United States v. Fordham

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4702

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

KURT FORDHAM,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cr-00288-RWT-3)

Submitted: September 29, 2010 Decided: November 8, 2010

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, James A. Crowell IV, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Kurt Fordham appeals the 120-month sentence he

received after he pled guilty to conspiracy to commit mail and

wire fraud, 18 U.S.C. § 1349 (2006). Fordham contends that the

district court clearly erred in finding that he was not a minor

participant in the conspiracy, U.S. Sentencing Guidelines Manual

§ 3B1.2(b) (2008), and in applying an adjustment for vulnerable

victims, USSG § 3A1.1(b)(1). We affirm.

In the statement of facts that supported Fordham’s

guilty plea, he admitted participating in a conspiracy that

targeted homeowners who had substantial equity in their homes

but were having difficulty making their mortgage payments and

were facing foreclosure. Fordham’s wife, Joy Jackson, and co-

conspirator Jennifer McCall started the Maryland Money Store

(MMS) in 2005. At the same time, Fordham, Jackson, and McCall’s

husband incorporated Fordham and Fordham Investment Group (F&F)

and Burroughs and Smythe Financial Services (B&S) was

incorporated by Fordham, the McCalls, and their daughter. MMS

advertised that its “foreclosure reversal program” could help

distressed homeowners “avoid foreclosure, keep their homes, and

repair their damaged credit.” In fact, homeowners who entered

the program were directed to allow title to their homes to be

transferred to third-parties, or straw buyers, for one year.

The conspirators applied for new, fraudulently inflated mortgage

2
loans, extracted the equity from the property, transferred the

sale proceeds from the escrow accounts to their business and

personal accounts, and converted much of the money to their

personal use.

Fordham acted as a straw buyer for six or more

properties. In conjunction with Jackson and McCall, he also

paid bank employees to perform certain functions such as

providing verifications of bank accounts to lenders for program

loans; providing false income balances to lenders for straw

buyers; putting straw buyers and others onto accounts for lender

verification; transferring money temporarily into an account to

show a certain amount; and shifting money between F&F, MMS, B&S,

and other accounts to facilitate loans. At sentencing, over

Fordham’s objections, the district court determined that he had

more than a minor role even though he did not deal directly with

homeowners and that a vulnerable victim adjustment was

warranted.

On appeal, Fordham first maintains that he had a minor

role in the offense because he allowed his name and credit to be

used, but did not actively participate in the scheme. A

defendant has the burden of showing that the adjustment applies

to him. United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir.

1999). The district court’s factual finding is reviewed for

clear error. United States v. Edwards, 188 F.3d 230, 238 (4th

3
Cir. 1999). The adjustment applies only to a defendant whose

part in the offense “makes him substantially less culpable than

the average participant.” USSG § 3B1.2 cmt. n.3(A) (2008). The

defendant’s conduct is examined not only “relative to the other

defendants, but also . . . relative to the elements of

conviction” and the ultimate question is “whether the

defendant’s conduct is material or essential to committing the

offense.” United States v. Blake, 571 F.3d 331, 352-53 (4th

Cir. 2009) (quoting Akinkoye, 185 F.3d at 202), cert. denied,

130 S. Ct. 1104 (2010). Given the nature of Fordham’s admitted

conduct, he made a material contribution to the furtherance of

the conspiracy; therefore, the district court did not clearly

err in denying him a minor role adjustment.

Fordham next argues that, although the victims were

financially stressed, they were not vulnerable in the sense

intended by § 3A1.1(b)(1). The guideline provides a two-level

adjustment which applies “[i]f the defendant knew or should have

known that a victim of the offense was a vulnerable victim.”

Before making the adjustment, the court must first determine

that a victim was “unusually vulnerable due to age, physical or

mental condition, or . . . otherwise particularly susceptible to

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the criminal conduct.” USSG § 3A1.1 cmt. n.2. * See United

States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010). The court

must also find that the defendant knew or should have known of

the victim’s unusual vulnerability. Id. Because the court’s

determination is factual, it is reviewed for clear error. Id.

Fordham acknowledges but does not address United

States v. Holmes, 60 F.3d 1134, 1136-37 (4th Cir. 1995), in

which we held that victims of a similar offense, who were sought

out by the defendant because they had poor credit and obtained

mortgage loans from him, were vulnerable victims. In light of

Holmes, the district court did not clearly err in finding that

the vulnerable victim adjustment applied in Fordham’s case.

We therefore 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

*
The adjustment currently does not require that the
defendant have targeted the victim specifically because of his
vulnerability. See App. C, amend. 521.