US v. John Colvin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:09-cr-00072-D-1 Copies to all parties and the district court. [998795764].. [10-5336]

Appeal: 10-5336

Document: 59

Date Filed: 02/24/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5336

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN KENT COLVIN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
District Judge. (4:09-cr-00072-D-1)

Submitted:

February 7, 2012

Decided:

February 24, 2012

Before SHEDD, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina,
for Appellant.
Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 02/24/2012

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PER CURIAM:
John Kent Colvin appeals his conviction by jury and
his subsequent 300-month sentence for mail fraud and conspiracy
to commit mail fraud.

After thoroughly examining the record and

the contentions of the parties, we affirm.
First,

Colvin

attacks

his

conviction

on

the

ground

that certain of the trial court’s evidentiary rulings violated
his constitutional right to present a defense.

As an initial

matter, we observe that “the crux of [Colvin’s] complaint is
that he was not allowed to present a particular defense. As
such, it is better framed as an evidentiary argument.”

United

States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009).
Still, “[w]hether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the Compulsory Process
or

Confrontation

Constitution

Clauses

guarantees

of

the

criminal

Sixth

defendants

opportunity to present a complete defense.’”

Amendment,
‘a

the

meaningful

Holmes v. South

Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky,
476

U.S.

683,

690

(1986)).

Where

exclusion

of

evidence

is

“arbitrary” or “disproportionate” — that is, “important defense
evidence” is excluded without serving “any legitimate interests”
or in a manner that is “disproportionate to the ends that [the
rationale

for

exclusion

is]

asserted

to

violate a defendant’s constitutional rights.
2

promote”

—

it

Id. at 324, 326.

may

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Date Filed: 02/24/2012

Nevertheless,

“a

Page: 3 of 6

defendant’s

right

to

present

a

defense is not absolute:

criminal defendants do not have a

right

that

to

present

evidence

the

district

discretion, deems irrelevant or immaterial.”

court,

“the

Constitution

permits

its

United States v.

Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003).
surprisingly,

in

judges

Thus, not
to

exclude

evidence that is repetitive . . . , only marginally relevant or
poses an undue risk of harassment, prejudice, or confusion of
the issues.”
omitted).

Holmes, 547 U.S. at 326-27 (internal alterations

Of course, a district court’s evidentiary rulings are

reviewed only for abuse of discretion.
322 F.3d 301, 304 (4th Cir. 2003).
[evidentiary]

error

amounts

to

United States v. Hill,

And even then, “not every

a

constitutional

violation.”

United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010).
Instead, only the erroneous exclusion of evidence “important” to
the defense may violate the Constitution.

Holmes, 547 U.S. at

324; Stever, 603 F.3d at 755.
Here,

Colvin

expresses

his

disquietude

with

the

district court’s decision to exclude evidence pertaining to his
defense

theory

that

Scott

Hollenbeck,

Colvin’s

associate,

perpetrated the fraud on his own and then hired two lawyers to
blame

Colvin

Colvin.
the

for

the

fraud

and

bias

the

investors

against

Our review of the record convinces us, however, that

evidence

that

Colvin

sought
3

to

introduce

was

of

limited

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probative

value

violated

when

Date Filed: 02/24/2012

and

that

the

his

trial

Page: 4 of 6

constitutional

court

exercised

rights

its

were

not

discretion

to

exclude it.
Colvin

next

challenges

procedurally

and

sentence

reasonableness,

for

standard.

substantively

his

sentence

unreasonable.

applying

an

abuse

as

We
of

both

review

a

discretion

Gall v. United States, 552 U.S. 38, 51 (2007).

We

first ensure that the district court committed no significant
procedural error, “such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C. § 3553(a) (2006)]
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.”

Id.

If

no procedural error was committed, we review the sentence for
substantive reasonableness, taking into account the “totality of
the circumstances.”

Id.

Indeed, “an appellate court must defer

to the trial court and can reverse a sentence only if it is
unreasonable,

even

if

the

sentence

choice of the appellate court.”
F.3d

155,

sentence

160

that

(4th
falls

Cir.

a

(emphasis

properly

range is presumptively reasonable.
F.3d 178, 193 (4th Cir. 2007).

4

not

have

been

the

United States v. Evans, 526

2008)

within

would

in

original).

calculated

A

Guidelines

United States v. Allen, 491

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Date Filed: 02/24/2012

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Colvin first asserts that the district court erred in
calculating

the

loss

involved

in

his

offense

under

U.S.

Sentencing Guidelines Manual (“USSG”) § 2B1.1(b)(1)(L) (2010),
which provides for a 22-level enhancement for a loss of more
than $20 million but less than $50 million.
district

court’s

factual

determinations

issue must stand, absent clear error.

with

Of course, the
respect

to

this

Elliott v. United States,

332 F.3d 753, 761 (4th Cir. 2003).

And “only a preponderance of

the

factual

evidence

need

support

these

findings.”

United

States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).

Further,

“[t]he court need only make a reasonable estimate of the loss,”
and

its

loss

deference,”
facts.
each

determination

given

its

“is

entitled

unparalleled

USSG § 2B1.1, cmt. n.3(C).
of

Colvin’s

challenges

to

access

to
to

appropriate

the

pertinent

We have thoroughly reviewed
the

district

court’s

loss

calculation and are persuaded that the district court made a
reasonable estimate of the loss in this case.
Nor do we find any error with the enhancements applied
to Colvin’s Guidelines calculations by the district court.

With

respect to the 2-level USSG § 2B1.1(b)(8)(C) (2010) enhancement
that Colvin received for the violation of Hollenbeck’s cease and
desist

order,

sufficient

evidence

existed

to

support

the

district court’s conclusion that Colvin knew that Hollenbeck’s
continued

hawking

of

investments
5

would

violate

the

order.

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Likewise,

the

Date Filed: 02/24/2012

district

court

Page: 6 of 6

possessed

sufficient

grounds

to

assess a 4-level leadership enhancement under USSG § 3B1.1(a)
(2010)

and

a

6-level

enhancement

under

USSG

§ 2B1.1(b)(2)(C)

(2010).
Finally,
reasonability

of

characteristics
§ 2B1.1

as

although
his

and

Colvin

sentence

attacking

containing

assails

by
the

overlapping

the

recounting
fraud

substantive
his

personal

guidelines

enhancements

and

in

USSG

amorphous

concepts of loss, see, e.g., United States v. Parris, 573 F.
Supp. 2d 744, 750-55 (E.D.N.Y. 2008), he cannot escape the fact
that

he

in

fact

received

a

downward

variant

sentence.

We

decline to hold that, on the circumstances of this case, the
sentence received by Colvin was substantively unreasonable.
Accordingly, we affirm the judgment of the district
court.
legal
before

We dispense with oral argument because the facts and
contentions
the

court

are

adequately

and

argument

presented

will

not

in

aid

the
the

material
decisional

process.
AFFIRMED

6