UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4132
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT DEWAIN VENSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cr-00088-AW-1)
Submitted: April 30, 2012 Decided: June 6, 2012
Before AGEE, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary E. Davis, DAVIS & DAVIS, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, Ann M. O’Brien,
Special Assistant United States Attorney, Robert K. Hur,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Dewain Venson was convicted by a jury of all 26
counts of an indictment charging him with mail and wire fraud,
18 U.S.C. §§ 1341, 1343 (2006) (16 counts), money laundering, 18
U.S.C. § 1956 (2006) (7 counts), and failure to file income tax
returns, 26 U.S.C. § 7203 (2006) (3 counts). He was sentenced
to a total term of 120 months’ imprisonment and ordered to pay
$2,060,021.75 in restitution. Venson timely appealed.
Between September 2004 and March 2007, Venson engaged
in a scheme to defraud a number of mortgage lenders by arranging
for the sale of residential properties in Maryland and the
District of Columbia, using inflated sales prices and “straw
purchasers” who, at Venson’s behest, overstated their income
and/or creditworthiness. Venson realized approximately $800,000
from his efforts. However, he eventually defaulted on the loans
and all the properties (thirteen) were sold at foreclosure,
resulting in substantial losses for the lenders. The Government
presented testimony from each of the six straw buyers Venson
employed to purchase the properties, each of whom was paid a
“commission” (generally between $3000 and $7500) for agreeing to
pose as a buyer through closing. Each testified that they
understood that Venson paid them for the use of their name and
credit to purchase homes, that they had no intention of living
in the homes, that they were not required to actually pay the
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mortgages obtained in their names, and had no involvement in the
sales of the properties other than to attend the closings. In
addition to the straw buyers, the Government also presented the
testimony of eight property sellers, each of whom testified that
they never met the straw buyers prior to closing, and that the
sales price shown on the settlement documents was higher than
the “true” price negotiated with Venson, but that none of them
received the differential. Rather, the money was received by
Venson.
Rasheeda Canty, a loan officer for various mortgage
brokers between 2004 and 2005, testified that Venson would send
straw buyers to her in order to obtain financing. According to
Canty, she and Venson referred to such buyers as “credit
partners” and, together, they would falsify loan applications in
order to qualify the buyers.
At sentencing, the district court determined that the
aggregate net loss amount attributable to Venson’s conduct was
$2,060,021.76, by subtracting from the original loan amount the
price for which the property was sold after foreclosure and any
payments made on the mortgages prior to foreclosure. Based on
a total offense level of 31 and a criminal history category III,
Venson’s advisory Guidelines range was 135-168 months’
imprisonment. However, the district court departed downward and
imposed a sentence of 120 months.
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Venson appeals, challenging the sufficiency of the
evidence, the restitution order, and his sentence. For the
reasons that follow, we affirm.
When a defendant challenges the sufficiency of the
evidence supporting the jury’s guilty verdict, this court views
the evidence and all reasonable inferences in favor of the
Government and will uphold the jury’s verdict if it is supported
by substantial evidence. United States v. Cameron, 573 F.3d
179, 183 (4th Cir. 2009). “[S]ubstantial evidence is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id. (internal quotation marks omitted).
In reviewing for substantial evidence, this court will not weigh
evidence or review witness credibility. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the
role of the jury to judge the credibility of witnesses, resolve
conflicts in testimony, and weigh the evidence. Id.; United
States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). Appellate
reversal on grounds of insufficient evidence “will be confined
to cases where the prosecution’s failure is clear.” United
States v. Green, 599 F.3d 360, 367 (4th Cir. 2010) (internal
quotation marks omitted).
Mail fraud under § 1341 and wire fraud under § 1343
have two essential elements: (1) the existence of a scheme to
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defraud and (2) the use of the mails or wire communication in
furtherance of the scheme. See United States v. Godwin, 272
F.3d 659, 666 (4th Cir. 2001); United States v. ReBrook, 58 F.3d
961, 966 (4th Cir. 1995). Venson argues that the Government
failed to prove the first element in that it did not show that
he had the requisite fraudulent intent because he acted in good
faith, with the intention of repaying the loans. However,
intent to repay is irrelevant. See United States v. Curry, 461
F.3d 452, 458 (4th Cir. 2006) (“The intent to repay eventually
is irrelevant to the question of guilt for fraud.”).
Venson also claims that the bank/victims failed to review the
loan documentation and, therefore, subjected themselves to the
risk of fraudulently-issued loans. In order to prove the
existence of a scheme to defraud, the Government had to prove
that Venson “acted with the specific intent to defraud, which
may be inferred from the totality of the circumstances and need
not be proven by direct evidence.” Godwin, 272 F.3d at 666. A
scheme to defraud includes “an assertion of a material falsehood
with the intent to deceive or active concealment of a material
fact with the intent to deceive.” United States v. Pasquantino,
336 F.3d 321, 333 (4th Cir. 2003) (en banc). Here, the evidence
amply supported a finding that Venson had the requisite intent
to deceive the lenders, regardless of what their decisions
ultimately would have been.
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Next, Venson argues that the Government failed to
prove that he directed any of the witnesses to fabricate or
misrepresent any fact in the loan documents or to inflate
property values. Venson misstates the evidence. As the
district court noted at sentencing, “I sat through the trial,
and what I saw, Mr. Venson, was witness after witness coming in
and fingering you as the person and the mastermind behind this
scheme.”
