United States v. Robert Bowling , 566 F. App'x 202 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4738
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT GARTRELL BOWLING,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-00894-HMH-1)
Submitted: March 24, 2014 Decided: April 10, 2014
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, William J. Watkins, Jr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Robert Gartrell Bowling guilty of: one
count of conspiracy to make, pass, and possess counterfeit
checks of organizations doing business in interstate commerce,
in violation of 18 U.S.C. § 371 (2012) (“Count 1”); two counts
of possession with intent to use or transfer five or more
identification documents or false identification documents, in
violation of 18 U.S.C. § 1028(a)(3) (2012) (“Counts 2 and 9”);
two counts of aggravated identity theft, in violation of 18
U.S.C. § 1028A(a)(1) (2012); one count of unlawful possession of
a firearm and ammunition that traveled in interstate commerce,
in violation of 18 U.S.C. § 922(g)(1) (2012); and one count of
forcibly assaulting a Special Deputy U.S. Marshall who was
engaged in the performance of his official duties, in violation
of 18 U.S.C. § 111(a)(1), (b) (2012). The district court
sentenced Bowling to 192 months in prison and ordered him to pay
$222,283.98 in restitution. This court affirmed the district
court’s judgment. See United States v. Bowling, 442 F. App’x 72
(4th Cir. 2011) (No. 11-4015) (unpublished).
Bowling timely filed a pro se 28 U.S.C. § 2255 (2012)
motion raising several ineffective assistance of counsel claims.
The district court found that all but one of Bowling’s
ineffective assistance claims were meritless. With regard to
Bowling’s claim that counsel was ineffective for failing to
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object to his presentence investigation report’s (“PSR”)
inclusion of the incorrect statutory maximum sentence for the
§ 1028 offenses, the district court found that Bowling was
sentenced under an incorrect subsection of that statute and,
thus, determined that Bowling had to be resentenced.
A new PSR was generated that was virtually identical
to the first PSR, except that the correct statutory maximum
sentence was identified for the § 1028 convictions. At
resentencing, 1 the district court immediately clarified its
position that the parties were “starting over completely fresh
as if that never happened, that other sentencing. So [Bowling]
can raise any objection.” The district court adopted the
Guidelines range as calculated in Bowling’s revised PSR,
afforded counsel an opportunity to argue regarding the 18 U.S.C.
§ 3553(a) (2012) factors relevant to Bowling’s case, and
afforded Bowling an opportunity to allocute. The district court
1
Before he was resentenced, Bowling filed a pro se notice
of appeal purporting to appeal the portion of the district
court’s order denying the majority of his habeas claims. That
appeal was dismissed as interlocutory. See United States v.
Bowling, ___ F. App’x ___, 2013 WL 6135801 (4th Cir. 2013) (No.
13-7166) (unpublished). Bowling has since been allowed to file
an additional appeal to challenge the district court’s adverse
habeas determinations. (4th Cir. Appeal No. 14-6338). As we
are faced here only with Bowling’s challenges to his new
sentence, by our disposition in this appeal, we express no
opinion as to Bowling’s habeas claims, which have yet to be
reviewed by this court.
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once again sentenced Bowling to 192 months in prison and again
ordered him to pay $222,283.98 in restitution. Bowling timely
appealed.
On appeal, Bowling asserts that his offense level was
improperly enhanced in two respects. First, he maintains that
the district court erred by increasing the offense level of his
grouping of fraud offenses by six levels pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 3A1.2(c)(1) (2012)
(requiring six-level increase if defendant knowingly assaults a
law enforcement officer during the course of the offense or
flight therefrom). Second, he contends that there was no
showing that he intended to inflict the amount of loss
attributed to him, so the district court erred by further
increasing his fraud offense level by twelve levels under USSG
§ 2B1.1(b)(1)(G) (2012) (requiring that offense level be
increased twelve levels if the loss exceeded $200,000). 2 Bowling
also asserts that he should not have been assigned three
2
Bowling also argues that these enhancements violate the
Sixth Amendment because he did not admit to their factual bases,
nor were such facts proven to a jury. We reject this argument
because there is no indication that the district court treated
the Guidelines as mandatory, and Bowling’s sentence is within
the statutory maximums authorized for the respective offenses.
See United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(“Sentencing judges may find facts relevant to determining a
Guidelines range by a preponderance of the evidence, so long as
that Guidelines sentence is treated as advisory and falls within
the statutory maximum authorized by the jury’s verdict.”).
