United States of America v. Garry D. Lloyd

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-2394
UNITED STATES OF AMERICA
v.
GARRY D. LLOYD,
Appellant
On Appeal from the United States District Court
for District of New Jersey
(D.C. Crim. No. 01-cr-00608)
District Magistrate Judge: Hon. Joseph E. Irenas
Submitted Under Third Circuit LAR 34.1(a)
February 3, 2003
Before: SLOVITER, RENDELL, and STAPLETON, Circuit Judges
(Filed: February 5, 2003)
OPINION OF THE COURT

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SLOVITER, Circuit Judge.
Appellant, Garry D. Lloyd, who was convicted of bank fraud in violation of 18 U.S.C.
§§ 1344 and 2, appeals from his sentence and argues that the District Court erred in
imposing a two-level sentencing enhancement for more than minimal planning. Lloyd
argues that the enhancement was not justified because there was no evidence of either
repeated acts or deception as required by U.S.S.G. § 2F1.1(b)(2)(A) (2000). We will
affirm.
I.
The parties are familiar with the relevant facts, and we set them forth briefly only as
necessary. On January 18, 2000 Lloyd opened a business checking account at Commerce
Bank in the name of Midguard Construction. He made an initial deposit of $9,800 and
received 20 starter checks. On January 21, 2000, an individual, whom Lloyd identified to
be either Carl or Gordon Smith, deposited a Bankers Trust Company Check in the amount
of $148,393.39 into the Midguard account.
Over the next ten days Lloyd made the following withdrawals at various Commerce
branches from the Midguard account using starter checks: $3,250 on January 21, 2000;
$450 on January 24; $2,250 on January 25; and $2,800 on January 26.
On January 26, Lloyd returned to the branch at which he opened his account to cash
a starter check for $90,000. The branch did not have sufficient funds available to pay that
amount. Instead, it issued Lloyd an official bank check for that amount. Such a check
operates like cash and its funds are guaranteed by the bank. Lloyd then went to a check

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cashing agency, and cashed the $90,000 bank check for $50,000 cash and a $38,000 IOU.
On January 27, Lloyd returned to this agency and cashed the IOU and another starter check
in the amount of $45,000. Finally, on January 27 and 28, Lloyd wrote three other starter
checks for a total of $6,475 made payable to various individuals, and a “no-signature” draft
to AT&T wireless for $200.32.
On January 31, 2000, the $148,393.39 Bankers Trust check was returned unpaid to
Commerce and was later determined to be a counterfeit. Shortly thereafter, United States
Secret Service agents questioned Lloyd about the Midguard account and the counterfeit
check. Lloyd told them that he had been asked by an old acquaintance who had access to a
trust fund to negotiate trust fund monies through his bank account for a 10 percent fee. He
refused to tell the agents the name of this acquaintance but said he assumed the money was
wire transferred into the account, that he withdrew the trust fund money for his
acquaintance from the Midguard account in two installments, one for $90,000 and one for
$45,000, and that he delivered the money to his acquaintance in Pennsylvania.
Two weeks later, when Lloyd was again interviewed by the agents, he identified his
acquaintance as Carl Smith, ostensibly from a bank surveillance photograph. He stated that
he met Smith in New Jersey, not Pennsylvania, to turn over the money and that he had no
way to contact Smith. In a later deposition, Lloyd stated that Smith had died, and that he had
no knowledge of any check. Subsequently, Lloyd’s fingerprints were identified on the
counterfeit check. Smith has never been located.
Lloyd was convicted as charged following a trial by jury in federal court. At the

