Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
Robert B. Charles pled guilty to one count of mail fraud, 18 U.S.C.
§ 1341 (1994), and one count of money laundering, 18 U.S.C.A.
§ 1956(a)(1)(A)(i) (West Supp. 1998). The district court imposed a
sentence of thirty-three months imprisonment, refusing Charles'
request for a downward departure. On appeal, Charles contends that
the district court mistakenly believed that it lacked authority to depart.
Charles falsely reported to his insurance company the theft of a
Mercedes-Benz he had purchased for $18,500. He also falsely
reported to the insurance company that he had made repairs to the
Mercedes amounting to more than $13,000. At the time of the
reported theft, Charles owed $17,686 to One Valley Bank, which held
title to the vehicle. The insurance company paid that amount to the
bank to extinguish the lien and, after receiving the title from the bank,
paid Charles over $14,000. It was later discovered that Charles still
had the Mercedes.
The money laundering count raised Charles' guideline sentence
calculation and made him ineligible for probation. Charles requested
a downward departure on the grounds that the money laundering
guideline produced disproportionately high sentences, that inconsis-
tent charging practices could produce unwarranted disparity, that the
money laundering statute was being applied more broadly than antici-
pated by the Sentencing Commission, and that the Sentencing Com-
mission had recommended amendments to the money laundering
guidelines which were not adopted by Congress. At sentencing,
defense counsel argued that Charles' conduct in committing the mail
fraud was indistinguishable from the conduct which violated the
money laundering statute and, thus, a sentence within the guideline
range which would have applied had he been convicted only of mail
fraud was appropriate. The district court decided that Charles' con-
duct was not outside the heartland of money laundering cases because