US v. Fabian Sparrow

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00022-RLV-DSC-2 Copies to all parties and the district court/agency. [999976753].. [15-4796]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4796

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FABIAN DAVID SPARROW,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:13-cr-00022-RLV-DSC-2)

Submitted:

October 31, 2016

Decided:

November 29, 2016

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eric A. Bach, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Fabian

David

restitution

imposed

conspiring

to

Sparrow
after

defraud

appeals
he

from

pleaded

the

United

the

guilty

sentence

to
by

States

one

making

and

count

of

false

statements to a federal agency and submitting false statements
to HUD and destruction of records in a federal investigation, in
violation

of

Guidelines

18

U.S.C.

sentence

§ 371

of

41

$4,175,435.71 in restitution.

(2012).

months

and

He

received

was

a

ordered

belowto

pay

Finding no error, we affirm.

Sparrow contends that the district court clearly erred in
applying

a

sentencing

enhancement

for

obstruction

of

justice

under U.S. Sentencing Guidelines Manual § 3C1.1 (2015) based on
his failure to truthfully comply with grand jury questions and
requests. *

We review the imposition of an obstruction of justice

enhancement for clear error.

United States v. Andrews, 808 F.3d

964, 969 (4th Cir. 2015), cert. denied, 136 S. Ct. 1392 (2016).
The

two-level

“willfully

.

administration

enhancement
.
of

.

is

appropriate

attempt[s]
justice.”

to
USSG

when

obstruct
§ 3C1.1.

or

a

defendant

impede[]
To

apply

the
the

enhancement based on perjury, see USSG § 3C1.1 cmt. n.4(F), the

*

Sparrow’s brief also addresses the enhancement based on
his travel to Qatar.
However, because the court did not apply
the enhancement on this basis, we address only the grand jury
testimony and compliance issue.

2

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district court must find by a preponderance of the evidence that
the defendant gave “false testimony concerning a material matter
with

the

willful

intent

to

provide

false

testimony,”

States v. Dunnigan, 507 U.S. 87, 94 (1993).

United

If a court fails

“to address each element of the alleged perjury in a separate
and clear finding,” the application of the enhancement may be
upheld

as

long

as

“the

court

all

of

the

factual

encompasses
perjury.”
192-93

a

finding

predicates

for

.
a

.

.

that

finding

of

Id. at 95; see United States v. Perez, 661 F.3d 189,

(4th

Cir.

2011)

Dunnigan requires”).
who

makes

conceals

investigation

“degree

of

specificity

The adjustment also applies to a defendant

“evidence
or

(discussing

judicial

that

is

material

proceeding”

or

to

an

attempts

official

to

do

so.

USSG § 3C1.1 cmt. n.4(D).
Here,

the

district

court

found

that

Sparrow

testified

falsely before the grand jury by telling the grand jury that his
accountant held the Eagle’s Nest records and that his accountant
was deceased.

The district court found that Sparrow attempted

to conceal the location of the records.

The court found that

Sparrow “misrepresented the notion that the accountant who had
the records was deceased, which was not the case; that he had
the records; which was not the case.”

The court continued that

Sparrow’s statements were knowingly made and that Sparrow gave
“false testimony concerning a material matter with the willful
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intent to deceive.”

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The court satisfied the requirements of

Dunnigan and its conclusions were based on factual testimony
presented by the Government.
did

not

clearly

err

in

Thus, we conclude that the court

applying

the

obstruction

of

justice

enhancement.
Next, Sparrow challenges the $4.1 million restitution order
on appeal.
sufficient

He contends that the Government did not prove a
nexus

between

himself

and

the

parties

due

restitution, that the additional named parties were not in the
presentence report but in the Government’s sentencing exhibit
only, that counsel objected to this lack of notice, and the
Government cannot rely on additional filings that were not part
of the PSR.
the

Sparrow, however, entered into an agreement with

Government

prior

to

sentencing

regarding

the

amount

of

foreseeable loss to establish the offense level and the amount
of restitution.

The Government summarized the agreement:

For
the
purposes
of
the
stipulation,
and
the
concession that the defendant has agreed with regards
to restitution, the government would agree that the
loss
is
less
than
$550,000
contingent
on
the
following. 1. That the defendant stipulates to the
facts underlying the . . . presentence report which
supports these loss numbers; and 2. That the defendant
agree to the restitution numbers and figures that were
presented to the [c]ourt yesterday in . . . document
28-1. [The document] lists a number of loans that is
consistent with the Victim Impact Statements in this
case and would require a payment of total restitution
in the amount of $4,175,435.71. So the bottom line is
that the government—if the defendant concedes to the
facts
supporting
these
loss
numbers,
both
in
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restitution and in the guidelines, the government
would concede that the offense level . . . should be a
level 12.
J.A. 78.
summary

The judge asked defense counsel if the Government’s
was

agreement.”
As

“an

accurate

summary

and

rendition

of

the

is

the

And counsel replied that it was.

this

intentional

court

has

relinquishment

recognized,
or

“[a]

abandonment

waiver

of

a

known

right.”

United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)
(internal

quotation

marks

omitted).

“Waiver

is

to

be

distinguished from forfeiture, which is the failure to make the
timely assertion of a right.”
omitted).

Id. (internal quotation marks

“[W]hen a claim is waived, it is not reviewable on

appeal, even for plain error.”

Id.

means that there was no error at all.”
marks omitted).

“Rather, a valid waiver
Id. (internal quotation

Where a party identifies an issue and then

withdraws it, he has waived the issue, and his claim is not
reviewable on appeal.
voluntary

is

circumstances.

Id.

determined

Whether a waiver is knowing and
based

on

the

totality

of

the

Id. at 298-99.

Here, Sparrow does not suggest that his agreement was not
knowing

and

voluntary.

The

record

supports

that

Sparrow

intentionally relinquished the right to contest the restitution
amount when he entered into an agreement with the Government.
The Government agreed to support a reduced amount of loss and
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resulting

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offense

restitution amount.

level

and

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Sparrow

agreed

to

the

revised

Thus, Sparrow has waived appellate review

of the amount of restitution ordered in the judgment.
Accordingly, we affirm the judgment.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED

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