UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4893
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARREN F. TONSING, JR.,
Defendant - Appellant.
No. 14-4894
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLENN ADKINS, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:12-cr-00259-RJC-DCK-2; 3:12-cr-00259-
RJC-DCK-1)
Submitted: September 30, 2015 Decided: October 22, 2015
Before GREGORY and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina; Richard H. Tomberlin, LAW OFFICE OF RICHARD H.
TOMBERLIN, Charlotte, North Carolina, for Appellants. Jill
Westmoreland Rose, Acting United States Attorney, Amy E. Ray,
Chief of Appeals, Asheville, North Carolina; Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
Attorney General, Patrick Donley, William Bowne, James I.
Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Warren Tonsing, Jr., and Glen Adkins, Jr., were convicted
by a jury of conspiracy to commit wire fraud, conspiracy to
commit money laundering, and several substantive counts of wire
fraud and money laundering. The district court varied downward
and sentenced Tonsing to 144 months’ imprisonment and Adkins to
300 months’ imprisonment. On appeal, Appellants argue that the
district court erred in denying their motions for judgment of
acquittal under Fed. R. Crim. P. 29 because their money
laundering offenses merged with their wire fraud offenses, that
the district court was required to submit Appellants’
restitution amounts and the facts underlying the application of
the Sentencing Guidelines to the jury, and that the district
court procedurally erred in applying several sentencing
enhancements. The Government responds that Appellants waived
their merger argument by failing to assert it in their Rule 29
motions, and that the remaining arguments are without merit. We
affirm.
We agree with the Government that Appellants waived their
merger argument by failing to assert it in their Rule 29
motions. See United States v. Chong Lam, 677 F.3d 190, 200 (4th
Cir. 2012) (“When a defendant raises specific grounds in a Rule
29 motion, grounds that are not specifically raised are waived
on appeal.”). We also conclude that the district court was not
3
required to submit the facts underlying Appellants’ Guidelines
calculations and restitution amounts to the jury. See United
States v. Booker, 543 U.S. 220, 233 (2005) (approving judicial
factfinding with respect to advisory Guidelines); United States
v. Day, 700 F.3d 713, 732 (4th Cir. 2012) (rejecting claim that
jury must decide restitution amount).
In assessing Appellants’ challenges to the application of
the Guidelines, we review the district court’s factual findings
for clear error and its legal conclusions de novo. United
States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010).
“[W]e afford considerable deference to a district court’s
determinations regarding the reliability of information in a
PSR,” and will not disturb such determinations absent “the
definite and firm conviction that a mistake has been committed.”
United States v. McDowell, 745 F.3d 115, 120 (4th Cir. 2014)
(internal quotation marks omitted), cert. denied, 135 S. Ct. 942
(2015).
Appellants first argue that the district court erred in
calculating the loss amounts and number of victims. When
calculating the loss attributable to a defendant, a district
court “need only make a reasonable estimate of the loss, given
the available information.” United States v. Miller, 316 F.3d
495, 503 (4th Cir. 2003). A Government witness testified at
sentencing regarding his estimation of the loss amounts and
4
number of victims, and the district court adopted loss amounts
that were considerably lower than these estimates. The district
court did not err in finding that these estimates were
reasonable and supported by a preponderance of the evidence, and
in applying sentencing enhancements based on these estimates.
Appellants next challenge the application of the vulnerable
victim enhancement. This enhancement applies when “a victim was
unusually vulnerable” and “the defendant knew or should have
known of such unusual vulnerability.” United States v. Llamas,
599 F.3d 381, 388 (4th Cir. 2010). The district court found
that Appellants’ victims were vulnerable because they had
already invested money in Appellants’ scheme, and that
Appellants knew of this vulnerability. Because this finding is
not clearly erroneous, the enhancement was properly imposed.
Finally, Adkins argues that the district court erred by
applying a three-level supervisory role enhancement. “[A]
district court’s determination that a defendant held a
leadership role in criminal activity is essentially factual and,
therefore, is reviewed on appeal for clear error.” United
States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013). “[T]he
aggravating role adjustment is appropriate where the evidence
demonstrates that the defendant controlled the activities of
other participants or exercised management responsibility.”
Llamas, 599 F.3d at 389 (internal quotation marks omitted). At
5
trial, a coconspirator testified that Adkins was “second in
command” and ran the call center while their leader, Jeffrey
Bonner, was out, and another coconspirator testified that Adkins
and Bonner had interviewed him for his position, and that Adkins
once wrote a new pitch for him to use. We find that the
district court did not clearly err in crediting this testimony
and concluding that Adkins was a manager or supervisor.
Accordingly, we affirm the judgment of the district court.
We deny Adkins’ motions for leave to file pro se briefs. See
United States v. Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir.
2011). We also deny Adkins’ motion to reconsider the denial of
his motion to relieve counsel, deny as moot his motions to
reconsider the orders deferring ruling on his motions for leave
to file pro se briefs, deny his motion to reconsider the denial
of his motions for judicial notice and imposition of sanctions,
and deny his petition for reconsideration regarding his request
for investigative services. We 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
6