United States v. Uhrich

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4486

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID ALLEN UHRICH,

Defendant - Appellant.

No. 05-4487

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KELLY J. JOHNSTON,

Defendant - Appellant.

No. 05-4490

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FREDRIC D. LEFFLER,

Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. André M. Davis, District Judge. (CR-03-
10)

Argued: December 1, 2006 Decided: June 1, 2007

Before WILKINS, Chief Judge, WILKINSON, Circuit Judge, and Henry F.
FLOYD, United States District Judge for the District of South
Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Norman L. Smith, FISHER & WINNER, Baltimore, Maryland;
Richard Christopher Bittner, Glen Burnie, Maryland; Andrew Radding,
ADELBERG, RUDOW, DORF & HENDLER, L.L.C., Baltimore, Maryland, for
Appellants. Joyce Kallam McDonald, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Gregory M. Kline, ADELBERG,
RUDOW, DORF & HENDLER, L.L.C., Baltimore, Maryland, for Appellant
Kelly J. Johnston. Jeffrey E. Nusinov, FISHER & WINNER, Baltimore,
Maryland, for Appellant Fredric D. Leffler. Rod J. Rosenstein,
United States Attorney, Stephen M. Schenning, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Kelly J. Johnston, Fredric D. Leffler, and David A. Uhrich

were convicted of charges relating to a scheme to defraud mortgage

lenders. Johnston brings her appeal asserting that the district

court erred by: 1) upholding the Magistrate Judge’s probable cause

determination and denying her motion to suppress certain evidence;

2) mismanaging discovery in the case and denying her motion for a

continuance; 3) denying her motion to sever; 4) denying her motion

for a new trial; 5) denying her motion for judgment of acquittal;

6) incorrectly calculating the amount of loss attributable to her;

and 7) allowing the government to ignore its statutory obligations

regarding restitution. Leffler also argues that the district court

erred in denying his motion to sever.

In Uhrich’s appeal, he contends that the district court erred

by 1) admitting evidence of certain real estate transactions and 2)

sentencing him in violation of the Sixth Amendment to the

Constitution.

We disagree with the arguments made by Appellants and, thus,

for the reasons stated below, affirm the judgment of the district

court.

I.

This case arises out of a scheme to defraud mortgage lenders,

organized and led by Walter P. Hammond. From 1997 through 1999,

3
Hammond purchased over 200 properties from long time Baltimore

landlords who wished to sell all or part of their portfolios of

rental row houses. (J.A. at 1373.) Hammond found investors who

agreed to become “buyers” of the houses in exchange for a payment

from Hammond of $1,000 to $2,000 per house. The price of the

houses averaged between $10,000 and $15,000 per house, and Hammond

typically sold the houses for $40,000. (J.A. at 1362.) The

mortgage lenders believed they were financing the purchase of the

properties by loaning eighty percent of the purchase price of a

house to a buyer/investor who was putting up twenty percent of the

purchase prices. (J.A. at 815, 1004, 1013, 1306-07, 1328.)

Hammond’s scheme revolved around the mortgage loan. The

purchase prices of the houses were supported by false appraisals.

(J.A. at 1363, 1369, 1508, 1511.) The appraisals were artificially

inflated through the use of comparable houses which, in fact, were

out of the neighborhood or purchased at inflated prices in other

schemes to defraud. (J.A. at 1093, 1363.) Mortgage brokers,

working with Hammond, created fraudulent mortgage applications,

listing false information. (J.A. at 1368-69.) These applications

were submitted to lenders along with the inflated appraisals.

Settlement on the sale of a house to Hammond and on the

subsequent sale of the same house from Hammond to an investor

usually took place on the same day. One hundred forty five of

Hammond’s properties were settled at Tower Title and Performance

4
Title, two title companies run and owned by Co-Defendant Kelly J.

Johnston. (J.A. at 1727-28.) Co-Defendant Fredric D. Leffler

served as the title companies’ lawyer. (J.A. at 1727-28.)

At settlements, investors promised the lenders to pay the

mortgages, while Hammond promised the investors that they did not

have to pay the mortgages. Hammond supplied the investors with

cashier’s checks in the amount of the down payment required at the

settlement table. At first, the down payment funds came from

Hammond’s earlier property sales. (J.A. at 1378.) However,

certain lenders did not require a cashier’s check at settlement.

