US v. Ronald Chisholm

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cr-00132-RGD-LRL-1. Copies to all parties and the district court/agency [999854396]. [15-4713]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4713

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD CHISHOLM,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:14-cr-00132-RGD-LRL-1)

Submitted:

May 26, 2016

Decided:

June 15, 2016

Before WYNN, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for
Appellant.
Dana J. Boente, United States Attorney, Joseph
Kosky, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ronald Chisholm appeals his jury convictions and 218-month
sentence for one count of conspiracy to commit mail fraud, in
violation of 18 U.S.C. § 1349 (2012); four counts of mail fraud,
in violation of 18 U.S.C. §§ 2, 1341 (2012); and 14 counts of
aggravated

identity

theft,

1028A(a)(1) (2012).

in

violation

of

18

U.S.C.

§§ 2,

Chisholm asserts that the district court:

(1) erroneously instructed the jury on the conspiracy charge
against him; (2) erred when it allowed the Government to call as
a witness Chisholm’s probation officer, and denied his motion
for a mistrial when another witness stated that Chisholm was
“locked up” during a portion of the conspiracy with which he was
charged;

and

(3)

imposed

an

unreasonable

sentence

when

it

increased his base offense level for sophisticated means, made
his sentence on two of the aggravated identity theft convictions
run

consecutive

Government
without

to

both

his

remaining

forfeiture

crediting

one

for

and
the

sentences,

and

restitution

for

other.

Finding

awarded
his

no

the

crimes

error,

we

affirm.
We

review

instructions

a

for

district
an

abuse

court’s
of

decision

discretion.

Kivanc, 714 F.3d 782, 794 (4th Cir. 2013).

regarding

United

jury

States

v.

Because a district

court is given broad discretion in fashioning a charge, a party
challenging

a

district

court’s
2

instructions

faces

a

heavy

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burden.

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See Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011).

Accordingly,
construed

as

we

must

determine

a

whole,

and

in

“whether
light

the

of

the

instructions
whole

record,

adequately informed the jury of the controlling legal principles
without misleading or confusing the jury to the prejudice of the
objecting party.”

Id. (internal quotation marks omitted).

In

so determining, the district court will only be reversed for
declining to give a proposed jury instruction when the requested
instruction: “(1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
instruction seriously impaired that party’s ability to make its
case.”

Id.

considered

(internal

Chisholm’s

quotation

arguments

marks

and

omitted).

discern

no

We

error

in

have
the

district court’s jury instructions.
We

give

“substantial

deference

to

a

district

court’s

decision to exclude evidence, and . . . will not reverse the
district court’s decision absent a clear abuse of discretion.”
United States v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997)
(internal quotation marks omitted).

Thus, evidentiary rulings

are also reviewed for abuse of discretion, and we “will only
overturn

an

irrational.”
2011)

evidentiary

ruling

that

is

arbitrary

and

United States v. Cole, 631 F.3d 146, 153 (4th Cir.

(internal

quotation

marks
3

omitted);

see

Malone

v.

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Microdyne Corp., 26 F.3d 471, 480 (4th Cir. 1994) (reviewing
ruling on motion in limine for abuse of discretion).
On abuse of discretion review, we may not substitute our
judgment

for

that

of

the

district

court;

rather,

we

must

determine whether the district court’s “exercise of discretion,
considering the law and the facts, was arbitrary or capricious.”
United States v. Banks, 482 F.3d 733, 742-43 (4th Cir. 2007)
(internal

quotation

marks

omitted).

“When

reviewing

the

district court’s decision to admit evidence under Rule 403, we
must look at the evidence in a light most favorable to its
proponent,

maximizing

prejudicial effect.”

its

probative

value

and

minimizing

its

Minter v. Wells Fargo Bank, N.A., 762 F.3d

339, 350 (4th Cir. 2014) (internal quotation marks omitted).

We

discern no abuse of discretion in the district court’s decision
to allow Chisholm’s probation officer’s testimony.
We also review a district court’s decision to deny a motion
for a mistrial for abuse of discretion.

See United States v.

Wallace, 515 F.3d 327, 330 (4th Cir. 2008).
of

discretion,

States

v.

a

Hayden,

defendant
85

F.3d

To establish abuse

must

show

prejudice.

153,

158

(4th

Cir.

See

United

1996).

Given

counsel’s failure to request a curative instruction, the lack of
prejudice to Chisholm, and the apparent inadvertent nature of
the

particular

witness’s

comment,

it

was

not

error

for

district court to deny Chisholm’s motion for a mistrial.
4

the
See

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Wallace, 515 F.3d at 330-31 (holding that district court did not
abuse its discretion when it denied motion for mistrial where
Government did not purposefully elicit prejudicial testimony and
defense

counsel

did

not

immediately

request

a

curative

instruction).
We review a sentence for reasonableness.
States, 552 U.S. 38, 51 (2007).

