United States v. Bryant ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4759
JAMES RICKY BRYANT,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-97-76, CR-97-108)
Submitted: February 27, 1998
Decided: March 18, 1998
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Robert M.
Hamilton, Assistant United States Attorney, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Pursuant to his guilty pleas, James Ricky Bryant was convicted on
one count each of bankruptcy fraud (18 U.S.C. § 157(1) (1994)) and
making false statements to a bank (18 U.S.C.A. § 1014 (West 1997)).
On appeal, Bryant challenges the district court's decisions enhancing
his base offense level for obstruction of justice 1 and declining to grant
his motion for a downward adjustment for acceptance of responsibility.2
Bryant also challenges the district court's calculation of the amount
of loss resulting from his fraudulent activities and the amount of resti-
tution he should pay. Finding no reversible error, we affirm.
Bryant engaged in a pattern of misconduct in which he purchased
homes and lived in them but did not make the necessary mortgage or
rental payments. Whenever the seller attempted to foreclose on the
property or evict him, Bryant would file a bankruptcy petition, staying
the proceedings. In his final petition for bankruptcy, Bryant fraudu-
lently represented that he had never filed for bankruptcy protection
before, and he failed to list known creditors and judgments against
himself. Bryant also obtained over $123,000 in business and con-
sumer loans by fraudulently misrepresenting his assets and the length
of time he had been in business.
We review the district court's decision to enhance Bryant's base
offense level for obstruction of justice de novo, and we find no error.
See United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir. 1990).
During the presentence interview, the probation officer asked Bryant
if he had any arrests or convictions outside the State of North Caro-
lina. Bryant responded that he was stopped for a traffic violation in
Virginia but had no other arrests or convictions. The probation officer
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1 U.S. Sentencing Guidelines Manual § 3C1.1 (1996).
2 U.S. Sentencing Guidelines Manual § 3E1.1 (1996).
2
investigated and discovered that Bryant was convicted of fraud and
escape in Virginia and was arrested for public intoxication, driving
with a suspended license, and being a fugitive. Bryant served ninety
days on the fraud and escape charges.
An enhancement for obstruction of justice is appropriate if the
defendant willfully provides "materially false information to a proba-
tion officer in respect to a presentence or other investigation for the
court."3 Bryant claims that he simply forgot about the Virginia con-
victions. However, the probation officer testified that Bryant recalled
prior offenses in detail. In addition, the district court found it incredi-
ble that Bryant would not remember spending ninety days in jail. We
find that the district court's conclusion that Bryant willfully misad-
vised the probation officer concerning his out of state convictions was
not clearly erroneous. Accordingly, we find that the district court
properly enhanced Bryant's base offense level for obstruction of jus-
tice.
Since the enhancement for obstruction of justice was appropriate,
a downward adjustment for acceptance of responsibility is only justi-
fied in exceptional circumstances.4 Since we find no such circum-
stances here, the district court properly denied Bryant's motion.
We review the district court's calculation concerning the amount of
the loss for clear error and its application of a loss enhancement to
undisputed facts de novo. See United States v. Chatterji, 46 F.3d
1336, 1340 (4th Cir. 1995). The loss suffered focuses on the value of
the money, property, or services unlawfully taken. 5 In the present
case, we find no error in the district court's loss calculation or its
application of the loss enhancement.
Bryant challenges the district court's inclusion of certain amounts
owed to A.C. Jones in its loss calculation.6 Jones sold a home to Bryant,7
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3 USSG § 3C1.1, comment. (n.3(h)).
4 See USSG § 3E1.1, comment. (n. 4).
5 USSG § 2F1.1(b)(1), comment. (n. 7).
6 We note that Bryant does not challenge the district court's calculation
of the amount he owed Jones; he challenges only the inclusion of that
amount in the total loss calculation.
7 Jones financed the sale.
3
and, for three years, Bryant failed to make necessary mortgage and
rental payments to Jones, despite agreeing to do so. Relying on
United States v. Rothberg, 954 F.2d 217 (4th Cir. 1992), and United
States v. Baum, 974 F.2d 496 (4th Cir. 1992), Bryant contends that
the amounts owed to Jones should not be included in the amount of
loss because any amounts paid before he reconveyed the deed to
Jones would be classified as mortgage payments and because Jones
did not suffer actual loss since Jones regained title to the property and
could resell it.
We find Bryant's reliance on Rothberg and Baum misplaced. Those
cases involved defendants who fraudulently obtained refinancing on
their property. The records suggested that the defendants continued to
make timely payments on the new loans, and the trial courts expressly
found that the defendants did not intend for the lenders to suffer any
loss. In the present case, however, there is no similar finding that Bry-
ant did not intend to deprive Jones of the value of the property during
the period in which he occupied the house. We find that the court
properly calculated Jones' loss based on this value.
We will not disturb the district court's restitution order absent an
abuse of discretion, and we find no such abuse here. See United States
v. Blake, 81 F.3d 498, 505 (4th Cir. 1996). Repeating his argument
concerning loss calculation, Bryant asserts that the restitution order
should not include amounts owed Jones, especially the amount con-
sisting of attorneys' fees and foreclosure costs. Bryant relies primarily
on Merritt v. Ridge, 372 S.E.2d 559 (N.C. 1988), in which the North
Carolina Supreme Court held that purchase money mortgagees were
statutorily barred from recovering attorneys' fees and foreclosure
expenses in foreclosure proceedings.
We find Bryant's reliance on Merritt misplaced. Merritt was a civil
foreclosure proceeding to which the statute8 expressly applied. The
present case is a criminal proceeding in which Bryant was convicted
of bankruptcy fraud. Restitution reimbursing Jones for the full value
of his loss is authorized pursuant to 18 U.S.C.§ 3663A (1994) and
USSG § 5E1.1.
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8 N.C. Gen. Stat. § 45-21.38 (1996).
4
Accordingly, we affirm Bryant's convictions and sentence. 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
5