United States v. Cortinas ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4287
JOSE RUDOLFO CORTINAS, a/k/a B. J.
Cortinas,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Chief District Judge.
(CR-95-68)
Submitted: December 10, 1996
Decided: January 27, 1997
Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for Appellant.
Janice McKenzie Cole, United States Attorney, Scott L. Wilkinson,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jose Rudolfo Cortinas pled guilty to a criminal information charg-
ing him with conspiracy to commit wire fraud in violation of 18
U.S.C. § 371 (1994). The evidence showed that Cortinas was part of
a telemarketing scheme that targeted individuals with poor credit his-
tories and fraudulently offered them credit cards. The probation offi-
cer determined that Cortinas was a member of the conspiracy from
late August 1993 through May 1994, when the operation ended, and
Cortinas was found culpable for $1,217,091.70. Finding no error, we
affirm.
Cortinas argues that the district court's calculation of the losses
attributable to him are incorrect because it includes amounts incurred
both before Cortinas joined the conspiracy and after he left. There is
no dispute that such amounts must be excluded. See United States v.
Sneed, 63 F.3d 381, 389-90 (5th Cir. 1995), cert. denied, ___ U.S.
___, 64 U.S.L.W. 3453, 64 U.S.L.W. 3466 (U.S. Jan. 8, 1996) (No.
95-802); United States v. Balogun, 989 F.2d 20, 22 (1st Cir. 1993).
The sentencing issue presented by Cortinas is a factual determina-
tion, which is reviewed under the clearly erroneous standard. United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). In the present
case, we find that the evidence adequately supports the district court's
determination of Cortinas' culpability.
Cortinas had an affirmative duty to present evidence showing why
the presentence report was incorrect; mere objections were not suffi-
cient. United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). In
the present case, Cortinas claimed that he left the conspiracy in Janu-
ary 1994, but did not offer any evidence to support this claim. More-
over, Cortinas pled guilty to the language in the criminal information,
which stated that he was a member of the conspiracy until May 1994.
2
Likewise, Cortinas did not present any evidence to show that addi-
tional amounts, other than that already subtracted, were earned by the
conspiracy prior to his joining.
We therefore affirm the findings and sentence of the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3