United States v. Ronald Chisholm

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4713
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD CHISHOLM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:14-cr-00132-RGD-LRL-1)
Submitted: May 26, 2016 Decided: June 15, 2016
Before WYNN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Joseph
Kosky, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Chisholm appeals his jury convictions and 218-month
sentence for one count of conspiracy to commit mail fraud, in
violation of 18 U.S.C. § 1349 (2012); four counts of mail fraud,
in violation of 18 U.S.C. §§ 2, 1341 (2012); and 14 counts of
aggravated identity theft, in violation of 18 U.S.C. §§ 2,
1028A(a)(1) (2012). Chisholm asserts that the district court:
(1) erroneously instructed the jury on the conspiracy charge
against him; (2) erred when it allowed the Government to call as
a witness Chisholm’s probation officer, and denied his motion
for a mistrial when another witness stated that Chisholm was
“locked up” during a portion of the conspiracy with which he was
charged; and (3) imposed an unreasonable sentence when it
increased his base offense level for sophisticated means, made
his sentence on two of the aggravated identity theft convictions
run consecutive to his remaining sentences, and awarded the
Government both forfeiture and restitution for his crimes
without crediting one for the other. Finding no error, we
affirm.
We review a district court’s decision regarding jury
instructions for an abuse of discretion. United States v.
Kivanc, 714 F.3d 782, 794 (4th Cir. 2013). Because a district
court is given broad discretion in fashioning a charge, a party
challenging a district court’s instructions faces a heavy
2
burden. See Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011).
Accordingly, we must determine “whether the instructions
construed as a whole, and in light of the whole record,
adequately informed the jury of the controlling legal principles
without misleading or confusing the jury to the prejudice of the
objecting party.” Id. (internal quotation marks omitted). In
so determining, the district court will only be reversed for
declining to give a proposed jury instruction when the requested
instruction: “(1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
instruction seriously impaired that party’s ability to make its
case.” Id. (internal quotation marks omitted). We have
considered Chisholm’s arguments and discern no error in the
district court’s jury instructions.
We give “substantial deference to a district court’s
decision to exclude evidence, and . . . will not reverse the
district court’s decision absent a clear abuse of discretion.”
United States v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997)
(internal quotation marks omitted). Thus, evidentiary rulings
are also reviewed for abuse of discretion, and we “will only
overturn an evidentiary ruling that is arbitrary and
irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir.
2011) (internal quotation marks omitted); see Malone v.
3
Microdyne Corp., 26 F.3d 471, 480 (4th Cir. 1994) (reviewing
ruling on motion in limine for abuse of discretion).
On abuse of discretion review, we may not substitute our
judgment for that of the district court; rather, we must
determine whether the district court’s “exercise of discretion,
considering the law and the facts, was arbitrary or capricious.”
United States v. Banks, 482 F.3d 733, 742-43 (4th Cir. 2007)
(internal quotation marks omitted). “When reviewing the
district court’s decision to admit evidence under Rule 403, we
must look at the evidence in a light most favorable to its
proponent, maximizing its probative value and minimizing its
prejudicial effect.” Minter v. Wells Fargo Bank, N.A., 762 F.3d
339, 350 (4th Cir. 2014) (internal quotation marks omitted). We
discern no abuse of discretion in the district court’s decision
to allow Chisholm’s probation officer’s testimony.
We also review a district court’s decision to deny a motion
for a mistrial for abuse of discretion. See United States v.
Wallace, 515 F.3d 327, 330 (4th Cir. 2008). To establish abuse
of discretion, a defendant must show prejudice. See United
States v. Hayden, 85 F.3d 153, 158 (4th Cir. 1996). Given
counsel’s failure to request a curative instruction, the lack of
prejudice to Chisholm, and the apparent inadvertent nature of
the particular witness’s comment, it was not error for the
district court to deny Chisholm’s motion for a mistrial. See
4
Wallace, 515 F.3d at 330-31 (holding that district court did not
abuse its discretion when it denied motion for mistrial where
Government did not purposefully elicit prejudicial testimony and
defense counsel did not immediately request a curative
instruction).
