stating that “violations of 18 U.S.C. § 152, in their most basic form, involve a higher level of culpability, and thus deserve greater punishment, than some of the other crimes that correspond to Guideline § 2F1.1.”
How later courts described this case
- stating that “violations of 18 U.S.C. § 152, in their most basic form, involve a higher level of culpability, and thus deserve greater punishment, than some of the other crimes that correspond to Guideline § 2F1.1.”
- holding that § 2F1.1(b)(3)(B) applies to concealment of assets in bankruptcy proceeding and rejecting the argument that it punishes the defendant twice for the same core conduct
- finding that defendant’s supervision of one other participant was a sufficient basis for § 3Bl.l(c) adjustment
- concluding that the enhancement is applicable
Written by the judges who cited it.
The opinion
FERGUSON, Circuit Judge,
concurring in part and dissenting in part:
I agree with the majority that the district court did not err in applying three two-point sentencing enhancements for more than minimal planning, aggravating role, and obstruction of justice. In applying these three enhancements, the district court correctly considered the particular facts of the crime committed and determined that those facts warranted the enhancements. However, I disagree with the majority in its interpretation in Part IIB of the fourth sentencing enhancement for violation of a judicial order, injunction, decree, or process. See U.S.S.G. § 2F1.1(b)(3)(B). The majority ignore the common meaning of the word “process” as it applies to legal activities. They also violate fundamental rules which apply to the interpretation of statutes.
The defendant was convicted of bankruptcy fraud in violation of 18 U.S.C. § 152 (in addition to three counts of tax fraud about which there is no disagreement with the sentences). He was charged with making false statements to the bankruptcy trustee with regard to assets that were fraudulently concealed. The bankruptcy fraud statute provides for a sentence of not more than five years. The defendant was sentenced pursuant to United States Sentencing Guidelines § 2F1.1 and four two-point enhancements were applied to the base offense level of six for bankruptcy fraud. One enhancement was for more than minimal planning. Another was for his leadership in the bankruptcy fraud. The-third enhancement was for obstructing the administration of justice by making false statements to FBI agents and suborning perjury. Those enhancements were properly imposed, because they were factors which exceeded the core offense of bankruptcy fraud.
But then the district court imposed another two-point enhancement solely because the core offense was bankruptcy fraud. The district court stated:
I believe it is appropriate in all bankruptcy fraud cases to have such an enhancement because it is not a typical fraud, it is not an ordinary fraud, it is not a common fraud, it is a fraud upon the judicial process.
In other words, the district court believes that the base level of six is not sufficient when the fraud is bankruptcy fraud.
The majority reasons that the district court had authority to add the two-point enhancement because U.S.S.G. § 2F1.1(b)(3)(B) permits such an enhancement when an offense of fraud or deceit involves the violation of any judicial order, injunction, decree, or process. All agree that no specific order, injunction, or decree was violated. The majority, by upholding the district court, have in effect substituted the word “system” for “process.” As used in § 2F1.1 “process” is not a generic term that encompasses bankruptcy procedures in general. Rather, “process must be construed to be a directive based upon the kind of formalities that undergird orders, injunctions, and decrees.” United States v. Linville, 10 F.3d 630, 633 (9th Cir.1993). “Process” must be interpreted to be a specific judicial mechanism such as a subpoena or summons.
It is a fundamental rule of statutory interpretation that all words in a statute must be given equal meaning and must be interpreted in light of the others. “Under accepted canons of statutory interpretation, we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that ren *336 ders other provisions of the same statute inconsistent, meaningless or superfluous.” Boise Cascade Corporation v. United States Environmental Protection Agency, 942 F.2d 1427 , 1432 (9th Cir.1991). If “process” means something other than a specific directive, then the words “order,” “injunction,” and “decree” in the Guidelines are superfluous. As was stated in Linville, 10 F.3d at 633 , “the Guideline speaks of ‘violations.’ That is a perfectly intelligible usage as it applies to an ‘order injunction [or] decree.’ It is also intelligible if ‘process’ is considered to be of the same ilk as those.” The word “process” must be interpreted in accordance with the interpretation of “order,” “injunction,” and “decree,” which are formal and specific directives from a court. See also United States v. Eve, 984 F.2d 701, 703 (6th Cir.1993) (where the defendant violated a specific court order prohibiting him from operating a motor vehicle for at least 99 years). For example, in United States v. Deutsch, 987 F.2d 878, 885-86 (2d Cir.1993), the adjustment was permitted because of the violation of a specific court order. And in United States v. Paccione, 751 F.Supp. 368, 375 (S.D.N.Y.1990), aff'd, 949 F.2d 1183 (2d Cir.1991), ce rt. denied, — U.S. —, 112 S.Ct. 3029 , 120 L.Ed.2d 900 (1992), the adjustment was allowed because of the violation of a specific injunction. However in this case, the majority have effectively eliminated “order,” “injunction,” and “decree” from the Guideline, because they are superfluous and are subsumed by the word “process.”
The error of the majority is particularly clear in this case, where the defendant’s only violation was the core violation — bankruptcy fraud — upon which his base offense level was calculated. The defendant did not violate a bankruptcy “process” in addition to or while committing bankruptcy fraud. He did not do any act except the commission of bankruptcy fraud to trigger application of the enhancement. The district court’s use of this enhancement derogated the very structure of the Sentencing Guidelines, whereby the core crime corresponds to the base offense level and the enhancements correspond to the particular facts of the crime as it was committed by the defendant. See United States v. Bridges, 50 F.3d 789, 791 (10th Cir.1994). The fact that the applicable guideline, § 2F1.1, is a “dragnet” guideline does not change this basic structure.
But we need not engage in rules of statutory construction to understand what the word “process” means. While it may have the meaning of “system” in describing business activities such as the “process” of meat packing, it has a different meaning in the law. In Black’s Law Dictionary at 1370, the word “process” as commonly understood signifies those formal instruments called “writs which may be issued during the process of an action such as “writ of execution.’”
Therefore, I respectfully dissent from the § 2Fl.l(b)(3)(B) enhancement portion of the majority opinion.