UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4985
BRUCE CHARLES HEGGEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-02-145)
Submitted: October 20, 2003
Decided: December 4, 2003
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Scott H. Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina, for Appellant. Joshua Brian Howard, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HEGGEN
OPINION
PER CURIAM:
Bruce Charles Heggen pled guilty without benefit of a plea agree-
ment to ten counts of bank fraud, 18 U.S.C. § 1344 (2000), and one
count of credit card fraud, 18 U.S.C. § 1029(a)(2) (2000). Heggen
was sentenced to seventy-five months incarceration, on each count of
conviction, to run concurrently with each other but consecutive to a
previously imposed federal sentence. He was sentenced to a special
assessment of $1100 and restitution of $59,125.66. Heggen appeals
his conviction and sentence. Finding no error, we affirm.
In a brief filed pursuant to Anders v. California, 386 U.S. 738
(1967), counsel for Heggen raised the possibility of error by the dis-
trict court when it granted the Government’s motion for an upward
departure from offense level thirteen, criminal history category VI, to
offense level nineteen, criminal history category VI. Upward depar-
tures are reviewed for abuse of discretion under the multi-part test set
out in Koon v. United States, 518 U.S. 81, 100 (1996); see also United
States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996). The guidelines
encourage an upward departure when the defendant’s criminal history
category does not adequately reflect the seriousness of his prior crimi-
nal conduct. U.S. Sentencing Guidelines Manual § 4A1.3 (2000). The
district court sufficiently explained the basis for the departure and the
extent of the departure, and Heggen had adequate notice that the court
would consider a departure. We find the district court did not abuse
its discretion.
Heggen filed a supplemental brief raising five additional issues.
First, he addresses the district court’s judgment requiring the payment
of $59,125.66 of restitution to the victims of the fraud. The district
court heard testimony from the Secret Service agent who investigated
the fraud as to the extend of loss, and Heggen does not assert that any
other computation would be more accurate. Because a preponderance
of the evidence supports the district court’s factual finding, it will not
be disturbed on appeal. See United States v. Carter, 300 F.3d 415,
427 (4th Cir. 2002).
Second, Heggen asserts the crimes enumerated in the presentence
report were part of three distinct schemes and therefore should have
UNITED STATES v. HEGGEN 3
been grouped. Because the numerous convictions were not grouped
for trial or for sentencing, they were properly counted separately
under USSG § 4A1.1. Heggen further asserts he was awarded crimi-
nal history points for his conviction for failing to self surrender, and
that act was double counted when the failure to report was treated as
an escape, and further points were added to his criminal history for
escape. The three points for his conviction for failure to appear for
service of sentence on August 22, 2001, were properly added under
USSG § 4A1.1(a). Likewise, two points were properly added to the
subtotal of forty criminal history points pursuant to USSG § 4A1.1(d)
and § 4A1.2(n) for committing the instant offense while under a crim-
inal justice sentence; an additional point was properly added under
§ 4A1.1(e) and § 4A1.2(n) for committing the instant offense while in
escape status. See United States v. Wilson, 198 F.3d 467, 472 n* (4th
Cir. 1999). We find Heggen’s criminal history was properly calcu-
lated.
Heggen’s remaining three claims warrant no relief. First, our
review of the record shows that the Government complied with its
obligations regarding discovery, and Heggen was not deprived of any
evidence to which he was entitled. Next, Heggen’s conclusory state-
ments do not establish that any delay in initiating his prosecution was
prejudicial or was the result of Government harassment. Finally, Heg-
gen did not move to suppress his statement or the evidence seized by
the Secret Service during a consensual search, so he has waived his
right to raise a challenge in this regard.
We have, as required by Anders, reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If Heggen requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court to withdraw from representation. 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