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criminal history points for his prior conviction for failure to
stop for a blue light because he did not effectively waive his
right to counsel for that conviction. Finally, Bowling contends
that the district court erred when it calculated the amount he
owes in restitution. Bowling has also filed a motion to file a
pro se supplemental brief. For the reasons that follow, we deny
his motion to file a pro se supplemental brief and affirm his
sentence.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 46 (2007); United States v. Lynn,
592 F.3d 572, 578 (4th Cir. 2010) (abuse of discretion standard
of review applicable when defendant properly preserves a claim
of sentencing error in district court “[b]y drawing arguments
from [18 U.S.C.] § 3553 [(2012)] for a sentence different than
the one ultimately imposed”). In conducting this review, we
must first examine the sentence for significant procedural
error, including “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence[.]” Gall, 552 U.S. at
51. In reviewing the district court’s application of the
Guidelines, we review findings of fact for clear error and
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questions of law de novo. United States v. Layton, 564 F.3d
330, 334 (4th Cir. 2009).
Bowling’s arguments to the contrary, we discern no
error in the district court’s Guidelines range calculation.
First, we reject Bowling’s argument that the district court
erred when it increased his fraud offense level six levels,
pursuant to USSG § 3A1.2(c)(1). Under that provision, an
offense level is to be increased six levels if, “in a manner
creating a substantial risk of serious bodily injury, the
defendant . . . knowing or having reasonable cause to believe
that a person was a law enforcement officer, assaulted such
officer during the course of the offense or immediate flight
therefrom[.]”
According to Bowling, while this increase may have been
an appropriate increase to the offense level for his assault of
a federal officer offense, the increase was inappropriately
applied to his fraud offense grouping. 3 Specifically, Bowling
asserts that “[h]ad the enhancement been properly applied under
3
Bowling does not assert that the six-level enhancement was
erroneously applied, only that it was included in the incorrect
offense grouping. Bowling also does not assert that Counts 1,
2, and 9 were improperly grouped together in accordance with
USSG § 3D1.2(d) (2012) (“All counts involving substantially the
same harm shall be grouped together into a single Group . . .
[w]hen the offense level is determined largely on the basis of
the total amount of harm or loss[.]”).
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the assault guidelines group, it would have given [him] a total
offense level of 27, subjecting him to a guidelines range of 100
to 125 months and greatly affecting his degree of exposure at
sentencing.” For support, Bowling relies on United States v.
Kleinebreil, 966 F.2d 945, 954 (5th Cir. 1992) (holding that
“because the assault count was not grouped with the marijuana
counts,” the district court erred in increasing the offense
level for the marijuana convictions under USSG § 3A1.2, and also
increasing the assault count).
Bowling’s argument is meritless. First, unlike in
Kleinebreil, only Bowling’s fraud grouping offense level was
increased under this enhancement. Thus, there was no double-
counting. In addition, at the time Bowling injured the officer
upon which the enhancement was based, Bowling was fleeing from
authorities and had in his possession the identification
documents that formed the basis for Count 9. Accordingly, we
discern no error in the PSR’s application of the § 3A1.2
enhancement to the fraud offense grouping. See USSG § 3A1.2
cmt. n.4(A) (recognizing that “[s]ubsection (c) may apply in
connection with a variety of offenses that are not by nature
targeted against official victims”).
We also discern no error in the district court’s
decision to enhance Bowling’s offense level under USSG
§ 2B1.1(b)(1)(G). Under USSG § 2B1.1, “loss” is the greater of
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actual loss or intended loss. USSG § 2B1.1 cmt. n.3(A) (2012).
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” and
“includes intended pecuniary harm that would have been
impossible or unlikely to occur[.]” USSG § 2B1.1 cmt.
n.3(A)(i)-(ii) (2012).
In making “loss” calculations, the sentencing court is
instructed to hold the defendant “responsible for the amount of
loss which was intended, not the actual loss ultimately
sustained[.]” United States v. Loayza, 107 F.3d 257, 266 (4th
Cir. 1997) (refusing to apply net loss theory and credit
payments made to victims of Ponzi scheme against amount of loss
intended by perpetrator). Indeed, this court has held that the
“Guidelines permit courts to use intended loss in calculating a
defendant’s sentence, even if this exceeds the amount of loss
actually possible, or likely to occur, as a result of the
defendant’s conduct.” United States v. Miller, 316 F.3d 495,
502 (4th Cir. 2003).
