US v. William Duell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cr-00055-FDW-1 Copies to all parties and the district court/agency. [998780178].. [11-4547]

Appeal: 11-4547

Document: 34

Date Filed: 02/03/2012

Page: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4547

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ODELL DUELL, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:09-cr-00055-FDW-1)

Submitted:

January 31, 2012

Decided:

February 3, 2012

Before WILKINSON, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Faith Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte, North
Carolina, for Appellant.
Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-4547

Document: 34

Date Filed: 02/03/2012

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PER CURIAM:
William Odell Duell, Jr., pled guilty to ten counts of
securities fraud, 18 U.S.C. § 513(a) (2006) (Counts 1-10), and
one count of wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2011)
(Count 11), and was sentenced to a term of thirty-four months’
imprisonment.

Duell appeals his sentence, contending that the

district court clearly erred in applying a two-level enhancement
for

use

of

sophisticated

means.

Manual § 2B1.1(b)(9)(C) (2010).
Duell

was

the

U.S.

Sentencing

Guidelines

We affirm.

financial

secretary

of

Statesville

Avenue Presbyterian Church in Charlotte, North Carolina, from
2002

through

2005.

While

he

held

this

misappropriated 214 checks totaling $239,199.95.

position,

Duell used two

accounts the church maintained with Bank of America:
reserve account and a capital expense account.

he

a general

The minister and

church Finance and Session Committees mistakenly believed that
the

capital

banking,

expense

Duell

account

transferred

had

been

money

from

closed.
the

Using
general

online
reserve

account to the capital expense account, then wrote checks from
that account to his own business and forged the signatures of
church members with check signing rights.

To conceal the fraud,

Duell

associated

omitted

these

transactions

and

overdraft

charges from the financial statements he prepared and presented
to the Finance and Session Committees.
2

As a result, the cash

Appeal: 11-4547

Document: 34

account

Date Filed: 02/03/2012

represented

balances

overstated.

Page: 3 of 5

these

in

statements

were

Duell’s conduct was discovered in an audit after he

left the church.
Guidelines
level

enhancement

section
to

offense . . . involved
applies

when

a

a

2B1.1(b)(9)(C)

defendant’s

sophisticated

defendant

provides

offense

level

means.”

employs

for

The

“especially

a

if

2-

“the

enhancement
complex

or

especially intricate offense conduct pertaining to the execution
or

concealment

Examples

of

of

an

offense.”

sophisticated

USSG

means

§ 2B1.1

include

cmt.

“hiding

n.8(B).

assets

or

transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts also ordinarily
indicates

sophisticated

determination

that

the

means.”

Id.

defendant

used

reviewed for clear error.

The

district

sophisticated

court’s
means

is

United States v. Kontny, 238 F.3d

815, 821 (7th Cir. 2001) (reviewing same issue in tax fraud
case).
The

district

court

determined

at

sentencing

Duell’s conduct involved sophisticated means.
that

Duell

hid

his

assets

and

transactions

that

The court noted
by

converting

an

existing legitimate account to his own illegitimate purposes,
rather

than

by

creating

a

corporate

shell

or

new

fictitious

entity, but with the same motive; by creating false financial
statements; and by forging signatures.
3

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Document: 34

A

Date Filed: 02/03/2012

defendant’s

offense

Page: 4 of 5

of

conviction

may

involve

“sophisticated means” even if not every aspect of his scheme was
complex or intricate.
816

(8th

Cir.

United States v. Edelmann, 458 F.3d 791,

2006).

The

enhancement

applies

if

the

“defendant's total scheme was undoubtedly sophisticated.”

Id.

(internal quotation marks omitted); see United States v. Weiss,
630 F.3d 1263, 1279 (10th Cir. 2010) (“The Guidelines do not
require every step of the defendant's scheme to be particularly
sophisticated;

rather,

commentary,

the

concealment

of

complex

especially

or

as

made

enhancement
a

scheme,

clear

applies

viewed

intricate.”

as

by

when
a

the
the

whole,

(internal

Guidelines’
execution

is

or

especially

quotation

marks

omitted)); see also United States v. Ghertler, 605 F.3d 1256,
1267

(11th

Cir.

2010)

(no

requirement

that

defendant’s

individual actions be sophisticated); United States v. Jackson,
346 F.3d 22, 25 (2d Cir. 2003) (concluding a credit card fraud
scheme linking unelaborate steps in a coordinated way to exploit
the vulnerabilities of the banking system was “sophisticated”).
Duell

contends

that

no

aspect

of

his

scheme

was

complex or intricate and that, taken as a whole, the scheme was
not complicated.

However, Duell took deliberate steps to make

his offense difficult to detect over a period of years.
efforts amount to use of sophisticated means.

4

Such

Kontny, 238 F.3d

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Document: 34

at 820-21.

Date Filed: 02/03/2012

Page: 5 of 5

On balance, we cannot say that the district court

clearly erred in applying the enhancement.
We
district
facts

court.

and

materials

therefore

legal
before

We

affirm

dispense

the
with

sentence
oral

argument

contentions

are

adequately

the

and

argument

court

imposed

by

the

because

the

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

5