UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4810
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LESTER ROUDABUSH, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cr-00195-CMH-1)
Submitted: June 30, 2014 Decided: July 18, 2014
Before KING, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edwin S. Booth, SHUTTLEWORTH, RULOFF, SWAIN HADDAD & MORECOCK,
PC, Virginia Beach, Virginia, for Appellant. Dana J. Boente,
United States Attorney, Kimberly R. Pedersen, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Lester Roudabush, Jr., was convicted after a
jury trial of one count of forgery of a passport, in violation
of 18 U.S.C. § 1543 (2012) (count one), one count of use and
attempted use of a false passport, in violation of 18 U.S.C.
§ 1543 (count two), and five counts of wire fraud, in violation
of 18 U.S.C. § 1343 (2012) (counts three through seven), and was
sentenced to seventy-seven months’ imprisonment. On appeal,
Roudabush challenges the district court’s denial of his motion
to suppress statements he made to law enforcement, the court’s
admission at trial of certain evidence, and its calculation of
the loss amount attributable to him under the U.S. Sentencing
Guidelines Manual (“USSG”) (2012). We affirm.
We review the factual findings underlying a district
court’s ruling on a motion to suppress for clear error and the
court’s legal conclusions de novo. United States v. Hilton,
701 F.3d 959, 963 (4th Cir. 2012), cert. denied, 133 S. Ct. 1839
(2013). When evaluating the denial of a suppression motion, we
construe the evidence in the light most favorable to the
Government, the party prevailing below. United States v.
Foster, 634 F.3d 243, 246 (4th Cir. 2011).
Pursuant to the Fifth Amendment, no person “shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. This privilege against self-incrimination
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is protected by the warnings required by Miranda v. Arizona,
384 U.S. 436, 479 (1966), which inform an accused of his right
to remain silent and his right to counsel. See Berkemer v.
McCarty, 468 U.S. 420, 428 (1984) (noting that, in Miranda, the
Supreme Court afforded protection to the Fifth Amendment
privilege against compelled self-incrimination “from the
coercive pressures that can be brought to bear upon a suspect in
the context of custodial interrogation”). When an “accused
indicates that he wishes to remain silent, the interrogation
must cease. If he requests counsel, the interrogation must
cease until an attorney is present.” Edwards v. Arizona,
451 U.S. 477, 482 (1981) (internal quotation marks omitted). An
accused who has invoked his rights to silence and counsel may,
however, validly waive those rights. If an accused invokes his
right to counsel, a court “may admit his responses to further
questioning only on finding that he (a) initiated further
discussions with the police, and (b) knowingly and intelligently
waived the right he had invoked.” United States v. Cummings,
937 F.2d 941, 946 (4th Cir. 1991) (internal quotation marks
omitted).
After review of the record and the parties’ briefs, we
conclude that the district court did not reversibly err in
determining: that questioning of Roudabush ceased after he
invoked his rights to silence and counsel during custodial
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interrogation; that, after invoking these rights, Roudabush
initiated further discussions with law enforcement; and that
Roudabush did not volunteer an incriminating statement until he
was advised of his rights under Miranda and indicated he
understood them. We further find no merit to Roudabush’s
assertion that the actions of Agent Nelson — the agent to whom
Roudabush gave the incriminating statement — prior to advising
him of his Miranda rights amounted to the functional equivalent
of improper interrogation. See Rhode Island v. Innis, 446 U.S.
291, 300-03 (1980).
Next, Roudabush argues that the district court abused
its discretion by admitting at trial prejudicial evidence of his
prior bad acts in support of counts three through seven. This
court reviews the district court’s admission or exclusion of
evidence for abuse of discretion. United States v. Lighty,
616 F.3d 321, 351 (4th Cir. 2010). A district court does not
abuse its discretion unless it acts “arbitrarily or
irrationally” in admitting evidence. United States v. Benkahla,
530 F.3d 300, 309 (4th Cir. 2008) (internal quotation marks
omitted).
Under Rule 404(b) of the Federal Rules of Evidence, a
district court should exclude from admission “[e]vidence of a
crime, wrong, or other act” if such evidence is offered “to
prove a person’s character in order to show that on a particular
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occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). However, evidence of other bad acts
“may be introduced if it concerns acts intrinsic to the alleged
crime because evidence of such acts does not fall under Rule
404(b)’s limitations to begin with.” United States v. Otuya,
720 F.3d 183, 188 (4th Cir. 2013) (internal quotation marks and
alteration omitted), cert. denied, 134 S. Ct. 1279 (2014). In
this Circuit, evidence of other bad acts is “intrinsic” if “it
arose out of the same series of transactions as the charged
offense or if it is necessary to complete the story of the crime
on trial.” United States v. Kennedy, 32 F.3d 876, 885 (4th Cir.
