United States v. Sinclair ( 2011 )

AMENDED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LOUIE GEORGE SINCLAIR, a/k/a Vincent Metallo,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00083-JAB-1)
Submitted: August 18, 2008 Decided: September 17, 2008
Amended Opinion Filed: March 8, 2011
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greenboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Harry L. Hobgood, Angela Hewlett Miller, Assistant United States
Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Louie George Sinclair pled guilty to wire fraud, 18
U.S.C. § 1343 (2000), and was sentenced to eighteen months in
prison. Sinclair appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising
one issue but stating that there are no meritorious issues for
review. Sinclair has filed a pro se supplemental brief raising
additional issues. We affirm. *
I
Sinclair asserts that the district court erred when it
used the 2001 version of the U.S. Sentencing Guidelines Manual
(USSG) in calculating his advisory Guidelines range. We
disagree. We note first that, although Sinclair’s sentencing
hearing took place in February 2008, the district court properly
did not use the version of the Guidelines then in effect
because, under Fourth Circuit precedent, see, e.g., United
States v. Iskander, 407 F.3d 232, 242 & n.8 (4th Cir. 2005), to
do so would have resulted in a violation of the Ex Post Facto
Clause. The court was obligated to use the Guidelines in effect
*
This opinion is issued following recall of the mandate
previously issued.
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when Sinclair committed the offense. See USSG § 1B1.11(a),
(b)(1), p.s. (2007).
We have stated that wire fraud is not an ongoing
offense; instead, it “occur[s] on [a] specific, identifiable
occasion[].” United States v. Bakker, 925 F.2d 728, 739 (4th
Cir. 1991). Wire fraud “is complete when a transmission is made
to further the overall scheme to defraud.” United States v.
Tulaner, 512 F.3d 576, 579 (9th Cir. 2008); United States v.
Carrington, 96 F.3d 1, 7 (1st Cir. 1996). Sinclair committed
wire fraud in March 2002, when the transmission in question took
place. Accordingly, the district court correctly used the 2001
version of the Guidelines in calculating his advisory Guidelines
range, and his base offense level was correctly determined to be
6, see USSG § 2B1.1(a). Further, there was no error in the two-
level enhancement for unauthorized use of a means of
identification under USSG § 2B1.1(b)(9)(C)(i).
II
Sinclair contends that the district court erred when
it enhanced his offense level by two levels under USSG § 3B1.3
for abuse of a position of trust. The record reflects that
Sinclair represented to his victim, Beverly Dube, that he was a
financial planner and tax preparer and that, in reliance on this
representation, Dube permitted Sinclair to prepare and file her
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tax returns for several years, claiming a sizable refund each
time. Dube did not know that the returns contained materially
false information and claimed refunds to which she was not
entitled. Sinclair directed the IRS to wire each refund to a
joint account that he had persuaded Dube to open with him. He
gave Dube bogus copies of the returns, which showed that she was
not due refunds, but instead owed tax.
The adjustment applies “[i]f the defendant abused a
position of public or private trust, or used a special skill, in
a manner that significantly facilitated the commission or
concealment of the offense.” USSG § 3B1.3. A position of
“[p]ublic or private trust” means a position “characterized by
professional or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given considerable
deference).” USSG § 3B1.3, cmt. n.1. Whether the defendant
held a position of trust must be approached from the perspective
of the victim. United States v. Godwin, 272 F.3d 659, 671 (4th
Cir. 2001). We review de novo the district court’s legal
interpretation of what constitutes a position of trust and
review related factual findings for clear error. United
States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir. 2005).
Here, Sinclair represented to Dube that he was a
financial planner and that he prepared tax returns for a living.
Dube relied on these representations, allowing Sinclair to
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prepare and file her tax returns. Sinclair’s representations
significantly facilitated the commission of the instant offense,
and the enhancement was proper.
III
Sinclair contends that the district court erred when
it refused to depart for a variety of reasons, including his
criminal history’s over-representing his criminal record, his
having voluntarily surrendered, his compulsive gambling
disorder, and his being an alien. This court lacks “the
authority to review a sentencing court’s denial of a downward
departure unless the court failed to understand its authority to
do so.” United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008). Because the district court at sentencing recognized that
it had the discretion to depart, but elected not to exercise
that discretion, its decision not to depart is not reviewable on
appeal.
IV
Sinclair raises a variety of claims in the pro se
brief. Because the issues are raised for the first time on
appeal, our review is for plain error. See Fed. R. Crim. P.
52(b); United States v. Martinez, 277 F.3d 517, 525 (4th Cir.
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2002). We conclude that Sinclair has not established plain
error with respect to any of these claims.
V
In accordance with Anders, we have thoroughly reviewed
the record for any meritorious issues and have found none. We
therefore affirm. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, counsel may move this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy of the motion was served on the client. 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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