United States v. Jackson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4754
MICHAEL PAUL JACKSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-01-78)
Submitted: February 26, 2003
Decided: March 31, 2003
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Peter Curcio, BRESSLER, CURCIO & STOUT, P.C., Bristol, Vir-
ginia, for Appellant. John L. Brownlee, United States Attorney,
Randy Ramseyer, Assistant United States Attorney, Abingdon, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JACKSON
OPINION
PER CURIAM:
Michael Paul Jackson pled guilty to three counts of wire fraud, 18
U.S.C. § 1343 (2000), three counts of mail fraud, 18 U.S.C. § 1341(2000), three counts of bank fraud, 18 U.S.C. § 1344 (2000), and one
count of money laundering, 18 U.S.C. § 1957 (2000). The district
court imposed a sentence of sixty months for each count of wire fraud
and mail fraud, and seventy-one months for the bank fraud and money
laundering counts, all to run concurrently. Jackson appeals his sen-
tence, contending that the district court erred in determining the
amount of loss and in denying him an adjustment for acceptance of
responsibility. U.S. Sentencing Guidelines Manual §§ 2S1.1, 3E1.1
(2001). We affirm.
Jackson defrauded numerous victims by posting computers and
other items for sale on internet auction sites without any intention or
means of delivering the products. When federal and state investigators
first questioned him in September 2001, Jackson told them he was
working with distributors for a number of companies. In the following
two months, the investigators attempted to follow this false lead while
Jackson continued to defraud additional victims. Jackson was later
indicted for fraud alleged to have been carried out between November
1999 and November 2001 and pled guilty to all charges without a plea
agreement.
The presentence report listed over 100 victims who had been
defrauded by Jackson for a total of $105,965.07. However, at the sen-
tencing hearing, the probation officer testified that he had not
included any victims defrauded in 1997 or 1998 in his calculation of
the loss. Jackson also testified and, under questioning by the govern-
ment, said that he had begun defrauding victims through internet auc-
tions as early as 1997. He estimated that he had acquired at least
$10,000 in this manner in 1997 and more than $20,000 in 1998.
The government attorney further asked Jackson about a letter he
wrote while in jail, in which he seemed to be asking a friend to help
him set up a drug sale. Jackson admitted that he wrote the letter, but
said he never mailed it. He denied that it concerned drug activity.
UNITED STATES v. JACKSON 3
The district court determined that Jackson had obstructed justice by
lying to investigators in his first interview and committing perjury at
the sentencing hearing when he testified about the letter that con-
cerned apparent drug trafficking. The court found no unusual factors
present that would make Jackson’s case an extraordinary one where
an acceptance of responsibility adjustment might be made even
though he had obstructed justice. See USSG § 3E1.1, comment. (n.4).
Therefore, the district court declined to make an acceptance of
responsibility adjustment. The district court also decided that the gov-
ernment had proved through Jackson’s testimony that the loss
exceeded $120,000.
On appeal, Jackson first contests the finding of loss. Determination
of loss in a fraud offense is often a factual question reviewed for clear
error, but if the facts are undisputed, the issue is a legal one reviewed
de novo. United States v. Butner, 277 F.3d 481, 488 (4th Cir.), cert.
denied, 122 S. Ct. 2610 (2002). Jackson suggests that his testimony
concerning his activity in 1997 and 1998 was unreliable because he
was under great pressure by the government when he gave it. How-
ever, the district court, as factfinder, was in the best position to deter-
mine the credibility of Jackson’s testimony. United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998) (appeals court does not assess cred-
ibility of witnesses in reviewing sufficiency of evidence).
Jackson also argues that the district court erred in adding his esti-
mated earnings of $10,000 for 1997 and $20,000 for 1998 to the
$105,965 loss calculated by the probation officer from information
received from victims because the presentence report did not state in
what year each victim suffered the loss. He is correct that the presen-
tence report does not state for each individual when the fraud
occurred. However, the probation officer testified at the sentencing
hearing that his calculation of $105,965 aggregate loss for the listed
victims did not include any losses to victims in 1997 or 1998. There-
fore, we conclude that the district court did not err in adding Jack-
son’s estimate of the amount of loss from 1997 and 1998 to the
known loss from subsequent years, and did not clearly err in finding
as a fact that the total loss exceeded $120,000.
Jackson next disputes the district court’s decision to deny him an
adjustment for acceptance of responsibility. Our review is for clear
4 UNITED STATES v. JACKSON
error. United States v. Pauley, 289 F.3d 254, 261 (4th Cir. 2002).
Application Note 4 to § 3E1.1 provides that conduct resulting in an
enhancement for obstruction of justice "ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct."
An exception is made for "extraordinary cases."
Jackson does not contest the district court’s ruling that he
obstructed justice by giving misleading information to investigators
when he was first interviewed, but he argues that his is an extraordi-
nary case where both § 3C1.1 and § 3E1.1 may apply because the
court erred in finding that he gave perjured testimony at the sentenc-
ing hearing. Because adjustments such as the obstruction of justice
enhancement are mandatory, an adjustment must be made if any fac-
tor validly supports it. United States v. Ashers, 968 F.2d 411, 414 (4th
Cir. 1992). Jackson concedes the validity of one factor relied on by
the district court to find obstruction of justice. Therefore, the validity
of the other is not an issue. Jackson has failed to identify any extraor-
dinary circumstances that would warrant a finding that the district
court clearly erred in refusing to make an adjustment for acceptance
of responsibility.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED