UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4536
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL D. PAHUTSKI,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:07-cr-00211-MR-1)
Submitted: January 31, 2012 Decided: February 9, 2012
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sandra Barrett, Asheville, North Carolina, for Appellant. Kurt
William Meyers, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael D. Pahutski, a mortgage broker, faced criminal
charges based on his alleged participation in a mortgage fraud
conspiracy. Pahutski pled guilty without benefit of a plea
agreement to all twenty-one counts against him. The district
court sentenced Pahutski to 228 months in prison and ordered him
to pay $3,563,125.27 in restitution. Pahutski timely appealed.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal but questioning whether the
district court erred in denying Pahutski’s motion to withdraw
his guilty plea, whether the district court properly calculated,
for sentencing purposes, the amount of loss caused by the
conspiracy, and whether Pahutski received effective assistance
of counsel in the district court.
Pahutski has filed a supplemental pro se brief in
which he asserts the same three errors raised by appellate
counsel. In addition, he claims that the Government was
vindictive and malicious in its prosecution of him; his
constitutional rights to due process and a fair and speedy trial
were violated; and his right to examine all of the evidence
against him was violated.
First, we conclude that the district court did not
abuse its discretion in denying Pahutski’s verbal motion, made
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at sentencing, to withdraw his guilty plea. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (stating review
standard). The court heard from counsel and from Pahutski
himself on the matter, addressed the Moore factors, United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), and found
that the Rule 11 proceeding was properly conducted and that
Pahutski did not show a “fair and just reason” for the
withdrawal. Fed. R. Crim. P. 11(d)(2)(B). Our review of the
record reveals no abuse of discretion by the district court.
Therefore, this claim entitles Pahutski to no relief.
Next, both counsel and Pahutski question the
correctness of the district court’s amount of loss calculation.
This court reviews for clear error the district court’s
calculation of the amount of loss. United States v. Mehta, 594
F.3d 277, 281 (4th Cir.), cert. denied, 131 S. Ct. 279 (2010).
The Government bears the burden of proving the amount of loss by
a preponderance of evidence. United States v. Pierce, 409 F.3d
228, 234 (4th Cir. 2005). “The [district] court need only make
a reasonable estimate of the loss . . . , [and] the court’s loss
determination is entitled to appropriate deference.” USSG
§ 2B1.1 cmt. n.3(C). Here, the Government presented reliable
evidence at sentencing regarding the amount of loss, and it
therefore cannot be said that the district court clearly erred
in determining the amount of loss.
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Both counsel and Pahutski also question whether
Pahutski received constitutionally effective assistance of trial
counsel. In the absence of conclusive evidence of ineffective
assistance of counsel on the face of the record, such claims are
not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Because the record does not
conclusively establish or even suggest that trial counsel
rendered ineffective assistance, we decline to consider this
claim on direct appeal. Pahutski may pursue the claim in a
motion to vacate, 28 U.S.C.A. § 2255 (West Supp. 2011). United
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
In accordance with Anders, we have examined Pahutski’s
remaining pro se claims and the entire record for potentially
meritorious issues and have found none. We affirm the judgment
of the district court and deny as premature Pahutski’s pending
motion for post-conviction relief, deny Pahutski’s motion to
strike his counsel’s submissions, and deny counsel’s motion to
withdraw. This court requires that counsel inform Pahutski, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Pahutski requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may renew her motion to
withdraw. Counsel’s motion must state that a copy thereof was
served on Pahutski. We dispense with oral argument because the
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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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