UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4819
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES BRAGG NEWMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00094-nkm)
Submitted: January 29, 2008 Decided: September 4, 2008
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Melvin L. Hill, WARE & HILL, L.L.P., Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Bragg Newman appeals his conviction and sentence
following his guilty plea to one count of transportation of stolen
money taken by fraud, in violation of 18 U.S.C. ' 2314 (2000). He
claims his sentence was unreasonable, asserting error in the
district court=s calculation of loss, in its increase of his base
offense level by two levels based on an offense involving ten or
more victims pursuant to U.S. Sentencing Guidelines Manual (USSG)
' 2B1.1(b)(2)(A) (2004), in its alleged sixteen-level upward
adjustment for loss exceeding $1,000,000 pursuant to USSG
' 2B1.1(b)(1)(H), and in failing to grant his request for a
downward departure.1
The charge arose from, and the evidence established, a
scheme by which Newman created a company operating as Basic
Strategies Corporation located in Charlottesville, Virginia, held
himself out as a licensed investment broker with Fidelity
Investments, with which he was neither a licensed broker nor a
representative, and made false representations to potential and
actual investors in order to obtain their trust and their money.
Among other things, Newman failed to reveal to his customers that
he previously had been convicted of fraud. At Newman=s direction,
1
The district court placed Newman in a total offense level of
twenty-two, and a criminal history category of IV, with an
attendant sentencing range of sixty-three to seventy-eight months=
imprisonment.
2
clients opened new accounts with Fidelity Investments and Merrill
Lynch. Newman provided his victims with financial advice on stock
purchases and, in some cases, was given authority to make trading
decisions and to manipulate transactions without conferring with
the customer. Newman directed several clients to fund Self-
Employed Individual Retirement Accounts, or ASEP IRAs,@ and then
failed to open many of these accounts, taking the money intended
for the SEP IRA for his personal use. In some instances, Newman
perpetrated his scheme by providing victims with fraudulent
statements detailing how the money in the SEP IRA and other
accounts purportedly had been invested.
The probation officer placed Newman at a base offense
level of six, pursuant to USSG ' 2B1.1(a)(2), and then added
sixteen levels for a loss exceeding $1,000,000, pursuant to USSG
' 2B1.1(b)(1)(H); an additional two levels for abuse of trust
because Newman claimed to be a licensed financial investor or
broker, pursuant to USSG ' 3B1.3; and an additional two levels
because the offense involved more than ten victims, pursuant to
USSG ' 2B1.1(b)(2)(A), for a total offense level of twenty-six.2
With a criminal history category of IV, the probation officer
calculated Newman=s advisory guidelines range to be 92 to 115
months= imprisonment. Newman filed objections to the presentence
2
The PSR identified eighteen victims, with a corresponding
total loss of $1,242,219.
3
report (APSR@), which objections included a challenge to the PSR=s
calculation of loss and the number of victims. Following a full
evidentiary hearing, the district court ultimately sentenced Newman
under the advisory federal sentencing guidelines to seventy-eight
months= imprisonment, three years of supervised release, and ordered
payment of restitution of $148,749.16, representing total losses
incurred by fifteen victims.34
With regard to the calculation of loss issue, Newman
alleges on appeal that he should only have been held responsible
for $61,500 in losses, and that the court should have found only
six victims, such that the two-point enhancement for more than ten
victims was wrongly applied.5 Newman further asserts error in the
alleged sixteen-level adjustment for losses exceeding $1,000,000.
3
Specifically, the district court determined that Newman was
responsible for an actual total loss of $186,992.16, for losses
sustained by fifteen victims, and ordered restitution to be paid to
twelve of those victims in the total amount of $148,749.16.
4
The district court also found that Newman=s testimony was not
credible and that he had not accepted responsibility, stating that
Newman had obstructed justice in Aso many ways that are hard to
enumerate@ but specifically with regard to the information he
supplied to his counsel and the court regarding certain
transactions with specific victims.
