Filed: Feb. 24, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5336 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN KENT COLVIN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:09-cr-00072-D-1) Submitted: February 7, 2012 Decided: February 24, 2012 Before SHEDD, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Paul K. Sun, Jr., ELLI
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5336 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN KENT COLVIN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:09-cr-00072-D-1) Submitted: February 7, 2012 Decided: February 24, 2012 Before SHEDD, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Paul K. Sun, Jr., ELLIS..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5336
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN KENT COLVIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
District Judge. (4:09-cr-00072-D-1)
Submitted: February 7, 2012 Decided: February 24, 2012
Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Kent Colvin appeals his conviction by jury and
his subsequent 300-month sentence for mail fraud and conspiracy
to commit mail fraud. After thoroughly examining the record and
the contentions of the parties, we affirm.
First, Colvin attacks his conviction on the ground
that certain of the trial court’s evidentiary rulings violated
his constitutional right to present a defense. As an initial
matter, we observe that “the crux of [Colvin’s] complaint is
that he was not allowed to present a particular defense. As
such, it is better framed as an evidentiary argument.” United
States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009).
Still, “[w]hether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the Compulsory Process
or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’” Holmes v. South
Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky,
476 U.S. 683, 690 (1986)). Where exclusion of evidence is
“arbitrary” or “disproportionate” — that is, “important defense
evidence” is excluded without serving “any legitimate interests”
or in a manner that is “disproportionate to the ends that [the
rationale for exclusion is] asserted to promote” — it may
violate a defendant’s constitutional rights.
Id. at 324, 326.
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Nevertheless, “a defendant’s right to present a
defense is not absolute: criminal defendants do not have a
right to present evidence that the district court, in its
discretion, deems irrelevant or immaterial.” United States v.
Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003). Thus, not
surprisingly, “the Constitution permits judges to exclude
evidence that is repetitive . . . , only marginally relevant or
poses an undue risk of harassment, prejudice, or confusion of
the issues.”
Holmes, 547 U.S. at 326-27 (internal alterations
omitted). Of course, a district court’s evidentiary rulings are
reviewed only for abuse of discretion. United States v. Hill,
322 F.3d 301, 304 (4th Cir. 2003). And even then, “not every
[evidentiary] error amounts to a constitutional violation.”
United States v. Stever,
603 F.3d 747, 755 (9th Cir. 2010).
Instead, only the erroneous exclusion of evidence “important” to
the defense may violate the Constitution.
Holmes, 547 U.S. at
324;
Stever, 603 F.3d at 755.
Here, Colvin expresses his disquietude with the
district court’s decision to exclude evidence pertaining to his
defense theory that Scott Hollenbeck, Colvin’s associate,
perpetrated the fraud on his own and then hired two lawyers to
blame Colvin for the fraud and bias the investors against
Colvin. Our review of the record convinces us, however, that
the evidence that Colvin sought to introduce was of limited
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probative value and that his constitutional rights were not
violated when the trial court exercised its discretion to
exclude it.
Colvin next challenges his sentence as both
procedurally and substantively unreasonable. We review a
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). We
first ensure that the district court committed no significant
procedural error, “such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C. § 3553(a) (2006)]
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.”
Id. If
no procedural error was committed, we review the sentence for
substantive reasonableness, taking into account the “totality of
the circumstances.”
Id. Indeed, “an appellate court must defer
to the trial court and can reverse a sentence only if it is
unreasonable, even if the sentence would not have been the
choice of the appellate court.” United States v. Evans,
526
F.3d 155, 160 (4th Cir. 2008) (emphasis in original). A
sentence that falls within a properly calculated Guidelines
range is presumptively reasonable. United States v. Allen,
491
F.3d 178, 193 (4th Cir. 2007).
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Colvin first asserts that the district court erred in
calculating the loss involved in his offense under U.S.
Sentencing Guidelines Manual (“USSG”) § 2B1.1(b)(1)(L) (2010),
which provides for a 22-level enhancement for a loss of more
than $20 million but less than $50 million. Of course, the
district court’s factual determinations with respect to this
issue must stand, absent clear error. Elliott v. United States,
332 F.3d 753, 761 (4th Cir. 2003). And “only a preponderance of
the evidence need support these factual findings.” United
States v. Miller,
316 F.3d 495, 503 (4th Cir. 2003). Further,
“[t]he court need only make a reasonable estimate of the loss,”
and its loss determination “is entitled to appropriate
deference,” given its unparalleled access to the pertinent
facts. USSG § 2B1.1, cmt. n.3(C). We have thoroughly reviewed
each of Colvin’s challenges to the district court’s loss
calculation and are persuaded that the district court made a
reasonable estimate of the loss in this case.
Nor do we find any error with the enhancements applied
to Colvin’s Guidelines calculations by the district court. With
respect to the 2-level USSG § 2B1.1(b)(8)(C) (2010) enhancement
that Colvin received for the violation of Hollenbeck’s cease and
desist order, sufficient evidence existed to support the
district court’s conclusion that Colvin knew that Hollenbeck’s
continued hawking of investments would violate the order.
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Likewise, the district court possessed sufficient grounds to
assess a 4-level leadership enhancement under USSG § 3B1.1(a)
(2010) and a 6-level enhancement under USSG § 2B1.1(b)(2)(C)
(2010).
Finally, although Colvin assails the substantive
reasonability of his sentence by recounting his personal
characteristics and attacking the fraud guidelines in USSG
§ 2B1.1 as containing overlapping enhancements and amorphous
concepts of loss, see, e.g., United States v. Parris, 573 F.
Supp. 2d 744, 750-55 (E.D.N.Y. 2008), he cannot escape the fact
that he in fact received a downward variant sentence. We
decline to hold that, on the circumstances of this case, the
sentence received by Colvin was substantively unreasonable.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before the court and argument will not aid the decisional
process.
AFFIRMED
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