BEAM, Circuit Judge.
James Van Doren appeals his conviction and sentence as well as the district court's
In 2013, a grand jury charged James Van Doren and two codefendants in a multicount indictment containing various counts of bankruptcy fraud, money laundering, wire fraud, and similar charges, all related to financial dealings between the three men charged. The twenty-seven-count, third superseding indictment specifically named Van Doren in seven counts, and he ultimately pled guilty to one count, count 24, which charged Van Doren with money laundering by engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957.
As relevant to this matter, and in general terms, the third superseding indictment contained allegations of an elaborate scheme by Brandon Barber, Van Doren, and Barber's attorney K. Vaughn Knight to defraud Barber's creditors by concealing income, assets, and funds from them in
Particular transfers of money between Barber and Van Doren formed the basis for Van Doren's guilty plea and the district court's loss calculations at sentencing. The factual basis for the guilty plea states:
Van Doren later moved to withdraw his plea, advancing that he was "compelled by conscience to act with honesty and integrity... [and therefore could not] honor a commitment to truthfulness and continue to affirm a legal position that is contrary to the truth." He specifically clarified that his claim was not that the district court committed any procedural error under the Federal Rules of Criminal Procedure during its acceptance of his guilty plea, but rather, in his own words, his request to withdraw his plea was "based solely on his
We review the denial of a motion to withdraw a guilty plea for an abuse of discretion. United States v. Gamble, 327 F.3d 662, 663 (8th Cir.2003). Relevant here, under Federal Rule of Criminal Procedure 11(d), a defendant may withdraw a plea of guilty before the court imposes a sentence if "the defendant can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B). "`While the standard is liberal, the defendant has no automatic right to withdraw a plea.'" United States v. Heid, 651 F.3d 850, 853 (8th Cir.2011) (quoting United States v. Ramirez-Hernandez, 449 F.3d 824, 826 (8th Cir.2006)). Rule 11(b)(3) additionally mandates that "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." Fed.R.Crim.P. 11(b)(3). A defendant may establish a fair and just reason for withdrawing his guilty plea by demonstrating that his plea is not supported by an adequate factual basis. Heid, 651 F.3d at 855-56.
Van Doren renews his contention that an inadequate factual basis existed for his guilty plea and, thus, that a fair and just reason exists for withdrawing the plea. The crux of Van Doren's claim is that because count 24 does not specify the facts supporting the basis for the underlying wire fraud charge (the "specified unlawful activity" supporting the money laundering charge), we look to count 23 of the indictment, where allegations of conduct underlying a wire fraud charge are explicated, to discern whether the conduct that Van Doren admitted to in his plea constitutes the offense charged in count 24. In that vein, Van Doren argues that, looking to count 23, the only specification in the indictment for the manner of commission of the wire fraud was through "a scheme and artifice to defraud Barber's creditors and for obtaining money and property by means of false and fraudulent pretenses, representations and promises."
We agree with Van Doren that the determinative issue in this matter is whether the factual basis supporting the plea suffices to establish the offense charged in the indictment as required, but our agreement ends there. See United States v. Cheney, 571 F.3d 764, 769 (8th Cir.2009) (describing when a guilty plea is supported by a sufficient factual basis). The factual basis of Van Doren's plea suffices to establish the offense charged.
United States v. Steffen, 687 F.3d 1104, 1113 (8th Cir.2012) (third alteration in original), (quoting United States v. Colton, 231 F.3d 890, 898-99 (4th Cir.2000)). Simply, wire fraud under § 1343 can be established by a fraudulent scheme involving concealment. Pasquantino v. United States, 544 U.S. 349, 356, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) ("[F]raud at common law included a scheme to deprive a victim of his entitlement to money. For instance, a debtor who concealed his assets when settling debts with his creditors thereby committed common-law fraud.").
As to Van Doren's alleged actual innocence supporting a fair and just reason for his requested withdrawal, we have thoroughly analyzed Van Doren's arguments on appeal, carefully reviewed the record, and adopt the court's thorough and well-reasoned orders on this issue. 8th Cir. R. 47B. We therefore affirm the district court in all respects on Van Doren's motions to withdraw his plea and reconsideration of the same following the district court's initial denial.
