UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4352
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRANDON LEE CAUDLE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00038-2)
Submitted: December 19, 2007 Decided: January 10, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Trevor M. Fuller, FULLER & BARNES, LLP, Charlotte, North Carolina,
for Appellant. Jonathan A. Vogel, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Lee Caudle appeals his jury convictions and
forty-eight month sentence for conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371 (2000); aiding and abetting
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1)
(2000); bank fraud, in violation of 18 U.S.C. § 1344 (2000); and
theft or receipt of stolen mail matter, in violation of 18 U.S.C.
§ 1708 (2000). Caudle asserts the district court erred in denying
his motion to suppress and in calculating the intended loss under
the Sentencing Guidelines.1 Caudle filed a pro se supplemental
brief in which he makes a series of claims regarding his sentence
and the Inmate Financial Responsibility Program. Because our
review of the record discloses no reversible error, we affirm.
Caudle contends the district court erred in denying his
motion to suppress a checkbook seized from his person during his
arrest. Caudle asserts he was under arrest at the time of the
seizure, but the arresting officer lacked probable cause to support
such an arrest. Alternatively, if the seizure is deemed to have
occurred during a Terry2 stop, Caudle contends that the officer’s
patdown search for weapons did not permit him to remove the
checkbook from Caudle’s pocket. However, Caudle fails to address
1
Counsel notes he is presenting the latter claim pursuant to
Anders v. California, 386 U.S. 738 (1967).
2
Terry v. Ohio, 392 U.S. 1 (1968).
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the fact that the district court ultimately denied the motion to
suppress on the ground that it was untimely raised. Pursuant to
Fed. R. Crim. P. 12(b)(3), a motion to suppress evidence must be
made before trial. See United States v. Wilson, 115 F.3d 1185,
1190 (4th Cir. 1997). Failure to preserve the issue amounts to
waiver under Rule 12(e); however, a district court may grant relief
from a waiver for good cause. See United States v. Ricco, 52 F.3d
58, 62 (4th Cir. 1995). In his brief on appeal, Caudle has made no
attempt to demonstrate sufficient cause; therefore, he has waived
this assignment of error. See 4th Cir. R. 34(b). We therefore
decline to consider whether the seizure of the checkbook was
incident to a lawful arrest.
Caudle’s next claim is that the district court’s
sentencing determination of the intended loss was improper because
it encompassed more than what was contemplated within the duration
of the conspiracy. According to the presentence report (“PSR”),
Caudle successfully passed two stolen checks totaling $336.10
before he was arrested following an unsuccessful attempt to pass a
check in the amount of $300.72. While the three checks used by
Caudle had an average worth of $212.27, there were another 195
blank stolen checks in his possession; accordingly, the probation
officer found there was potential for an additional loss of
$41,392.65, for a total estimated loss of $42,029.47. While Caudle
objected to the use of a loss amount calculation that reflected a
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hypothetical loss rather than the actual loss associated with his
one-day involvement in the conspiracy, the district court overruled
the objection and applied a six-level offense level enhancement,
pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 2B1.1(b)(1)(D) (2006).
While issues regarding the definition of “intended loss”
are reviewed de novo, the district court’s estimation of the
intended loss is reviewed for clear error. See United States v.
Wells, 163 F.3d 889, 900 (4th Cir. 1998). In determining the loss
amount for sentencing purposes, the court may use the intended loss
if that amount is more than the actual loss. USSG § 2B1.1,
comment. (n.3(A)). Intended loss is defined as the pecuniary harm
that was intended to result from the offense. Id. Based on the
evidence presented, the district court needed only to make a
“reasonable estimate” of the loss. USSG § 2B1.1, comment.
(n.3(C)). A district court’s inclusion of blank checks in the
determination of intended loss is acceptable for sentencing
purposes, as the loss with respect to non-negotiated instruments
may be estimated by calculating the average loss of the negotiated
instruments. See United States v. Robbio, 186 F.3d 27, 43-44 (1st
Cir. 1999); United States v. Chappell, 6 F.3d 1095, 1101 (5th Cir.
1993).
While Caudle notes that the district court’s calculation
of the intended loss amount was far greater than the actual loss
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amount in this case, intended loss is not limited to the possible
or probable; rather, district courts are permitted to use intended
loss to calculate a defendant’s sentence “even if this exceeds the
amount of loss actually possible, or likely to occur, as a result
of the defendant’s conduct.” United States v. Miller, 316 F.3d
495, 501-502 (4th Cir. 2003). The district court’s calculations
were accurate, and the court did not err by including the estimated
value of the blank checks possessed by Caudle. Accordingly, we
find that the district court appropriately applied a six-level
offense level increase under USSG § 2B1.1(b)(1)(C).
In his pro se supplemental brief, Caudle’s first claim is
that the district court erred by delegating authority to the Bureau
of Prisons (“BOP”) to set the timing and payment amount of his
criminal monetary penalties through the Inmate Financial
Responsibility Program (“IFRP”). A district court may not delegate
its authority to set the amount and timing of restitution to the
BOP or a probation officer, without retaining ultimate authority
over such decisions. United States v. Miller, 77 F.3d 71, 77-78
(4th Cir. 1996). “[T]he statutory duty imposed upon district
courts to fix the terms of a fine must be read as exclusive because
the imposition of a sentence, including the terms of probation or
supervised release, is a core judicial function.” Id. at 78; see
also 18 U.S.C. § 3572(d). In this case, the district court did set
the amount and timing of the criminal monetary penalties by
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ordering payment due immediately. Furthermore, participation in
the IFRP does not violate Miller. See Matheny v. Morrison, 307
F.3d 709, 712 (8th Cir. 2002) (holding that BOP has discretion to
place inmate in IFRP when sentencing court has ordered immediate
payment of court-imposed fine) (citing McGhee v. Clark, 166 F.3d
884, 886 (7th Cir. 1999), and Montano-Figueroa v. Crabtree, 162
F.3d 548, 549-50 (9th Cir. 1998)). Therefore, Caudle’s claim is
without merit.
In his second claim, Caudle contends that the district
court erred in denying his motion for a downward departure.
However, the district court’s refusal to depart below the
Sentencing Guidelines range is not reviewable on appeal, as the
court gave no indication that it failed to recognize its authority
to depart. See United States v. Cooper, 437 F.3d 324, 333 (3d Cir.
2006) (collecting cases from five circuits discussing rule
post-Booker); United States v. Quinn, 359 F.3d 666, 682 (4th Cir.
2004) (citing United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir. 1990), and expressing rule in this Circuit pre-Booker).
Therefore, Caudle’s claim must fail.
Finally, Caudle claims that the district court erred in
calculating his criminal history score. Caudle notes that the PSR
assigned him one criminal history point for his November 2005 state
convictions for driving while his license was revoked, expired
inspection, expired registration, and operating a vehicle without
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insurance; Caudle was sentenced to fourteen days imprisonment for
these violations. Caudle contends that “many circuits” have held
that operating a vehicle without insurance is equivalent to driving
without a license and that he should not have been given a point
for this conviction. However, even if Caudle is correct, this
matter is irrelevant in terms of his criminal history category and
sentence. According to the PSR, Caudle had six convictions that
qualified under USSG § 4A1.1(c), with a point assigned for each
conviction; however, only a maximum of four points may be counted
under § 4A1.1(c). Accordingly, even if Caudle’s driving offenses
were not given a criminal history point, he would still have a
total of four points under § 4A1.1(c) and would have been assigned
to the same criminal history category. Therefore, Caudle’s claim
is meritless.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Caudle’s convictions and sentence. This court requires
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on the client. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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