Venson also argues that the misrepresentations were
not material because the Government failed to present testimony
from any of the lenders that the loans would not have been made
had they known the truth. However, such testimony was not
necessary to support Venson’s conviction. Venson’s reliance on
United States v. Sarihifard, 155 F.3d 301 (4th Cir. 1998) is
misplaced. In that case, involving a conviction for making a
materially false statement to a government agency, 18 U.S.C.
§ 371 (2006), this court noted that, “[i]n determining whether a
statement is material, it is irrelevant whether the false
statement actually influenced or affected the decision-making
process. . . . Instead, a statement is material ‘if it has a
natural tendency to influence, or is capable of influencing, the
decision-making body to which is was addressed.’” (citations
omitted). Accordingly, we find that the evidence amply
supported Venson’s convictions.
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Next, Venson raises several claims challenging the
district court’s restitution order. We review such orders for
abuse of discretion. United States v. Llamas, 599 F.3d 381, 391
(4th Cir. 2010). The Mandatory Victims Restitution Act of 1996
(“MVRA”) obligates a sentencing court to order full restitution
to identifiable victims of certain crimes, including crimes of
fraud or where an identifiable victim has suffered pecuniary
loss, without regard to the defendant’s economic circumstances.
18 U.S.C. §§ 3663A(c)(1)(A)(ii), (B), 3664(f)(1)(A) (2006).
Disputes as to the proper amount of restitution are to be
resolved by the district court by a preponderance of the
evidence, and the government bears the burden of demonstrating
the “amount of the loss sustained by a victim as a result of the
offense.” 18 U.S.C. § 3664(e).
Venson first argues that this court should vacate the
restitution ordered by the district court because it failed to
make specific findings as to the victims and amounts owed to
each. However, at sentencing, the Government requested that
restitution be ordered in the amount shown on the chart
submitted as exhibit “Venson 2.” The chart identifies the
location of the property, the name of the lender, the gross loss
amounts, payments made, and net loss amounts as to each
property. At sentencing, the district court adopted the list of
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victims and loss amounts enumerated in Venson 2. We find that
this satisfies the requirements of § 3664(f)(1)(a).
Next, Venson argues that successor lenders are not
“victims” for restitution purposes. The MVRA defines victim as
“any person directly harmed by the defendant’s criminal conduct
in the course of the scheme.” 18 U.S.C.A. § 3663A(a)(2) (2006).
Here, the bad loans created by Venson’s scheme were sold
(sometimes more than once), with each subsequent purchaser of
the fraudulently obtained loan exposed to additional risk of
default. Accordingly, the district court properly found that
the victims are the institutions that held the loans at the time
the properties went into default and were subsequently sold at a
loss.
Venson also challenges the calculation of loss for
purposes of restitution. The district court adopted the
Government’s method for calculating loss: original loan amount
less amount realized upon sale and any payments made toward the
mortgage balance. Venson claims that this method is incorrect
because “the only possible victims in this case were the
original lenders.” According to Venson, the original lenders
suffered little to no loss because they sold the notes to other
lenders. Because successor lenders are victims within the
meaning of the MVRA, this claim lacks merit. Cf. United States
v. Wilkinson, 590 F.3d 259, 270 n.9 (4th Cir. 2010) (district
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court may reach a different loss amount under the MVRA than
under the Guidelines, USSG § 2B1.1(b)(1)).
Venson next raises several challenges to his 120-month
sentence. First, Venson claims that the district court
improperly enhanced his sentence based on facts found by the
judge and not a jury, citing United States v. Booker, 543 U.S.
220 (2005). Venson’s claim is foreclosed by Circuit precedent.
See United States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009)
(noting that, even after Booker, district courts may “continue
to make factual findings concerning sentencing factors by a
preponderance of the evidence”).
Venson also argues that the district court erred in
applying the 18 U.S.C. § 3553(a) (2006) factors in that it
“simply ignored the many mitigating facts and circumstances that
were presented by the defense.” This claim is belied by the
transcript of Venson’s sentencing hearing and the memorandum
opinion issued by the district court, both of which show that
the district court carefully considered the mitigating factors
identified by Venson. In particular, the court agreed that the
bank/victims were also culpable and reduced Venson’s Guidelines
range on that basis.
Finally, Venson asserts that his sentence is
disproportionate when compared with other defendants found
guilty of similar conduct. We have observed that “by devising a
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recommended sentencing range for every type of misconduct and
every level of criminal history, the Guidelines as a whole
embrace ‘the need to avoid unwarranted sentencing disparities
among defendants with similar records who have been found guilty
of similar conduct.’”. United States v. Johnson, 445 F.3d 339,
343 (4th Cir. 2006). Indeed, the district court here
specifically indicated that it had considered this sentencing
factor:
There were many others involved in this scheme who
have received or will receive lesser sentences though
the Court is aware that these other participants had
different and arguably more minor roles. Yet the
Court has considered other sentences it has issued
over the past several years for similar conduct and
recognizes the need to attempt to avoid disparities in
sentencing.
Moreover, this court presumes that a sentence within a
properly-calculated Guidelines range is reasonable. See Rita v.
United States, 551 U.S. 338, 351 (2007). Venson’s sentence was
fifteen months below the bottom of the advisory Guidelines
range. We find that he has failed to overcome the presumption
of reasonableness accorded his sentence.
We therefore affirm Venson’s conviction and sentence.
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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