UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4280
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEONARD STUART COLEMAN,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:07-cr-00128-1)
Submitted: November 26, 2008 Decided: March 23, 2009
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, L. Anna Forbes, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonard Stuart Coleman pled guilty to mail fraud,
18 U.S.C.A. § 1341 (West Supp. 2008), and was sentenced to a
term of thirty-three months imprisonment. He was also ordered
to pay restitution in the amount of $192,740, plus interest.
Coleman appeals his sentence, contending that (1) the district
court erred in denying his motion to exclude U.S. Sentencing
Guidelines Manual § 2B1.1(b)(1) (2007) from consideration at
sentencing on constitutional grounds; (2) the district court
erred by finding that Coleman abused a position of trust, USSG
§ 3B1.3; and (3) the district court erred by dismissing without
prejudice Coleman’s post-judgment motion to modify his interest
payments. We affirm the sentence. However, because we agree
that the district court had jurisdiction to consider Coleman’s
post-judgment petition for waiver of interest, 1 we vacate the
district court’s dismissal order and remand for a ruling on the
merits as to that issue.
1
Coleman did not file a notice of appeal from the district
court’s April 23, 2008 order dismissing his petition. However,
we conclude that the docketing statement he filed in this appeal
may be treated as the functional equivalent of a notice of
appeal from that order. Smith v. Barry, 501 U.S. 244, 248
(1992). The docketing statement was filed within the thirty-day
extension period provided in Fed. R. App. P. 4(b)(4), and we
find that good cause exists to excuse the late filing. United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).
2
Coleman pled guilty to an information charging that,
in 2004 and 2005, he embezzled money from the law firm where he
worked as an attorney specializing in municipal bond work.
Coleman stipulated that he embezzled client fees of $195,740 and
attempted to embezzle another $37,500 by causing clients to pay
fees into his own personal bank account. Coleman reserved the
right to contest the amount of loss for sentencing purposes. At
sentencing, the district court overruled Coleman’s due process
objection to use of the loss table in § 2B1.1(b)(1), and
determined that he had abused a position of trust within his law
firm, which resulted in a two-level adjustment under USSG
§ 3B1.1. After judgment was entered and Coleman had noted his
appeal, he filed a petition seeking waiver of the interest
payments on the restitution he was obligated to pay. The
district court found that it no longer had jurisdiction over the
sentence and dismissed his petition without prejudice.
On appeal, Coleman first challenges the
constitutionality of the loss table in § 2B1.1. He observes
that defendants whose crimes result in a loss of less than
$1 million may receive enhancements of up to fourteen levels,
while offenses resulting in losses between $1 million and
$400 million may receive no more than fifteen additional levels.
See USSG § 2B1.1(b)(1). Coleman argues that the table produces
a disparity similar to the 100:1 ratio for crack cocaine and
3
powder cocaine offenses addressed in Kimbrough v. United States,
128 S. Ct. 558 (2007), and thus violates due process.
However, the sentences for offenses involving losses
over $1 million are more severe than those for offenses
involving smaller losses. Therefore, we conclude that Coleman
has not shown a due process violation in the district court’s
consideration of the loss table generally, or in its application
in his case. Additionally, as the district court found, because
Coleman’s offense involved a loss of less than $1 million, he
cannot claim to have been adversely affected, even if his
argument has merit.
Next, we review de novo the district court’s
determination that Coleman held a position of trust under
§ 3B1.3, and review the factual findings that support the
adjustment for clear error. United States v. Ebersole, 411 F.3d
517, 535-36 (4th Cir. 2005); United States v. Caplinger,
339 F.3d 226, 235-36 (4th Cir. 2003). Under § 3B1.3, an
adjustment is required if “the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense.” A
“position of trust” is “characterized by professional or
managerial discretion.” USSG § 3B1.1, comment. (n.1).
Coleman argues that the adjustment for abuse of a
position of trust was inappropriate because he did not occupy a
4
position of trust with respect to the clients whose money he
diverted, whom he characterizes as the victims of his offense.
He further claims that he did not use any special skill in
preparing the invoices to the clients.
Coleman’s law firm was the victim of his offense. The
firm lost the money paid by its clients when Coleman diverted
the money to his personal use. Coleman acknowledged that within
his firm he “held a position of authority and operated with a
level of independence in his day to day work.” We conclude that
the district court did not clearly err in finding that Coleman
occupied a position of trust within his law firm and that his
position of trust facilitated the commission of his offense.
Finally, we agree with Coleman that the district court
erred in declining to address his post-judgment petition for
waiver of interest. Once judgment is entered, the sentencing
court loses jurisdiction to change the sentence except in a few
circumstances where a statute or Rule 35 permits it to revisit
the sentence. United States v. Lawrence, 535 F.3d 631, 637 (7th
Cir. 2008); United States v. Goode, 342 F.3d 741, 743 (7th Cir.
2003). One such statute is 18 U.S.C. § 3612 (2006). While
§ 3612(f)(1) provides that payment of interest is mandatory on
restitution of more than $2,500, § 3612(f)(3) permits the court,
post-judgment, to waive or limit the payment of interest upon a
finding that the defendant is unable to pay interest.
5
In Goode, the defendant filed a post-sentencing
petition seeking a waiver of interest on his fines, and
alternatively asking that the fines be remitted or suspended.
The district court denied the petition. The appeals court held
that, regardless of its merits, the district court had
jurisdiction to consider the post-judgment petition under 18
U.S.C. § 3572(d)(3) (2006). Goode, 342 F.3d at 743. Under
Goode, Coleman is correct that the district court had
jurisdiction to consider his petition, and erred in dismissing
it without a ruling on the merits. Therefore, we vacate the
court’s order dismissing the petition without prejudice. On
remand, the court should reconsider Coleman’s petition and rule
on the merits of his request for a waiver of interest payments. 2
We otherwise affirm the sentence imposed by the
district court. 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 IN PART,
VACATED IN PART, AND REMANDED
2
We express no opinion on the merits of Coleman’s petition.
6