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UNPUBLISHED PER CURIAM OPINION filed.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. .. [15-4449]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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)
September 30, 2016
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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Michael A. Marshall was convicted after a jury trial of
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 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
United States v. Palomino-Coronado, 805 F.3d 127,
130 (4th Cir. 2015).
“Substantial evidence is evidence that a
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
Id. (internal quotation marks omitted).
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sufficiency of the evidence underlying his convictions on all
Marshall’s arguments fail to establish reversible
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. 1994).
Turning to the district court’s instructions on count 1, we
erroneously instructed the jury with respect to the wire-fraud
instructions on the ground he now advances.
See Fed. R. Crim.
P. 52(b); Henderson v. United States, 133 S. Ct. 1121, 1126-27
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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
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
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).
Marshall thus has not carried his
instructions on count 1.
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.
plain error only.
Marshall did not
United States v. Strieper, 666 F.3d 288, 292
(4th Cir. 2012).
attributable to Marshall.
United States v. Miller, 316 F.3d
495, 503 (4th Cir. 2003).
The district court need only make a
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
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.
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.
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
accountable for a loss amount exceeding $400,000.
Accordingly, we affirm the criminal judgment.
with oral argument because the facts and legal contentions are
argument would not aid the decisional process.
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