Filed:     October 17, 2002


                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT



                              No. 99-4783
                   (CR-99-58, CR-99-134, CR-99-135)



United States of America,

                                              Plaintiff - Appellee,

          versus


Mark Paul Sarno,

                                             Defendant - Appellant.




                              No. 00-4795
                   (CR-99-58, CR-99-134, CR-99-135)



United States of America,

                                              Plaintiff - Appellee,

          versus


Mark Paul Sarno,

                                             Defendant - Appellant.
           On Petition for Rehearing and Rehearing En Banc




     The appellant’s petition for rehearing and rehearing en banc

was submitted to this Court.      As no member of this Court or the

panel requested a poll on the petition for rehearing en banc, and

     As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

     IT IS ORDERED that the petition for rehearing and rehearing en

banc is denied.

     IT IS FURTHER ORDERED that the slip opinion is modified as

follows:   on page 7, line 10 of the text of Part B, the word “then”

is changed to read “had.”

     Entered    at   the   direction   of   Judge   Widener,   with   the

concurrence of Judge Luttig and Judge Goodwin.

                                       For the Court



                                       /s/ Patricia S. Connor
Panel rehearing and rehearing
en banc denied and opinion
modified by order filed 10/17/02
                  UNPUBLISHED

            UNITED STATES COURT OF APPEALS

                 FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

      v.                 No. 99-4783

MARK PAUL SARNO,
     Defendant-Appellant.
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

      v.                 No. 00-4795

MARK PAUL SARNO,
     Defendant-Appellant.
4444444444444444444444444444444444444444444444448

Appeals from the United States District Court

for the Middle District of North Carolina, at Durham.

    William L. Osteen, District Judge.
   (CR-99-58, CR-99-134, CR-99-135)

           Argued: December 4, 2001

            Decided: May 24, 2002

Before WIDENER and LUTTIG, Circuit Judges, and

Joseph R. GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.


____________________________________________________________

Affirmed by unpublished per curiam opinion.

____________________________________________________________
                            COUNSEL

ARGUED: Stephen Clayton Gordon, Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. Lawrence Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Raleigh, Noth Carolina, for Appellant. Benjamin H. White,
Jr., United States Attorney, Greensboro, North Carolina, for Appellee.

____________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

____________________________________________________________

                            OPINION

PER CURIAM:

   Mark Paul Sarno (defendant) pleaded guilty and was sentenced for
loan application fraud, 18 U.S.C. § 1014, credit card fraud, 18 U.S.C.
§ 1029(a)(2), and mail fraud, 18 U.S.C. § 1341. Defendant appeals
the district court's denial of three motions, the district court's applica-
tion of three sentencing guidelines, and also raises an Apprendi issue.
We affirm the district court's decision in each of those claims.1

                       I.

                      A.

    The following facts underlie the charges. As to the loan application
fraud charge, on October 6, 1998 Defendant applied for two loans,
totaling $159,500, from the First Citizens Bank and Trust in Greens-
boro, N.C. On the application, defendant listed Paul Kaiser as co-
writer or guarantor on the loans; in addition, a deed of trust with Kai-
ser's signature was attached to the application.
____________________________________________________________
   1
       The 1998 Sentencing Guidelines were used in this case.

                       2
   Kaiser was described as the president and fifty-percent shareholder
of Zaitech Holdings. Zaitech was allegedly a real-estate/ investment
firm in Greensboro. Kaiser denied ever signing the deed of trust, ever
owning interest in Zaitech Holdings, and ever agreeing to be a guar-
antor of the loan.

   As to the credit card fraud charge, between February 1998 and Jan-
uary 1999, defendant obtained 13 credit cards through false state-
ments. The alleged loss exceeded $85,000, with an intended loss in
excess of $135,000.

    As to the mail fraud charge, defendant falsely held himself out to
be the sole proprietor of an investment firm to induce the victims to
relinquish their money. The victims were mailed statements showing
their alleged gains on the fake investments. More than $150,000 was
invested.

