has explained, to restrain Congress 24
from enacting "arbitrary or vindictive" laws. See Miller v. 25
Florida, 482 U.S. 423, 429 (1987). The clause also ensures that 26
individuals are given "fair warning" of a law's effect. Id. at 27
430. Examples from history vividly illustrate the importance of 28
these dual functions. Perhaps the most dramatic example of a 29
vindictive law unconstrained by any ex post facto prohibition 30
occurred in pre-World War II Germany. After an arsonist burned 31
the Reichstag in Berlin in February 1933, the newly empowered 32
Nazi government authorized increasing the punishment for arson 33
from imprisonment to death. See 2 Morris Ploscowe, Crime and 34
Criminal Law 70-71 (1939). The arsonist was duly executed. Id. 35

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8
Blackstone illustrates the second purpose of the Ex Post Facto 1
Clause, providing fair warning, by looking to the policies of the 2
Roman despot Caligula. See 1 William Blackstone, Commentaries on 3
the Laws of England 46 (1765). Caligula had laws written in fine 4
print and hung them high up on pillars so that they were not 5
available to nor readable by the Roman citizens affected by such 6
laws. Id. They provided no fair warning and so, like laws made 7
ex post facto, they would not have provided citizens fair notice 8
to refrain from the criminalized conduct. Sash v. Zenk, 439 F.3d 9
61, 64 (2d Cir. 2006) (notice problems arise when retrospective 10
changes are made in laws upon which citizens are entitled to 11
rely). 12
Thus, the Ex Post Facto Clause enshrines in the Constitution 13
a basic presumption of our law, that is, legislation in the 14
criminal law "is not to be applied retroactively." See Johnson 15
v. United States, 529 U.S. 694, 701 (2000). 16
III Which Version of the Guidelines Applies? 17
A. General Principles 18
With that background, we turn to the case at hand. 19
Ordinarily a sentencing court must apply the version of the 20
Guidelines in effect on the date of the defendant's sentencing. 21
United States v. Keller, 58 F.3d 884, 889 (2d Cir. 1995); see 22
also United States v. Keigue, 318 F.3d 437, 442 (2d Cir. 2003) 23
(remanding because district court applied expired version of 24
Guidelines when no ex post facto problem was raised by 25
application of Guidelines in effect at time of sentencing). At 26

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9
the same time we have recognized an exception to this general 1
rule. When the application of the Guidelines in effect at the 2
time of sentencing would result in a more severe penalty than 3
would application of the Guidelines in effect at the time the 4
offense was committed, the Ex Post Facto Clause requires the use 5
of the earlier version of the Guidelines. Keller, 58 F.3d at 6
889. 7
B. Is This an Ex Post Facto Application of the Guidelines? 8
To decide whether a criminal law is ex post facto, we apply 9
a two-part test: first, the law must be retrospective, applying 10
to events that occurred before its enactment; second, the law 11
must be disadvantageous to the individual affected by it. 12
Miller, 482 U.S. at 430; Keller, 58 F.3d at 889. In this case, 13
it is not disputed that defendant was disadvantaged by the 14
application of the 2002 Guidelines. If appellant had been 15
sentenced under the 2000 Guidelines, he would have been subject 16
to a recommended Guidelines range of 97 to 121 months 17
imprisonment. Under the 2002 Guidelines, he was subject to a 18
recommended range of 188 to 235 months. That is roughly 8 to 10 19
years compared to 16 to 20 years. 20
Our inquiry is thus focused on the first prong of the ex 21
post facto test: Was the application of the 2002 Guidelines to 22
Kilkenny's crimes retrospective? The application of a particular 23
version of the Guidelines is retrospective if the version went 24
into effect after the last date of the offense of conviction. 25
See United States v. Fitzgerald, 232 F.3d 315, 318-19 (2d Cir. 26

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10
2000) (per curiam). The district court determined the last date 1
of offensive conduct in this case was May 8, 2002. This finding 2
rested on the following bases: (1) the statement in the 3
information that the M&T Bank fraud scheme lasted "[f]rom in or 4
about September 2000 through on or about May 8, 2002;" (2) 5
Kilkenny's failure to make payments on the M&T Bank loan until 6
the loan was foreclosed on May 8, 2002; and (3) the "entire range 7
of conduct" which extended into 2003. We address each of these 8
bases in turn. 9
1. The Statement in the Indictment 10
To determine the last date of the offense of conviction, a 11
sentencing court looks at the conduct charged in the information 12
or indictment. See United States v. Broderson, 67 F.3d 452, 456 13
(2d Cir. 1995); U.S.S.G. § 1B1.11 cmt. n.2. Like any other 14
factual determination made by a sentencing court, the finding of 15
the last date of the offense of conviction must withstand clear 16
error review. See, e.g., United States v. Carter, 410 F.3d 1017, 17
1027 (8th Cir. 2005); United States v. Nash, 115 F.3d 1431, 1441 18
(9th Cir. 1997). 19
Because a sentencing court may not consider uncharged or 20
acquitted conduct in determining the last date of the offense of 21
conviction, see United States v. Zagari, 111 F.3d 307, 324-25 (2d 22
Cir. 1997), the dates alleged in the charging instrument will 23
generally be determinative for ex post facto purposes, see 24
Broderson, 67 F.3d at 456. However, circumstances may arise 25
where a date in the charging instrument clearly exceeds the 26

