[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-16327 AUGUST 16, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. 08-00443-CR-1-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HOWARD COOK,
d.b.a. PCDirectBiz.com.Inc.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 16, 2010)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
James Howard Cook appeals from his sentences following his convictions
for wire fraud, in violation of
18 U.S.C. § 1343. Cook argues that the district court
erred in (1) determining the loss amount, which resulted in an 18-level offense
level increase, pursuant to U.S.S.G. § 2B1.1(b)(1)(J); (2) imposing a two-level
obstruction of justice enhancement under U.S.S.G. § 3C1.1; and (3) determining
the restitution amount. After careful review, we affirm.
We review the district court’s loss determination for clear error. United
States v. Woodard,
459 F.3d 1078, 1087 (11th Cir. 2006). When considering an
obstruction of justice enhancement under U.S.S.G. § 3C1.1, we review the district
court’s findings of fact for clear error and the application of the Guidelines to those
facts de novo. United States v. Bradberry,
466 F.3d 1249, 1253 (11th Cir. 2006).
We review de novo the legality of a restitution order, for abuse of discretion the
determination of the restitution value of lost or destroyed property, and for clear
error the factual findings underlying a restitution order. United States v.
Valladares,
544 F.3d 1257, 1269 (11th Cir. 2008).
In November 2008, a federal grand jury indicted Cook on seven counts of
wire fraud, in violation of
18 U.S.C. § 1343. The indictment alleged that Cook
owned and operated PCDirectBiz.com (“PCDirect”). In order to obtain money for
his company, Cook made false representations to Bowsprit Funding I, LLC
(“Bowsprit I”) and Bowsprit Funding II, LLC (“Bowsprit II”), each established by
Thomas Digan, and misrepresented the value of collateral in the form of accounts
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receivable of PCDirect web customers and the assets of PCDirect. As a result of
these misrepresentations, on June 26, 2006, Bowsprit I transferred a $1,320,220.10
loan from its Evanston, Illinois bank account to Cook’s PCDirect bank account in
Atlanta, Georgia. Also, on December 11, 2006, Bowsprit II transferred a
$3,228,229.82 loan from its Evanston, Illinois bank account to Cook’s PCDirect
bank account in Atlanta, Georgia.
On February 23, 2009, Cook pled guilty to all seven counts, without a plea
agreement, and the court adjudicated him guilty. At sentencing, Digan testified
that he was the president and sole employee of Bowsprit I and Bowsprit II. After
having acted as a broker for three previous loans to Cook, Digan formed Bowsprit
I to make a loan in its own name to Cook’s PCDirect business. After borrowing
money from The Patriot Group, which was acting as Washington Offshore
Funding I, LLC, Bowsprit I loaned the money to Cook in June 2006. Similarly,
after borrowing money from The Patriot Group, which was acting as Washington
Special Opportunity Fund, LLC, Bowsprit II loaned the money to Cook in
December 2006. The two loans to Cook totaled $4,548,449.
Digan further testified that Cook had repaid some of the loans to Bowsprit I
and Bowsprit II, but that Cook still owed approximately $2,969,000 on the two
loans. Cook presented no evidence as to the loss amount, arguing only that The
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Patriot Group actually supplied the money, which required a Patriot Group witness
to testify to the actual loss amount.
First, we are unpersuaded by Cook’s claim that because the government
presented insufficient evidence to prove the actual loss amount, the district court
improperly increased his offense level by 18 levels. For offenses involving fraud,
the Guidelines provide an increase to a defendant’s offense level depending on the
amount of loss that resulted from the fraud. U.S.S.G. § 2B1.1(b)(1). The offense
level is increased by 18 where the loss amount is greater than $2,500,000, but less
than $7,000,000. U.S.S.G. § 2B1.1(b)(1)(J)-(K). When calculating loss for
sentencing purposes, the district court looks to “the greater of actual loss or
intended loss.” U.S.S.G. § 2B1.1(b)(1), comment. (n.3(A)). Actual loss is the
“reasonably foreseeable pecuniary harm that resulted from the offense,” and
intended loss is “the pecuniary harm that was intended to result from the offense.”
U.S.S.G. § 2B1.1(b)(1), comment. (n.3(A)(i)-(ii)).
