UNITED STATES of America, v. Charles Tyrone BOWIE, Charles T. Bowie, Appellant, 28 F. App'x 123

MEMORANDUM OPINION RENDELL, Circuit Judge. On January 26, 1999, Charles Bowie entered a plea of guilty to one count of bank fraud in violation of 18 U.S.C. § 1344. As part of his plea agreement, Bowie agreed to make full restitution. Pursuant to the agreement, related state charges pending against him were dropped. He was sentenced to 21 months imprisonment and five years supervised release, as well as required to pay restitution of $13,198.86. Bowie requested counsel to file an appeal, and Bowie’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), requesting to withdraw as counsel. Counsel has averred that there are no non-frivolous issues to be raised on appeal, and, as Anders requires, he has directed us to the three possible challenges to his sentencing Bowie might raise. First, the base offense level of 6 that is applicable to offenses under 18 U.S.C. § 1344 was raised by four levels pursuant to the Sentencing Guidelines. Bowie contends that, using the restitution figure as the loss figure, the offense level should have been raised only three levels. This argument is without merit.

Following § 2F1.1, Application Note 8 provides: “Consistent with the provisions of § 2X1.1 (Attempt, Solicitation, or Conspiracy), if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss.” The commentary to § 2F1.1 of the Sentencing Guidelines is binding. See, e.g., United States v. Geevers, 226 F.3d 186, 189 (3d Cir.2000).

Because the intended loss is calculated using the total amount of the checks he deposited, in this case $32,687.04, there is no error in applying the enhancement for amounts more than $20,000 rather than the enhancement for amounts over $10,000, as would have been the case if the loss were calculated using only the restitution amount. Second, Bowie contends that he was entitled to a one-point reduction under § 3E1.1 of the Guidelines because he provided the government with timely information as to his and others’ involvement.

Bowie was credited the two offense levels applicable under § 3E1.1(a), but the credit under § 3E1.1(

b) is applicable only if the offense level prior to calculating the credit under § 3E1.1(

a) was sixteen or higher. Prior to the adjustment, Bowie’s offense level was only 12, and he thus did not qualify for the additional credit. Third, Bowie urges that we find the supervised release of five years to be excessive. 18 U.S.C. § 1344 is a Class B Felony. Because neither the statutory maximum of five years, (see 18 U.S.C. § 3583(b)(1)), nor the guideline maximum, also of five years (see § 5D1.2) were exceeded, this argument is likewise without merit. As required by Anders, notice of withdrawal was provided to Bowie, who has not exercised his option to file a pro se brief with this Court.

After carefully reviewing the briefs and the presentence report, we will affirm the conviction and sentence, and we will grant counsel’s motion to withdraw. We are convinced that counsel conducted a conscientious review of the record and correctly concluded that there were no non-Mvolous issues to be raised on appeal. He has complied with all the procedures mandated by Anders. Our independent review has likewise uncovered no non-Mvolous issues for review. For the foregoing reasons, we will AFFIRM the Order of the District Court and GRANT counsel’s request to withdraw.