                     B.

   In January 1999, defendant was arrested and charged with violating
supervised release on previous federal charges. He allegedly con-
tacted Bill Osteen, an attorney, to represent him, but Sarno did not
employ Bill Osteen, claiming the fee was too high.2 Defendant claims
that Bill Osteen had had previous contact with one of the banks,
apparently concerning some unidentified source of money Sarno had
sent to the bank. At the arraignment in March, David Freedman
(Freedman) represented defendant where he entered a not guilty plea.
Subsequently, defendant sent letters to the district court alleging prob-
lems with Freedman; however, when asked about the representation,
defendant stated "Mr. Freedman will represent me, and that's fine."
He also stated that he had no other issues to raise with the court. Two
months later in May, defendant again stated he did not want to dis-
charge Freedman. At the change of plea hearing when he pleaded
guilty, defendant was given time to confer with counsel, was provided
options as to sentencing, and unequivocally pleaded guilty to all three
charges.3 Defendant also acknowledged that he was waiving constitu-
____________________________________________________________
   2
    Defendant claims that Bill Osteen offered to represent him for
$40,000.
   3
     Defendant was repeatedly asked by the district court if he wished to
discharge his counsel. Moreover, the district court stated it would not
accept a guilty plea unless defendant knowingly and intelligently waived
his right to a trial. Defendant twice reaffirmed his plea.

                     3
tional rights in so pleading. At the end of this proceeding, Freedman
informed the court that he may move for a mental health evaluation;
he did so on July 17, 1999.

    Prior to sentencing, defendant actively filed various motions and
attended multiple hearings on such motions. Defendant requested the
discharge of Freedman, which the district court granted during the
August 4, 1999 hearing.4 At this same hearing, the court thoroughly
questioned defendant about an alleged promise made by Freedman
and the prosecution to debrief defendant on inconsistencies in the fac-
tual content of his plea. Shortly after the hearing, defendant filed a
motion for a psychiatric evaluation; he also filed various other
motions between August 9 and 23. On September 21, 1999, the dis-
trict court denied the psychiatric evaluation after hearing argument on
the matter.

   Shortly after this September 21 hearing, Assistant Public Defender
Thomas Cochran (Cochran) began representing defendant and did so
throughout sentencing. On October 4, Cochran filed a position state-
ment objecting to the Presentence Report (PSR) inclusion of the
mass-marketing and abuse of trust enhancements and the exclusion of
the acceptance of responsibility adjustment. On this same day, defen-
dant's counsel also filed an "Acceptance of Responsibility" pleading.
The two-day sentencing hearing began the next day on October 5.

    The first day of sentencing defendant stated that he wished to chal-
lenge alleged false statements made by witnesses. The district court
allowed this, but noted that the fact may weigh against a reduction
under U.S.S.G. § 3E1.1 Acceptance of Responsibility. Defendant cal-
led Mr. Creason, an investor with defendant, who testified that he still
did not believe Zaitech Holdings to be a fraud. The court did not find
anything in the testimony to support defendant's motion and pro-
ceeded to sentencing. As to the mass-marketing and abuse of trust
enhancements, the district court relied on the PSR and affirmed the
application of the two provisions. As to the acceptance of responsibil-
ity, the court heard statements from the government and Camille Rob-
erts that defendant had recently misled these investors, inducing them
____________________________________________________________
  4
    Defendant also filed motions alleging witness tampering by the
United States Attorney's office.

                     4
to believe he would repay their money. The court allowed a two out
of three point reduction for accepting responsibility, but expressed
doubt in doing so.

