UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NORMAND THOMAS TURGEON,
Defendant - Appellant.
No. 04-4169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH CHARLES GRIFFITH,
Defendant - Appellant.
No. 04-4181
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID GREGORY MUELLER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CR-03-25-SGW)
Submitted: September 22, 2004 Decided: September 13, 2005
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Deborah S. Caldwell-Bono, Roanoke, Virginia; Lowell H. Becraft,
Jr., Huntsville, Alabama; William H. Cleaveland, WILLIAM H.
CLEAVELAND, P.L.C., Roanoke, Virginia, for Appellants. John L.
Brownlee, United States Attorney, Jennie L. M. Waering, Assistant
United States Attorney, Roanoke, Virginia; Thomas E. Booth,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Normand Thomas Turgeon, Kenneth Charles Griffith, and
David Gregory Mueller were indicted of seven counts of mail and
wire fraud, in violation of 18 U.S.C. §§ 1341, 1343 (2000), and one
count of conspiracy to commit fraud, in violation of 18 U.S.C.
§ 317 (2000). Appellants undertook a scheme to acquire land in
Floyd County, Virginia, from out-of-state owners, and then sell
timber rights to commercial loggers. In some cases, Appellants
contracted to purchase land from the owners, but sold the timber
rights before they owned the land outright, in violation of state
law. In other cases, Appellants attempted to lay claim to the land
under the doctrine of adverse possession, but did not meet the
statutory minimum possession time. Appellants were arrested and
charged with fraud. Following a five-day jury trial, Appellants
were convicted on all counts. Griffith was sentenced to twenty-
four months in prison, and Turgeon and Mueller were each sentenced
to twenty-seven months in prison. They now appeal.1
Appellants raise several issues regarding their trial
defense of adverse possession. At the heart of their appeal is
their purported belief that under the doctrine of adverse
possession, they obtained legal title to land as soon as they had
taken open and hostile possession of the property. However, under
1
We grant the Government’s motion to file a supplemental brief
to address Griffith’s appeal, which was initially dismissed for
failure to prosecute, but subsequently reinstated.
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Virginia law, “to establish title to real property by adverse
possession, a claimant must prove actual, hostile, exclusive,
visible and continuous possession, under claim of right, for the
statutory period of 15 years.” Kim v. Douval Corporation, 529
S.E.2d 92, 95 (Va. 2000); see also Va. Code Ann. § 8.01-236 (Michie
2000). Accordingly, we find that the district court did not abuse
its discretion in refusing to submit Appellants’ incomplete and
erroneous jury instructions that omitted the fifteen-year
requirement, Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir.
1999) (defining the standard of review); United States v. Sloley,
19 F.3d 149, 153 (4th Cir. 1994) (requiring that a requested
instruction be supported by an evidentiary foundation and
accurately state the applicable law), and that the court’s adverse
possession instructions accurately reflected state law. Kim, 529
S.E.2d at 95; Va. Code Ann. § 8.01-236.
We also reject Appellants’ claims that the district
court’s refusal to adopt their interpretation of adverse possession
law prejudiced their case, that the court’s demeanor deprived them
of a fair trial, and that the court erred by refusing to allow them
to present excerpts of case law to establish the defense of adverse
possession. Additionally, we reject Appellants’ claims that the
court inappropriately questioned Griffith’s credibility, and
erroneously refused to admit evidence of a defective deed in the
title of one of the properties involved in the fraudulent scheme.
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These arguments are all based on Appellants’ purported belief that
they obtained legal title at the moment they entered the victims’
property. We find that the district court’s rulings were an effort
to conduct the trial within the framework of an articulation of
applicable law. Additionally, as the district court noted,
Appellants’ stated belief that they held legal title to the
properties in question does not shield them from liability for
trespass, fraud, or any action brought by the legal owner. Thus,
any error by the court was harmless. United States v. Brooks, 111
F.3d 365, 371 (4th Cir. 1997).
Turgeon also contends that the evidence presented at
trial was insufficient to find him guilty of Count VIII, because he
sold his company and withdrew from the conspiracy before Griffith
sold the timber rights to the land that was the subject of Count
VIII. Thus, he contends, the district court erred by denying his
motion for a judgment of acquittal.
This court reviews the district court’s decision to deny
a motion for judgment of acquittal de novo. United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). Where, as here, the
motion was based on insufficient evidence, “[t]he verdict of a jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it.” Glasser v.
United States, 315 U.S. 60, 80 (1942). This court does not review
the credibility of the witnesses and assumes that the jury resolved
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all contradictions in the testimony in favor of the Government.
United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). Turgeon
was involved in the fraudulent scheme from the very beginning.
