United States v. Eric Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC O. JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:10-cr-00228-D-1)
Submitted: September 28, 2012 Decided: October 18, 2012
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a six-day jury trial, Eric Omar Jones was
convicted of conspiracy to commit bank fraud and to make false
statements to influence a bank’s lending decisions, in violation
of 18 U.S.C. § 371 (2006); fifteen counts of bank fraud and
aiding and abetting, in violation of 18 U.S.C. §§ 1344, 2
(2006); and two counts of making false statements to influence a
bank’s lending decisions and aiding and abetting, in violation
of 18 U.S.C. §§ 1014, 2 (2006). The district court sentenced
Jones to 151 months’ imprisonment, consisting of 60 months on
the conspiracy count and 151 months on the substantive counts,
to be served concurrently. The court further imposed a five-
year term of supervised release and ordered Jones to pay
$142,145.85 in restitution. 1 This timely appeal followed.
In his opening brief, Jones raises two challenges to
the calculation of his Sentencing Guidelines range. First,
Jones argues, the district court erred in determining the amount
of loss attributable to him for sentencing purposes. Second,
Jones contends, the district court erred in applying a four-
level enhancement, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 3B1.1(a) (2011), based on his role as a leader or
1
Jones does not challenge the restitution amount or the
district court’s methodology for calculating that amount.
2
organizer of the underlying fraud conspiracy. For the reasons
that follow, we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). In reviewing whether a sentencing court properly
applied the Guidelines, the district court’s factual findings
are reviewed for clear error and its legal conclusions are
reviewed de novo. United States v. Osborne, 514 F.3d 377, 387
(4th Cir. 2008). This court will “find clear error only if, on
the entire evidence, we are left with the definite and firm
conviction that a mistake has been committed.” United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation
marks and brackets omitted).
With regard to the first appellate contention, the
Government posits that Jones’ challenge to the loss amount
reflects his misunderstanding of the district court’s Guidelines
calculations. The Government explains that Jones’ base offense
level was driven not by the calculated loss amount, but rather
by the finding that Jones personally derived more than $1
million in gross receipts from his fraud. See USSG
§ 2B1.1(b)(15)(A), (D). And because Jones does not contest this
aspect of the Guidelines calculation, the Government contends,
Jones has waived appellate review of that determination.
3
In his reply brief, Jones concedes that the loss
amount was not determinative of his sentence, 2 as our review of
the record confirms. Given that Jones has failed to raise any
argument relevant to the district court’s finding that he
personally derived more than $1 million in gross receipts from
the fraud, we readily conclude that Jones has waived appellate
review of this issue. See United States v. Palacios, 677 F.3d
234, 244 n.5 (4th Cir.) (explaining that the defendant waived a
particular argument by not raising it in his opening brief),
cert. denied, 2012 WL 1566196 (U.S. Oct. 1, 2012) (No. 11-
10137); see also Fed. R. App. P. 28(a)(9)(A).
Turning to Jones’ second appellate contention, the
Government argues that there was no clear error underlying the
district court's imposition of a four-level leadership
enhancement, given the extensive evidence of Jones’ directorial
and organizational role in the fraud. We agree and hold that
the district court’s factual determination that Jones was an
organizer or leader of the scheme is not clearly erroneous. See
United States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011)
(explaining that, if the district court’s interpretation of the
evidence is plausible, this court will not reverse).
2
We reject Jones’ suggestion in his reply brief that we
should nonetheless review the loss calculation because that
issue may be relevant in a later proceeding.
4
In determining a defendant’s leadership and
organizational role, sentencing courts must consider seven
factors:
[T]he exercise of decision making authority, the
nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime,
the degree of participation in planning or organizing
the offense, the nature and scope of the illegal
activity, and the degree of control and authority
exercised over others.
USSG § 3B1.1, cmt. n.4. The district court evaluated all of
these factors in applying the four-level role enhancement here.
The trial evidence established that Jones developed and executed
the bank fraud scheme, directed his co-conspirators’ conduct,
and took a far greater portion of the fraudulently obtained
proceeds. Thus, it was not clearly erroneous for the district
court to find that a four-level enhancement was warranted. See
Thorson, 633 F.3d at 319-20 (explaining that the sentencing
court’s determination that the defendant was “the architect of a
large portion of this scheme” was enough, in and of itself, to
support the organizer enhancement (internal quotation marks
omitted)).
For the foregoing reasons, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
5
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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