    On the second day of sentencing, defendant moved to withdraw his
guilty pleas, alleging prosecutorial misconduct, concealment of evi-
dence, government collusion, and perjury. In addition, defendant
asserted ineffective assistance of counsel against his former attorney
Freedman, claiming a conspiracy between Freedman and the govern-
ment. The district court permitted defendant to write out his version
of the facts, which he felt the PSR omitted, on the condition that the
previous sentencing guideline rulings would be reconsidered. Mr.
Stout, a witness unavailable the day before, also testified that less
than a week before defendant assured him his funds were available.
After hearing argument on the acceptance of responsibility issue, the
district court reversed its decision and declined to grant a two-point
reduction. Immediately prior to being sentenced, defendant requested
the district court recuse itself, based on defendant's previous contact
with Bill Osteen. Finding Bill Osteen was not retained by defendant
and never made an appearance in the case, the district court declined
defendant's motion for recusal. Defendant was then sentenced to 115
months imprisonment, to run consecutive to a 48-month supervised
release violation.

    At conclusion of the hearing, the court admonished Cochran to do
three things: first, to "bring to the attention of the court within a
period of 30 days any evidence that he has which may reflect that the
United States Attorney has withheld and destroyed evidence in this
case"; second, to investigate whether perjury had occurred; and third,
to investigate possible collusion between Freedman and the U.S.
Attorney's office. After investigating, Cochran reported by letter that
he found no evidence to support the allegation of withholding or
destroying evidence or perjury. As to collusion between David Freed-
man and Assistant U.S. Attorney Auld, both of whom denied any col-
lusion, he could form no conclusion because a potential witness,
Assistant U.S. Attorney Weinman, would not respond to his request
without permission from his attorney. Weinman later spoke to Coch-
ran, denying collusion with the defendant's attorney, and this was
reported to the district judge by Cochran. The judgment of the district
court was filed December 7, 1989.

                     5
                      II.

    Defendant raises seven issues on appeal, three pertaining to the dis-
trict court's application of the sentencing guidelines, three relating to
denied motions, and lastly, an Apprendi issue.

                     A.

   Defendant challenges the district court's denial of his motion to
withdraw his guilty plea. We review a denial of a motion to withdraw
a guilty plea for abuse of discretion. United States v. Craig, 

, 178 (4th Cir. 1993). The question is whether the district court
abused its discretion in finding that the defendant had not shown a
"fair and just reason" for being allowed to withdraw his plea. 

(citing Fed. R. Crim. P. 32(e) as the standard). The
factors are (1) whether the defendant has offered credible evidence
that his plea was not knowing or not voluntary, (2) whether the defen-
dant has credibly asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the filing of the
motion, (4) whether defendant has had close assistance of competent
counsel, (5) whether withdrawal will cause prejudice to the govern-
ment, and (6) whether it will inconvenience the court and waste judi-
cial resources. United States v. Moore, 

, 248 (4th Cir.),
cert. denied, 

(1991).

    We are of opinion that the district court did not abuse its discretion
in refusing to allow the defendant to withdraw his guilty plea. Defen-
dant originally pleaded not guilty but then signed a plea agreement.
At the hearing on the change of plea, the court clearly explained to
defendant his three choices: first, to hire a new lawyer; second, to
plead not guilty and go to trial; third, to plead guilty. Defendant
admitted that no promises or threats had been made which would
have precluded voluntariness or knowledge. He did not object to the
Rule 11 proceeding. While defendant stated that he and his attorney
had disagreements, he conceded that he had cleared up all concerns
with counsel. He showed no error or prejudice with the representation
of his attorney. Defendant's motion was not timely, he waited until
his sentencing hearing then decided to challenge his guilty plea.
Moreover, the timing of the motion did not add to confidence in its

                      6
validity.5 We are of opinion the district court did not abuse its discre-
tion in its denial of Sarno's request to withdraw his plea of guilty.

                      B.

