UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4947
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER VAN SANTVOORD CAMP,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00155-BO-1)
Argued: January 28, 2014 Decided: April 15, 2014
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, Yvonne V. Watford-
McKinney, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Van Santvoord Camp appeals his sentence on several
grounds and requests a vacatur of his guilty plea. For the
reasons set forth below, we affirm the district court.
Roger Van Santvoord Camp established Piedmont Center
Investments, LLC (PCI) in 1999. He was solely responsible for
running the company. Timothy Buckley, Camp’s friend, was a
passive investor in the business. In 2009, Camp sought to
establish a bowling alley and family entertainment center. From
July 2009 until December 2010, Camp secured or attempted to
secure financing from four financial institutions through the
fraudulent use of Buckley’s personal identifying information. He
also obtained additional financing from Buckley.
In 2009, Camp secured a $3.8 million dollar commercial
mortgage from Key Source Bank. Camp falsely told the bank
representatives that Buckley agreed to be a guarantor and
provided the bank with a falsified financial statement,
representing that it was prepared by Buckley, and a forged
guaranty form. As a result of Camp’s fraudulent representations,
Key Source Bank disbursed the $3.8 million commercial mortgage
to PCI.
Around this same time, Camp submitted a commercial loan
application to Capital Bank for $2 million. This application
also included falsified documents representing that Buckley had
2
agreed to personally guarantee the loan. Capital Bank ultimately
disbursed the loan, and the bowling alley’s equipment was
pledged as collateral.
Camp also sought a personal loan from Buckley in order to
cover some of the renovation costs for the bowling alley.
Buckley loaned Camp $250,000, unaware that Camp had already
received loans from Key Source and Capital Bank by falsely
representing Buckley as the guarantor. The loan was secured by
Camp’s interest in PCI, which is currently in bankruptcy.
Camp continued to experience financial problems and thus
applied to Trust Atlantic Bank for a $500,000 unsecured line of
credit. Camp falsely told the bank that Buckley was going to co-
sign this loan. However, Trust Atlantic ultimately did not
approve the loan because Camp could not produce Buckley to
personally meet with bank representatives.
Camp also received a $150,000 line of credit from North
State Bank by fraudulently listing a fake brokerage account as
proof of his assets. When the bank realized the fraud, it
informed Camp he needed to immediately repay the $70,000 that
Camp had already withdrawn. Camp then obtained a $125,000
personal loan from Buckley to repay North State and pocketed the
additional $55,000. To obtain this personal loan, Camp lied to
Buckley, telling him that the bank loan was for $200,000, that
he had $75,000 to repay it, but that he needed another $125,000.
3
Camp’s fraudulent scheme was eventually discovered, and he
pled guilty to several counts of bank fraud and aggravated
identity theft. Camp was sentenced to a total of 102 months
imprisonment and $442,827.02 in restitution to Buckley. At
sentencing, the judge applied an 18-level enhancement for the
amount of loss exceeding $2.5 million. The judge also applied a
2-level enhancement for the use of sophisticated means. Camp
timely appealed to this Court and makes several arguments
regarding his sentencing and guilty plea.
First, Camp argues that the district court erred at
sentencing when it applied an 18-level enhancement for the
amount of loss exceeding $2.5 million, pursuant to USSG §
2B1.1(b)(1). Under the guidelines,
loss is the greater of actual loss or intended loss.
“Actual loss” means the reasonably foreseeable
pecuniary harm that resulted from the offense.
“Intended loss” . . . means the pecuniary harm that
was intended to result from the offense . . . . The
court need only make a reasonable estimate of the
loss. The sentencing judge is in a unique position to
assess the evidence and estimate the loss based upon
that evidence. For this reason, the court’s loss
determination is entitled to appropriate deference. .
. . In a case involving collateral pledged or
otherwise provided by the defendant, [loss shall be
reduced by] the amount the victim has recovered at the
time of sentencing from disposition of the collateral,
or if the collateral has not been disposed of by that
time, the fair market value of the collateral at the
time of sentencing.