For such lenders, the down payment funds were provided for in one

of two ways. At times, the loan proceeds paid to Hammond were

reduced by the down payment amount. At other times, Johnston

and/or Leffler directed the title company employees to break the

escrow and advance to Hammond lender funds which he then used to

purchase a cashier’s check in the name of the investor. (J.A. at

1379-81.)

Hammond utilized Co-Defendant David A. Uhrich to locate

investors and agreed to pay Uhrich a referral fee for any investors

Uhrich recruited. (J.A. at 1365.) When one such investor did not

have sufficient income to qualify for a mortgage loan, Uhrich

suggested that she inflate her income on loan applications by

falsely using his company as her employer to add additional income.

(J.A. at 1112-13.)

5
 Uhrich borrowed $70,000 from another investor, Annette Porter,

to be used for the purchase of a house at 9499 Coral Crest Way,

Vienna, Virginia. (J.A. at 682-84, 715-16.) Uhrich was to repay

the $70,000 in three months. (J.A. at 682-84.) However, he was

unable to pay the money back. Instead, Uhrich offered Porter an

investment opportunity to make some money by becoming an investor

in Hammond’s scheme. (J.A. at 686.) Uhrich told Porter they could

open an account together and split the money paid by Hammond.

(J.A. at 689.)

Additionally, Uhrich and Hammond found large homes in which

they wished to live and titled the homes in the name of a fictional

buyer, Leandro Rivas. (J.A. at 715-16.) The homes were at 751

Intrepid Way, Davidsonville, Maryland, and at 9499 Coral Crest Way,

Vienna, Virginia. Hammond diverted proceeds from his scheme to

help purchase these homes, and Uhrich provided the loans and the

name Leandro Rivas.

Johnston was indicted on eighteen counts of mail and wire

fraud, convicted of five counts, sentenced to a period of

imprisonment of 27 months, and ordered to pay approximately $57,000

in restitution, among other penalties. Leffler was indicted on

seventeen counts of mail and wire fraud, convicted of all counts,

and sentenced to a period of imprisonment of 37 months. Uhrich was

indicted on four counts of mail and wire fraud, convicted of three

counts, sentenced to a period of imprisonment of 33 months, and

6
ordered to pay a $300 Special Assessment and approximately $82,000

in restitution. Each of these co-defendants now appeals.

II.

Johnston contends that the district court erred in upholding

the Magistrate Judge’s probable cause determination and denying her

motion to suppress certain evidence. We disagree.

A.

Although we make a de novo review of the denial of the motion

to suppress by the district court, the finding of probable cause by

the Magistrate Judge is entitled to great deference from this

Court. United States v. Wilhelm, 80 F.3d 116, 118-19 (4th Cir.

1996). Hence, our responsibility today is merely to make certain

that the Magistrate Judge “had a substantial basis for concluding

that probable cause existed.” Illinois v. Gates, 462 U.S. 213,

238-39, (1983) (alteration marks, internal quotation marks, and

citation omitted).

Search warrants must particularly describe the place to be

searched and the items to be seized. Andresen v. Maryland, 427

U.S. 463, 480 (1976). “[F]ishing expedition[s]” or “a random

exploratory search or intrusion” in violation of the

“particularity” requirement of the Fourth Amendment are disallowed.

United States v. Owens, 848 F.2d 462, 466 (4th Cir. 1988).

7
 The Fourth Amendment mandates that there be probable cause to

support that seizable items will be found in the place that is to

be searched before a search warrant can properly issue. United

States v. Wylie, 705 F.2d 1388, 1391-92 (4th Cir. 1983). Probable

cause is “a fair probability that contraband or evidence of a crime

will be found in a particular place.” Gates, 462 U.S. at 238.

“[I]nvalidation of an entire search based on a seizure of

items not named in the warrant is an extraordinary remedy that

should be used only when the violations of the warrant’s

requirements are so extreme that the search is essentially

transformed into an impermissible general search.” United States

v. Robinson, 275 F.3d 371, 382 (4th Cir. 2001) (citation and

internal quotation marks omitted).

“A valid search warrant may issue only upon allegations of

facts so closely related to the time of the issue of the warrant as

to justify a finding of probable cause at that time. Whether the

proof meets this test must be determined by the circumstances of

each case.” United States v. McCall, 740 F.2d 1331, 1335-36 (4th

Cir. 1984) (internal quotation marks omitted).