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offensive conduct. See, e.g., United States v. Foote, 413 F.3d 1
1240, 1250 & n.6 (10th Cir. 2005) (finding that "uncontradicted 2
evidence" established that offense ended on December 7, 1998 3
despite statement in indictment that conspiracy continued until 4
October 2000). In such circumstances, it is clearly erroneous 5
for a sentencing court to rely on the date charged in the 6
indictment to determine the last date of the offense of 7
conviction. For example, in Nash, the Ninth Circuit had a case 8
before it in which the indictment charged that the defendant's 9
fraudulent scheme continued until 1988, but all of the specific 10
incidents described in the indictment occurred before November 1, 11
1987. 115 F.3d at 1441. The Nash court upheld the district 12
court's determination that, contrary to the statement in the 13
indictment, the offense was completed prior to November 1, 1987. 14
Id. 15
Admittedly, we have not always made perfectly clear that 16
dates in an indictment are not necessarily dispositive. In 17
Broderson, for example, we stated, "[t]he last date of the 18
offense, as alleged in the indictment, is the controlling date 19
for ex post facto purposes." 67 F.3d at 456. Read in context, 20
however, this language only stands for the unsurprising 21
proposition that a sentencing court must look to the conduct 22
alleged in the count of the charging instrument under which the 23
defendant was convicted to determine the last date of offensive 24
conduct. The defendant in Broderson was charged with illegally 25
transmitting an interstate wire communication on October 1, 1990. 26

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12
Id. On appeal, Broderson asserted the government could have 1
charged the crime differently, but he did not contest that he had 2
transmitted the wire communication on that date. Id. at 456-57. 3
We ruled that the district court had correctly determined the 4
last date of offensive conduct was October 1, 1990, as charged in 5
the indictment. Id. at 457. Broderson thus did not consider or 6
decide the question of whether a district court should rely on a 7
date in a charging instrument that clearly exceeds the offensive 8
conduct. We now hold that it may not. 9
The time period provided for in the charging instrument in 10
this case clearly exceeds the offensive conduct. Although the 11
information states that Kilkenny executed the M&T bank fraud 12
scheme from "in or about September 2000 through on or about May 13
8, 2002," neither the information nor the stipulated facts 14
accompanying the plea agreement describe any offensive conduct 15
taken by Kilkenny with respect to the M&T bank fraud scheme after 16
2000. It is instead uncontested that the M&T loan was applied 17
for and received by Kilkenny in September 2000 and that he took 18
no further action with respect to that loan -- apart from failing 19
to repay it -- after September 2000. There is no evidence that 20
any offensive conduct regarding the M&T bank fraud scheme 21
occurred after 2000. It was therefore clear error for the 22
district court to rely on the May 8, 2002 date. 23
2. Failure to Repay the Fraudulently Obtained Bank Loan 24
The district court's finding that Kilkenny failed to repay 25
the bank loan in 2002 does not change this result. Failure to 26

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repay a fraudulently obtained bank loan does not constitute 1
conduct for the offense of bank fraud. Under the federal bank 2
fraud statute, it is a crime to "knowingly execute[ ], or 3
attempt[ ] to execute, a scheme or artifice . . . to obtain any 4
of the moneys, funds, credits, assets, securities, or other 5
property owned by, or under the custody or control of, a 6
financial institution, by means of false or fraudulent pretenses, 7
representations, or promises." 18 U.S.C. § 1344. The language 8
of § 1344 punishes each execution of a fraudulent scheme, not 9
each act in furtherance of such a plan. United States v. Harris, 10
79 F.3d 223, 232 (2d Cir. 1996). Although the statutory text 11
does not define "execution," there is helpful case law 12
interpreting that term. In analyzing when a fraudulent scheme 13
was executed, courts look to a number of factors, including the 14
overall contours of the fraudulent scheme and -- perhaps most 15
importantly -- the point at which the financial institution was 16
put at risk of financial loss. See United States v. De La Mata, 17
266 F.3d 1275, 1287-88 (11th Cir. 2001) ("[A] bank fraud offense 18
is complete upon the 'execution,' or attempted execution of the 19
scheme. . . . [E]ach part of the scheme that creates a separate 20
financial risk for the financial institution constitutes a 21
separate execution."); United States v. Anderson, 188 F.3d 886, 22
888 (7th Cir. 1999) ("[T]he crime of bank fraud is complete when 23
the defendant places the bank at a risk of financial loss, and 24
not necessarily when the loss itself occurs."); United States v. 25
Rimell, 21 F.3d 281, 287 (8th Cir. 1994) (stating that to 26