Although he alleges that he sold his company to Griffith and
withdrew from the conspiracy, there is no evidence, other than his
self-serving statement, that he exited the conspiracy. Viewing the
entirety of the evidence in a light most favorable to the
Government, and assuming that the jury resolved all inconsistencies
in favor of the Government, we conclude that a reasonable jury
could have concluded that Turgeon never withdrew from the
conspiracy. Romer, 148 F.3d at 364.
Finally, we turn to Appellants’ contention that their
sentences were enhanced based upon judicial fact-finding, in
violation of United States v. Booker, 125 S. Ct. 738 (2005). In
Booker, the Supreme Court held that the federal sentencing
guidelines’ mandatory scheme, which provides for sentencing
enhancements based on facts found by the court, violated the Sixth
Amendment. Booker, 125 S. Ct. at 746 (Stevens, J., opinion of the
Court). The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West
Supp. 2004) (requiring sentencing courts to impose a sentence
within the applicable guideline range), and 18 U.S.C.A. § 3742(e)
(West 2000 & Supp. 2004) (setting forth appellate standards of
review for guideline issues), thereby making the guidelines
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advisory. Booker, 125 S. Ct. at 756-57 (Breyer, J., opinion of the
Court)); United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
Because Appellants did not raise this claim in the
district court, their sentences are reviewed for plain error.
Hughes, 401 F.3d at 547 (citing United States v. Olano, 507 U.S.
725, 731-32 (1993)). To demonstrate plain error, a defendant must
establish that error occurred, that it was plain, and that it
affected his substantial rights. Olano, 507 U.S. at 731-32;
Hughes, 401 F.3d at 547-48. If a defendant establishes these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Hughes, 401 F.3d at 555
(internal quotation marks and citation omitted).
At sentencing, the Presentence Report (“PSR”) assigned
Appellants a base offense level of six, pursuant to U.S. Sentencing
Guidelines Manual § 2F1.1(a). The PSR then increased Griffith’s
and Turgeon’s offense level by eight levels for more than $200,000
in intended loss, under USSG § 2F1.1(b)(1). However, Mueller
received a seven-level increase for loss more than $120,000. All
three Appellants received a two-level increase for more than
minimal planning under USSG § 2F1.1(b)(2), and an additional two-
level increase for use of sophisticated means.
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After careful review of the record, we conclude that the
district court did not plainly err in applying the planning and
sophisticated means enhancements. Olano, 507 U.S. 725 at 731-32;
Hughes, 401 F.3d at 546-47, 556. At trial, Griffith testified to
participating in an elaborate conspiracy to acquire land from out-
of-state owners, and subsequently sell timber rights to commercial
loggers. Turgeon and Mueller did not deny these facts. Instead,
Appellants asserted that they either owned the land through a valid
contract, or mistakenly believed that under the doctrine of adverse
possession, they obtained legal title to land once they had taken
open and hostile possession of the property. However, the jury
necessarily rejected these claims in finding the Defendants guilty.
Accordingly, we find that the facts underlying the planning and
sophisticated means enhancements were admitted to by the
Defendants, and therefore find no Sixth Amendment violation for
these specific enhancements.
However, we conclude that the district court’s
enhancement for intended loss constitutes plain error which
warrants correction. Olano, 507 U.S. 725 at 731-32; Hughes, 401
F.3d at 546-47, 556. Although evidence of the amount of loss was
presented at trial, the jury did not necessarily have to determine
a specific amount of loss to return a guilty verdict. Moreover,
Appellants squarely objected to the amounts at sentencing, and on
appeal. Accordingly, we conclude that the application of these
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enhancements based upon judicial fact-finding constitutes plain
error under Booker.2 Moreover, it appears that without these
enhancements, all three Appellants would have been subject to lower
sentencing ranges, demonstrating that the error affected their
substantial rights. Consequently, we find that the error seriously
affected the fairness and integrity of the proceeding and should be
recognized. Hughes, 401 F.3d at 555.
Accordingly, we affirm Appellants’ convictions, but
remand for resentencing in accordance with Hughes.3 Appellants’
motions to file supplemental briefs are granted and the motions
deemed to be the supplemental briefs. We dispense with oral
argument because the facts and legal contentions are adequately
2
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4, (4th Cir. 2005), "[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time" of Appellants’ sentencing.
3
Although the sentencing guidelines are no longer mandatory,
United States v. Booker, 125 S. Ct. 738, 767 (2005), makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” On remand, the district
court should first determine the appropriate sentencing range under
the guidelines. Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
then impose a sentence. Id. & n.5. If that sentence falls outside
the guidelines range, the court should explain its reasons for the
departure, as required by 18 U.S.C.A. § 3553(c)(2) (West Supp.
2005). Id. The sentence must be within the statutorily prescribed
range and reasonable. Id. at 547.
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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