United States v. Bell , 72 F. App'x 25 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4944
VERNON DERL BELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-02-105)
Submitted: July 15, 2003
Decided: August 1, 2003
Before WIDENER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Henry E. Wood, III, WOOD LAW OFFICE, L.C., Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney, L.
Anna Crawford, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BELL
OPINION
PER CURIAM:
Vernon Derl Bell appeals his fifteen month sentence imposed fol-
lowing his guilty plea to mail fraud, in violation of 18 U.S.C. § 1341(2000). Bell contests the district court’s mass-marketing enhance-
ment. We review the district court’s factual determinations concern-
ing the application of the Sentencing Guidelines for clear error and its
legal conclusions de novo. United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989).
Bell argues that the district court erred in enhancing his offense
level two levels because his passive conduct did not satisfy the
requirements of the mass-marketing enhancement of U.S. Sentencing
Guidelines Manual § 2F1.1(b)(3) (2000). That section provides that
an offense committed through mass-marketing warrants a two-level
increase in offense level. The guidelines commentary defines mass-
marketing as "a plan, program, promotion, or campaign that is con-
ducted through solicitation by telephone, mail, the Internet, or other
means to induce a large number of persons to (A) purchase goods or
services; (B) participate in a contest or sweepstakes; or (C) to invest
for financial profit." USSG § 2F1.1 comment. (n.3).
From November 2000 to April 2001, Bell sold sports cards via
online auction to 186 customers. He defrauded these customers out of
more than $150,000 by auctioning sports collectibles on the eBay
website, which is visited by millions of people, and failing to ship the
goods upon payment. This conduct falls squarely within the two-level
enhancement for mass-marketing. See United States v. Magnuson,
307 F.3d 333 (5th Cir. 2002), cert. denied, 123 S. Ct. 1008 (2003);
United States v. Pirello, 255 F.3d 728 (9th Cir.), cert. denied, 534
U.S. 1034 (2001).
We therefore affirm Bell’s sentence. We dispense with oral argu-
ment because the facts and legal contentions have been adequately
presented in the written materials before the court and argument
would not aid the decisional process.
AFFIRMED