Court of Appeals for the Ninth Circuit, Case No. 96-30316:
United States v. Carrie L. Aenk
Submitted Feb. 6, 1998**.
Decided Feb. 19, 1998.
Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding.
Before BRUNETTI, RYMER, and KLEINFELD, Circuit Judges.
Since the actual loss to the bank was $0, the district court was required to determine Carrie Aenk’s offense level according to the loss she intended to cause to the bank. See U.S.S.G. § 2F1.1, Appl. Note 7; United States v. Lorenzo, 995 F.2d 1448, 1460 (9th Cir.1993), cert. denied 510 U.S. 882, 114 S.Ct. 227, 126 L.Ed.2d 182 (1993).
The district court found that Aenk intended to cause a loss of $435,000 to the bank. We review this factual finding for clear error. United States v. Parrilla, 114 F.3d 124, 126 (9th Cir.1997). The district court’s finding was supported by Aenk’s stipulation in her plea agreement that the intended loss was more than $350,000 but less than $500,000; by evidence that Aenk placed into the bank’s ATM a deposit envelope which was empty, but which purported to contain $435,000; and by her husband Allen’s statement to the FBI that they would have withdrawn the entire account had they not been caught. Carrie Aenk testified at the sentencing hearing that she only intended to withdraw $2,200, but the district court found this testimony not to be credible. The district court did not clearly err in finding that Aenk intended to cause a loss of $435,000.