United States v. Nelson Conto ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NELSON CONTO,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:19-cr-00183-RJC-DCK-2)
Submitted: December 21, 2021 Decided: January 25, 2022
Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP & GAINES MESSICK, PLLC, Statesville, North
Carolina, for Appellant. William T. Stetzer, Acting United States Attorney, Anthony J.
Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A grand jury charged Nelson Conto with conspiracy to commit bank fraud, in
violation of 18 U.S.C. § 1349; bank fraud, in violation of 18 U.S.C. § 1344(2); and
aggravated identity theft, in violation of 18 U.S.C. § 1082A. After trial, the jury convicted
Conto of the conspiracy and bank fraud counts but acquitted Conto of the identity theft
count. The district court sentenced Conto to 41 months of imprisonment. On appeal, Conto
challenges the district court’s denial of his motion in limine seeking the admission of
evidence and argues that the court’s loss calculation was clearly erroneous. We affirm.
A district court’s ruling under Fed R. Evid. 106 is reviewed for abuse of discretion.
United States v. Hassan, 742 F.3d 104, 135 (4th Cir. 2014). Rule 106 provides that “[i]f a
party introduces all or part of a writing or recorded statement, an adverse party may require
the introduction, at that time, of any other part—or any other writing or recorded
statement—that in fairness ought to be considered at the same time.” Rule 106 aims “to
prevent a party from misleading the jury by allowing into the record relevant portions of
the excluded testimony which clarify or explain the part already received.” United States
v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996). However, Rule 106 does not “render
admissible the evidence which is otherwise inadmissible under the hearsay rules.” Id.“Nor does it require the admission of self-serving, exculpatory statements made by a party
which are being sought for admission by that same party.” United States v. Lentz, 524 F.3d
501, 526 (4th Cir. 2008) (internal quotation marks omitted).
On appeal, Conto argues that the district court abused its discretion in admitting
excerpts of a recorded post-arrest interview of Conto without admitting the full recording.
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However, Conto has consistently failed to explain how any of the excerpted statements
admitted at trial were misleading or lacking context. Moreover, the statements Conto
proffered would constitute self-serving, exculpatory hearsay if he had been permitted to
introduce them. Therefore, we conclude that the district court did not abuse its discretion.
Turning to Conto’s sentencing argument, we review a defendant’s sentence “under
a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).
To pass this review, the sentence must be both procedurally and substantively reasonable.
Id. at 51. In determining procedural reasonableness, we consider whether the district court
properly calculated the defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
factors, and sufficiently explained the selected sentence. Id. at 49-51. “When reviewing
whether a district court properly calculated the Guidelines range we review the district
court’s legal conclusions de novo and its factual findings for clear error.” United States v.
Lawing, 703 F.3d 229, 241 (4th Cir. 2012) (internal quotation marks omitted). “A finding
is clearly erroneous [only] when although there is evidence to support it, [we] on the entire
evidence [are] left with the definite and firm conviction that a mistake has been
committed.” Butts v. United States, 930 F.3d 234, 238 (4th Cir. 2019) (internal quotation
marks omitted), cert. denied, 140 S. Ct. 1113 (2020).
The Guidelines instruct that to calculate a loss amount, the district court must take
the larger of actual or intended loss. U.S. Sentencing Guidelines Manual § 2B1.1 cmt.
n.3(A). The Guidelines commentary defines “intended loss” as “the pecuniary harm that
the defendant purposely sought to inflict.” USSG § 2B1.1 cmt. n.3(A)(ii). The loss must
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have been reasonably foreseeable, meaning “that the defendant knew or, under the
circumstances, reasonably should have known” that the loss was a potential result of the
offense. USSG § 2B1.1 cmt. n.3(A)(iv). “The [district] court need only make a reasonable
estimate of the loss.” USSG § 2B1.1 cmt. n.3(C). In cases “involving jointly undertaken
criminal activity, a particular loss may be attributed to a defendant if it results from the
conduct of others so long as the conduct was in furtherance of, and reasonably foreseeable
in connection with the criminal activity.” United States v. Otuya, 720 F.3d 183, 191 (4th
Cir. 2013) (internal quotation marks omitted).
Conto argues that the district court erred by counting losses directly attributed to his
coconspirators against him without explaining which coconspirator’s losses were being
counted or why they were attributable to Conto. However, Conto fails to show clear error
in the district court’s determination that he played more than a minor role in the conspiracy.
Moreover, the district court reasonably concluded that Conto could have foreseen the
conspiracy’s breadth, particularly given Conto’s own action in recruiting at least one new
member into the conspiracy. Finally, we conclude that the district court made “a
reasonable estimate of the loss” in calculating the total amount of loss from the conspiracy.
See USSG § 2B1.1 cmt. n.3(C).
Accordingly, we affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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