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determine what constitutes an execution of a bank fraud scheme 1
one must first "ascertain the contours of the scheme"); United 2
States v. Hord, 6 F.3d 276, 282 (5th Cir. 1993) (finding that 3
bank fraud plan was executed with each deposit of a bogus check 4
in part because "it was the deposits that put the bank at risk"); 5
see also United States v. Reitmeyer, 356 F.3d 1313, 1318 (10th 6
Cir. 2004) (holding, in the context of the Major Fraud Act, that 7
determining when a scheme is executed will depend on factors 8
including the goal of the plan, its nature, the benefits 9
intended, and whether the conduct created a new and independent 10
financial risk.). 11
There are of course situations where conduct for the offense 12
of bank fraud occurs after the point at which the bank is first 13
put at risk of financial loss. Our decision in United States v. 14
Duncan, 42 F.3d 97 (2d Cir. 1994), provides a useful illustration 15
of such a situation. In Duncan, several directors of a savings 16
and loan association conspired to purchase two parcels of real 17
estate in order to lease or sell the property back to the bank at 18
a profit. Id. at 99-100. The transactions were orchestrated so 19
as to hide the conspirators' interest in the real estate from the 20
other bank directors. Id. After his conviction for bank fraud, 21
Duncan raised an ex post facto challenge on appeal. He contended 22
the bank fraud was complete once the conspirators agreed to 23
secretly purchase the property. Id. at 103-04. We rejected that 24
characterization, holding instead that the offensive conduct was 25
not complete until the real estate was sold back to the bank. 26

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15
Id. at 104. Key to the result in Duncan was the fact that the 1
sale of these properties to the bank was the "central object of 2
the charged criminal conduct." Id. (emphasis added). Notably, 3
the resale of the properties to the bank in Duncan posed a risk 4
of financial loss that was separate and independent from the 5
defendant's initial usurpation of the corporate opportunity. See 6
id. (stating that conspirators intended to both "seize for 7
themselves two pieces of property at a bargain" and "sell the 8
properties to the bank at a premium"). 9
There are no facts in the case presently before us analogous 10
to those at issue in Duncan. It is clear that the main purpose 11
of Kilkenny's bank fraud scheme was to obtain the M&T bank loan 12
on false pretenses. The bank was put at risk of financial loss 13
as soon as Kilkenny had submitted the fraudulent loan application 14
and obtained the funds. The information alleges no further 15
conduct on Kilkenny's part that created a new or additional risk 16
of loss. 17
The government insists that, by failing to make payments on 18
the fraudulently obtained loan, appellant extended the life of 19
the illegal plan through his enjoyment of the proceeds. Adopting 20
this approach would go too far, potentially extending the offense 21
of bank fraud indefinitely. No doubt, the vast majority of bank 22
fraud schemes entail not only obtaining but also retaining the 23
ill-gotten gains. But when the proceeds of a criminal venture 24
are spent may not be viewed as part of a plan to defraud. See 25
Anderson, 188 F.3d at 891. To rule otherwise and hold that 26

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16
failure to repay a fraudulently obtained bank loan constitutes 1
conduct for the offense of bank fraud would extend the life of 2
the offense so indefinitely as to render the ex post facto 3
prohibition ineffective. The Supreme Court has cautioned against 4
such a result in other contexts. See Grunewald v. United States, 5
353 U.S. 391, 402 (1957) (holding a conspiracy to conceal should 6
not be inferred from acts of concealment because "every 7
conspiracy will inevitably be followed by actions taken to cover 8
the conspirators' traces" and the opposite result would "extend 9
the life of a conspiracy indefinitely"). 10
Kilkenny's M&T bank fraud scheme was executed no later than 11
when he received the funds from his fraudulent loan application. 12
Consequently, it was error for the district court to treat 13
defendant's subsequent failure to repay the fraudulently obtained 14
bank loan as conduct that was part of the offense of bank fraud. 15
3. The Relevance of the Entire Range of Conduct 16
Finally, the district court based its decision to apply the 17
2002 Guidelines on the entire range of conduct committed in the 18
case that continued "actually even into 2003 in relation to 19
additional individual victims which were not specifically charged 20
but detailed in the presentence report." However, the law in 21
this Circuit is plain that uncharged conduct occurring after the 22
conduct of conviction cannot be considered when determining which 23
version of the Guidelines to apply. See Zagari, 111 F.3d at 324- 24
25. Commentary to the Guidelines, which we have found to be 25