    Sarno also appeals the district judge's decision not to recuse him-
self. We review a denial of a district court's refusal to recuse itself
for abuse of discretion: United States v. DeTemple, 

, 283
(4th Cir. 1998), cert. denied, 

(1999). Defendant moved
for recusal at the eleventh hour, after the district court had determined
all of the guideline applications; the judge declined to recuse himself
and sentenced the defendant. The district judge affirmed his recusal
decision by order dated October 27, 2000. This order specified that
the judge had no notice of his son's alleged representation of defen-
dant. Defendant then filed a judicial complaint, which was dismissed
as frivolous by the Chief Judge of this court on April 20, 2000, being
wholly unsupported by factual allegations. Defendant then petitioned
the Circuit Judicial Council for a review of that order. The Judicial
Council denied Sarno's Petition for Review on May 30, 2000.

    28 U.S.C. § 455(b)(5)(ii) requires a judge to recuse himself if "he
or his spouse, or a person within the third degree of relationship to
either of them, or the spouse of such a person . . . is acting as a lawyer
in the proceeding." Proceeding is then defined to include pretrial,
trial, appellate review, or other stages of litigation. 28 U.S.C.
§ 455(d)(1).

   Defendant alleges that Bill Osteen, the district court judge's son,
was his lawyer in pretrial litigation. Apart from a brief reference to
Bill Osteen at a detention hearing,6 the only evidence of Bill Osteen's
____________________________________________________________
   5
     The district court noted the potential for bad-faith when it stated:
"You are either not knowledgeable enough to enter a plea, or you're
attempting to make a record to show later on that you were not ably rep-
resented by counsel. And we're going to shortstop both of those, because
you're either going to have a jury trial or you're going to knowingly and
willfully waive that and tender a plea of guilty."
   6
     At a detention hearing on February 3, 1999 before Magistrate Judge
Eliason, in which Sarno was represented by John Dusenbury, of the Fed-
eral Public Defender's office, Bill Osteen was referred to in relation to
conversations Dusenbury had with First Citizens Bank on or around Jan-
uary 18.

                      7
involvement in this case is a letter dated March 26, 1999 from the
attorney of First Citizens Bank to defendant. The letter reads:

          I am in receipt of your letter dated March 15, 1999 disputing
          the validity of your credit card debt to First Citizens. I was
          quite surprised to receive your letter, in that at no time dur-
          ing my telephone conversation with you and Bill Osteen did
          either of you dispute the validity of the debt.

Under the facts of this case, we find that the brief reference at the
detention hearing and this letter are inadequate to find that the district
court abused its discretion in denying recusal. First, as conceded by
the defendant, Bill Osteen was never retained nor appeared as a law-
yer of record in this case. Second, and in accord, this letter was
addressed to defendant, not his alleged counsel Bill Osteen, not infer-
ring that Bill Osteen was Sarno's attorney, especially in view of the
fact that Sarno now claims that Judge Osteen was biased because his
son was not employed by Sarno. Third, while we recognize the man-
datory nature of 28 U.S.C. § 455(b)(5)(ii), the recusal motion was
brought at the eleventh hour after six months of litigation. When this
motion was not granted, defendant attempted to recuse the district
court in an obvious effort to judge-shop to another district.7 More
importantly, however, there is no factual basis for defendant's claim
that the judge had knowledge of this case from his son or was biased
against defendant for not retaining his son in this action.8

                      C.

   Defendant next appeals the district court's denial of his motion for
a psychiatric examination which was requested by Sarno for sentenc-
ing but which was not requested with respect to his plea of guilty to
the merits. We review the refusal for an abuse of discretion. United
____________________________________________________________
    7
      During discussion on this recusal motion, the district court named all
the judges in the Middle District of North Carolina to find one which
defendant approved of; but the defendant claimed he could not receive
a fair trial from any of the judges in the district.
   8
     Defendant claimed the judge was unfair because he was angry that
defendant declined to hire his son.

                      8
States v. Cropp, 

, 363 (4th Cir. 1997), cert. denied, 

(1998).

   Defendant sought this evaluation to prove that he suffered from
"significant reduced mental capacity" under Sentencing Guideline
§ 5K2.13, which defines the term in Application Note 1 to mean a
"significantly impaired ability to (A) understand the wrongfulness of
the behavior comprising the offense or to exercise the power of rea-
son; or (B) control behavior that the defendant knows is wrongful."

