United States v. Moles , 242 F. App'x 125 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4621
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUDITH MOLES,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:05-cr-00103)
Submitted: July 17, 2007 Decided: July 27, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John K. Webb, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Judith Moles appeals her 27-month sentence imposed after she
pleaded guilty to one count of mail fraud, in violation of 18
U.S.C. § 1341 (2006). For the following reasons, we affirm.
I.
In March 2000, Mountaineer Grading Company, a construction
company located in Elkview, West Virginia, hired Moles as office
manager and bookkeeper. Moles’s duties included general accounting
work, payment of bills, payroll, and preparation of tax records for
use by outside accountants. Within a few months, Moles began
embezzling company funds from Mountaineer Grading. She used
company credit cards and checks to pay for her own personal
expenses and utility bills, and altered the credit card statements
to hide the payments from Les Putillion, her boss. Moles also drew
double her salary from Mountaineer Grading through a scheme whereby
she received actual paychecks as well as salary payments by direct
deposit into her bank account. She concealed the embezzlement by
forging Putillion’s signature and altering the records she
maintained for Mountaineer Grading.
On June 28, 2005, Moles entered into a plea agreement with the
Government and pleaded guilty to one count of mail fraud, in
violation of 18 U.S.C. § 1341.
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In the Presentence Report (“PSR”), which the probation officer
revised four times and prepared pursuant to the November 1, 2002
United States Sentencing Guidelines (“U.S.S.G.”) Manual, the
probation officer determined that the applicable guideline for mail
fraud was U.S.S.G. § 2B1.1 (2002). This guideline provided that
the base offense level was 6 plus a certain number of offense
levels depending on the value of the actual loss incurred as a
result of the embezzlement. U.S.S.G. § 2B1.1. The probation
officer calculated $72,673 in lost funds, which would increase the
offense level by 8, resulting in a base offense level of 14. The
officer also recommended adding two additional levels for abuse of
a position of trust or use of a special skill in committing an
offense, pursuant to U.S.S.G. § 3B1.3 (2002). The officer
recommended against according Moles a two-level reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and
(b) (2002). Thus, the probation officer calculated an adjusted
offense level of 16, which would subject Moles to a guideline range
of 21-27 months.
Moles raised a number of objections, including disputing the
loss amounts calculated by the probation officer and by the
Government and objecting to the PSR recommendation that she be
denied a reduction for acceptance of responsibility.
At the last of three sentencing hearings, the district court
reduced the recommended loss figure of $72,673 by $3,000, based on
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Moles’s testimony that one of the allegedly forged checks was
actually authorized by Putillion. The court then added to the loss
amount, over Moles’s objections, $1,720 in audit expenses that had
not been included in the PSR calculation. Thus, the district court
found a loss of $71,393 attributable to Moles. The court’s finding
that Moles was responsible for loss greater than $70,000 served to
increase her base offense level by 8 levels, rather than by 6,
pursuant to U.S.S.G. § 2B1.1(b)(1)(E). The court also declined to
accord Moles a two-level reduction for acceptance of
responsibility, concluding that she had not testified truthfully at
sentencing. Accordingly, the district court found that Moles was
subject to a guideline range of 21-27 months, as calculated in the
PSR, and sentenced her to 27 months’ imprisonment.
Moles filed a timely notice of appeal.
II.
Moles appeals her sentence of 27 months, arguing that the
district court erred by including $1,720 in audit expenses when
calculating loss and by declining to grant her a reduction for
acceptance of responsibility. We reject both claims.
A.
Moles first argues that the district court erred when it
included $1,720 in audit expenses in its calculation of the loss
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figure. “We review de novo the district court’s legal
interpretation of the term ‘loss’ under the Sentencing Guidelines,
but to the extent that the determination of the amount of loss is
a factual matter, we review only for clear error.” United States
v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995) (internal quotation
marks omitted).
The Guidelines define “Actual Loss” for the purposes of
sentencing as “the reasonably foreseeable pecuniary harm that
resulted from the offense.” U.S.S.G. § 2B1.1, cmt. n.2(A)(I). The
Guidelines also instruct that “[l]oss shall not include . . .
[c]osts to the government of, and costs incurred by victims
primarily to aid the government in, the prosecution and criminal
investigation of an offense.” Id., cmt. n.2(D)(ii).
The $1,720 in audit expenses included by the district court in
the loss figure were incurred by Mountaineer Grading when it
retained accounting firm Simpson & Osborne to review its financial
records in the wake of Moles’s embezzlement. The bill submitted by
Simpson & Osborne states that it charged Mountaineer Grading $1,720
for “[c]onsultations and services in connection with the
embezzlement of corporate funds by Judy Moles including . . .
various meetings to review the initial status of the payroll tax
returns, bank reconciliations, and other items that should have
been completed by Judy Moles.”
