US v. Michael Marshall


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00261-FDW-1 Copies to all parties and the district court/agency. [999946383].. [15-4449]

Download PDF
Appeal: 15-4449 Doc: 47 Filed: 10/13/2016 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4449 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL A. MARSHALL, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:13-cr-00261-FDW-1) Submitted: September 30, 2016 Decided: October 13, 2016 Before KING, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Eric J. Foster, Asheville, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4449 Doc: 47 Filed: 10/13/2016 Pg: 2 of 6 PER CURIAM: Michael A. Marshall was convicted after a jury trial of conspiracy to commit offenses against the United States, including wire fraud, bank fraud, and making false statements to financial institutions, in violation of 18 U.S.C. § 371 (2012) (count 1), bank fraud and aiding and abetting, in violation of 18 U.S.C. §§ 2, 1344 (2012) (count 2), and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (2012). The district court sentenced Marshall to 60 months’ imprisonment on count 1 and concurrent terms of 96 months’ imprisonment on each of counts 2 and 3. Marshall now appeals. On appeal, he challenges the district court’s denial of his Fed. R. Crim. P. 29 motion for judgment of acquittal on the basis of insufficient evidence, the district court’s instructions to the jury on count 1, and the district court’s calculation of the loss amount under U.S. Sentencing Guidelines Manual § 2B1.1 (2014). We affirm. We review a challenge to the sufficiency of the evidence de novo and must affirm the jury’s verdict if it is supported by substantial evidence, viewed in the light most favorable to the Government. United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015). reasonable finder “Substantial evidence is evidence that a of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted). 2 Appeal: 15-4449 Doc: 47 After reject Filed: 10/13/2016 review wholly as of the without Pg: 3 of 6 record and merit the parties’ Marshall’s briefs, challenges to we the sufficiency of the evidence underlying his convictions on all three counts. Marshall’s arguments fail to establish reversible error district in adduced the at trial was court’s conclusion sufficient to that support the his evidence convictions. See 18 U.S.C. §§ 2, 371, 1014, 1343, 1344, 1956(h), 1957 (2012); United States v. McNeal, 818 F.3d 141, 149 (4th Cir. 2016), petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 28, 2016) (No. 16-5017); United States v. Adepoju, 756 F.3d 250, 254-55 (4th Cir. 2014); United States v. Jefferson, 674 F.3d 332, 366 (4th Cir. 2012); United (4th Cir. 2008); United (4th Cir. 2003); United States States v. v. States v. Singh, 518 F.3d 236, 248 Cherry, 330 F.3d 658, 668 29 F.3d 914, 916 Smith, (4th Cir. 1994). Turning to the district court’s instructions on count 1, we review for plain error Marshall’s argument that the court erroneously instructed the jury with respect to the wire-fraud object because he did not object below instructions on the ground he now advances. to the court’s See Fed. R. Crim. P. 52(b); Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013). 3 Appeal: 15-4449 Doc: 47 Regarding Filed: 10/13/2016 the Pg: 4 of 6 wire-fraud object, the district court instructed the jury, among other matters, that: A violation of this statute would require proof that, one, someone in the conspiracy, with the intent to defraud, knowingly devised a scheme or artifice to defraud or to obtain money or property by means of material false or fraudulent pretenses, representations or promised [sic] as detailed in the indictment; and two, that in furtherance of the scheme, someone transmitted or caused the transmission of any writing by a means of a wire communication in interstate or foreign commerce. J.A. 647 (emphases added). Marshall argues that, because the second use in this instruction of “someone” was not followed by the words “in the conspiracy,” the jury could have found him guilty when neither he nor any other member of the conspiracy transmitted information by wire. We conclude after review of the record that the court’s second use in the instruction of the word “someone” without the modifier “in the conspiracy” was not clear or obvious error under the settled law of the Supreme Court or of this circuit. See United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013). Further, as Marshall has not suggested that he would have been acquitted or that his trial would have ended in a hung jury had the district court modified its second use of the word “someone” with the phrase “in the conspiracy,” he cannot establish that the challenged instruction affected the outcome of the trial. See United States v. Godwin, 272 F.3d 4 Appeal: 15-4449 Doc: 47 Filed: 10/13/2016 Pg: 5 of 6 659, 680 (4th Cir. 2001); United States v. Nicolaou, 180 F.3d 565, 570 (4th Cir. 1999); United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998). burden to demonstrate Marshall thus has not carried his plain error in the district court’s instructions on count 1. Finally, Marshall challenges the district court’s calculation of the loss amount attributable to him under the Sentencing Guidelines, arguing that the court erroneously failed to credit against that amount payments made to the victims and capital recovered by them prior to sentencing. present this argument plain error only. below, and we Marshall did not therefore review it for United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). Only district a preponderance court’s of factual the evidence determination of need support the loss the amount attributable to Marshall. United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). The district court need only make a “reasonable estimate” of the loss. United States v. Cloud, 680 F.3d 396, 409 (4th Cir. 2012); USSG § 2B1.1 cmt. n.3(C). Generally, the loss amount under USSG § 2B1.1 “is the greater of actual loss or intended loss.” USSG § 2B1.1 cmt. n.3(A). Here, the presentence report recommended application of a 14-level enhancement under USSG § 2B1.1(b)(1)(H) for a loss exceeding $400,000 based on the determination in the description 5 Appeal: 15-4449 Doc: 47 Filed: 10/13/2016 Pg: 6 of 6 of the offense conduct that the loss to the victim lenders as result of Marshall’s criminal conduct was over $425,000. The district court adopted the portion of the PSR calculating the loss amount and relied on the information therein in calculating Marshall’s Guidelines range and imposing sentence. As Marshall made no affirmative showing that the information in the PSR was not correct, the district court was free to adopt and rely on it in sentencing him. See United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir. 2006); United States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999); United States v. Love, 134 F.3d 595, 606 (4th Cir. establishes court, 1998). a The loss therefore, undisputed amount did exceeding not plainly relevant conduct $400,000. err in easily The district holding Marshall accountable for a loss amount exceeding $400,000. Accordingly, we affirm the criminal 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 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?