SMITH, Circuit Judge.
James L. Killgo III pleaded guilty to wire fraud and money laundering arising out of a single dealing with Access Air, an Iowa-based airline. Over Killgo's objection, the district court
In 1991, Killgo and Irving Oestreich started an aircraft leasing company in Florida called Interjet. In December 1997, Interjet negotiated a contract with Access Air to secure leases on two aircraft. Access Air wired Interjet a $400,000 deposit for leases on two Boeing 737 aircraft. After Interjet received the wire, Killgo and Oestreich withdrew the money and deposited the funds into separate overseas bank accounts. Interjet never delivered the two 737s to Access Air and never refunded the $400,000. On the same day that the aircraft were scheduled to be delivered to Access Air, Interjet filed for bankruptcy. It was later revealed that during its seven years of operation, Interjet never actually
On March 27, 2002, Killgo and Oestreich were jointly indicted in the Southern District of Iowa for fraud arising out of their dealings with Access Air through Interjet. Killgo pleaded guilty to wire fraud in violation of 18 U.S.C. § 1343 and money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) for his actions in dealing with Interjet. The wire fraud resulted in a $400,000 loss to Access Air.
After the plea, a pre-sentence report (PSR) was prepared for Killgo. The PSR recommended a two-level increase for relevant conduct under U.S.S.G. § 1B1.3. The PSR explained that discovery revealed Interjet had defrauded thirteen different persons/entities for a total of $1,959,192.95. However, according to the PSR, the government stated that it was only able to prove the losses of Access Air at $400,000, Falcon Air at $190,000 in July 1997, Lineas Aereas Allegro at $295,000 in July 1997, and Southend Cargo at $350,000 in October 1997. Accordingly, the PSR recommended that Killgo's sentencing range be based on a total loss of $1,235,000.
Killgo objected to the loss calculation of $1,235,000 and argued that it should be calculated solely on the $400,000 loss suffered by Access Air. The district court conducted a hearing on relevant conduct in assessing Killgo's sentencing range. At the hearing, Killgo argued that the contracts between the other air carriers were not relevant conduct as contemplated by the Guidelines. He indicated that some contracts involved federal drug and arms investigations in which he cooperated with the United States Government. In addition, he argued that the other air carriers had breached their leases, and, thus, his actions were not fraudulent.
The district court concluded that the unfulfilled leases with the other air carriers constituted relevant conduct under U.S.S.G. § 1B1.3. Consequently, Killgo's sentencing range was between thirty-three and forty-one months' imprisonment. The district court sentenced him at the lower end of the range-thirty-three months. Killgo then filed this appeal, maintaining that the losses of the three separate air carriers should not be considered relevant conduct.
We review the sentence imposed for unreasonableness, judging it with regard to the factors in 18 U.S.C. § 3553(a). United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005) (Breyer, J.).
The Guidelines generally provide that specific offense characteristics, such as the calculation of fraud losses, are determined on the basis of "relevant conduct," not the acts underlying the offense of conviction. See U.S.S.G. § 1B1.3(a). Relevant conduct under the Guidelines includes, "solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2). Multiple fraud offenses are grouped under § 3D1.2(d), so relevant conduct for purposes of sentencing Killgo includes all fraudulent acts or omissions "that were part of the same course of conduct or common scheme or plan" as his offense of conviction.
Section 1B1.3(a)(2) allows the district court to consider all acts and omissions by Killgo that constituted "the same ... common scheme or plan as the offense of conviction." Under this guideline, a district court should consider the "`similarity, regularity, and temporal proximity' of the conduct in determining whether it is part of the same course of conduct or common scheme or plan." United States v. Anderson, 243 F.3d 478, 485 (8th Cir.2001) (citations omitted). "Common scheme or plan" as used in § 1B1.3(a)(2) is construed broadly in determining relevant conduct for sentencing purposes. United States v. Berry, 212 F.3d 391, 393 (8th Cir.2000). "For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." U.S.S.G. § 1B1.3 comment. (n.9).
The district court's determination of Killgo's relevant conduct is entirely consistent with our holdings in similar cases.
The judgment of the district court is affirmed.
Similarly, in United States v. Howard, 235 F.3d 366 (8th Cir.2000), Howard and Robinson were indicted for a scheme involving the sale and trade of annuities. Howard and Robinson told investors that they could pool money to trigger a leveraged line of credit and receive a profit from the resale of the annuities. Id. In a separate instance, Robinson told a different set of investors in Iowa that they could pool their money to "trigger a line of credit" to purchase annuities, which would then be resold at a profit. Id. We held that Robinson's actions in Iowa "were part of the same course of conduct or common scheme or plan as the offense of conviction." Id. at 373. Specifically, Robinson's statements to the Iowa investors were identical to the ones made by him to the investors involved in the indicted offenses. Id. We concluded that the criminal activity in Iowa and the criminal activity in the indictment involved the same modus operandi, and, thus, constituted "relevant conduct" for sentencing purposes. Id.
Likewise, in United States v. Heath, 122 F.3d 682 (8th Cir.1997), we held that a defendant's fraudulent activity connected with medical facilities involved a common scheme and modus operandi for purposes of U.S.S.G § 1B1.3. In that case, Heath pleaded guilty to submitting false insurance claims after staging a "slip and fall" and gaining admission to hospitals. Id. Heath also gained admission to hospitals throughout the country by falsely complaining of other medical problems in an effort to fraudulently procure controlled substances. Id. Heath argued that the hospital and medical services not predicated on a slip and fall insurance claim were not relevant conduct to the offense of wire fraud. Id. We rejected that argument explaining that all of Heath's activity involved gaining admission to hospitals by falsely complaining of pain. Id.