United States v. Sadler ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5947
WALTER LEE SADLER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-95-134-V)
Submitted: May 29, 1998
Decided: September 4, 1998
Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
William Arthur Webb, Federal Public Defender, Gordon Widenhouse,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, Brian L. Whis-
ler, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Walter Lee Sadler appeals from his conviction and sentence for
bank fraud and using fraudulent social security numbers in violation
of 18 U.S.C. § 1344 (1994) and 42 U.S.C. § 408(a)(7) (1994). We
affirm in part, and vacate and remand in part.
Sadler raises four perceived errors which he believes warrant rever-
sal in his case. First, he contends that the district court erred in deny-
ing his motion for judgment of acquittal based on the Government's
failure to prove that the banks at issue were federally insured. We first
note that Sadler made no such motion. However, because federally
insured status is a jurisdictional element under§ 1344, we review the
issue notwithstanding. Our review of the materials submitted by the
parties discloses uncontroverted testimony that Southern National
Bank, later acquired by BB&T Bank, was federally insured. Taking
this in the light most favorable to the Government, we find this evi-
dence sufficient to allow a jury to find federally insured status. See
Glasser v. United States, 315 U.S. 60, 80 (1942) (providing suffi-
ciency standard); see also United States v. Schultz, 17 F.3d 723, 727
(5th Cir. 1994) (stating that testimony that bank was federally insured
would be sufficient to establish jurisdiction under§ 1344); United
States v. Gallop, 838 F.2d 105, 112 (4th Cir. 1988) (finding bank
employee's uncontroverted testimony that bank was FDIC insured
sufficient to establish federal jurisdiction under bank robbery statute).
Sadler next contends that the district court erred in allowing the
Government to present evidence of his prior conviction for social
security fraud. We review the district court's decision to admit this
evidence under Fed. R. Evid. 404(b) for abuse of discretion and find
none. Further, even assuming error, we find that given the totality of
the evidence against Sadler, the admission of this conviction did not
substantially sway the judgment and was therefore harmless. See
United States v. Sanders, 964 F.2d 295, 299 (4th Cir. 1992).
Sadler next argues that the district court erred in imposing restitu-
tion without making the factual findings required under 18 U.S.C.
2
§ 3664(a) (1994). We review this claim for abuse of discretion. See
United States v. Piche, 981 F.2d 706, 718 (4th Cir. 1992). A district
court may satisfy § 3664 by either: (1) specifically articulating its
findings regarding each factor on the record; or (2) adopting a presen-
tence report that contains adequate factual findings to allow effective
appellate review. See United States v. Castner , 50 F.3d 1267, 1277
(4th Cir. 1995); United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.
1993). Here, the district court chose the latter alternative, adopting the
findings in the report and noting that Sadler is the primary provider
for his son.
Sadler asserts that although the report recommended restitution, it
did not present "even a scintilla of evidence" that he had the ability
to pay. Rather, he claims that the report asserted that he was bankrupt,
owed medical bills, and did not have the ability to pay a fine. In actu-
ality, the report stated that Sadler had no assets or liabilities, other
than some medical bills associated with the birth of his son, and that
he filed three unsuccessful petitions for bankruptcy between 1981 and
1983. The presentence report also noted, however, that Sadler pos-
sessed a gainful employment record, earning $600 per week in 1995,
that he attended high school, and that he had military as well as some
college experience. We conclude that these findings are sufficient to
justify the imposition of restitution, especially when the court elected
not to impose a fine.
Sadler next contends that the district court failed to comply with
Fed. R. Crim. P. 32 in resolving factual disputes at sentencing. A dis-
trict court satisfies Rule 32 when it adopts the findings in the presen-
tence report, provided that it makes clear which issues were resolved
by its adoption. See United States v. Walker, 29 F.3d 908, 911 (4th
Cir. 1994). Sadler, however, asserts that the report did not contain
factual support for its conclusions in regard to four of his objections.
We conclude that the report contained sufficient factual support as to
all of Sadler's objections. Accordingly, we find that in adopting the
report, the district court satisfied the requirements of Rule 32.*
_________________________________________________________________
*In relation to this claim, Sadler also asserts that the district court mis-
understood one of his objections relating to a miscalculation in his crimi-
nal history score. He claims that the report incorrectly assigned two
points to a prior conviction resulting in a probationary sentence.
Although probationary sentences are assigned only one point under U.S.
3
Finally, Sadler contends that the district court erroneously ordered
him to pay restitution to the Kingspark Apartment complex because
the complex was not a victim of his offense of conviction. Sadler did
not object on this basis below, and accordingly this claim is reviewed
for plain error. See United States v. Olano, 507 U.S. 725 (1993). An
individual or organization is a victim under § 3663, if the act that
harms them is either "conduct underlying an element of the offense
of conviction, or an act taken in furtherance of a scheme, conspiracy,
or pattern of criminal activity that is specifically included as an ele-
ment of the offense of conviction." United States v. Blake, 81 F.3d
498, 506 (4th Cir. 1996). The conduct of defrauding Kingspark in
Sadler's case was not an underlying element of his offense of convic-
tion, and although it was part of a pattern of criminal activity, the pat-
tern itself is not an element of his offense. Accordingly, the
imposition of restitution was a clear error. Further, because the
VWPA provides the only authority for an order of restitution to
Kingspark, the error resulted in an illegal sentence. See, e.g., United
States v. Cobbs, 967 F.2d 1555, 1558 (11th Cir. 1992) (holding that
an order imposing restitution beyond that authorized by the VWPA
creates an illegal sentence reviewable as plain error). As such, we
conclude that the imposition was plainly erroneous under the standard
set forth in Olano. We therefore vacate the order of restitution.
We thus affirm Sadler's conviction, but vacate the restitution order
and remand for resentencing in accordance with this opinion. We dis-
pense 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 IN PART, VACATED IN PART, AND REMANDED
_________________________________________________________________
Sentencing Guidelines Manual § 4A1.1(c) (1995), when there is a revo-
cation of probation, the term of imprisonment imposed upon revocation
is added to the original term, and the total is used to determine history
points under USSG § 4A1.1. See USSG§ 4A1.2(k). Here, Sadler was
originally sentenced to six months' imprisonment, suspended, and three
years of supervised probation. His probation was later revoked and his
original sentence reimposed, less ninety days' credit. Thus, he was given
a sentence of three months' imprisonment. Because this sentence exceeds
sixty days, it was properly given two points under USSG § 4A1.1(c).
4