United States v. Mario Gomes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO CLOTINHO GOMES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:11-cr-00084-MR-DLH-1)
Submitted: February 27, 2015 Decided: March 16, 2015
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Mario Clotinho Gomes of conspiracy to
commit wire fraud, in violation of 18 U.S.C. § 1349 (2012), and
two counts of wire fraud, in violation of 18 U.S.C. §§ 2, 1343
(2012). The district court sentenced him to 52 months’
imprisonment, to be followed by three years’ supervised release,
and ordered him to pay restitution, jointly and severally with
two coconspirators, in the amount of $878,000 to the victim of
the offenses, Arthur Williams. On appeal, Gomes asserts that
the evidence was insufficient, that he had a right to have the
jury determine the amount of loss, and that the district court
erred in imposing restitution. We affirm.
We review de novo the district court’s denial of a Fed. R.
Crim. P. 29 motion. United States v. Howard, 773 F.3d 519, 525
(4th Cir. 2014). We will sustain the jury’s verdict “if there
is substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942); see United States v. Wynn, 684 F.3d 473, 477-78
(4th Cir. 2012) (discussing elements of wire fraud); United
States v. Moussaoui, 591 F.3d 263, 296 (4th Cir. 2010) (setting
forth elements of conspiracy). “Substantial evidence is
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
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guilt beyond a reasonable doubt.” Howard, 773 F.3d at 525
(internal quotation marks omitted).
Gomes argues that there was insufficient evidence that he
knowingly misrepresented the accuracy of the invoices through
which the fraud was accomplished because there was no evidence
he knew that the invoices were fraudulent. However, a
coconspirator testified that Gomes knew the invoices were
fraudulent. See United States v. Wilson, 115 F.3d 1185, 1189-90
(4th Cir. 1997) (noting that uncorroborated testimony of single
witness, even if witness is accomplice or codefendant, may be
sufficient evidence of guilt). Moreover, other testimony
disclosed that some of the work billed on the invoices was
actually performed at Gomes’ home.
Gomes also argues that there was insufficient evidence that
his misrepresentations to Williams’ business were material
because the company did not pay the fraudulent invoices based on
his approval alone, but also had the invoices verified by a
consultant. However, the evidence demonstrated that Williams’
business would not have made the payments had Gomes not
indicated that they were proper. See Wynn, 684 F.3d at 479.
Because Gomes’ misrepresentations did, in fact, influence the
payment of the fraudulent invoices, despite the additional level
of review, we conclude that those statements were material. See
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id. Thus, the district court did not err in denying Gomes’ Rule
29 motion.
Next, Gomes argues that the district court violated his
Sixth Amendment right to a jury trial by judicially finding the
loss amount rather than by submitting this question to the jury.
We conclude that the district court did not plainly err in this
regard. See Henderson v. United States, 133 S. Ct. 1121, 1126-
27 (2013) (discussing standard of review). It is well
established that “[s]entencing judges may find facts relevant to
determining a Guidelines range by a preponderance of the
evidence, so long as th[e] Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.” United States v. Benkahla, 530 F.3d 300,
312 (4th Cir. 2008). Contrary to Gomes’ contentions, this rule
did not change after the Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151, 2163 (2013). See United States
v. Valdez, 739 F.3d 1052, 1054 (7th Cir. 2014), cert. denied,
134 S. Ct. 2314 (2014).
Finally, Gomes asserts that the district court
miscalculated the amount of restitution by including losses due
to invoices that were submitted while Gomes was on vacation or
after he was terminated from his employment with Williams’
company, and by making Gomes jointly and severally liable for
these amounts rather than attributing them solely to a
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coconspirator. The Mandatory Victims Restitution Act of 1996
requires the district court to order restitution for all losses
that result from a criminal scheme or conspiracy. 18 U.S.C.
§ 3663A(a)(1), (c)(1) (2012). “[E]ach member of a conspiracy
[who] in turn causes property loss to a victim is responsible
for the loss caused by the offense, not merely for the losses
caused by a particular conspirator’s overt acts.” United States
v. Seignious, 757 F.3d 155, 161 (4th Cir. 2014) (internal
quotation marks omitted).
Contrary to Gomes’ contention, Gomes’ inability to continue
helping the conspiracy after he was terminated did not end the
conspiracy. United States v. Allmendinger, 706 F.3d 330, 341-42
(4th Cir. 2013), cert. denied, 133 S. Ct. 2747 (2013). This
conspiracy directly caused all of Williams’ losses from the
fraudulent invoices. To the extent Gomes contends that the
district court procedurally erred by not considering whether to
apportion the loss solely to a coconspirator under 18 U.S.C.
§ 3664(h) (2012), we see no defect in the district court’s
analysis. Cf. United States v. Rivera-Santana, 668 F.3d 95, 105
(4th Cir. 2012) (noting that requirement that district court
consider all 18 U.S.C. § 3553(a) (2012) factors does not require
that it explicitly discuss each of them). Therefore, we
conclude that the district court did not abuse its discretion in
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crafting the restitution order. See United States v. Catone, 769
F.3d 866, 875 (4th Cir. 2014) (stating standard of review).
Accordingly, we affirm the judgment of the district
court. 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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