UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4653
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROSA DELOCH PORTER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00174-JAB-1)
Submitted: May 14, 2010 Decided: June 11, 2010
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Romallus O. Murphy, LAW OFFICE OF ROMALLUS O. MURPHY,
Greensboro, North Carolina, for Appellant. L. Patrick Auld,
Harry L. Hobgood, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rosa Porter was convicted by a jury of mail fraud and
three counts of making a false statement to a federal
investigator, 18 U.S.C. §§ 1001, 1341 (2006), and was sentenced
to thirty months imprisonment. Porter timely appealed. Her
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which he asserts that there are no
meritorious issues for appeal but questions whether the district
court abused its discretion in denying Porter’s motion for a
continuance, whether the district court properly instructed the
jury on the defense of good faith, and whether Porter was denied
effective assistance of counsel. Porter has filed a
supplemental pro se brief raising numerous issues.
The evidence presented at Porter’s trial, read in the
light most favorable to the government, see United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), established
the following. Porter, doing business as American First
Mortgage, recruited a straw buyer (Gregory Hinson) to purchase
certain real property in Trinity, North Carolina, for $495,000.
Porter submitted a mortgage application, on behalf of Hinson, to
Fremont Investment and Loan (Fremont). The application showed
that the property was to be Hinson’s primary residence; Hinson’s
income was inflated to qualify for the loan. Porter received
$22,000 in brokerage fees at closing. Shortly after closing,
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Porter and her husband moved into the residence but failed to
make the monthly mortgage payments. Fremont initiated
foreclosure proceedings in 2003.
Porter was indicted in May 2007 for mail fraud and
making false statements; she was convicted of four of the five
counts after a jury trial. Based on a total offense level of 19
and a criminal history category I, Porter’s advisory guidelines
range was 30 to 37 months imprisonment. The district court
imposed a sentence at the bottom of the range. Porter timely
appealed.
Porter’s attorney first challenges the district
court’s denial of her motion for a continuance. This court
reviews the district court’s denial of a motion for a
continuance for abuse of discretion. United States v. Williams,
445 F.3d 724, 739 (4th Cir. 2006). “[E]ven if such an abuse is
found, the defendant must show that the error specifically
prejudiced [his] case in order to prevail.” Id. (internal
quotation marks and citation omitted).
Here, there was no abuse of discretion. Porter’s only
reason for seeking a continuance was to have another attorney
appointed because she did not believe her appointed attorney was
prepared for trial. However, counsel stated that he had been
given a one-month continuance and that, contrary to Porter’s
assertion, he was prepared to try the case. The district court
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heard testimony from both Porter and her attorney and determined
that there had been no breakdown in communications to warrant
appointment of new counsel and, based on the timing of Porter’s
motion, denied the motion for a continuance.
Counsel also asserts that the district court did not
adequately instruct the jury on the defense of good faith.
However, the record reveals that the district court properly
instructed the jury with respect to the meaning of intent as
well as the defense of good faith. We find that the district
court’s instruction, taken as a whole, fairly stated the
controlling law and, therefore, there was no abuse of
discretion. See United States v. Moye, 454 F.3d 390, 398 (4th
Cir. 2006) (en banc) (providing standard).
Finally, counsel questions whether Porter received
ineffective assistance of counsel. This court “may address
[claims of ineffective assistance] on direct appeal only if the
lawyer’s ineffectiveness conclusively appears from the record.”
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Because counsel’s ineffectiveness does not conclusively appear
from the record, we decline to review Porter’s ineffective
assistance claim on direct appeal.
Porter has also filed a supplemental pro se brief in
which she raises numerous challenges to the sufficiency of the
evidence, asserts claims of ineffective assistance of counsel,
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and questions the calculation of the loss attributable to her at
sentencing.
Our review of the record, including the transcript of
the trial proceedings, discloses that the government presented
sufficient evidence to support the jury’s verdict as to all
counts. With respect to Porter’s many claims regarding her
attorney’s representation, we decline to review these claims as
we do not find ineffective assistance on the face of the record.
Finally, Porter challenges the calculation of loss
attributable to her at sentencing. The district court’s
calculation of loss is a factual determination reviewed for
clear error. See United States v. Brooks, 111 F.3d 365, 373
(4th Cir. 1997). At sentencing, the district court makes a
“reasonable estimate of the loss, given the available
information.” United States v. Miller, 316 F.3d 495, 503 (4th
Cir. 2003); USSG § 2B1.1, cmt. n.2(c). Here, the district court
made a reasonable determination regarding the amount of loss
resulting from Porter’s offenses. Porter has not made an
affirmative showing that the findings in the presentence report
are unreliable or inaccurate. See United States v. Randall, 171
F.3d 195, 210-11 (4th Cir. 1999); United States v. Love, 134
F.3d 595, 606 (4th Cir. 1998). Therefore, the district court
was entitled to adopt the presentence report as its own
findings. United States v. Terry, 916 F.2d 157, 162 (4th Cir.
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1990). Accordingly, the district court did not err in
calculating the amount of loss attributable to Porter, and thus
did not commit clear error.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Porter, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Porter 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 Porter. We deny all of Porter’s pending motions
filed in this court. We further deny counsel’s motion to
withdraw. 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
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