United States v. Bryant ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5114
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DWAYNE BRYANT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00330-FDW-CH-1)
Submitted: June 30, 2008 Decided: September 2, 2008
Before NIEMEYER and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David L. Hitchens, LAW OFFICE OF DAVID L. HITCHENS, PLLC,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Dwayne Bryant appeals his sentence imposed after
pleading guilty to conspiracy to defraud the United States, 18
U.S.C. § 371 (2000), mail fraud and aiding and abetting mail fraud,
18 U.S.C.A. §§ 1341 & 2 (West Supp. 2008), and conspiracy to commit
money laundering, 18 U.S.C.A. § 1956(h) (West Supp. 2008). Counsel
filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), raising sentencing issues but stating that in his opinion,
there are no meritorious issues for review. Bryant has not filed
a supplemental pro se brief. The Government has declined to file
a brief.
Bryant’s probation officer recommended an offense level
of twenty-three. At sentencing, the Government moved for a
three-level reduction in offense level under U.S. Sentencing
Guidelines Manual § 5K1.1 (2002) based on Bryant’s cooperation in
the investigation of the fraudulent home lending schemes with which
he was involved. The district court granted the motion. With an
offense level of twenty and a criminal history category of I,
Bryant’s advisory guideline range was 33-41 months. The district
court sentenced him to thirty-three months in prison and ordered
restitution of $60,768.91.
Bryant argues that the district court should have
exercised its discretion to further reduce his offense level below
level twenty because his substantial assistance outweighed his
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recent state convictions. Whether a defendant may appeal a
sentence is governed by 18 U.S.C. § 3742 (2000). United States v.
Pridgen, 64 F.3d 147, 148 (4th Cir. 1995). Section 3742 permits an
appeal if the sentence: (1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; (3) is greater than the sentence specified
in the applicable guideline range; or (4) was imposed for an
offense for which there is no sentencing guideline and is plainly
unreasonable. 18 U.S.C. § 3742(a). We have jurisdiction to hear
an appeal of a sentence based on the grounds listed in § 3742, but
the court interprets its jurisdiction under § 3742(a) narrowly.
United States v. Hill, 70 F.3d 321, 323-24 (4th Cir. 1995).
Moreover, we have held that mere dissatisfaction with the extent of
a district court’s downward departure does not provide a basis for
appeal under § 3742. Hill, 70 F.3d at 324. Here, Bryant’s
sentence was not imposed as a result of an incorrect application of
the advisory guidelines nor was it greater than his advisory
guidelines range. Finally, the record does not indicate that his
sentence was imposed in violation of the law. Accordingly,
Bryant’s challenge to the extent of the district court’s downward
departure is barred by § 3742. Hill, 70 F.3d at 324.
Next, Bryant contests a portion of the restitution order.
He argues that the loss sustained by First Guaranty Mortgage in
relation to real property located at 6622 Thermal Road, Charlotte,
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North Carolina, should not have been included in the restitution
order because the property was sold by his wife during their
separation and he was not involved in the transaction. He also
contends that the district court erred in imposing restitution
because restitution is only available for losses caused by the
conduct underlying the elements of the offense of which the
defendant is convicted, and this transaction was not part of the
same fraudulent scheme serving as the basis for his conviction. We
review a restitution order for an abuse of discretion. United
States v. Hoyle, 33 F.3d 415, 420 (4th Cir. 1994).
Under the Victim and Witness Protection Act (VWPA), the
district court may order a defendant to pay restitution to any
victim of an offense of conviction. See 18 U.S.C.A.
§ 3663(a)(1)(A) (West Supp. 2008); United States v. Blake, 81 F.3d
498, 506 (4th Cir. 1996) (observing that the authority of a
district court to order restitution is limited to the terms of the
VWPA). Restitution is due a victim under § 3663 if the act that
harms 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
element of the offense of conviction. See Blake, 81 F.3d at 506;
see also Hughey v. United States, 495 U.S. 411, 413 (1990)
(restitution allowed only “for the loss[es] caused by the specific
conduct that is the basis of the offense of conviction.”).
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We conclude that the district court did not abuse its
discretion in holding Bryant responsible for the loss sustained by
First Guaranty. Bryant was at the least a co-owner of the property
in question. The property was sold to a buyer who was involved in
multiple fraudulent purchases. And, in fact, the property went
into foreclosure, fitting the pattern of many of the fraudulent
purchases made as part of the scheme serving as the basis for
Bryant’s conviction. We therefore find no abuse of discretion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Bryant’s conviction and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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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