Finally, Van Doren claims the district court erroneously calculated the offense level enhancements and, as a result, improperly increased his Guidelines range. He asserts the loss calculation should have been limited to the value of what he claims to be the laundered funds — which he claims was $22,000 (i.e., the amount Van Doren wired to The Barber Group after depositing $64,000 into his own bank account in New York) — as opposed to the $244,000 amount utilized by the district court in arriving at its sentence calculation. This would have resulted in a four-level increase rather than the twelve-level increase imposed. The $244,000 figure utilized by the district court in its sentence calculation is comprised of three financial transactions: the $64,000 check that is the subject of the factual basis in Van Doren's plea; $30,000 cash delivered to Van Doren by Barber and deposited by Van Doren into a safe deposit box owned by Van Doren; and $150,000 wired by Barber's attorney to a bank account in New York in the name of Epsilon Investments, LLC, an entity allegedly owned by Van Doren.
"We review de novo the `legal conclusions a district court reaches in order to apply an enhancement for purposes of calculating an advisory guidelines range... while the factual findings underpinning the enhancement are reviewed for clear error.'" United States v. Battle, 774 F.3d 504, 516 (8th Cir.2014) (alteration in original) (quoting United States v. Butler, 594 F.3d 955, 965 (8th Cir.2010), cert. denied, ___ U.S. ___, 135 S.Ct. 1881, 191 L.Ed.2d 752 (2015)). "`[S]entencing judges are required to find sentence-enhancing facts only by a preponderance of the evidence.'" United States v. Norwood, 774 F.3d 476, 479 (8th Cir.2014) (per curiam)
Section 2S1.1(a) of the Guidelines describes how a district court must calculate the base offense level for the crime of money laundering. Section 2S1.1(a)(1) provides that if, as here, the defendant committed the underlying offense, then the offense level for the underlying offense serves as the base offense level for the money laundering crime. U.S.S.G. § 2S1.1(a)(1). As discussed above, the facts in the plea agreement establish that Van Doren aided and abetted Barber in committing the wire fraud offense that served as the basis for the money laundering charge in count 24. Accordingly, the district court appropriately calculated Van Doren's base offense level using the guideline for the wire fraud offense. U.S.S.G. § 2B1.1. The district court concluded that the base offense level for the wire fraud offense was six, and the court added a mandatory one-level increase for a money laundering conviction under 18 U.S.C. § 1957. U.S.S.G. §§ 2B1.1(a)(2) and 2S1.1(b)(2)(A). Applying § 2B1.1(b)(1)(G), the district court additionally increased Van Doren's offense level by twelve after concluding that all three transfers alleged in relation to Van Doren were part of the same scheme to defraud that formed the basis for the wire fraud offense. U.S.S.G. § 2B1.1(b)(1)(G) (proscribing that if a defendant is convicted of an offense involving fraud or deceit and the loss exceeded $200,000, a twelve-level enhancement applies).
The district court committed no error in its sentencing calculations, correctly calculated the losses associated with the wire fraud offense, and we find no clear error in its factual findings underpinning the calculation. Section 1B1.3(a) provides that unless otherwise specified, the specific offense characteristics (i.e., loss calculations) shall be determined on the basis of all acts and omissions committed, aided, and abetted, or willfully caused by the defendant, and in the case of a jointly undertaken criminal activity, "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(A), (B). Too, conduct comprising a dismissed count may be used as relevant conduct for sentencing purposes. United States v. Andreano, 417 F.3d 967, 970 (8th Cir.2005). Evidence of the three transactions discussed here, and the district court's use of them in its sentencing calculation, was foremost at issue during the sentencing hearing, and all of these transactions formed the basis of the wire fraud and money laundering charges against Van Doren. The district court did not clearly err in determining that the three financial transactions were part of a single underlying scheme to defraud and thus accurately calculated Van Doren's sentence according to the Guidelines.
For the reasons stated herein, we affirm.
That specific language of count 23 tracks the language of § 1343 "Fraud by wire, radio, or television," which provides that "[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises" transmits by wire, any writing, sign, signal, picture or sound for the purpose of executing the fraudulent scheme, shall be fined or imprisoned not more than 20 years, or both. 18 U.S.C. § 1343.