UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4318
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OLIVER W. JOHNSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00173-FDW-3)
Submitted: March 31, 2011 Decided: April 11, 2011
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Oliver Johnson pled guilty, pursuant to a written plea
agreement, to conspiracy to defraud the United States, 18 U.S.C.
§ 371 (2006), and mail fraud and aiding and abetting same, 18
U.S.C. §§ 2, 1341 (2006), and was sentenced to a total term of
100 months of imprisonment. He noted a timely appeal.
Johnson’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), in which he asserts
that there are no meritorious issues for appeal but questions
the reasonableness of Johnson’s sentence. Specifically, counsel
argues that: (1) the government failed to prove the amount of
loss attributable to Johnson; (2) the government failed to prove
that the loss was foreseeable to Johnson; and (3) the district
court erred in assigning a two-level enhancement for abuse of a
position of public trust. Although advised of his right to file
a supplemental pro se brief, Johnson has not done so. Finding
no error, we affirm.
The guidelines provide that the amount of loss for
purposes of sentencing enhancements is the greater of the actual
loss or the intended loss. U.S. Sentencing Guidelines Manual
(USSG) § 2B1.1 cmt. n.3(A) (2008). The amount of loss is a
factual determination reviewed for clear error. United
States v. Loayza, 107 F.3d 257, 265 (4th Cir. 1997). A
sentencing court makes a “reasonable estimate of the loss, given
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the available information.” United States v. Miller, 316 F.3d
495, 503 (4th Cir. 2003) (internal quotation marks omitted); see
USSG 2B1.1, cmt. n.3(C). A sentencing enhancement need only be
supported by a preponderance of the evidence. Miller, 316 F.3d
at 503. “Intended loss” is defined as “the pecuniary harm that
was intended to result from the offense . . . and . . . includes
intended pecuniary harm that would have been impossible or
unlikely to occur[.]” USSG § 2B1.1, cmt. n.3(A)(ii). The
intended loss amount may be used to determine a sentence, “even
if this exceeds the amount of loss actually possible, or likely
to occur, as a result of the defendant’s conduct.” Miller, 316
F.3d at 502.
Here, the district court determined that the amount of
loss (both intended and actual) was $2,565,580.31. This finding
was based on the evidence and testimony of FBI Agent Mike
McNeely, who testified at Johnson’s sentencing hearing that the
loss was calculated by totaling the loan amounts on inflated
properties and their actual fair market value—i.e., the “profit”
realized by the members of the conspiracy. According to Agent
McNeely, the estimate of loss was a conservative one because it
included only those transactions in which Johnson was directly
involved between October 2002 and June 2003, even though the
conspiracy continued through March 2005. Also, the loss amount
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did not include two additional transactions in which Johnson
later admitted his involvement.
We find no clear error in the district court’s
determination of the loss amount attributable to Johnson nor in
the court’s conclusion that these losses were reasonably
foreseeable to him.
With respect to the enhancement for abuse of a
position of trust, we review de novo a district court’s legal
interpretation of whether a defendant abused a position of trust
under USSG § 3B1.3 and review its factual findings for clear
error. United States v. Ebersole, 411 F.3d 517, 535-36 (4th
Cir. 2005). Section 3B1.3 provides that a defendant’s offense
level should be increased by two levels “[i]f the defendant
abused a position of public or private trust, or used a special
skill, in a manner that significantly facilitated the commission
or concealment of the offense.” Accordingly, the enhancement
applies if “the defendant abused a position of trust and that
abuse significantly contributed to the commission or
concealment” of the underlying offense. United States v.
Akinkoye, 185 F.3d 192, 203 (4th Cir. 1999).
The enhancement was applied here because Johnson, a
former attorney, acted pursuant to a power of attorney in the
closing of two fraudulent mortgage loans. We find no error in
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the district court’s conclusion that Johnson’s position and
conduct warranted the enhancement.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Johnson’s conviction and sentence. This
court requires that counsel inform Johnson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Johnson 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 Johnson.
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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