United States v. Turner , 51 F. App'x 125 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4407
MARIAN TURNER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CR-00-28-JFM)
Submitted: October 31, 2002
Decided: November 22, 2002
Before WILKINS and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Kathleen O. Gavin,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. TURNER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marian Turner appeals her sentence for one count of bank fraud
and aiding and abetting such fraud in violation of 18 U.S.C. §§ 2,
1344(a) (2000). On appeal, Turner claims the district court erred by
finding she was responsible for $1,079,500 in loss and that the loss
affected her employer, First Union National Bank. Accordingly, Tur-
ner’s offense level was increased by four pursuant to U.S. Sentencing
Guidelines Manual § 2F1.1(b)(8)(B) (2000). In addition, Turner
claims the district court erred by finding she abused a position of trust
and increasing her offense level by two pursuant to USSG § 3B1.3.*
Finding no reversible error, we affirm.
Turner was the Teller Coordinator at the Pikesville branch of the
First Union National Bank. Part of her responsibilities included moni-
toring the cash flow in and out of the cash vault. From June 1998 until
December 1999, Turner took money from the vault and created false
records to hide her theft. A December 1999 audit uncovered a short-
age in the cash vault of over $1,000,000.
We review a district court’s factual findings at sentencing for clear
error. If a preponderance of the evidence supports the factual finding,
it will not be disturbed on appeal. United States v. Carter, 300 F.3d
415, 427 (4th Cir. 2002). "The burden of showing something by a
‘preponderance of the evidence’ . . . simply requires the trier of fact
to believe that the existence of a fact is more probable than its nonex-
istence before [he] may find in favor of the party who has the burden
to persuade the [judge] of the fact’s existence." Concrete Pipe &
Prods., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602,
622 (1993) (internal quotation marks omitted). "[A] finding is ‘clearly
erroneous’ when although there is evidence to support it, the review-
*Turner has abandoned as moot her claim regarding restitution.
UNITED STATES v. TURNER 3
ing court on the entire evidence is left with the definite and firm con-
viction that a mistake has been committed." Anderson v. City of
Bessemer City, North Carolina, 470 U.S. 564, 573 (1985) (internal
quotation marks omitted). "If the district court’s account of the evi-
dence is plausible in light of the record reviewed in its entirety, the
court of appeals may not reverse it even though convinced that had
it been sitting as the trier of fact, it would have weighed the evidence
differently." Id. at 573-74. We find the district court did not clearly
err in assessing the loss to the financial institution at $1,079,500.
Accordingly, the enhancement to the offense level pursuant to USSG
§ 2F1.1(b)(8)(B) was proper.
We further find the district court did not err in finding that Turner
abused a position of trust in the commission of the offense. United
States v. Gordon, 61 F.3d 263, 268 (4th Cir. 1995).
Accordingly, we affirm Turner’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED