United States v. Rasheeda McConnell , 604 F. App'x 318 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4842
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RASHEEDA MCCONNELL,
Defendant - Appellant.
No. 14-4855
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRANDON JERMAINE JOHNSON,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:14-cr-00028-JAG-3; 3:14-cr-00028-JAG-1)
Submitted: May 8, 2015 Decided: May 28, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, PC,
Richmond, Virginia; Michael S. Nachmanoff, Federal Public
Defender, Nia A. Vidal, Assistant Federal Public Defender,
Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellants. Dana J. Boente, United
States Attorney, Michael C. Moore, Assistant United States
Attorney, Charles A. Quagliato, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Brandon Jermaine Johnson pleaded guilty to conspiracy to
commit bank fraud, in violation of 18 U.S.C. §§ 1344, 1349
(2012), and three counts of bank fraud and aiding and abetting,
in violation of 18 U.S.C. §§ 2, 1344 (2012). A federal jury
convicted Rasheeda McConnell of conspiracy to commit bank fraud,
and six counts of bank fraud and aiding and abetting. The
district court sentenced Johnson to 96 months of imprisonment
and sentenced McConnell to 60 months of imprisonment. They both
appeal their sentences. Finding no error, we affirm.
Johnson and McConnell argue on appeal that the district
court erred in calculating the intended loss attributable to
them under the Sentencing Guidelines. We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). We will
presume on appeal that a sentence within a properly calculated
advisory Guidelines range is reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United
States, 551 U.S. 338, 346-56 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence).
Moreover, in reviewing the district court’s calculations
under the Guidelines, “we review the district court’s legal
conclusions de novo and its factual findings for clear error.”
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United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
(internal quotation marks omitted); see also United States v.
Otuya, 720 F.3d 183, 191 (4th Cir. 2013) (district court’s
calculation of loss amount reviewed for clear error), cert.
denied, 134 S. Ct. 1279 (2014). We will “find clear error only
if, on the entire evidence, we are left with the definite and
firm conviction that a mistake has been committed.” Id. at 631.
“In calculating the loss for purposes of the [U.S.
Sentencing Guidelines Manual] § 2B1.1(b)(1) [(2014)]
enhancement, a district court may consider ‘the greater of
actual loss or intended loss’ and must only make a ‘reasonable
estimate’ of that amount based on available information.”
Otuya, 720 F.3d at 191 (quoting USSG § 2B1.1 cmt. n.3(A), (C)).
“In a case like this one 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.” Id. (quoting USSG
§ 1B1.3(a)(1)(B)). Due to the unique position of a sentencing
judge in assessing the evidence, “the court’s loss determination
is entitled to appropriate deference.” United States v.
Abdulwahab, 715 F.3d 521, 534 (4th Cir. 2013) (internal
quotation marks omitted). We have thoroughly reviewed the
record and conclude that the district court did not clearly err
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in calculating the intended loss attributable to Johnson and
McConnell under the Guidelines.
Johnson also argues that the court erred in applying an
enhancement under the Guidelines for obstruction of justice
based on his testimony at McConnell’s trial. Pursuant to USSG
§ 3C1.1, a district court must apply a two-level enhancement in
offense level if the defendant attempted to obstruct or impede
the administration of justice with respect to the prosecution of
the offense of conviction and that conduct related to the
conviction or a closely related offense. In order to apply the
enhancement based on a defendant’s perjurious testimony, “the
sentencing court must find that the defendant (1) gave false
testimony; (2) concerning a material matter; (3) with willful
intent to deceive.” United States v. Perez, 661 F.3d 189, 192
(4th Cir. 2011) (internal quotation marks omitted). Our review
of the record and the relevant legal authorities leads us to
conclude that the court correctly applied the enhancement for
obstruction of justice in calculating Johnson’s advisory
Guidelines range.
Finally, McConnell challenges the substantive
reasonableness of her sentence. We have reviewed the district
court’s thorough and reasoned explanation of McConnell’s
sentence. We conclude, based on the reasons cited by the
district court, that McConnell has failed to overcome the
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presumption of reasonableness applied to her within-Guidelines
sentence.
Accordingly, we affirm the judgments 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 in the decisional process.
AFFIRMED
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