B.

The search and seizure at issue here was made pursuant to a

search warrant issued by the Magistrate Judge, whose probable cause

determination was based upon the affidavit of FBI Special Agent

James Costigan.

8
 Johnston asserts that the government failed to comply with the

particularity requirements outlined by this Court. According to

Johnston, the affidavit contains broad descriptions of documents to

be seized, with no effort made to tailor the description of

documents that would prove a criminal act.

Our review of the record, however, convinces us otherwise.

The affidavit in question goes to great length to detail: 1)the

actions of the appraiser and the mortgage broker in the scheme to

defraud, (J.A. 110-11); 2) information concerning the HUD-1

settlement documents (J.A. 112), including the identity of the

investors and details concerning their statements that they had

provided no funds at settlement (J.A. 114-5, 121, 126-7, 133, 138-

9); 3) the location where the settlements at issue occurred (J.A.

114, 126, 132, 136, 163-4); 4) the identity of the employees of the

title companies (J.A. 107, 114); 5) the employees who allegedly

conducted settlements with false HUD documents (J.A. 112, 114,

136), and 6) information regarding the relationship of Performance

Title as the successor of Tower Title. (J.A. 149.)

Therefore, contrary to Johnston’s contentions, it is hardly

disputable that probable cause existed for the Magistrate Judge to

find that evidence of fraud would be found at both of the title

company locations. Johnston next argues that the handwritten

interlineations in the affidavit supporting the search warrant

9
evidence that the Magistrate Judge ceased being “neutral and

detached.” We cannot agree.

Simply stated, Johnston’s bare allegation that the

interlineations demonstrate that the Magistrate Judge lacked

objectivity, without more, is an insufficient basis for us to find

that the search warrant was invalid. In fact, and as posited by

the government, we are of the firm belief that the interlineations

in the affidavit establish not that the Magistrate Judge ceased

being “neutral and detached” but instead that the Magistrate Judge

carefully considered the affidavit before deciding whether to issue

the search warrant.

As to Johnston’s contentions that the evidence seized was not

described with particularity and that too much time had passed

between the alleged crime and the search, we are unconvinced. Our

review persuades us that the subject search warrant was

sufficiently narrow in that it permitted the seizure of documents

associated only with Hammond, his corporations and his investors.

Accordingly, Johnston’s particularity argument fails.

Concerning Johnston’s staleness argument, we have earlier held

that “[t]he vitality of probable cause cannot be quantified by

simply counting the number of days between the occurrence of the

facts supplied and the issuance of the affidavit.” McCall, 740

F.2d at 1336 (quoting United States v. Johnson, 461 F.2d 285, 287

(10th Cir. 1972)). “Rather, we must look to all the facts and

10
circumstances of the case, including the nature of the unlawful

activity alleged, the length of the activity, and the nature of the

property to be seized.” Id.

The circumstances here are similar to those presented in

United States v. Farmer, 370 F.3d 435, 439 (4th Cir. 2004), in that

“all of the circumstances pointed toward a finding of probable

cause.” The allegations were “not mere isolated violations of the

law, but criminal activities of a protracted and continuous

nature.” Id. (alteration mark, citation, and quotation marks

omitted). Accordingly, Johnston’s staleness argument also fails.

III.

Johnston alleges that the district court erred by mismanaging

discovery and denying her motion for a continuance. This argument

is meritless.

A.

“Discovery matters are committed to the sound discretion of

the district court and an error in administering the discovery

rules is reversible only on a showing that the error was

prejudicial to the substantial rights of the defendant.” United

States v. Barnes, 634 F.2d 387, 390 (8th Cir. 1980) (citation

omitted).

The denial of a continuance is improper only when there is “an

unreasoning and arbitrary insistence upon expeditiousness in the

11
face of a justifiable request for delay. . . .” Morris v. Slappy,

461 U.S. 1, 11-12 (1983) (citation and internal quotation marks

omitted). Because the trial court enjoys great latitude in

managing its time, we review decisions regarding the trial calendar

for abuse of discretion. Id. at 12.

B.

Although the frustrations of defense counsel may be

understandable, Johnston has failed to provide any argument as to

how she was harmed by the government’s alleged discovery abuse.

