United States v. Beckley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4299
ROBERT DAVID BECKLEY, a/k/a
Robert Kyle Lynch,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-02-331)
Submitted: March 29, 2004
Decided: April 20, 2004
Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Camille M. Davidson, THE FULLER LAW FIRM, P.C., Charlotte,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Robert M. Hamilton, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. BECKLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Robert David Beckley pled guilty to credit card fraud, in violation
of 18 U.S.C. § 1029(a)(3), (c)(1)(A)(i) (2000). He was sentenced to
forty-four months imprisonment. On appeal, he argues that: (1) he
received ineffective assistance of counsel; (2) the district court
improperly increased his offense level by two for use of sophisticated
means under U.S. Sentencing Guidelines Manual § 2B1.1(b)(8)(C)
(2002); and (3) the district court erred in imposing a fourteen-level
enhancement under USSG § 2B1.1(b)(1)(H) based on its calculation
of the amount of loss attributable to him. Finding no reversible error,
we affirm.
Beckley first claims that he received ineffective assistance of coun-
sel. In order to prevail on his ineffective assistance claim on direct
appeal of his guilty plea, Beckley must not only demonstrate that his
attorney’s actions were both deficient and prejudicial, see Strickland
v. Washington, 466 U.S. 668 (1984), but it must "conclusively
appear" from the appellate record that he did not receive effective rep-
resentation. See United States v. Gastiaburo, 16 F.3d 582, 590 (4th
Cir. 1994) (citing cases). In addition, as to the prejudice prong, Beck-
ley must show there is a reasonable probability that, but for counsel’s
error, he would not have pled guilty. See Hill v. Lockhart, 474 U.S.
52 (1985). We do not find that ineffective assistance conclusively
appears on the face of the record.
Beckley next argues that the district court erred in imposing a two-
level enhancement under USSG § 2B1.2(b)(8)(C) for use of sophisti-
cated means. This court reviews a sentencing court’s factual findings
for clear error and its related legal conclusions, including the applica-
tion of the sentencing guidelines, de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). We find no error in the
court’s application of this guideline.
UNITED STATES v. BECKLEY 3
Last, Beckley argues that the district court did not correctly deter-
mine the amount of loss attributable to him, and therefore, maintains
that the court improperly applied USSG § 2B1.1(b)(1)(H). This sec-
tion provides that, if the loss exceeded $400,000, fourteen levels are
added to defendant’s offense level. The Government must establish
the amount of loss by a preponderance of the evidence. United States
v. Harris, 882 F.2d 902, 907 (4th Cir. 1989). The court need only
make a reasonable estimate of the loss based on available informa-
tion. USSG § 2B1.1, comment. (n.2(C)). Without an affirmative
showing by the defendant that information in the presentence report
is inaccurate, the district court is free to adopt the presentence report’s
findings without more specific inquiry or explanation. United States
v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).
Because Beckley did not object to the loss calculation in the district
court, this claim is reviewed for plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731 32 (1993). Four con-
ditions must be met before this court will notice plain error: (1) there
must be error; (2) it must be plain under current law; (3) it must affect
substantial rights, typically meaning the defendant is prejudiced by
the error in that it affected the outcome of the proceedings; and (4)
the error must seriously affect the fairness, integrity, or public reputa-
tion of judicial proceedings. Id. at 733-37. The amount of loss used
in determining the offense level is the greater of the actual or intended
loss. USSG § 2B1.1, comment. (n.2(A)). We find that the district
court did not commit plain error in its imposition of the fourteen-level
enhancement under USSG § 2B1.1(b)(1)(H).
Accordingly, we affirm Beckley’s sentence. While we grant Beck-
ley’s motion to file a pro se "Supplement to Appeal Brief," we find
his pro se claims without merit. Furthermore, we deny Beckley’s
motion to proceed pro se, his motion to file a reply brief to govern-
ment’s answer to appeal brief filed by counsel, and his motion for a
court order directing the U.S. Attorney to provide a full and complete
copy of an itemized list of credit card account numbers with the maxi-
mum credit limit for each, itemized attempted purchases, and the
actual loss on each card alleged. 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