United States v. Carter , 289 F. App'x 635 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4591
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONOVAN CARTER, a/k/a Dski, a/k/a Donavan Alton,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:06-cr-01216-CMC)
Submitted: July 22, 2008 Decided: August 18, 2008
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, Greenville, South Carolina, for Appellant.
Kevin F. McDonald, Acting United States Attorney, Dean A.
Eichelberger, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donovan Carter appeals from his fifty-seven month
sentence entered pursuant to his convictions for conspiracy to
falsely alter and pass money orders and to defraud financial
institutions. On appeal, Carter challenges the calculation of his
Guidelines range. We affirm.
Carter first asserts that the district court clearly
erred in determining the amount of loss for which he was
responsible. Specifically, he claims that many of the money orders
attributed to him were insufficiently linked to him. We review the
amount of loss, to the extent it is a factual matter, for clear
error. United States v. West, 2 F.3d 66, 71 (4th Cir. 1993). This
deferential standard of review requires reversal only if we are
“left with the definite and firm conviction that a mistake has been
committed.” United States v. Stevenson, 396 F.3d 538, 542 (4th
Cir. 2005). A sentencing court may consider any evidence that “has
a sufficient indicia of reliability.” See U.S. Sentencing
Guidelines Manual § 6A1.3(a) (2006).
Here, there was testimony at the sentencing hearing that
all the money orders attributed to Carter met several criteria:
(1) they were purchased in either California or South Carolina
during a specific two-month period; (2) they were purchased for
nominal amounts; (3) they were negotiated in North or South
Carolina; and (4) they were altered by exactly $900. In addition,
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most were traced directly back to Carter by interviews with the
purchasers or negotiators. We find that this testimony was
sufficient to show by a preponderance of the evidence that each of
the money orders attributed to Carter was a foreseeable part of the
conspiracy. Accordingly, the district court did not clearly err in
adopting the calculation of loss in the presentence report.
Carter next argues that, because some of the banks were
reimbursed for their losses from the people who negotiated the
altered money orders, these banks did not suffer a loss and should,
therefore, not be considered victims for Guidelines purposes. In
support, Carter cites to United States v. Yagar, 404 F.3d 967, 971
(6th Cir. 2005), which held that an individual suffering a monetary
loss that was short-lived and immediately covered by a third party
is not a victim for sentencing purposes. Carter did not raise this
issue below.
Under the Guidelines, a “victim” is “any person who
sustained any part of the actual loss.” USSG § 2B1.1, cmt. (n.1).
“Actual loss” is in turn defined as “the reasonably foreseeable
pecuniary harm that resulted from the offense.” USSG § 2B1.l, cmt.
(n.3(A)(i)). A defendant is only entitled to a credit against loss
where money or property is returned “by the defendant or other
persons acting jointly with the defendant, to the victim before the
offense was detected.” USSG § 2B1.1, cmt. (n.3(E)(i)). Moreover,
the Eleventh Circuit held that a defendant who is entitled to
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credit by definition has caused an initial loss to a third party,
thus making the third party a victim, albeit a reimbursed victim.
See United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005)
(criticizing and distinguishing Yagar). We have not addressed the
question of the reimbursed victim, and we decline to do so at this
juncture because, even applying Yager, Carter is not entitled to
relief.
Here, there was no evidence that the reimbursements were
made immediately or prior to the time the offense was detected. To
the contrary, according to Carter’s brief and the evidence at
trial, some of the repayments were made by court order (clearly
AFTER the offense was detected), some were not complete, and none
were alleged to have been made in conjunction with Carter. Given
the lack of argument or evidence from Carter at the sentencing
hearing and the lack of agreement amongst the courts that have
looked at this issue, we conclude that the district court did not
commit either significant procedural error or plain error in
counting victims who had subsequently been reimbursed by third
parties. See United States v. Olano, 507 U.S. 725, 734 (1993)
(holding that error is “plain” when it is “clear under current
law”).
Finally, Carter argues that the victims listed in the
presentence report, but not mentioned at trial, were not
specifically linked to him. The presentence report included a
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detailed report of all the money orders involved in the case.
According to the report, the conspiracy, of which Carter was a
driving force, passed money orders to sixteen financial
institutions. There was testimony at the sentencing hearing that
these money orders were included because they all fit the specific,
detailed pattern of the conspiracy. Carter did not challenge the
accuracy of the report and failed to provide any evidence that any
of the money orders which had been included in his relevant conduct
were included incorrectly. Accordingly, the district court’s
conclusion that there were more than ten victims was not clearly
erroneous. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990) (“A mere objection to the finding in the presentence report
is not sufficient . . . . Without an affirmative showing the
information is inaccurate, the court is free to adopt the findings
of the [presentence report] without more specific inquiry or
explanation.”).
Based on the foregoing, we affirm Carter’s sentence. We
dispense 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
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