APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 5:09-CR-00163-M-1)
The opinion of the court was delivered by: Hartz, Circuit Judge.
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.
After a jury trial in the United States District Court for the Western District of Oklahoma, Defendant Lonnie J. Flonnory was convicted of five counts of obtaining money through false pretenses under the Assimilative Crimes Act, see 18 U.S.C. § 13, applying Okla. Stat. tit. 21, § 1541.1 (2002). On appeal he challenges his conviction on one of the counts, arguing that the government failed to prove that he had committed the offense on federal territory and that the district court failed to instruct the jury not to speculate about the location of the offense. He also contends that he must be resentenced because the court miscalculated his offense level under the United States Sentencing Guidelines by using too high a figure for the loss suffered by his victims and by finding that he obstructed justice when he committed perjury at trial. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Defendant was a civilian employee of the United States Department of Defense at Fort Sill in Oklahoma. Although there was evidence that he had defrauded a number of people, he was charged only with defrauding Dennis Carver, another civilian Department of Defense employee, who worked in the same office as Defendant, about four desks away. In April 2004 Defendant approached Carver about an investment opportunity. They met at the Burger King on Fort Sill, where Defendant told Carver that he had a connection at the local courthouse who could provide tips about foreclosed property that was available for purchase although the public did not yet have notice. Defendant said that he would use the invested money to buy property and soon resell it. He promised Carver a return of 25% on his money in only four months. Carver's initial investment was a cashier's check for $2,000 on April 7; in return he received a 120-day promissory note for $2,500.
On April 30, Carver gave Defendant another cashier's check for $3,500. In exchange Carver received a second 120-day promissory note, this time for $4,375, again a 25% return. He gave additional cashier's checks to Defendant on May 19 and June 9 for $2,000 each. On June 9 Defendant also gave Carver a new promissory note that covered all four of Carver's cashier's checks. Finally, Carver wrote four personal checks to Defendant before being deployed to Iraq in early July; each check was postdated so that Defendant could cash it while Carver was out of the country. Carver testified that he left the four checks in Defendant's drawer at work. Carver estimated that he had invested about $28,000 with Defendant, and nothing was ever repaid. The five counts on which Defendant was convicted related to the last five checks that Carver gave to Defendant-the June 9 cashier's check and the four personal checks. No charges could be pursued based on the April 7, April 30, and May 19 checks because the five-year limitations period had expired by the time the indictment was filed on May 20, 2009. See 18 U.S.C. § 3282(a).
Defendant had not used the money to buy foreclosed property in Oklahoma, but instead had invested it in Nigerian oil contracts in which he was also investing personal funds. Defendant said that he had told Carver and his other investors that they were investing in Nigerian oil contracts; but at trial Carver and two others (a husband and wife who had invested in February 2004) testified otherwise.
According to the presentence investigation report (PSR), Defendant had defrauded 13 victims out of $194,230. It calculated Defendant's sentencing guideline range as follows: There being no guideline for the state statute, the PSR used the most analogous guideline, § 2B1.1, entitled "Larceny, Embezzlement, and Other Forms of Theft . . . ." See USSG § 2X5.1 (2009) ("If the offense is a felony for which no guidelines expressly has been promulgated, apply the most analogous offense guideline."). Under that guideline the base offense level was 6. See id. § 2B1.1(a). Because the victims lost $194,230, that level was increased by 10. See id. § 2B1.1(b)(1). The PSR also added 2 levels because the scheme involved more than 9 victims, see id. § 2B1.1(b)(2)(A), and 2 more levels because Defendant had obstructed justice by committing perjury during trial, see id. § 3C1.1, resulting in a total offense level of 20. Because Defendant had no criminal-history points, his guideline sentencing range was 33--41 months. The district court agreed with the PSR and sentenced Defendant to 33 months' incarceration.