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1 The Government notes that Lloyd was sentenced using the 2000 version of the
Sentencing Guidelines to avoid ex post facto concerns.
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sentencing hearing, the District Court concluded that there was more than minimal planning
involved in Lloyd’s offense and adopted the recommendation of the probation department
for a two-level increase under U.S.S.G. § 2F1.1(b)(2)(A).1 With the enhancement, the
resulting sentencing range was 46-57 months; without the enhancement the sentencing
range would have been 37-46 months. On May 6, 2002, the District Court sentenced Lloyd
to a term of 50 months imprisonment, stating that Lloyd’s history demonstrated a “blatant
disregard” for the criminal justice system. Lloyd was also to pay restitution in the amount
of $141,889.16 and a special assessment of $100.
II.
The only issue Lloyd raises on appeal is the enhancement. We review a district
court’s determination that an offense involved more than minimal planning under the
clearly erroneous standard. More than minimal planning is defined as “more planning than
is typical for commission of the offense in a simple form.” U.S.S.G. § 1B1.1, cmt. n.1(f)
(2000). This court has contrasted the more than minimal planning term with “‘spur of the
moment conduct, intended to take advantage of a sudden opportunity.’” United States v.
Monaco, 23 F.3d 793, 797 (3d Cir. 1994) (citation omitted). In United States v. Wong, 3
F.3d 667 (3d Cir. 1993), we stated that “[t]he Guidelines target more than minimal planning
because it is ‘indicative of an intention and potential to do considerable harm,’ and ‘is often
related to increased difficulties of detection and proof.’” Id. at 672 (quoting U.S.S.G. §

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2B1.1, cmt. background (2000)).
The crux of Lloyd’s arguments is that his actions involved no more than that is
necessary to complete a classic bank fraud. Lloyd reasons that the purpose of the upward
adjustment when sentencing is to “winnow out the minority of really sophisticated
schemers from the mass of ordinary thieves.” Appellant Brief at 12 (quoting Frank O.
Bowman, III, Coping with “Loss”: A Re-examination of Sentencing Federal Economic
Crimes Under the Guidelines, 51 Vand. L. Rev. 461, 499 (1998)). Even if Lloyd is correct
that a pre-planned offense, as well as a spontaneous offense, does not necessarily warrant
the more than minimal planning enhancement, this does not negate the appropriateness of
such an enhancement here.
Lloyd’s actions went beyond the minimum conduct required to establish a violation
of the bank fraud statute. Unlike the defendants’ conduct in United States v. Archuletta 231
F.3d 682, 684-86 (10th Cir. 2000), and in United States v. Phath, 144 F.3d 146, 149-50
(1st Cir. 1998), on which Lloyd relies, Lloyd’s conduct involved a multitude of steps and
his involvement was substantially greater than that of the defendants in those cases. As
fully borne out by the facts set forth above and as the District Court found, Lloyd’s offense
involved acts repeated over a period of time.
Moreover, Lloyd took steps to conceal the offense. As noted in the commentary,
there is more than minimal planning if “significant affirmative steps were taken to conceal
the offense.” U.S.S.G. §1B1.1, cmt. n.1(f). The District Court found three acts of
concealment: (1) Lloyd’s wildy improbable version of events; (2) the nature of the

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counterfeit check; and (3) Lloyd’s repeated statements regarding a wire-transfer.
Lloyd told the investigators that an old acquaintance sent the supposed wire-transfer
and at first, would not share this person’s name with the investigators. Later, he identified
the individual as Carl or Gordon Smith, but before investigators could question Smith they
were told that he had, rather conveniently, died. The District Court stated that Lloyd’s story
was a “very important deception” because, if believed, it gave Lloyd cover and meant that he
did not commit the crime.
Finally, Lloyd argues that no one was deceived because the investigators already
knew the truth. For example, at the time when Lloyd told the Secret Service agents the
funds had come into his account by wire transfer, the agents already knew this was
incorrect. Lloyd’s argument assumes that enhancement for more than minimal planning is
not warranted unless the defendant’s efforts to conceal were successful. There is no such
requirement. All that must be established is that the efforts taken by the defendant merely
have been intended to deceive.
III.
We conclude that the District Court had sufficient evidentiary basis for its findings
that Lloyd’s offense involved repeated acts over a period of time and that Lloyd took
substantial affirmative steps to conceal the fraud, thereby warranting the more than minimal
planning enhancement. We will affirm.
_____________________
TO THE CLERK:

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Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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