   The district court set a hearing on this motion at which the defen-
dant could have, but did not, offer evidence. The only information
before the district court as to the necessity for the mental examination
was the motion of an earlier attorney, Freedman, and the statement of
the defendant that, some 15 or 20 years before, apparently on account
of a bank embezzlement charge in a New Jersey federal court, he,
Sarno, had attended Gamblers Anonymous meetings, apparently as a
result of psychological counseling. While the PSR indicated that
Sarno's father thought that Sarno had some kind of a mental problem,
the report indicated "There was no indication the defendant suffered
from any mental and/or emotional disorders during the presentence
interview. He was alert, cooperative, articulate, and appeared to pro-
vide well thought out responses to questioning on matters other than
the instant offense." Sarno had told the probation officer that in the
early 1980's he had experienced problems with gambling and
acknowledged his willingness to participate in psychological counsel-
ing, from which the probation officer indicated he would benefit, in
the officer's opinion.

    On this record, the district court denied the motion of Sarno that
he receive a mental examination, but the court stated: "And I would
say whatever the sentence may be, that it would be my recommenda-
tion that you be housed at an institution, where, if you desire, and if
the authorities think it appropriate, that you be given treatment that
might assist you when you come out." The district court followed up
this oral statement in its judgment, as follows: "The court makes the
following recommendation to the Bureau of Prisons: the court recom-
mends that the defendant be housed to receive mental health counsel-
ing." On this record, we are of opinion the order of the district court
to deny a mental examination with respect to sentencing was not an

                      9
abuse of discretion and the judgment of the district court in that
respect is affirmed.

   The government argues that, in any event, Sarno should not be eli-
gible for any reduction in sentence due to diminished capacity
because of his extensive criminal record, which includes convictions
for bank embezzlement, bank fraud, wire fraud, mail fraud, interstate
transportation of falsely made securities, grand theft, escape, and a
bad check charge between 1982 and 1998.

   Because we believe the action of the district court in denying the
mental examination was not an abuse of discretion, however, we
express no opinion on the government's position with respect to the
criminal record.

                     D.

    Defendant next challenges his sentence under Apprendi. Defendant
must show plain error since he failed to raise this issue before the dis-
trict court. United States v. Kinter, 

, 199-200 (4th Cir.
2000), cert. denied, 

(2001). Defendant was sentenced
to 115 months; this sentence falls within the statutory limits under 18
U.S.C. § 1014 and 1029(a). Thus, there is no error and Apprendi does
not apply. See 

                     E.

   Defendant also challenges the district court's determination of
three sentencing guideline applications. We review the district court's
factual determinations concerning the application of the Sentencing
Guidelines for clear error and legal conclusions de novo. United
States v. Blake, 

, 503 (4th Cir. 1996). The government
bears the burden of showing that a guideline enhancement applies,
while the defendant has the burden of proving by a preponderance of
____________________________________________________________
   9
     Sarno's claim is that the adjustments for amount of loss, more than
minimal planning and defrauding, more than one victim, mass marketing,
and abuse of trust may not be used in sentencing unless "alleged in the
indictment and proven beyond a reasonable doubt," Br. p.61. We do not
agree.

                     10
the evidence mitigating factors that would lower his ultimate sentenc-
ing range. United States v. Urrego-Linares, 

, 1236-39
(4th Cir.), cert. denied, 

(1989).

                      1.

   First, defendant contests the district court's mass-marketing
enhancement. U.S.S.G. § 2f1.1(b)(3) provides that an offense com-
mitted through mass-marketing allows for a two level increase. The
district court determined that defendant had used mass-marketing to
commit his offenses.

   Application Note 3 defines mass-marketing as "a plan, program,
promotion, or campaign that is conducted through solicitation by tele-
phone, mail, the Internet, or other means to induce a large number of
persons . . . (C) to invest for financial profit." Unfortunately, case law
on this provision and application note is sparse.

