Filed: Jul. 16, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4351 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM A. MCDOWELL, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00173-FDW-2) Submitted: July 1, 2010 Decided: July 16, 2010 Before WILKINSON, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Denzil H. Forrester, Char
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4351 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM A. MCDOWELL, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00173-FDW-2) Submitted: July 1, 2010 Decided: July 16, 2010 Before WILKINSON, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Denzil H. Forrester, Charl..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4351
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM A. MCDOWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00173-FDW-2)
Submitted: July 1, 2010 Decided: July 16, 2010
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William McDowell was convicted by a jury of conspiracy
to defraud the United States, money laundering, and aiding and
abetting mail fraud, 18 U.S.C. §§ 371, 1341, 1956(h) (2006), and
was sentenced to a total term of 108 months imprisonment. He
noted a timely appeal. McDowell’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), in
which he asserts that there are no meritorious issues for appeal
but questions whether the district court erred in assigning a
sixteen-level increase to McDowell’s base offense level based on
the amount of loss involved. McDowell has filed pro se
supplemental briefs in which he also challenges the district
court’s calculation of loss attributable to him at sentencing.
In addition, McDowell asserts that his rights under the Speedy
Trial Act were violated and he was denied effective assistance
of counsel. Finding these claims without merit, we affirm.
The evidence presented at McDowell’s trial established
that he and a number of other individuals participated in a
mortgage fraud scheme between February 2002 and March 2005 in
Charlotte, North Carolina. McDowell, as one of the promoters of
the scheme, would locate individuals with good credit
scores/history and convince them to “invest” in his real estate
plan as follows: The buyer/investor would apply for a mortgage
loan using an inflated purchase price; the property would have
2
already been acquired by McDowell and others at fair market
value. The difference between the actual price of the property
and the inflated loan value was divided among the participants,
including a payment to the buyer/investor.
The majority of the properties were ultimately
foreclosed upon. The total loss attributed to McDowell was
between $1 million and $2.5 million. Based on a total offense
level of 31 and a criminal history category II, McDowell’s
sentencing range was 121 to 151 months of imprisonment.
However, the district court reduced McDowell’s criminal history
category to I, based on its conclusion that his criminal history
score overstated the seriousness of his criminal history, and
found that his revised advisory guidelines range was 108 to 135
months of imprisonment. The court sentenced McDowell to 108
months imprisonment on counts four, five, and seven, and 60
months on count one, to be served concurrently.
McDowell first challenges the calculation of loss
attributable to him at sentencing. The guidelines provide that
the amount of loss for purposes of sentencing enhancements is
the greater of the actual loss or the intended loss. U.S.
Sentencing Guidelines Manual (USSG) § 2B1.1 cmt. n.3(A) (2008).
Here, McDowell’s base offense level was increased by sixteen
because the district court determined that the amount of
3
intended and actual loss was between $1 million and $2.5
million.
The amount of loss is a factual determination reviewed
for clear error. United States v. Loayza, 107 F.3d 257, 265
(4th Cir. 1997). A sentencing court makes a “reasonable
estimate of the loss, given the available information.” United
States v. Miller,
316 F.3d 495, 503 (4th Cir. 2003) (internal
quotation marks omitted); see USSG § 2B1.1, cmt. n.3(C). A
sentencing enhancement need only be supported by a preponderance
of the evidence.
Miller, 316 F.3d at 503. “Intended loss” is
defined as “the pecuniary harm that was intended to result from
the offense . . . and . . . includes intended pecuniary harm
that would have been impossible or unlikely to occur[.]” USSG
§ 2B1.1, cmt. n.3(A)(ii). The intended loss amount may be used
to determine sentencing, “even if this exceeds the amount of
loss actually possible, or likely to occur, as a result of the
defendant’s conduct.”
Miller, 316 F.3d at 502. Accordingly,
the district court did not clearly err in finding that the
amount of loss for sentencing purposes was the aggregate face
amount of the fraudulent loans issued. McDowell’s argument that
he should be credited with any recovery received by the victim
banks through foreclosure sales should be addressed in a motion
to modify the restitution order.
4
McDowell also argues that, in light of the Supreme
Court’s decision in United States v. Santos, 128 S. Ct. 2020
(2008), the amount of loss should have been “net loss,”
calculated by subtracting the reasonable market value of the
homes from the loan amounts. We decline to so extend the
holding in Santos.
In his supplemental pro se briefs, McDowell also
claims that his rights under the Speedy Trial Act (STA), 18
U.S.C. § 3161 (2006), were violated. McDowell did not, however,
move to dismiss the indictment based on the STA, and thus has
waived review of that issue. See 18 U.S.C. § 3162(a)(2) (2006)
(“Failure of the defendant to move for dismissal prior to trial
. . . shall constitute a waiver of the right to dismissal [of
the indictment].”). In any event, we find this claim meritless
as the delays in the commencement of McDowell’s trial resulted
from his motions to continue, all of which were granted.
Finally, McDowell argues that he was denied effective
assistance of counsel. This claim is more appropriately raised
in a motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp.
2009), unless counsel’s alleged ineffectiveness conclusively
appears on the record. See United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999). We have reviewed the record and
we find no conclusive evidence that counsel rendered ineffective
5
assistance. Accordingly, we decline to consider the claim on
direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. We deny all
motions for withdrawal/substitution of counsel, and McDowell’s
motions to strike the Anders brief, to expedite, and for bail
pending appeal. This court requires that counsel inform
McDowell, in writing, of the right to petition the Supreme Court
of the United States for further review. If McDowell requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on McDowell. 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
6