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17
highly persuasive evidence of the Sentencing Commission's intent, 1
addresses this precise issue 2
Under subsection (b)(1), the last date of the 3 offense of conviction is the controlling date 4 for ex post facto purposes. For example, if 5 the offense of conviction (i.e., the conduct 6 charged in the count of the indictment or 7 information of which the defendant was 8 convicted) was determined by the court to 9 have been committed between October 15, 1991 10 and October 28, 1991, the date of October 28, 11 1991 is the controlling date for ex post 12 facto purposes. This is true even if the 13 defendant's conduct relevant to the 14 determination of the guideline range under 15 § 1B1.3 (Relevant Conduct) included an act 16 that occurred on November 2, 1991 (after a 17 revised Guideline Manual took effect). 18
19 U.S.S.G. § 1B1.11 cmt. n.2. Reliance on defendant's uncharged 20
conduct in 2002 and 2003 was accordingly in error. 21
Application of the 2002 version of the Guidelines was both 22
retrospective and disadvantageous to the defendant. As a 23
consequence, we remand to the district court for resentencing 24
under the 2000 Guidelines. 25
IV Defendant's Objections to Sentence Enhancements 26
Appellant raises two final objections to his sentence, 27
neither of which have merit. First, Kilkenny maintains the 28
district court erred in imposing a two-level enhancement for his 29
supervision of a criminally responsible participant. Under 30
U.S.S.G. § 3B1.1(c), a two-level enhancement may be applied if 31
the "defendant was an organizer, leader, manager, or supervisor 32
in any criminal activity." We review the district court's 33
finding that Kilkenny acted as the supervisor of a criminally 34

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18
responsible participant under the clearly erroneous standard. 1
See United States v. Brinkworth, 68 F.3d 633, 641 (2d Cir. 1995). 2
Defendant declares there was no evidence his bookkeeper, 3
Melanie Ramsey, was a criminally responsible participant. To the 4
contrary, the uncontested evidence is that Ramsey, under 5
Kilkenny's supervision and at his direction, prepared fraudulent 6
tax forms and other documents that were used in the bank fraud 7
scheme. Ramsey also assisted Kilkenny's bank fraud plan by 8
writing a letter to a bank misrepresenting herself as the 9
regional manager of a financial group and falsely stating that 10
Kilkenny earned a monthly average of $115,000 in commissions. 11
The deliberate deception entailed in drafting such a letter to a 12
financial institution supports the trial court's finding that 13
Ramsey was not an unwitting participant in Kilkenny's fraudulent 14
activities. See Brinkworth, 68 F.3d at 641-42 (finding that an 15
accountant who knowingly prepared fraudulent tax returns was a 16
criminally responsible participant). Thus, the finding that 17
appellant was the supervisor of a criminally responsible 18
participant is not clearly erroneous. 19
Kilkenny's final point is that the two-level enhancement he 20
received for having derived more than $1 million dollars from a 21
financial institution, U.S.S.G. § 2B1.1(b)(12)(A) (2002) (now 22
codified at U.S.S.G. § 2B1.1(b)(13)(A)), constituted 23
impermissible double-counting because the amount of loss had 24
already been taken into account in determining the offense level 25
under U.S.S.G. § 2B1.1(b)(1)(K). We have previously ruled that 26

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19
the cumulation of the dollar amount enhancement and the financial 1
institution enhancement do not constitute impermissible double- 2
counting because the two enhancements serve different purposes. 3
See United States v. Lauersen, 348 F.3d 329, 343 (2d Cir. 2003), 4
vacated on other grounds by 543 U.S. 1097, 125 S. Ct. 1109, 160 5
L. Ed. 2d 988 (2005); see also United States v. Campbell, 967 6
F.2d 20, 25 (2d Cir. 1992) ("[D]ouble counting is legitimate 7
where a single act is relevant to two dimensions of the 8
Guidelines analysis."). Although we noted in Lauersen that there 9
is a substantial overlap between the two enhancements that might 10
justify a downward departure in some circumstances, Lauersen, 348 11
F.3d at 344, any such departure would be discretionary. The 12
district court was well within its discretion in finding that no 13
downward departure was warranted here. 14
CONCLUSION 15
Accordingly, for the reasons stated above, this case is 16
remanded to the district court for resentencing in accordance 17
with this opinion. 18

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