UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4515
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE LEWIS,
Defendant - Appellant.
No. 02-4516
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE LEWIS,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (CR-01-114, CR-01-604)
Submitted: June 9, 2003 Decided: June 26, 2003
Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory P. Harris, Columbia, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Eric William Ruschky,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Andre Lewis challenges his
convictions and concurrent seventy-eight month sentences for
conspiracy to conduct and attempt to conduct embezzlement and
misapplication of credit union funds in violation of 18 U.S.C.
§§ 657, 1956(a)(1) (2000) in No. 02-4515; and seven counts of
knowingly and willfully misapplying moneys, funds, and credits
belonging to the credit union, in violation of 18 U.S.C. § 3083
(2000) in No. 02-4516.
Lewis claims the district court erroneously increased his
offense level by four levels because his offense “substantially
jeopardized the safety and soundness of a financial institution.”
U.S. Sentencing Guidelines Manual § 2F1.1(b)(8)(A) (2000). He
argues that the Government failed to show that the credit union’s
insolvency was a direct consequence of the offense because the
National Credit Union Administration (NCUA) wrote off the loans
instead of making an effort to collect on them.
A district court’s application of the Sentencing Guidelines is
reviewed for clear error as to factual findings; legal
determinations are reviewed de novo. United States v. Blake, 81
F.3d 498, 503 (4th Cir. 1996). For a sentencing enhancement to
apply, the government must prove the facts underlying the
enhancement by a preponderance of the evidence. United States v.
Hill, 322 F.3d 301, 307 (4th Cir. 2003).
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Loan losses attributed to the offenses of conviction were
$463,035.15. This loss exceeds the loan loss reserve and regular
reserve by $131,263.15. Lewis failed to show that any of the loans
deemed uncollectible by the NCUA were, in fact, collectible.
Therefore, we conclude the district court properly found Lewis
substantially jeopardized the safety and soundness of the credit
union and affirm Lewis’s sentence. 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
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