   While the government bears the burden of proving enhancements,
the district court may accept the PSR as its findings of fact. If so, the
defendant must then show that the PSR is incorrect or unreliable.
United States v. Terry, 

, 162 (4th Cir. 1990). The district
court adopted the findings of fact in the PSR, concluding that the web
page flyers "were passed out with, obviously, the intent to make
inquirers, and people who might show interest, to believe that it [the
company] was global."10 While defendant disagreed as to whether the
flyers containing the web page information were actually passed out,
he presented no rebuttal evidence to these factual contentions at his
sentencing hearing. With no contradictory evidence, we cannot say
that the district court clearly erred in adopting the factual findings in
the PSR. As to defendant's argument that the 13 people he defrauded
do not equate to a "large number of people," the provision states "a
campaign conducted . . . to induce a large number of people." The
provision does not state that a large number of people must actually
be defrauded by the mass-marketed fraudulent actions. U.S.S.G.
§ 2F1.1(b)(3) Application Note 3 (emphasis added). As found by the
district court, the defendant conducted a campaign designed to induce
____________________________________________________________
   10
        The web page was never launched.

                      11
a large number of people to invest; fortunately, however, no more
than 13 were defrauded. For these reasons, we affirm the mass-
marketing two-point enhancement.11

                       2.

    Second, defendant contests the district court's enhancement for
abuse of trust. U.S.S.G. § 3B1.3 provides that"[i]f a defendant abused
a position of public or private trust, or used a special skill, in a man-
ner that significantly facilitated the commission or concealment of the
offense, an increase by two levels." Application Note 1 defines a trust
position as "characterized by professional or managerial discretion
(i.e., substantial discretionary judgment that is ordinarily given con-
siderable deference)."

   The abuse of trust issue is viewed from the victims' perspective.
United States v. Akinoye, 

, 203 (4th Cir. 1999), cert.
denied, 

(2000). Defendant argues that since the inves-
tors knew of his past criminal history, they did not place him in a
position of trust.

    We find no error and affirm the district court's two point enhance-
ment for abuse of trust. We do so for two reasons. First, assuming
defendant's argument is correct, we question whether all of the inves-
tors knew of defendant's past criminal history. Camille Roberts testi-
fied, "I never did once know that he was already in trouble for a
federal violation previous or I would not never have invested in him."
Second, defendant held himself out as the sole proprietor of an
invented firm which, in this case, illustrated "professional or manage-
rial discretion" under U.S.S.G. § 3B1.3 Application Note one.

                       3.

   Third, defendant challenges the district court's denial of his accep-
tance of responsibility claim under Guidelines § 3E1.1 as a mitigating
sentencing factor. The defendant contends that he fully accepted
responsibility through papers filed on October 3, 1999. The district
____________________________________________________________
   11
        We do not hold that 13 is not a large number of people.

                       12
court originally granted a two, out of three, point reduction for accep-
tance of responsibility, noting that it was an "extremely close call."
Defendant then, however, filed a motion to withdraw his guilty pleas,
but later argued that this motion did not warrant a reversal of the dis-
trict court's two point reduction for acceptance of responsibility. He
claimed to be only challenging his legal, not factual, guilt. Defendant,
however, rewrote his factual version of the PSR, with the understand-
ing that the district court would revisit all of its previous guideline
findings. In addition, a witness testified that defendant, less than a
week earlier, had assured him his money would be returned, which
never occurred. From these facts and transcripts from the hearing, we
find no error in the district court's denial of an acceptance of respon-
sibility credit.

                     III.

    In conclusion, we affirm the district court's denial of defendant's
motions to withdraw his guilty plea, to have the district court recuse
itself, and to undergo a psychiatric evaluation. We find no merit to
defendant's Apprendi argument. We also affirm the district court's
sentencing guideline applications.

                            AFFIRMED

                     13