United States v. McCormick , 208 F. App'x 246 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4178
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RALPH E. MCCORMICK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:04-cr-00211)
Submitted: October 25, 2006 Decided: December 7, 2006
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Haakon Thorsen, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina,
Amy E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph Eugene McCormick pled guilty to four counts of
making, uttering, and possessing a forged security, in violation of
28 U.S.C. § 513 (2000), and was sentenced to forty-eight months in
prison. He now appeals his sentence. We affirm.
I
McCormick served as the assistant to the comptroller and
the comptroller of both SunLife Systems International and Multi-
Tech Incorporated. Between 1996 and 2002, McCormick embezzled
approximately $1,800,000 from these companies by forging checks and
redirecting the funds to his personal accounts. He accomplished
this by forging the signature of the companies’ president or vice
president on company checks or on Wells Fargo checks drawn off a
corporate line of credit. McCormick made the checks payable to
himself and deposited the checks into any of a number of personal
bank, brokerage, and insurance accounts. He made fraudulent
entries on the companies’ books to conceal his crime.
McCormick’s base offense level was 6. See U.S.
Sentencing Guidelines Manual § 2B1.1(a)(2) (2004). Sixteen levels
were added because of the amount of loss. See USSG
§ 2B1.1(b)(1)(G). Two levels were added because the offense
involved sophisticated means, enabling McCormick to perpetuate the
scheme for many years. See USSG § 2B1.1(b)(9)(C). An additional
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two levels were added because McCormick abused a position of trust.
See USSG § 3B1.3. Three levels were subtracted based on
McCormick’s acceptance of responsibility. See USSG § 3B1.3. His
total offense level was 23, his criminal history category was I,
and his guideline range was 46-57 months.
At sentencing, the court considered but denied
McCormick’s motion for downward departure based on age and
infirmity. The court adopted the presentence report. After
considering the factors set forth at 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2006), the district court concluded that a sentence
within the advisory guideline range was appropriate. The court
then imposed a sentence of forty-eight months.
II
McCormick first contends that the district court erred
when it denied his motion for downward departure. Courts have
continued to hold after United States v. Booker, 543 U.S. 220(2005), that a district court’s decision not to depart is not
reviewable on appeal as long as the district court recognized that
it had the authority to depart. United States v. Cooper, 437 F.3d
324, 333 (3d Cir. 2006) (collecting cases). Here, because the
district court clearly realized that it could depart, the issue is
not reviewable on appeal.
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III
McCormick also contends that the district court erred
when it applied the two-level enhancement for use of sophisticated
means. After Booker, this court continues to review for clear
error the district court’s factual findings regarding calculation
of the advisory guideline range. United States v. Hampton, 441
F.3d 284, 287 (4th Cir. 2006). There was far more to the offense
than forging a signature, as McCormick contends. In contrast, over
at least a six-year period, McCormick made fraudulent entries in
corporate books to conceal his embezzlement of approximately
$1,800,000 of company funds. He opened at least forty accounts at
various banks, insurance companies, and brokerage houses, where he
deposited the stolen money. Although he was instructed to close
a $25,000 line of credit from Wells Fargo Bank once the balance of
the account had been paid off, he instead changed the address for
the account to his personal address and increased the amount of the
credit line to $70,000. He repeatedly forged signatures to obtain
money and made unauthorized charges to the account. In short, the
district court did not err in finding that McCormick accomplished
the crime through sophisticated means.
IV
Finally, McCormick asserts that the district court erred
in enhancing his offense level by two levels based on abuse of a
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position of trust. He states that both this enhancement and the
enhancement for use of sophisticated means were based on his status
as the company’s “bookkeeper,” and that applying the two
enhancements constitutes impermissible double counting. However,
counting the same conduct under two or more guideline provisions is
permitted unless specifically prohibited by the guidelines. United
States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004); United
States v. Crawford, 18 F.3d 1173, 1179-80 (4th Cir. 1994). Because
there is no guideline prohibition that precludes assignment of both
enhancements at issue here, this claim lacks merit.
V
We accordingly affirm the sentence imposed by the
district court but dismiss that part of the appeal challenging the
refusal to depart. 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 IN PART;
DISMISSED IN PART
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