US v. Michael Marshall

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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).
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After
reject

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review
wholly

as

of

the

without

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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).

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the

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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

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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
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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

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