Gall v. United

The first step in this review

requires the court to ensure that the district court committed
no significant procedural error.
F.3d

155,

161

(4th

Cir.

United States v. Evans, 526

2008).

Procedural

errors

include

“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence
based

on

clearly

erroneous

facts,

or

failing

to

adequately

explain the chosen sentence — including an explanation for any
deviation from the Guidelines range.”
If,

and

only

if,

we

find

Gall, 552 U.S. at 51.
the

sentence

procedurally

reasonable can we consider the substantive reasonableness of the
sentence imposed.

United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009).

We presume on appeal that a sentence within

the

Guidelines

range

is

reasonable.

See

United

States

v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
We reject Chisholm’s argument that the district court erred
when

it

increased

his

offense

level
5

for

using

sophisticated

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means

to

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commit

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his

pursuant

offenses,

to

U.S.

Guidelines Manual (USSG) § 2B1.1(b)(10)(C) (2014).
defendant’s

conduct

involved

sophisticated

Sentencing
“Whether a

means

is

an

essentially factual inquiry,” that we “review for clear error.”
United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).
Pursuant to USSG § 2B1.1(b)(10)(C), a defendant receives a twolevel

sentencing

enhancement

for

an

offense

that

involves

“sophisticated means” if “the defendant intentionally engaged in
or caused the conduct constituting sophisticated means[.]”
§ 2B1.1(b)(10)(C).
applies

when

a

Thus,

the

defendant

sophisticated

employs

means

“especially

USSG

enhancement
complex

or

especially intricate offense conduct pertaining to the execution
or concealment of an offense.”

USSG § 2B1.1 cmt. n.9(B).

“For

example, in a telemarketing scheme, locating the main office of
the

scheme

operations

in
in

one

jurisdiction

another

sophisticated means.”

but

jurisdiction

locating

soliciting

ordinarily

indicates

Id.

While the scheme must involve “more than the concealment or
complexities inherent in fraud[,]” Adepoju, 756 F.3d at 257,
courts can find that a defendant used sophisticated means even
where he did “not utilize the most complex means possible to
conceal his fraudulent activit[y].”

United States v. Jinwright,

683 F.3d 471, 486 (4th Cir. 2012) (applying sophisticated means
enhancement

in

USSG

§ 2T1.1(b)(2)
6

in

context

of

tax

fraud).

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Thus, “[t]he court need only find the presence of efforts at
concealment that go beyond (not necessarily far beyond . . . )
the

concealment

inherent

in

.

.

.

fraud.”

Id.

(internal

quotation marks omitted).
Although

Chisholm

characterizes

his

conduct

as

merely

cashing checks, and insists that his conduct “lacked any of the
badges

of

sophistication[,]”

we

find

that

the

evidence

established that Chisholm took efforts at concealment that went
beyond

the

concealment

inherent

in

fraud.

Accordingly,

we

discern no error in the district court’s decision to enhance
Chisholm’s offense level under USSG § 2B1.1(b)(10)(C).
We

reject

Chisholm’s

argument

that

the

district

court

abused its discretion when it imposed the 24-month sentences on
two

of

the

consecutive

aggravated
to

his

identity

remaining

theft

sentences.

convictions
Although

to

run

Chisholm

correctly cites a portion of the Commentary to USSG § 5G1.2, the
district court was allowed to consider the seriousness of the
underlying offenses and the § 3553(a)(2) sentencing factors in
determining whether to run Chisholm’s sentences concurrently or
consecutively.

See USSG § 5G1.2 cmt. n.2(B) (2014).

Because

Chisholm has established no procedural or substantive error in

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his 218-month sentence, we find that the district court did not
abuse its discretion in imposing the sentence. *
Based
judgment.
legal

on

the

we

affirm

the

district

court’s

We dispense with oral argument because the facts and

contentions

before

foregoing,

this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

*

We reject Chisholm’s argument that the district court’s
decision to order both restitution and forfeiture without any
credit against one for funds received for the other resulted in
double recovery by the Government.
See United States v.
Blackman, 746 F.3d 137, 143 (4th Cir. 2014) (“Forfeiture is
mandatory even when restitution is . . . imposed.
These two
aspects of a defendant’s sentence serve distinct purposes:
restitution
functions
to
compensate
the
victim,
whereas
forfeiture acts to punish the wrongdoer. . . . Because [they]
are distinct remedies, ordering both in . . . similar amounts
does not generally amount to a double recovery.”).

8