4
USSG § 2B1.1.1(b)(1) cmt. We review a district court’s factual
finding of loss for clear error. See United States v. Parsons,
109 F.3d 1002, 1004 (4th Cir. 1997).
Here, considering only actual loss, there was loss
exceeding $2.5 million. Key Source Bank loaned $3.8 million to
Camp, but only received $1.5 million upon sale of the property
after default. Thus, Key Source Bank suffered a loss of $2.3
million.
Buckley lost $250,000 in a personal loan to Camp, which
Buckley made because he was unaware Camp had already obtained
other financing for the project by fraudulently representing
Buckley as a guarantor. Although this personal loan was backed
by Camp’s interest in PCI (which is now in bankruptcy), the
district court, by awarding the full restitution amount
requested for Buckley, implicitly found the PCI interest was
worth only a nominal value. Further, Camp lied to Buckley in
order to obtain an additional $125,000 loan from him, which
Buckley also lost. Buckley also incurred $67,827.02 in legal
fees as a result of the instant offense. In total, Buckley lost
$442,827.02.
The district court did not clearly err in its finding of a
$2.3 million dollar loss for Key Source Bank. That loss is
clearly supported in the record. Further, the district court
must only make a reasonable estimation of the loss. Thus, even
5
if the loss incurred by Buckley was only half of what the
district court found when awarding restitution, it would still
push the loss incurred over the $2.5 million threshold for the
18-level enhancement. Therefore, the district court’s estimation
that the loss exceeded $2.5 million was not clear error, and we
affirm the 18-level enhancement.
Second, Camp argues the district court erred in applying a
2-level enhancement for the use of sophisticated means, pursuant
to USSG § 2B1.1(b)(10)(c). “‘Sophisticated means’ means
especially complex or especially intricate offense conduct
pertaining to the execution or concealment of an offense.” USSG
§ 2B1.1(b)(10)(c) cmt. “We . . . review for clear error the
district court's finding that [defendant] used sophisticated
means.” United States v. Noel, 502 F. App'x 284, 290 (4th Cir.
2012), cert. denied, 134 S. Ct. 366 (2013).
In the instant case, Camp used great effort to secure or
attempt to secure loans from four financial institutions and
Timothy Buckley. He forged assignment of guaranty forms;
manipulated Timothy Buckley’s financial statements; forged
Buckley’s signature, as well as the signatures of others; and
engaged in extended negotiations with financial institutions
based upon false information, among other things.
6
The district court’s finding that Camp used sophisticated
means is amply supported by the record, and thus the 2-level
enhancement was appropriate.
Third, Camp argues that he received ineffective assistance
of counsel because his defense lawyers did not pursue protection
for him under the North Carolina business judgment rule. “A
claim of ineffective assistance of counsel is normally
considered on collateral review, not on direct appeal.” United
States v. Ford, 88 F.3d 1350, 1363 (4th Cir. 1996) (citing
United States v. Grubb, 11 F.3d 426, 441 (4th Cir. 1993)). “For
a claim of ineffective assistance of counsel to be heard on
direct appeal, it must ‘conclusively appear[ ] in the trial
record itself that the defendant was not provided with effective
representation.’” United States v. Hoyle, 33 F.3d 415, 418 (4th
Cir. 1994) (quoting United States v. Hanley, 974 F.2d 14, 16 n.
2 (4th Cir. 1992)) (alteration in original).
To prevail on an ineffective assistance of counsel
claim in the context of a conviction following a
guilty plea, [defendant] must show that defense
counsel's representation fell below an objective
standard of reasonableness pursuant to the prevailing
professional norms, and that but for counsel's
unprofessional errors he would not have pled guilty
and would have insisted on going to trial.
McGraw v. United States, 106 F.3d 391 table, No. 96-6161, 1997
WL 34431, at *1 (4th Cir. 1997) (citing Hill v. Lockhart, 474
U.S. 52, 58 (1985)).
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Here, it does not “conclusively appear in the trial record”
that Camp received ineffective assistance of counsel. Camp does
not even argue that he would not have pled guilty but for his
defense attorneys’ failure to pursue the business judgment rule
defense; rather, he simply argues he was prejudiced by their
failure to do so. The business judgment rule, however, does not
protect against an individual’s purposeful and fraudulent
misconduct, but rather protects mere errors in judgment. See
State ex rel. Long v. ILA Corp., 513 S.E.2d 812, 822 (N.C. Ct.