Thus, because she has neglected to set forth that she was provably

prejudiced by the government’s alleged violations, we are unable to

find that the district court erred in managing the discovery in the

instant matter.

Regarding Johnston’s motion for a continuance, Johnston has

again failed to argue how she was prejudiced by the district

court’s denial of the request. Moreover, there is no evidence in

the record that the district court possessed “an unreasoning and

arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay. . . .” Morris, 461 U.S. at 11-12

(citation and internal quotation marks omitted). Consequently, we

are unable to conclude that the district court improperly denied

the motion.

12
 IV.

Johnston and Leffler aver that the district court erred in

denying their motions to sever. We are unconvinced.

A.

The district court’s decision to deny a motion to sever will

not be overturned “absent a showing of clear prejudice or abuse of

discretion.” United States v. Acker, 52 F.3d 509, 514 (4th Cir.

1995) (citation omitted).

Rule 14(a) provides that, “[i]f the joinder of offenses or

defendants in an indictment, an information, or a consolidation for

trial appears to prejudice a defendant or the government, the court

may order separate trials of counts, sever the defendants’ trials,

or provide any other relief that justice requires.” Fed. R. Crim.

P. 14(a).

“In ruling on a motion for severance, the trial court is

vested with discretion; it must carefully weigh the possible

prejudice to the accused against the often equally compelling

interests of the judicial process, which include the avoidance of

needlessly duplicative trials involving substantially similar

proof.” United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir.

1977)(citing United States v. Isaacs, 493 F.2d 1124, 1160 (7th Cir.

1974)). “The exercise of this discretion will be overturned only

for clear abuse affecting substantial rights of the accused.” Id.

13
(citing Cataneo v. United States, 167 F.2d 820, 823 (4th Cir.

1948)).

The district court has a “continuing duty at all stages of the

trial to grant severance if the requisite degree of prejudice

appear[s].” United States v. Spider, 800 F.2d 1267, 1273 (4th Cir.

1986 (citation omitted).

B.

Johnston makes two arguments as to how the district court

erred in denying her motion to sever. First, she maintains that

she was tried with multiple defendants regardless of her minor and

passive role in the alleged scheme. According to Johnston, much of

the evidence presented at trial against Johnston’s co-defendants

was totally unrelated to her, causing a serious risk that the jury

was unable to make a reliable judgment about her guilt or

innocence. We are unpersuaded.

The evidence at trial established that 135 checks from Tower

Title and 90 checks from Performance Title, totaling $3,730,625.49,

were issued to Hammond or his company during the course of the

fraudulent scheme. The evidence further demonstrates that Johnston

was the owner of the two title companies that handled most of the

fraudulent real estate transactions and that she participated in

some of the fraudulent transactions. Thus, even if Johnston was

not directly involved in all aspects of the fraudulent scheme, it

14
is clear that her criminal acts furthered the scheme. Therefore,

we find no undue prejudice here.

Second, Johnston argues that she was prejudiced by her joint

trial with Leffler, whose refusal to testify thwarted her ability

to fully and fairly defend herself. Thus, according to Johnston,

she was denied the availability of corroborating testimony

regarding advice of counsel from Leffler. Johnston fails, however,

to provide any reasonable basis for us to assume that Leffler would

have actually testified on her behalf at a separate trial or that

his testimony would have been profitable for her defense.

Accordingly, we find no reversible error in the district court’s

denial of the motion to sever on this basis.

C.

Concerning Leffler’s motion to sever, he alleges that

Johnston’s handwriting expert was called for no other purpose than

to attack Leffler on matters outside the indictment. According to

Leffler, Johnston employed the handwriting expert to suggest

Leffler’s involvement in matters outside the government’s case,

mainly the forgery of Johnston’s signature on certain checks that

were made payable to Leffler’s company, Arch Property Services

(ARP). The government had earlier raised questions about ARP for

reasons unrelated to the checks.

We have reviewed the record, however, and are unable find any

reversible error. Although neither the government nor Johnston

15
suggested that Leffler forged the checks, there can be no question

that there was an inference that Leffler was not entitled to the

funds that were deposited into his account. Nevertheless, having

“weigh[ed] the possible prejudice to the accused against the . . .

equally compelling interests of the judicial process, which

include[s] the avoidance of needlessly duplicative trials involving

substantially similar proof[,]” Jamar, 561 F.2d at 1106, we are

unable to conclude that the district court erred.

