United States v. Holcombe ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4101
RAMONA HOLCOMBE, a/k/a Mona
Holcombe,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-98-152)
Argued: November 2, 2001
Decided: December 10, 2001
Before WILKINSON, Chief Judge, and WILLIAMS and
MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Stephen Godfrey Jory, JORY & SMITH, L.C., Elkins,
West Virginia, for Appellant. Philip Henry Wright, Assistant United
States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Charles T. Miller, United States Attorney, Charleston, West
Virginia, for Appellee.
2 UNITED STATES v. HOLCOMBE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ramona Holcombe was convicted for her involvement in an invest-
ment fraud scheme. The district court rejected Holcombe’s request for
a downward departure and sentenced Holcombe to ninety-seven
months in prison. Holcombe appeals both her conviction and sen-
tence. Because the evidence at trial was sufficient for a reasonable
jury to convict Holcombe and because we conclude that the district
court’s refusal to grant a downward departure is not reviewable on
appeal, we affirm the judgment of the district court.
I.
Defendant Ramona Holcombe was involved in a wide-ranging
investment fraud scheme.* Holcombe was charged with, inter alia,
wire fraud, securities fraud, and money laundering. Holcombe and
three of her co-defendants were tried before a jury in Huntington,
West Virginia. The jury returned guilty verdicts against Holcombe
and her co-defendants on all counts of the indictment.
Prior to sentencing, Holcombe requested a downward departure
from the Sentencing Guidelines for three reasons: (1) she had extraor-
dinary family circumstances, based on the ill-health of her husband
and the advanced age of her mother; (2) she had already made restitu-
tion to many of the victims of her crimes and did not personally bene-
fit from the illegal acts; and (3) her conduct fell outside the
"heartland" of the money laundering sentencing guideline range,
because she had been involved only with the fraud aspects of the
debenture trading programs and not the money laundering.
*We affirmed the convictions and sentences of three of Holcombe’s
co-conspirators in United States v. Bollin, 264 F.3d 391 (4th Cir. 2001).
UNITED STATES v. HOLCOMBE 3
The district court rejected Holcombe’s arguments for a downward
departure. First, the court specifically noted that it had the authority
"to depart downward based upon exceptional family responsibilities,"
but denied her request because it did not believe "that the exceptional
circumstances are sufficient here to justify a departure so dramatic
that the defendant would be allowed to remain at home where she
could care for her [husband] and her mother." Similarly, the court
rejected Holcombe’s arguments for a departure based on her attempts
to repay investors and her lack of personal gain, finding that Hol-
combe had received some gain and had not made an "extraordinary"
effort to repay the victims. Finally, the district court found that Hol-
combe’s offense conduct did not fall outside the heartland of the
money laundering sentencing guidelines. The court then sentenced
Holcombe to ninety-seven months in prison. Holcombe appeals.
II.
A.
Holcombe alleges that the evidence at trial was insufficient to sus-
tain her conviction. When assessing the sufficiency of the evidence,
we review the evidence in the light most favorable to the United
States to determine whether any rational juror could have found the
defendant guilty beyond a reasonable doubt. United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (citing Glasser v. United States, 315
U.S. 60, 80 (1942)). A defendant bears a "‘heavy burden’" in attack-
ing the sufficiency of the evidence. United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997) (citing United States v. Hoyte, 51 F.3d
1239, 1245 (4th Cir. 1995)).
We have reviewed the evidence presented for each count of the
indictment, read the briefs, and listened to oral argument. We are con-
vinced that the evidence at trial was sufficient to sustain Holcombe’s
conviction on each count. Therefore, we affirm Holcombe’s convic-
tion.
B.
Holcombe also asserts that the district court abused its discretion
by not departing downward in the calculation of her sentence. How-
4 UNITED STATES v. HOLCOMBE
ever, because there is no evidence that the district court mistakenly
believed it lacked the authority to make a departure on the grounds
asserted, the district court’s decision declining to depart downward is
not reviewable on appeal. See, e.g., United States v. Bayerle, 898 F.2d
28, 30-31 (4th Cir. 1990).
In this case, the district court specifically acknowledged its ability
to depart for extraordinary family circumstances. The court neverthe-
less found that a departure was not warranted for Holcombe’s situa-
tion. The district court also reviewed the facts pertinent to
Holcombe’s argument that she had not personally benefitted from her
crimes and that she had made restitution to the victims. The court
concluded that Holcombe had received some financial gain from her
crimes and that she had not made extraordinary efforts to repay the
victims. By reviewing the evidence and then rejecting Holcombe’s
argument, the district court evidenced the fact that it was aware of its
authority to depart on this ground. Therefore, the district court’s deci-
sion not to depart on either ground is not reviewable on appeal. See
Bayerle, 898 F.2d at 30-31.
In addition, Holcombe contends that the sentencing guideline level
determined by the district court seriously overstates her conduct and
that she is entitled to an "outside the heartland" adjustment. The dis-
trict court rejected this argument and found that fraud-based money
laundering was within the heartland of the sentence for money laun-
dering. The district court also reviewed the specific facts and rejected
Holcombe’s argument that she was guilty only of fraud. The court
concluded that Holcombe’s case did not warrant a downward depar-
ture. In making this particularized assessment, the district court did
not abuse its discretion or make an error of law.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.