The government bears the burden of supporting its loss calculation with
“reliable and specific evidence.” United States v. Sepulveda,
115 F.3d 882, 890
(11th Cir. 1997). A district court’s finding of loss under § 2B1.1 is entitled to
“appropriate deference.” United States v. Willis,
560 F.3d 1246, 1251 (11th Cir.
2009) (quotation omitted).
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On this record, the district court did not clearly err in its loss amount
calculation. At sentencing, Digan testified that the two loans to Cook from
Bowsprit I and Bowsprit II totaled $4,548,449. Cook presented no evidence that
this total was incorrect, arguing only that since Digan borrowed the money from
The Patriot Group someone from The Patriot Group needed to testify to the loss
amount. The district court appropriately found this argument to be without merit,
since Digan’s source of funds to make the loans did not matter, only that Digan
lent the money to Cook -- money that Digan lost when Cook failed to repay the
loans. Accordingly, we affirm the district court’s loss amount calculation.
Next, we find no merit in Cook’s claim that the district court erred in
imposing an obstruction of justice enhancement. An obstruction of justice
enhancement is appropriate if the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of conviction.
U.S.S.G. § 3C1.1. Application Note 4 provides a “non-exhaustive list of examples
of the types of conduct to which this enhancement applies.” Id., comment. (n.4).
But, “[o]bstructive conduct can vary widely in nature, degree of planning, and
seriousness,” and the Commentary instructs that the court should compare the
conduct at hand to the conduct in the non-exhaustive lists in Application Notes
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Four and Five to “assist the court in determining whether application of this
enhancement is warranted in a particular case.” U.S.S.G. § 3C1.1, comment. (n.3).
In order for this enhancement to apply, the defendant must have consciously acted
with the purpose of obstructing justice. United States v. Campa,
529 F.3d 980,
1016 (11th Cir. 2008), cert. denied,
129 S.Ct. 2790 (2009).
In this case, the district court did not clearly err in applying the obstruction
of justice enhancement. While Cook’s conduct does not fit squarely within any of
the listed examples in Application Notes Four or Five (see U.S.S.G. § 3C1.1,
comment. (nn.4, 5)), his conduct is more analogous to the examples where the
obstruction enhancement does apply. For example, as the district court concluded,
Cook’s threat to file and filing of a malpractice suit was an attempt to intimidate
his appointed attorney and caused her to file a motion to withdraw. Also, when
considered with Cook’s other actions, Cook’s arguably frivolous malpractice suit
was an attempt to delay his sentencing proceedings.
In addition to his malpractice suit, on the day of his scheduled sentencing
hearing, Cook filed a petition for injunctive and declaratory relief against the
district court, asking for an injunction and for the court to produce documents
establishing subject matter, territorial, and personal jurisdiction. And, the day
before his scheduled sentencing hearing, Cook filed a motion to withdraw his
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guilty plea. Based upon Cook’s disruptive behavior at counsel’s motion to
withdraw hearing, which required security officers to handcuff Cook and remove
him from the courtroom, the court did not consider Cook’s motion to withdraw his
guilty plea at that hearing and had to conduct another hearing on that motion.
Viewing Cook’s actions together, Cook was consciously attempting to delay his
sentencing proceedings, which he succeeded in doing. Accordingly, his actions
justified the imposition of the two-level obstruction-of-justice enhancement.
Finally, we reject Cook’s claim that the district court erred in calculating the
restitution amount. The Mandatory Victims Restitution Act of 1996 (“MVRA”),
Pub. L. No. 104-132,
110 Stat. 1227, codified at 18 U.S.C. § 3663A, requires
district courts to order restitution in certain cases, including wire fraud. United
States v. Dickerson,
370 F.3d 1330, 1335-36 (11th Cir. 2004). Section 3664 sets
forth the procedures for ordering restitution and “demands that courts ‘order
restitution to each victim in the full amount of each victim’s losses . . . .’”
Id. at
1336 (quoting
18 U.S.C. § 3664(f)(1)(A)). The government bears the burden of
demonstrating the amount of each victim’s loss by a preponderance of the
evidence.
18 U.S.C. § 3664(e).
At Cook’s sentencing, the government, through Digan’s testimony,
established that Cook had failed to repay $2,969,532.54 of the two loans, and Cook
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presented no evidence that this calculation was incorrect. Accordingly, we affirm
the district court’s restitution order.
AFFIRMED.
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