App. 1999). Therefore, it does not “conclusively appear” on the
record that Camp received ineffective assistance at trial.
Fourth, Camp argues that the district court wrongfully
participated in plea negotiations in violation of Federal Rule
of Criminal Procedure 11. Because Camp did not object to this at
trial, his Rule 11 claim is subject to plain error review. See
United States v. Bradley, 455 F.3d 453, 461 (4th Cir. 2006). To
show plain error, Camp
must demonstrate that (1) the asserted violation of
Rule 11(c)(1) is error, (2) the error is plain, and
(3) the error affected [his] substantial rights; if
these three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited
error, but only if (4) “the error seriously affect[s]
the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Olano, 507
U.S. 725, 731-32 (1993).
Bradley, 455 F.3d at 461.
8
Here, at the close of the prosecution’s evidence, the
district court stated,
You never know what happens in court but perjury is a
spector and obstruction of justice and whatever. I’ve
tried a few cases and I can only remember one other
one—I won’t go into it—where something like the
evidence that just came out came out.
J.A. 672.
This statement does not constitute a Rule 11(c) error. Even
if these remarks were to be construed as a comment on plea
negotiations, this Court has distinguished cases where judges
have made “single brief remark[s] during negotiations” from
those where judges have fully inserted themselves into the
negotiations process. See Bradley, 455 F.3d at 462–63 (citing
United States v. Bierd, 217 F.3d 15, 21 (1st Cir. 2000), for the
proposition “that court's mention of a guilty plea and
acceptance of responsibility to defense counsel was not
reversible error” and citing United States v. Johnson, 89 F.3d
778, 783 (11th Cir. 1996), for “finding no improper
participation when the court warned the defendant of the risk
involved in pleading guilty to the substantive offense and
contesting the conspiracy charge”). 1
1
In Bradley, this Court explained there was a Rule 11 error
because:
[t]he record clearly demonstrate[d] that the district
court initiated plea discussions, advised the
(Continued)
9
Here, rather than involve itself in plea negotiations, the
court simply warned Camp against committing perjury on the stand
and did not mention pleading or the benefits of pleading versus
continuing with trial. Additionally, rather than attempt to
coerce Camp into pleading guilty during the trial, the court
twice reminded Camp that he had already been at trial for
several days and asked if he was sure he wanted to proceed with
the guilty plea rather than continuing with the trial. J.A. 674–
75. This record shows a single, brief remark warning against
perjury, rather than judicial engagement in plea negotiations,
and therefore, there is no Rule 11(c) error here, let alone a
plain error.
Defendants that they might “be better off pleading to
the indictment,” suggested that they would likely
receive life sentences if they went to trial,
commented on the amount and weight of the Government's
evidence, criticized the Defendants for turning down
plea offers from the Government, urged the Defendants
to attempt “to dispose of the charges against them on
a reasonable basis,” and explained to the Defendants
that even if the prosecution would not recommend the
sentence the Defendants desired, this should not
prevent a plea because the court-not the prosecution-
would determine the sentence.
Bradley, 455 F.3d at 462.
This extensive engagement in plea negotiations stands in
stark contrast to the single remark made in this case regarding
perjury.
10
Fifth, Camp argues that the district court improperly
questioned witnesses at trial and that this resulted in a denial
of due process for Camp. By pleading guilty, Camp has waived any
argument regarding “nonjurisdictional defects” in the trial
proceedings below. See United States v. Moussaoui, 591 F.3d 263,
280 (4th Cir. 2010) (“When a defendant pleads guilty, he waives
all nonjurisdictional defects in the proceedings conducted prior
to the entry of the plea.” (quoting United States v. Bundy, 392
F.3d 641, 644 (4th Cir. 2004))). Therefore, his argument about
judicial questioning of witnesses is waived. 2
In conclusion, for the foregoing reasons, we refuse to
vacate Camp’s guilty plea, and we affirm the district court’s
sentence.
AFFIRMED
2
Camp also raises an argument regarding his restitution to
Buckley, which we find to be without merit.
11