Leffler next maintains that Johnston’s testimony exculpated

Johnston while inculpating Leffler. According to Leffler,

Johnston’s testimony that she had in fact committed criminal acts,

but only in reliance of Leffler’s legal advice, prejudiced Leffler,

thus denying him a fair trial. We find this contention to be

without merit.

When the defendant neglects to demonstrate in what manner his

defense “is irreconcilable with that of his co-defendant, there is

no basis to grant the defendant’s motion for severance.” United

States v. Spitler, 800 F.2d 1267, 1272 (4th Cir. 1986) (citation

omitted).

Leffler’s counsel contended at trial that Leffler believed

that there were “legitimate business reasons” for his handling

Hammond’s real estate transactions in the manner that he did. (J.A.

399-401.) Thus, the jury was asked to believe that Leffler had no

criminal intent when he helped process the transactions. Leffler

16
also argues that he did not know of any of the illegal activities

associated with the scheme.

As to the question of criminal intent, we are unable to

fathom, and Leffler has failed to submit, how Leffler’s defense

that he believed Hammond’s strategy to be legitimate is

contradictory to Johnston’s defense that she relied on Leffler’s

guidance. Therefore, Leffler has failed to meet his burden as to

this issue.

Concerning Leffler’s asseveration that he lacked knowledge of

the illegal activities connected with the scheme, it is

indisputable that Leffler’s defense on this issue conflicts with

that of Johnston. “The mere presence of hostility among

defendants, however, or the desire of one to exculpate himself by

inculpating another are insufficient grounds to require separate

trials, and thus, antagonistic defenses do not per se require

severance even if the defendants attempt to cast the blame on each

other.” Spitler, 800 F.2d at 1271 (alteration marks, citations,

and quotation marks omitted).

“To make such showing where severance has been sought on the

ground of conflicting defenses, it must be demonstrated that the

conflict is so prejudicial that the differences are irreconcilable,

and that the jury will unjustifiably infer that this conflict alone

demonstrates that both are guilty.” Id. at 1272 (alteration marks,

17
citations, and quotation marks omitted). Leffler’s failure to make

such a showing is fatal to his argument on this issue.

V.

Johnston states that the district court erred in denying her

motion for a new trial. We find this contention to be unavailing.

A.

We review a district court’s denial of a Federal Rule of

Criminal Procedure 33 motion for an abuse of discretion. United

States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) “[A] court

should exercise its discretion to grant a new trial sparingly . .

. and . . . should do so only when the evidence weighs heavily

against the verdict.” Id. (internal quotation marks and citations

omitted).

B.

Simply stated, the evidence before us does not weigh heavily

against the verdict. In fact, the opposite is true. For instance,

each of the HUD statements in the real estate transactions was

false in as much as each listed the amount of money to be collected

from the buyer/borrower, although neither Johnston nor her

employees ever collected any of these funds. She also, on

occasion, fraudulently broke the escrow and disbursed the lender’s

funds to Hammond, who would then purchase a cashier’s check in the

borrower’s name. Thus, we are unpersuaded by Johnston’s arguments

18
on this issue. We also find Johnston’s arguments concerning

inconsistent verdicts futile. Hence, from our exhaustive review of

the record in this matter, we are unable to conclude that the

district court erred in denying this motion.

VI.

Johnston maintains that the district court erred in denying

her motion for judgment of acquittal. We are unpersuaded.

A.

We review de novo a district court’s denial of a motion for

judgment of acquittal. United States v. Gallimore, 247 F.3d 134,

136 (4th Cir. 2001).

To determine if there was sufficient evidence to support a

conviction, we consider whether, taking the evidence in the light

most favorable to the government, substantial evidence supports the

jury’s verdict. Glasser v. United States, 315 U.S. 60, 80 (1942)

(“The verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the government, to

support it.”).

Substantial evidence is defined as “that evidence which ‘a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.’” United States v. Newsome, 322 F.3d 328, 333 (4th Cir.

2003) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996)). We review both the direct and circumstantial evidence and

19
accord “the government the benefit of all reasonable inferences

from the facts proven to those sought to be established.” United

States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citation

omitted).