5
Newman does not contest the district court=s loss
determination as to the following victims and loss amounts: (1)
David Artigues, in the amount of $10,000; (2) Edmond Hoskins, in
the amount of $5000; (3) Marietta McCarty, in the amount of $7000;
(4) Robert Stumm, in the amount of $13,000; and (5) Keith Stumm, in
the amount of $6500. He also agrees that he absconded with $20,000
from Hannah Watters, but disagrees with the $40,000 amount
determined by the district court to be the actual loss sustained by
Watters.
4
This court reviews the determination of the amount of
loss, to the extent it is a factual matter, for clear error, and
reviews de novo the district court=s legal interpretation of the
term Aloss@ under the Sentencing Guidelines. United States v. West,
2 F.3d 66, 71 (4th Cir. 1993). Here, the district court heard and
considered oral and documentary evidence, as well as arguments from
both parties, during a two-day sentencing hearing regarding the
various sentencing issues, including the calculation of loss.
While Newman takes issue with the amount of loss
determined by the district court, the record clearly reflects that
the district court=s loss determination followed a lengthy
sentencing hearing and was made after review of documentary and
testimonial evidence, and an extended and detailed analysis of the
transactions each victim had with Newman. The court=s careful
consideration and determination as to which losses properly were
attributable to Newman=s fraudulent activity, and its findings in
distinguishing such properly attributable losses from losses
sustained by other causes not properly includable including stock
market instability,6 fully support our conclusion that there is no
clear error with regard to the district court=s loss calculation.
6
The court=s restitution order also reflects that it subtracted
out the amounts that, as to some victims, already had been returned
or recovered by each victim, as well as amounts that reasonably
were incurred for legitimate services rendered.
5
Secondly, Newman challenges the district court=s finding
that the number of victims was ten or more, thus triggering a two-
level enhancement under USSG ' 2B1.1(b)(2)(A). We find this claim
to be without merit, given the district court=s fact-finding at
sentencing, which was based on the government=s ample evidence
demonstrating that more than ten victims were affected by Newman=s
fraudulent activities. The enhancement was reasonable and
appropriate.
Nor do we find merit to Newman=s challenge to the
application of the sixteen-level upward adjustment for losses
exceeding $1,000,000 pursuant to USSG ' 2B1.1(b)(1)(H), that was
recommended in the PSR. The record clearly reflects that the
district court did not apply the recommended adjustment, finding
instead the total loss amount for which Newman should be held
responsible for purposes of calculating his advisory guidelines
range to be $186,992.16.
Finally, Newman asserts error in the district court=s
failure to grant him a downward departure. Specifically, he claims
he should have benefitted from a departure because of family
circumstances, because he suffers from Type II diabetes, and
because he had been involved in charitable causes.
We review a post-Booker sentence for reasonableness.
This court affords sentences that fall within the properly
calculated guidelines range a presumption of reasonableness, a
6
presumption permitted by the Supreme Court. Rita v. United States,
551 U.S. , 127 S. Ct. 2456, 2462 (2007). Where the district
court is aware of its authority to depart under a specific
guidelines provision, but exercises its discretion not to depart,
this court lacks jurisdiction to review that portion of the
sentencing decision. See United States v. Wood, 378 F.3d 342, 351
n.8 (4th Cir. 2004); United States v. Bayerle, 898 F.2d 28, 30-31
(4th Cir. 1990).
In this case, the district court was aware of its
authority to depart, but chose not to do so. A review of the
sentencing transcript reveals that the district court considered
the information in the PSR, the evidence presented by Newman and
his arguments relating to his physical condition and family
situation, as well as his educational level and charitable
activities.7 After considering the statutory factors under
' 3553(a), the facts, arguments, and evidence presented to it, as
well as the applicable advisory guidelines range, the district
court deemed a within-guideline sentence to be appropriate. We
find Newman has not overcome the presumption of reasonableness that
this court accords such a sentence. Rita, 551 U.S. at , 127 S.
Ct. at 2462.
7
The district court granted leave to Newman=s counsel to
proffer or summarize information relative to Newman=s charitable
work.
7
Accordingly, we affirm Newman=s conviction and 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
8