In this case, the Government established that
Bowling’s crimes resulted in a total loss (actual and intended)
of $356,981.44. Although Bowling objected that he did not
intend to take all of the money for which the counterfeit checks
were written, and speculated that some of the checks may have
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been old or canceled, Bowling presented no evidence to
contradict the Government’s evidence that at the time of his
arrest, Bowling was in possession of numerous checks totaling at
least $200,000. Accordingly, we conclude that the district
court did not err in applying the USSG § 2B1.1(b)(1)(G)
enhancement to his offense.
We also reject Bowling’s assertion that three criminal
history points were improperly attributed to him for his 2005
South Carolina conviction for failure to stop for a blue light.
Although Bowling asserts he did not have counsel at the time he
pled guilty to that offense, and did not “knowingly,
intelligently and unequivocally waive his right to counsel[,]” a
defendant generally may not collaterally attack prior
convictions used to enhance his sentence. United States v.
Bacon, 94 F.3d 158, 162 (4th Cir. 1996).
To be sure, the Supreme Court held in Custis v. United
States, 511 U.S. 485, 487 (1994), that convictions obtained in
violation of the right to counsel fall outside this general
rule. But the defendant nonetheless bears the burden of proof
if he chooses to challenge a prior conviction, because “even
when a collateral attack on a final conviction rests on
constitutional grounds, the presumption of regularity that
attaches to final judgments makes it appropriate to assign a
proof burden to the defendant.” Parke v. Raley, 506 U.S. 20, 31
9
(1992); see also United States v. Reyes-Solano, 543 F.3d 474,
478 (8th Cir. 2008) (holding that when defendant claims prior
convictions resulting in criminal history points were obtained
in violation of right to counsel, he must demonstrate by a
preponderance of the evidence that prior convictions were
constitutionally invalid).
Bowling’s conclusory assertions to the contrary, the
record establishes that at the time Bowling pled guilty to the
failure to stop for a blue light offense, the state court
engaged Bowling in a colloquy during which Bowling: (1) was
offered counsel; (2) expressly declined counsel; (3) was sober;
(4) expressed a desire to plead guilty; and (5) knew he was
receiving a good plea deal. In fact, during his self-
representation, Bowling was able to secure a plea deal of two
years suspended to one year of probation. Given Bowling’s
lucidity, experience with the criminal justice system at the
time of the prior conviction, and the fact that he was able to
secure for himself a good plea deal, it was not error for the
district court to reject Bowling’s argument that he should not
be assigned criminal history points for his prior conviction.
Finally, we reject Bowling’s argument that the
district court abused its discretion when it ordered him to pay
$222,283.98 in restitution because the amount was allegedly
“speculative and was not proven by the Government by a
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preponderance of the evidence.” Under the Guidelines, a
sentencing court “need only make a reasonable estimate of the
loss.” USSG § 2B1.1, cmt. n.3(C) (2012). In fact, the
Guidelines recognize that a “sentencing judge is in a unique
position to assess the evidence and estimate the loss based upon
that evidence.” Id. “For this reason, the court’s loss
determination is entitled to appropriate deference.” Id.
Thus, we review a trial court’s restitution order for
abuse of discretion. See United States v. Harvey, 532 F.3d 326,
339 (4th Cir. 2008). “A district court abuses its discretion
when it acts arbitrarily or irrationally, fails to consider
judicially recognized factors constraining its exercise of
discretion, relies on erroneous factual or legal premises, or
commits an error of law.” See United States v. Grant, 715 F.3d
552, 557 (4th Cir. 2013) (internal quotation marks and citation
omitted).
We discern no abuse of discretion by the district
court. The district court attached the names of the individual
restitution payees and the amount owed to each, which totaled
$222,283.98, as an addendum to the amended judgment. This
amount was derived by attributing to Bowling $17,502.63, which
is one half of the hard loss associated with Count 1, and adding
$204,781.35, which is the loss tied to the account numbers used
by Bowling. The Government offered at the first sentencing, and
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the case agent confirmed, that the $204,781.35 was derived from
taking the account numbers of stolen checks in Bowling’s
possession and checks that he was negotiating, and then
providing them to a Postal Inspection Service analyst who ran
the account numbers with the merchants and came up with the loss
amount.
Although the Government offered to have the case agent
elaborate on the loss calculations, the district court did not
require the Government to present the agent’s testimony and
Bowling presented only speculation to suggest that the
Government’s calculations were incorrect. Accordingly, Bowling
has not established that the district court relied on erroneous
factual or legal premises, or committed an error of law,
warranting a vacatur of the restitution order.
Based on the foregoing, we deny Bowling’s motion to
file a pro se supplemental brief and affirm his 192-month
sentence. 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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