When reviewing claims of sufficiency of the evidence, “[t]he

relevant question is not whether the appellate court is convinced

of guilt beyond a reasonable doubt, but rather whether, viewing the

evidence in the light most favorable to the government, any

rational trier of facts could have found the defendant guilty

beyond a reasonable doubt.” Tresvant, 677 F.2d at 1021 (citations
omitted).
B.

As we have already observed, even if Johnston was not directly

involved in all aspects of the fraudulent scheme, it is clear that

her criminal acts furthered the scheme. She owned the title

companies that participated in the scheme and profited from the

illegal activity. Without her participation, the scheme would not

have succeeded. Therefore, we find no error in the district court’s

denial of this motion.

Johnston also argues that the district court’s decision to

reverse the order of counsel’s closing argument as another reason

that it should have granted Johnston a new trial. Johnston

maintains that her defense was, in large measure, dependant upon

the order of the closing argument. Johnston, however, neglects to

posit how her counsel’s argument would have differed if the order

20
had been as Johnston wished. Hence, we have no basis on which to

determine error.

VII.

Johnston asserts that the district court incorrectly

calculated the amount of loss attributable to her. According to

Johnston, the only evidence submitted by the government in support

of the loss number was flawed. Moreover, Johnston argues that she

was not provided with an opportunity to fairly litigate the issue

of loss at her sentencing. We are unpersuaded.

A.

When reviewing the loss amount calculated by the district

court, we review the factual findings of the district court for

clear error, and its legal interpretation of the Sentencing

Guidelines de novo. United States v. Parsons, 109 F.3d 1002, 1004

(4th Cir. 1997).

B.

The government presented evidence that the loss was between

$2.5 million and $5 million, but the district court found it was

between $1.5 million and $2.5 million; thus increasing the base

level offense by 12 levels. Johnston fails, however, to reveal

what she thinks the amount of loss to be. Given the facts of this

case, we conclude that the district court made a reasonable

estimate in making its loss calculation.

21
 With adjustments for abuse of a position of trust and more

than one victim/more than minimal planning, the Sentencing

Guidelines calculation came to a level 22, with a sentencing range

of 41-51 months. The district court departed downward, however, to

correct sentencing disparity between the defendants. We find no

error.

VIII.

Johnston maintains that the district court erred by allowing

the government to ignore its statutory obligations regarding

restitution. We find this error to be harmless.

A.

We review a restitution order for an abuse of discretion.

United States v. Vinyard, 266 F.3d 320, 333 (4th Cir. 2001).

B.

It appears that the restitution information was not included

in Johnston’s presentence report as required by 18 U.S.C. § 3664.

Nevertheless, testimony at trial and the business records were the

basis for the district court’s restitution determination. Thus,

because Johnston had notice as to the amount of the restitution, as

well as to whom it was payable, we are unable to find any

reversible error. See United States v. Dando, 287 F.3d 1007, 1010

(10th Cir. 2002) (“Defendant ... received the functional equivalent

of the notice required by the statute.”); United States v.

22
Catoggio, 326 F.3d 323, 329-30 (2d Cir. 2003) (rejecting

defendant’s argument that because an order of restitution must be

entered within 90 days of sentencing, the court should vacate the

restitution order without remanding for further proceedings).

Moreover, because Johnston fails to demonstrate actual

prejudice from the government’s failure to comply with the

procedural requirements of § 3664, we are unable to find any error

by the district court to be more than harmless.

[T]he purpose behind the statutory ninety-day limit on
the determination of victims’ losses is not to protect
defendants from drawn-out sentencing proceedings or to
establish finality; rather, it is to protect crime
victims from the willful dissipation of defendants’
assets.... Mindful of these goals, we have ruled that a
district court’s failure to determine identifiable
victims’ losses within ninety days after sentencing, as
prescribed by § 3664(d)(5), will be deemed harmless error
to the defendant unless he can show actual prejudice from
the omission.

United States v. Zakhary, 357 F.3d 186, 191 (2d Cir. 2004). See

also United States v. Johnson, 400 F.3d 187, 198-99 (4th Cir. 2005)

(stating that the failure to abide by the ten-day limit in section

3664(d)(5) is harmless error absent a showing of prejudice); United

States v. Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000) (noting that

not affording a defendant an opportunity to be heard as to the

proposed amount of restitution within the ninety days prescribed by

§ 3664(d)(5) is harmless error because “the court provided him

ample opportunity to object to the amount thereafter”); United

States v. Grimes, 173 F.3d 634, 638-39 (7th Cir. 1999) (holding

23
that because intended beneficiaries of § 3664(f)(1)(A) are victims,

defendants have no rights under § 3664 and trial court’s failure to

name all of the victims in the restitution order is not error).

