United States v. Edward Arnold Miller

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4037
EDWARD ARNOLD MILLER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4038
KAY OLDHAM MILLER,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-98-97)
Submitted: August 31, 1999
Decided: September 22, 1999
Before LUTTIG, MICHAEL, and TRAXLER,
Circuit Judges.
_________________________________________________________________
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
_________________________________________________________________
COUNSEL
Walter T. Johnson, Jr., Greensboro, North Carolina; Thomas N.
Cochran, Assistant Federal Public Defender, Greensboro, North Caro-
lina, for Appellants. Walter C. Holton, Jr., United States Attorney,
Paul A. Weinman, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kay Oldham Miller (Kay) appeals from an eighty-five month sen-
tence imposed after she pled guilty to two counts of making, possess-
ing, and uttering forged securities, 18 U.S.C.A.§ 513(a) (West Supp.
1999), and two counts of money laundering, 18 U.S.C.A.
§ 1956(a)(1)(B)(i) (West Supp. 1999). Edward Arnold Miller
(Edward) appeals from his convictions and his sixty-one month sen-
tence for twenty-three counts of money laundering, 18 U.S.C.A.
§ 1956(a)(1)(B)(i). We have reviewed the record and affirm the con-
victions but vacate the sentences with respect to the restitution orders
and remand to the district court for further proceedings.
Edward contends that the evidence of his money laundering was
insufficient to support his conviction under 18 U.S.C.A.
§ 1956(a)(1)(B)(i). We review a jury verdict for the sufficiency of the
evidence by determining whether there is substantial evidence, when
viewed in the light most favorable to the Government, to support the
verdict. See Glasser v. United States, 315 U.S. 60, 80 (1942). In eval-
uating the sufficiency of the evidence, we do not review the credibil-
ity of the witnesses, and we assume that the jury resolved all
contradictions in the testimony in favor of the Government. See
United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998), cert.
denied, ___ U.S. ___, 119 S. Ct. 1032 (1999).
2
In order to sustain a conviction for money laundering under 18
U.S.C.A. § 1956(a)(1)(B)(i), the Government was required to show
that Edward knowingly conducted a financial transaction with the
proceeds of an unlawful activity and that the transaction was
designed, in whole or in part, to conceal or disguise the nature,
source, ownership, or control of the proceeds of the unlawful activity.
See United States v. Wilkinson, 137 F.3d 214, 221 (4th Cir. 1998). We
have reviewed the record and find that substantial evidence supported
Edward's conviction. We therefore affirm his conviction.
Kay claims that the court erroneously calculated the value of the
funds that she laundered under U.S. Sentencing Guidelines Manual
§ 2S1.1 (1998) for the determination of her offense level. Edward
claims that the district court improperly enhanced his sentence pursu-
ant to USSG § 3C1.1 for obstruction of justice. This Court reviews a
district court's factual determinations at sentencing for clear error and
reviews its application and interpretation of the Sentencing Guidelines
de novo. See United States v. Daughtrey, 874 F.2d 213, 217-18 (4th
Cir. 1989). We have reviewed the record and the relevant case law
and find these claims to be meritless.
We further find that the district court properly ordered restitution
by both Kay and Edward under the Mandatory Victims Restitution
Act of 1996 (MVRA), 18 U.S.C.A. § 3663A (West Supp. 1999).1 The
MVRA does not require the court to make findings as to a defendant's
financial status or his ability to pay restitution. However, the statute
requires that the court, after ordering full restitution, "specify in the
restitution order the manner in which, and the schedule according to
which, the restitution is to be paid." See 18 U.S.C.A. § 3664(f)(2)
_________________________________________________________________
1 The district court ordered Kay's restitution under the MVRA.
Although she claims on appeal that the district court should not have sen-
tenced her under the MVRA for that portion of her conduct that occurred
prior to the enactment of that statute, she did not so object in the district
court. In absence of a contemporaneous objection, our review is limited
to whether the district court committed plain error in applying the
MVRA to the portion of Kay's conduct that occurred prior to the enact-
ment of the MVRA. See United States v. Olano, 507 U.S. 725, 732
(1993). Because it was not plainly erroneous to apply the MVRA to all
of Kay's conduct, we decline to vacate her sentence on this ground.
3
(West Supp. 1999); 18 U.S.C.A. § 3663A(d). Because the court did
not set a restitution schedule, we vacate the Millers' sentences and
remand this case to the district court so that the court can order resti-
tution payments in accordance with Section 3664(f). 2
Accordingly, we affirm the Millers' convictions but vacate their
sentences and remand these cases to the district court to enter a resti-
tution order consistent with this opinion. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the Court and argument would not aid the deci-
sional process.
AFFIRMED IN PART AND VACATED AND
REMANDED IN PART
_________________________________________________________________
2 The Government concedes that remand is required for the purpose of
setting a restitution schedule.
4