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Moles contends that this money should have been excluded from
the loss calculation pursuant to § 2B1.1, cmt. n. 2(D)(ii) because
it was a cost “incurred by [the] victim[] primarily to aid the
government in [] the prosecution and criminal investigation of an
offense.”
But the district court found, based on Putillion’s testimony
at the first sentencing hearing, that “the amount [Putillion] spent
on accountants was used to correct the misstatements that the
defendant had made in the tax papers and so forth.” The court
explicitly recognized that the guidelines require exclusion of
“amounts used to aid the prosecution.” And with this proper
understanding of the Guidelines in mind, the court found that the
$1,720 should not be excluded from the loss calculation because it
was “incurred to discover and correct the defendant’s intentional
misstatements she made to cover up her criminal conduct,” and not
to assist the government in prosecution of the case.* The district
court did not clearly err in making this determination and we
decline to disturb it on appeal.
*
Moles repeatedly argues that the work performed by Simpson &
Osborne assisted the Government in prosecuting its case. The
Guidelines only require exclusion of loss amounts when incurred by
the victim “primarily to aid the government,” U.S.S.G. § 2B1.1,
cmt. n. 2(D)(ii) (emphasis added), however, and the district court
here clearly found that the primary purpose of the Simpson &
Osborne audit was to help Mountaineer Grading clean up its records.
The fact that the information later became useful to the Government
does not mean that the cost was incurred primarily for that
purpose.
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B.
Moles next contends that the district court erred in declining
to grant her a two-level reduction for acceptance of
responsibility. We review a district court’s factual determination
regarding a defendant’s acceptance of responsibility for clear
error. United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).
Moreover, the Guidelines themselves instruct that “[t]he sentencing
judge is in a unique position to evaluate a defendant’s acceptance
of responsibility. For this reason, the determination of the
sentencing judge is entitled to great deference on review.”
U.S.S.G. § 3E1.1, cmt. n.5.
In order for a defendant to receive a reduction for acceptance
of responsibility under § 3E1.1, she “must prove by a preponderance
of the evidence that [s]he has clearly recognized and affirmatively
accepted personal responsibility for [her] criminal conduct.”
United States v. May, 359 F.3d 683, 693 (4th Cir. 2004) (internal
quotation marks omitted). Furthermore, “an adjustment for
acceptance of responsibility does not flow automatically from a
guilty plea.” Id. Instead, the Guidelines direct that a court may
consider whether the defendant has “truthfully admitt[ed] the
conduct comprising the offense(s) of conviction, and truthfully
admitt[ed] or not falsely den[ied] any additional relevant conduct
. . . .” U.S.S.G. § 3E1.1, cmt. n. 1(a).
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Moles argues that she did truthfully admit her conduct, and
that the district court erred when it denied her a reduction based
on the fact that she disputed the loss amounts at sentencing. We
need not decide whether disputing a loss calculation could preclude
a reduction for acceptance of responsibility, however, because a
review of the record shows that the district court did not deny
Moles the reduction on that ground. Rather, the district court
denied Moles the reduction because it concluded that she did not
truthfully testify about her relevant conduct. The district judge
stated at sentencing:
I became convinced that the defendant was not
truthful and not fully accepting of her responsibility.
And I’ll point to one particular fact that I find very
persuasive.
Mr. Putillion testified to the effect that [Moles]
had represented that she had a degree from Ohio State
University I believe it was. And she denied she ever
made such a representation. That’s not the kind of thing
that I can find credible under the circumstances. She is
an admitted fraudster. She ingratiated herself in her
[job] application by making representations.
I believe Mr. Putillion. I don’t believe her. And
I think lying about things like that, not to put too fine
a point on it, is totally inconsistent with an award or
reduction of sentence for acceptance of responsibility.
The district court considered Moles’s testimony about the
offense conduct and concluded that it was not credible -– an
appropriate consideration in determining whether a defendant is
entitled to a reduction for acceptance of responsibility. See
Nale, 101 F.3d at 1005 (affirming the district court’s denial of a
reduction for acceptance of responsibility based on the fact that
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the defendant’s “comments indicate that he did not fully accept
responsibility for his actions”). We must give great deference to
the district court’s credibility determinations, and conclude that
the district court did not clearly err in denying Moles a reduction
for acceptance of responsibility.
III.
For the foregoing reasons, the judgment of the district court
is affirmed. 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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