US v. Randall Moneymaker

Filing 920091015

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4923

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RANDALL A. MONEYMAKER, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:07-cr-00029-jct-1)

Submitted:

October 5, 2009

Decided:

October 15, 2009

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Fay F. Spence, Assistant Federal Public Defender, Roanoke, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Craig J. Jacobsen, Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Randall A. Moneymaker was found guilty of two counts of knowingly making or using a false document, in violation of 18 U.S.C. § 1001(a)(3) (2006) (Counts 1, 3); three counts of making a false statement or representation, in violation of 18 U.S.C. § 1001(a)(2) (2006) (Counts 3, 5, and 6); and theft of government funds, in violation of 18 U.S.C.A. § 641 (West Supp. 2009) (Count 7). thirty-six months The district court sentenced Moneymaker to of imprisonment for each count to run

concurrent to each other. On appeal, Moneymaker only contests his conviction and sentence for Count 1. Counsel raises two issues on appeal.

First, whether Moneymaker was improperly convicted of submitting a false document pension in support of as a fraudulent in application Count 1 of for the

military

benefits,

alleged

superseding indictment, when the evidence established that no application for pension benefits was ever submitted. Second,

whether the amount of intended loss and amount of restitution improperly included all disability benefits rather than just the benefits to which Moneymaker was not entitled. that follow, we affirm. To the extent Moneymaker alleges insufficient evidence to support Count 1, we find this claim fails. Viewing the For the reasons

evidence in the light most favorable to the prosecution, any 2

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Glasser v. United

States, 315 U.S. 60, 80 (1942); United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996). variance--rather than a Moreover, we find there was a amendment--between the

constructive

superseding indictment and the trial evidence revealing that the admittedly false document was not submitted as part of an

official application for retirement. 171 F.3d 195, 203 (4th Cir.

United States v. Randall, see United States v.

1999);

Floresca, 38 F.3d 706, 710 (4th Cir. 1994) (recognizing that a constructive government or amendment the to an indictment the occurs when bases the for

court

broadens

possible

conviction beyond those presented by the grand jury). Second, we will affirm a sentence imposed by the

district court if it is within the statutorily prescribed range and it is reasonable. 546-47 (4th Cir. 2005). United States v. Hughes, 401 F.3d 540, We find no abuse of discretion in the See Gall v. United States, 552 U.S.

district court's sentence.

38, __, 128 S. Ct. 586, 590 (2007) (providing review standard). More specifically, factual we find no clear error in the district

court's

determination

that

Moneymaker

was

responsible

for all losses related to his receipt of disability payments (actual loss) and future payments (intended loss). United We find

States v. Loayza, 107 F.3d 257, 265 (4th Cir. 1997). 3

the sentencing court made a reasonable estimate of the loss, given the available information. United States v. Miller, 316

F.3d 495, 503 (4th Cir. 2003); see U.S. Sentencing Guidelines Manual § 2B1.1(b), comment. (n.3(C)) (2007). A sentencing

enhancement need only be supported by a preponderance of the evidence. Miller, 316 F.3d at 503. The same reasoning applies

to the district court's order of restitution in the amount of the disability payments actually paid to Moneymaker. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

4