United States v. Brinkley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4661
SEAN A. BRINKLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CR-00-184)
Submitted: January 30, 2002
Decided: February 28, 2002
Before WILKINS, MOTZ, and GREGORY, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
COUNSEL
Robert B. Rigney, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Alan M. Salsbury, Assistant United States Attorney, Norfolk, Vir-
ginia, for Appellee.
2 UNITED STATES v. BRINKLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Sean A. Brinkley appeals from sentences imposed after guilty pleas
to one count of wire fraud, in violation of 18 U.S.C. § 1343 (1994);
and three counts of mail fraud, in violation of 18 U.S.C. § 1341(1994). On appeal, Brinkley challenges the district court’s assessment
of amount of loss resulting from the wire fraud, and the court’s calcu-
lation of criminal history points. We dismiss the appeal in part, and
affirm in part.
Brinkley signed a plea agreement waiving his right to appeal any
sentence imposed within the statutory maximum on the wire fraud
charge. Because Brinkley signed a valid waiver of appeal rights, his
sentence did not exceed the maximum, and he does not allege that his
plea was unknowing or involuntary, we find that Brinkley’s argument
regarding the amount of loss assessed is waived. Therefore this por-
tion of the appeal is dismissed.
Brinkley’s remaining claims contest the calculation of criminal his-
tory points. First, Brinkley alleges that the district court erred in com-
puting his criminal history score because the probation officer had not
secured certified copies of court orders for certain prior convictions
listed in the presentence report. Brinkley specifically abandoned this
claim in the district court. Upon review, we find there was no error.
See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (defen-
dant bears the burden of showing that the information in the presen-
tence report is inaccurate; mere objections are insufficient).
The remaining issue is whether the court erred in including crimi-
nal history points for state convictions for forging and uttering and
failure to appear. Brinkley argues that these convictions are suffi-
ciently related to the wire fraud offense conduct so that they should
have been excluded under U.S. Sentencing Guidelines Manual
§ 4A1.2(a)(2) comment. (n.3) (2000).
UNITED STATES v. BRINKLEY 3
When the facts concerning prior convictions and sentences are
undisputed, the determination that the prior offenses are related cases
under § 4A1.2(a)(2) is a legal issue. United States v. Allen, 50 F.3d
294, 296 (4th Cir. 1995). Sentences for prior offenses that were not
separated by an intervening arrest are considered "related cases" and
counted as one sentence, see USSG § 4A1.2(a)(2), if they resulted
from offenses that (A) occurred on the same occasion, (B) were part
of a single common scheme or plan, or (C) were consolidated for trial
or sentencing. See USSG § 4A1.2, comment. (n.3). The factors identi-
fied as relevant to a determination of whether offenses are part of a
single common scheme or plan are:
[W]hether the crimes were committed within a short period
of time, in close geographic proximity, involved the same
substantive offense, were directed at a common victim, were
solved during the course of a single criminal investigation,
shared a similar modus operandi, were animated by the
same motive, and were tried and sentenced separately only
because of an accident of geography.
United States v. Breckenridge, 93 F.3d 132, 138 (4th Cir. 1996).
We conclude that the convictions at issue do not meet the require-
ments of related offenses and are not part of a single common scheme
or plan. Therefore the district court did not err in assessing criminal
history points for the offenses.
We dismiss the appeal as to the calculation of loss issue related to
the wire fraud sentence, and affirm the judgment and sentence related
to the mail fraud convictions and sentences. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED IN PART; AFFIRMED IN PART