1994) (internal quotation marks and alterations omitted).
It is clear after review of the record that the
evidence to which Roudabush objects — evidence from Agent Nelson
and William Adams, Jr., concerning their investigation of his
activity in returning merchandise and obtaining refunds from
JC Penney department stores — was admissible because it was
connected with and explanatory of the fraud charged in counts
three through seven such that its proof was appropriate to
complete the story of those crimes. Id. at 885-86. The
district court thus did not abuse its discretion in allowing the
admission of the evidence.
Finally, Roudabush challenges the district court’s
application of a fourteen-level enhancement to his base offense
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level under USSG § 2B1.1(b)(1)(H) for a loss exceeding $400,000,
arguing that the court erred in its calculation of the loss
amount.
Enhancements under USSG § 2B1.1(b) are to be
determined by the amount of loss suffered as a result of the
fraud. The loss amount is the greater of the actual loss or the
intended loss. USSG § 2B1.1, cmt. n.3(A). “Actual loss” means
“the reasonably foreseeable pecuniary harm that resulted from
the offense.” Id. cmt. n.3(A)(i). “Reasonably foreseeable
pecuniary harm” means “pecuniary harm that the defendant knew
or, under the circumstances, reasonably should have known, was a
potential result of the offense.” Id. cmt. n.3(A)(iv).
Further, Application Note 3(C) to USSG § 2B1.1 provides that the
district court need only make a reasonable estimate of the loss.
In calculating a fraud loss, a sentencing court must
apply principles of relevant conduct. United States v. Bolden,
325 F.3d 471, 498 (4th Cir. 2003). Pursuant to USSG § 1B1.3,
specific offense characteristics such as the fraud loss properly
attributable to a defendant must be determined on the basis of,
inter alia, “the acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
[the] defendant.” Id. (citing USSG § 1B1.3(a)(1)(A)).
The district court’s determination of a loss attributable to a
fraud scheme is a factual matter reviewed for clear error.
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United States v. Allmendinger, 706 F.3d 330, 341 (4th Cir.),
cert. denied, 133 S. Ct. 2747 (2013).
In this case, the presentence report (“PSR”)
recommended application of the fourteen-level enhancement under
USSG § 2B1.1(b)(1)(H) for a loss exceeding $400,000 but less
than $1,000,000 because the loss JC Penney suffered as a result
of Roudabush’s retail fraud was at least $620,800. In reaching
this conclusion, the PSR relied on Roudabush’s own statements
regarding his earnings from his fraud at JC Penney and the
length of time he perpetrated the fraud and an analysis by
JC Penney of the loss it suffered as a result of Roudabush’s
fraud. The district court adopted the PSR’s finding of the loss
amount and applied the fourteen-level enhancement.
On appeal, Roudabush argues that the district court
erred in relying on his statement and JC Penney’s analysis in
calculating the loss amount. Roudabush, however, has not
asserted any challenge to the accuracy or correctness of this
information. As Roudabush made no affirmative showing in the
district court that the information in the PSR was incorrect,
the court was free to adopt and rely on the information therein
in sentencing him. See United States v. Randall, 171 F.3d 195,
210-11 (4th Cir. 1999) (“If the district court relies on
information in the presentence report (PSR) in making findings,
the defendant bears the burden of establishing that the
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information relied on by the district court in making its
findings is incorrect; mere objections are insufficient.”);
United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998)
(“Without an affirmative showing the information [in a PSR] is
inaccurate, the court is free to adopt the findings of the [PSR]
without more specific inquiry or explanation.” (internal
quotation marks omitted)). The relevant conduct in the PSR
easily establishes a loss exceeding $400,000. We therefore
conclude that the district court did not reversibly err in
holding Roudabush accountable for a loss exceeding $400,000 but
less than $1,000,000 and applying the fourteen-level enhancement
under USSG § 2B1.1(b)(1)(H).
Accordingly, we affirm the district court’s judgment.
We deny Roudabush’s pro se motion to recuse all judges of the
Fourth Circuit, United States v. Cherry, 330 F.3d 658, 665 (4th
Cir. 2003), and dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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