IX.

Uhrich submits that the district court erred in admitting

evidence of certain real estate transactions. We reject the

argument.

A.

The Court reviews an alleged error in the admission of

evidence for an abuse of discretion. United States v. Gravely, 840

F.2d 1156, 1162 (4th Cir. 1988).

B.

Uhrich argues that the district court erred in admitting

evidence concerning the Interprid Place and Coral Crest real estate

transactions in violation of Rule 404(b) of the Federal Rules of

Evidence. Our review of the record, however, convinces us that the

district court admitted the evidence as “a part of a scheme that’s

alleged in the indictment . . . .” (J.A. 247 O-247 P.)

The record evidences that Hammond and Uhrich found large homes

in which they wished to live, Interprid Place and Coral Crest

respectively. Hammond then diverted proceeds from his fraudulent

scheme to help purchase these homes, and Uhrich provided the loans

and the name Leandro Rivas, a fictional buyer.

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 Uhrich also borrowed $70,000 from investor/buyer Annette

Porter, and then used those funds, along with money from Hammond,

to buy Carol Crest. As a result, the mortgage lenders were left

with mortgage notes signed by Rivas, a non-existent person. Uhrich

also recruited other investors for Hammond’s fraudulent scheme.

The Interprid Way and Coral Crest purchases provide

overwhelming evidence of the criminal relationship between Hammond

and Uhrich. Hammond may have led the fraudulent scheme, but it is

clear that Uhrich was a part of it. Accordingly, we can find no

error as to the district court’s admission of this evidence.

X.

According to Uhrich, he was sentenced in violation of the

Sixth Amendment to the Constitution. We are unable to agree.

A.

Consistent with the mandate of United States v. Booker, 543

U.S. 220 (2005), we follow the unreasonableness standard in our

review of an original sentence. United States v. Hughes, 401 F.3d

540 (4th Cir. 2005); United States v. Green, 436 F.3d 449 (4th Cir.

2006); United States v. Davenport, 445 F.3d 366 (4th Cir. 2006).

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 B.

Uhrich contends that the district court violated his Sixth

Amendment rights by relying on facts that were not found by the

jury nor admitted by Uhrich; specifically, the amount of loss

arising out of Interprid Way. Consequently, according to Uhrich,

the district court imposed an improper sentence.

This argument, however, contradicts the statement of Uhrich’s

counsel at Uhrich’s sentencing hearing when he stated that the

amount of loss for Interprid Way was not included in the amount of

loss attributed to Uhrich. (J.A. 2630.) Instead, the amount of

loss appears to have been wholly based on the losses resultant in

the actions of the investors whom Uhrich recruited to participate

in the fraudulent scheme. Id. Therefore, we reject this argument.

Uhrich also maintains that his sentence is unreasonable

pursuant to Davenport. As the district court stated, however,

[W]hile I think the government has made a very
substantial showing that would justify the Court’s
conclusion that the amount of loss was more than $800,000
in Mr. Uhrich’s case, out of an abundance of caution, in
an effort to give the defendant absolutely the benefit of
any doubt, not just reasonable doubt, I am going to go to
the next level and treat Uhrich as having caused the
loss, foreseen and contemplated a loss of more than
$500,000 but not more than $800,000.

So, that will reduce the final offense from a level 19,
subject to any other consideration, from a level 19 to a
level 18.

(J.A. 2632.) Based on Uhrich’s criminal history category III, his

final guideline range was 33-41 months. The trial court imposed a

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33 month sentence. Hammond, the mastermind of the fraudulent

scheme, was given a 37 month sentence.

Comparing the roles of Hammond and Uhrich, it may appear at

first blush that Uhrich’s sentence is unreasonable. We observe,

however, that Hammond pled guilty, cooperated with the government,

and testified at trial, thus reducing his offence level. Also,

unlike Uhrich, Hammond had no prior convictions. Hence, we find

the sentence to be reasonable.

XI.

Accordingly, for the foregoing reasons, we affirm the judgment

of the district court.

AFFIRMED

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