We review a sentence for reasonableness. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires the court to ensure that the district court committed
no significant procedural error. United States v. Evans, 526
F.3d 155, 161 (4th Cir. 2008). Procedural errors include
“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence — including an explanation for any
deviation from the Guidelines range.” Gall, 552 U.S. at 51.
If, and only if, we find the sentence procedurally
reasonable can we consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). We presume on appeal that a sentence within
the Guidelines range is reasonable. See United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
We reject Chisholm’s argument that the district court erred
when it increased his offense level for using sophisticated
5
means to commit his offenses, pursuant to U.S. Sentencing
Guidelines Manual (USSG) § 2B1.1(b)(10)(C) (2014). “Whether a
defendant’s conduct involved sophisticated means is an
essentially factual inquiry,” that we “review for clear error.”
United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).
Pursuant to USSG § 2B1.1(b)(10)(C), a defendant receives a two-
level sentencing enhancement for an offense that involves
“sophisticated means” if “the defendant intentionally engaged in
or caused the conduct constituting sophisticated means[.]” USSG
§ 2B1.1(b)(10)(C). Thus, the sophisticated means enhancement
applies when a defendant employs “especially complex or
especially intricate offense conduct pertaining to the execution
or concealment of an offense.” USSG § 2B1.1 cmt. n.9(B). “For
example, in a telemarketing scheme, locating the main office of
the scheme in one jurisdiction but locating soliciting
operations in another jurisdiction ordinarily indicates
sophisticated means.” Id.
While the scheme must involve “more than the concealment or
complexities inherent in fraud[,]” Adepoju, 756 F.3d at 257,
courts can find that a defendant used sophisticated means even
where he did “not utilize the most complex means possible to
conceal his fraudulent activit[y].” United States v. Jinwright,
683 F.3d 471, 486 (4th Cir. 2012) (applying sophisticated means
enhancement in USSG § 2T1.1(b)(2) in context of tax fraud).
6
Thus, “[t]he court need only find the presence of efforts at
concealment that go beyond (not necessarily far beyond . . . )
the concealment inherent in . . . fraud.” Id. (internal
quotation marks omitted).
Although Chisholm characterizes his conduct as merely
cashing checks, and insists that his conduct “lacked any of the
badges of sophistication[,]” we find that the evidence
established that Chisholm took efforts at concealment that went
beyond the concealment inherent in fraud. Accordingly, we
discern no error in the district court’s decision to enhance
Chisholm’s offense level under USSG § 2B1.1(b)(10)(C).
We reject Chisholm’s argument that the district court
abused its discretion when it imposed the 24-month sentences on
two of the aggravated identity theft convictions to run
consecutive to his remaining sentences. Although Chisholm
correctly cites a portion of the Commentary to USSG § 5G1.2, the
district court was allowed to consider the seriousness of the
underlying offenses and the § 3553(a)(2) sentencing factors in
determining whether to run Chisholm’s sentences concurrently or
consecutively. See USSG § 5G1.2 cmt. n.2(B) (2014). Because
Chisholm has established no procedural or substantive error in
7
his 218-month sentence, we find that the district court did not
abuse its discretion in imposing the sentence. *
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
*
We reject Chisholm’s argument that the district court’s
decision to order both restitution and forfeiture without any
credit against one for funds received for the other resulted in
double recovery by the Government. See United States v.
Blackman, 746 F.3d 137, 143 (4th Cir. 2014) (“Forfeiture is
mandatory even when restitution is . . . imposed. These two
aspects of a defendant’s sentence serve distinct purposes:
restitution functions to compensate the victim, whereas
forfeiture acts to punish the wrongdoer. . . . Because [they]
are distinct remedies, ordering both in . . . similar amounts
does not generally amount to a double recovery.”).
8