United States v. William Duell , 463 F. App'x 214 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4547
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ODELL DUELL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00055-FDW-1)
Submitted: January 31, 2012 Decided: February 3, 2012
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Faith Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Odell Duell, Jr., pled guilty to ten counts of
securities fraud, 18 U.S.C. § 513(a) (2006) (Counts 1-10), and
one count of wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2011)
(Count 11), and was sentenced to a term of thirty-four months’
imprisonment. Duell appeals his sentence, contending that the
district court clearly erred in applying a two-level enhancement
for use of sophisticated means. U.S. Sentencing Guidelines
Manual § 2B1.1(b)(9)(C) (2010). We affirm.
Duell was the financial secretary of Statesville
Avenue Presbyterian Church in Charlotte, North Carolina, from
2002 through 2005. While he held this position, he
misappropriated 214 checks totaling $239,199.95. Duell used two
accounts the church maintained with Bank of America: a general
reserve account and a capital expense account. The minister and
church Finance and Session Committees mistakenly believed that
the capital expense account had been closed. Using online
banking, Duell transferred money from the general reserve
account to the capital expense account, then wrote checks from
that account to his own business and forged the signatures of
church members with check signing rights. To conceal the fraud,
Duell omitted these transactions and associated overdraft
charges from the financial statements he prepared and presented
to the Finance and Session Committees. As a result, the cash
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account balances represented in these statements were
overstated. Duell’s conduct was discovered in an audit after he
left the church.
Guidelines section 2B1.1(b)(9)(C) provides for a 2-
level enhancement to a defendant’s offense level if “the
offense . . . involved sophisticated means.” The enhancement
applies when a defendant employs “especially complex or
especially intricate offense conduct pertaining to the execution
or concealment of an offense.” USSG § 2B1.1 cmt. n.8(B).
Examples of sophisticated means include “hiding assets or
transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts also ordinarily
indicates sophisticated means.” Id. The district court’s
determination that the defendant used sophisticated means is
reviewed for clear error. United States v. Kontny, 238 F.3d
815, 821 (7th Cir. 2001) (reviewing same issue in tax fraud
case).
The district court determined at sentencing that
Duell’s conduct involved sophisticated means. The court noted
that Duell hid his assets and transactions by converting an
existing legitimate account to his own illegitimate purposes,
rather than by creating a corporate shell or new fictitious
entity, but with the same motive; by creating false financial
statements; and by forging signatures.
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A defendant’s offense of conviction may involve
“sophisticated means” even if not every aspect of his scheme was
complex or intricate. United States v. Edelmann, 458 F.3d 791,
816 (8th Cir. 2006). The enhancement applies if the
“defendant's total scheme was undoubtedly sophisticated.” Id.(internal quotation marks omitted); see United States v. Weiss,
630 F.3d 1263, 1279 (10th Cir. 2010) (“The Guidelines do not
require every step of the defendant's scheme to be particularly
sophisticated; rather, as made clear by the Guidelines’
commentary, the enhancement applies when the execution or
concealment of a scheme, viewed as a whole, is especially
complex or especially intricate.” (internal quotation marks
omitted)); see also United States v. Ghertler, 605 F.3d 1256,
1267 (11th Cir. 2010) (no requirement that defendant’s
individual actions be sophisticated); United States v. Jackson,
346 F.3d 22, 25 (2d Cir. 2003) (concluding a credit card fraud
scheme linking unelaborate steps in a coordinated way to exploit
the vulnerabilities of the banking system was “sophisticated”).
Duell contends that no aspect of his scheme was
complex or intricate and that, taken as a whole, the scheme was
not complicated. However, Duell took deliberate steps to make
his offense difficult to detect over a period of years. Such
efforts amount to use of sophisticated means. Kontny, 238 F.3d
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at 820-21. On balance, we cannot say that the district court
clearly erred in applying the enhancement.
We therefore affirm the sentence imposed by the
district court. 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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