United States v. Daniel Nascembeni , 586 F. App'x 144 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4363
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL JOSEPH NASCEMBENI, a/k/a Daniel Anthony Nascimbeni,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:13-cr-00025-JPB-JSK-1)
Submitted: November 18, 2014 Decided: December 5, 2014
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katy J. Cimino, Assistant Federal Public Defender, Kristen M.
Leddy, Research and Writing Specialist, Clarksburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Stephen D. Warner, Assistant United States
Attorney, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Joseph Nascembeni pled guilty to one count of
mail fraud and one count of making false statements in an
application for Supplemental Security Income benefits. The
district court sentenced him to 24 months’ imprisonment on each
count, to be served concurrently. Nascembeni appeals,
challenging the two-level enhancement imposed at sentencing
based on his commission of bankruptcy fraud. We affirm.
We review the district court’s factual determinations
as to sentencing enhancements for clear error, United States v.
Slade, 631 F.3d 185, 188 (4th Cir. 2011), and will reverse only
if “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). Relevant conduct includes all actions
“that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that
offense.” U.S. Sentencing Guidelines Manual (“USSG”)
§ 1B1.3(a)(1). A two-level enhancement is warranted for
bankruptcy fraud as relevant conduct “[i]f the offense involved
. . . a misrepresentation or other fraudulent action during the
course of a bankruptcy proceeding.” USSG § 2B1.1(b)(9)(B).
The offense conduct also includes all acts that “were
part of the same course of conduct or common scheme or plan as
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the offense of conviction.” USSG § 1B1.3(a)(2); see United
States v. Johnson, 643 F.3d 545, 551 (7th Cir. 2011) (upholding
use of uncharged and unconvicted relevant conduct that was part
of the same course of conduct or common scheme or plan as the
offense of conviction).
Here, the district court determined that Nascembeni’s
conduct of filing a bankruptcy petition using his alias and
second Social Security card was “part and parcel of the same
fraudulent behavior” on which his convictions were based.
Specifically, Nascembeni applied for and received government
benefits using two different Social Security numbers that had
been issued to him: one with his name spelled properly, and one
with his name misspelled. During this same time, Nascembeni
filed two separate bankruptcy petitions — one in his correct
name and one using his alias — and received discharges of his
debts. We find no clear error by the district court in imposing
the enhancement under USSG § 2B1.1(b)(9).
Accordingly, we affirm Nascembeni’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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