United States v. Fordham ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4702
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KURT FORDHAM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cr-00288-RWT-3)
Submitted: September 29, 2010 Decided: November 8, 2010
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, James A. Crowell IV, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kurt Fordham appeals the 120-month sentence he
received after he pled guilty to conspiracy to commit mail and
wire fraud, 18 U.S.C. § 1349 (2006). Fordham contends that the
district court clearly erred in finding that he was not a minor
participant in the conspiracy, U.S. Sentencing Guidelines Manual
§ 3B1.2(b) (2008), and in applying an adjustment for vulnerable
victims, USSG § 3A1.1(b)(1). We affirm.
In the statement of facts that supported Fordham’s
guilty plea, he admitted participating in a conspiracy that
targeted homeowners who had substantial equity in their homes
but were having difficulty making their mortgage payments and
were facing foreclosure. Fordham’s wife, Joy Jackson, and co-
conspirator Jennifer McCall started the Maryland Money Store
(MMS) in 2005. At the same time, Fordham, Jackson, and McCall’s
husband incorporated Fordham and Fordham Investment Group (F&F)
and Burroughs and Smythe Financial Services (B&S) was
incorporated by Fordham, the McCalls, and their daughter. MMS
advertised that its “foreclosure reversal program” could help
distressed homeowners “avoid foreclosure, keep their homes, and
repair their damaged credit.” In fact, homeowners who entered
the program were directed to allow title to their homes to be
transferred to third-parties, or straw buyers, for one year.
The conspirators applied for new, fraudulently inflated mortgage
2
loans, extracted the equity from the property, transferred the
sale proceeds from the escrow accounts to their business and
personal accounts, and converted much of the money to their
personal use.
Fordham acted as a straw buyer for six or more
properties. In conjunction with Jackson and McCall, he also
paid bank employees to perform certain functions such as
providing verifications of bank accounts to lenders for program
loans; providing false income balances to lenders for straw
buyers; putting straw buyers and others onto accounts for lender
verification; transferring money temporarily into an account to
show a certain amount; and shifting money between F&F, MMS, B&S,
and other accounts to facilitate loans. At sentencing, over
Fordham’s objections, the district court determined that he had
more than a minor role even though he did not deal directly with
homeowners and that a vulnerable victim adjustment was
warranted.
On appeal, Fordham first maintains that he had a minor
role in the offense because he allowed his name and credit to be
used, but did not actively participate in the scheme. A
defendant has the burden of showing that the adjustment applies
to him. United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir.
1999). The district court’s factual finding is reviewed for
clear error. United States v. Edwards, 188 F.3d 230, 238 (4th
3
Cir. 1999). The adjustment applies only to a defendant whose
part in the offense “makes him substantially less culpable than
the average participant.” USSG § 3B1.2 cmt. n.3(A) (2008). The
defendant’s conduct is examined not only “relative to the other
defendants, but also . . . relative to the elements of
conviction” and the ultimate question is “whether the
defendant’s conduct is material or essential to committing the
offense.” United States v. Blake, 571 F.3d 331, 352-53 (4th
Cir. 2009) (quoting Akinkoye, 185 F.3d at 202), cert. denied,
130 S. Ct. 1104 (2010). Given the nature of Fordham’s admitted
conduct, he made a material contribution to the furtherance of
the conspiracy; therefore, the district court did not clearly
err in denying him a minor role adjustment.
Fordham next argues that, although the victims were
financially stressed, they were not vulnerable in the sense
intended by § 3A1.1(b)(1). The guideline provides a two-level
adjustment which applies “[i]f the defendant knew or should have
known that a victim of the offense was a vulnerable victim.”
Before making the adjustment, the court must first determine
that a victim was “unusually vulnerable due to age, physical or
mental condition, or . . . otherwise particularly susceptible to
4
the criminal conduct.” USSG § 3A1.1 cmt. n.2. * See United
States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010). The court
must also find that the defendant knew or should have known of
the victim’s unusual vulnerability. Id. Because the court’s
determination is factual, it is reviewed for clear error. Id.Fordham acknowledges but does not address United
States v. Holmes, 60 F.3d 1134, 1136-37 (4th Cir. 1995), in
which we held that victims of a similar offense, who were sought
out by the defendant because they had poor credit and obtained
mortgage loans from him, were vulnerable victims. In light of
Holmes, the district court did not clearly err in finding that
the vulnerable victim adjustment applied in Fordham’s case.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
The adjustment currently does not require that the
defendant have targeted the victim specifically because of his
vulnerability. See App. C, amend. 521.
5