United States v. Moneymaker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4923
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDALL A. MONEYMAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:07-cr-00029-jct-1)
Submitted: October 5, 2009 Decided: October 15, 2009
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence,
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Craig J.
Jacobsen, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randall A. Moneymaker was found guilty of two counts
of knowingly making or using a false document, in violation of
18 U.S.C. § 1001(a)(3) (2006) (Counts 1, 3); three counts of
making a false statement or representation, in violation of 18
U.S.C. § 1001(a)(2) (2006) (Counts 3, 5, and 6); and theft of
government funds, in violation of 18 U.S.C.A. § 641 (West Supp.
2009) (Count 7). The district court sentenced Moneymaker to
thirty-six months of imprisonment for each count to run
concurrent to each other.
On appeal, Moneymaker only contests his conviction and
sentence for Count 1. Counsel raises two issues on appeal.
First, whether Moneymaker was improperly convicted of submitting
a false document in support of a fraudulent application for
military pension benefits, as alleged in Count 1 of the
superseding indictment, when the evidence established that no
application for pension benefits was ever submitted. Second,
whether the amount of intended loss and amount of restitution
improperly included all disability benefits rather than just the
benefits to which Moneymaker was not entitled. For the reasons
that follow, we affirm.
To the extent Moneymaker alleges insufficient evidence
to support Count 1, we find this claim fails. Viewing the
evidence in the light most favorable to the prosecution, any
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rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Glasser v. United
States, 315 U.S. 60, 80 (1942); United States v. Burgos, 94 F.3d
849, 862-63 (4th Cir. 1996). Moreover, we find there was a
variance--rather than a constructive amendment--between the
superseding indictment and the trial evidence revealing that the
admittedly false document was not submitted as part of an
official application for retirement. United States v. Randall,
171 F.3d 195, 203 (4th Cir. 1999); see United States v.
Floresca, 38 F.3d 706, 710 (4th Cir. 1994) (recognizing that a
constructive amendment to an indictment occurs when the
government or the court broadens the possible bases for
conviction beyond those presented by the grand jury).
Second, we will affirm a sentence imposed by the
district court if it is within the statutorily prescribed range
and it is reasonable. United States v. Hughes, 401 F.3d 540,
546-47 (4th Cir. 2005). We find no abuse of discretion in the
district court’s sentence. See Gall v. United States, 552 U.S.
38, __, 128 S. Ct. 586, 590 (2007) (providing review standard).
More specifically, we find no clear error in the district
court’s factual determination that Moneymaker was responsible
for all losses related to his receipt of disability payments
(actual loss) and future payments (intended loss). United
States v. Loayza, 107 F.3d 257, 265 (4th Cir. 1997). We find
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the sentencing court made a reasonable estimate of the loss,
given the available information. United States v. Miller, 316
F.3d 495, 503 (4th Cir. 2003); see U.S. Sentencing Guidelines
Manual § 2B1.1(b), comment. (n.3(C)) (2007). A sentencing
enhancement need only be supported by a preponderance of the
evidence. Miller, 316 F.3d at 503. The same reasoning applies
to the district court’s order of restitution in the amount of
the disability payments actually paid to Moneymaker.
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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