UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5767
JEFFREY MAURICE YOUNG-BEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-148-A)
Submitted: March 31, 1997
Decided: April 28, 1997
Before WIDENER, HALL, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert Stanley Powell, Arlington, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, John J. Farley, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jeffrey Maurice Young-Bey was convicted by a jury of four counts
of bank fraud, 18 U.S.C. § 1344 (1994), and was subsequently sen-
tenced to ninety-six months imprisonment. Young-Bey appeals his
conviction on the ground of insufficient evidence. He also claims that
the district court abused its discretion by departing upward under
USSG § 4A1.3 (Adequacy of Criminal History Category)* and in
failing to explain the extent of the departure. We affirm.
On July 13, 1994, Young-Bey deposited a check for $8,900 in
Clarence Warren's account at the State Department Federal Credit
Union (Credit Union). Warren, an old friend of Young-Bey's, gave
Young-Bey permission to make the deposit as a favor and allowed
Young-Bey to use his ATM card to make cash withdrawals afterward.
Young-Bey then deposited another check, this time for $75,000, in
Warren's account without first obtaining Warren's permission. Both
checks were drawn on closed bank accounts of the East Potomac
Mortgage Funding Group (East Potomac), a dummy corporation
Young-Bey had set up. Warren withdrew approximately $24,610
from his account for Young-Bey before the Credit Union froze the
account.
In September 1994, Young-Bey stayed for a few days with another
friend, Ricardo McCown. He persuaded McCown to let him make a
deposit in McCown's account at a different branch of the Credit
Union. On September 12, 1994, Young-Bey deposited an East Poto-
mac check for $12,500 in McCown's account. By this time the Credit
Union was aware that checks on East Potomac accounts were suspi-
cious. When Young-Bey asked McCown to check the balance in his
account using his ATM card, the additional funds were shown as
pending but unavailable. On September 14, 1994, Young-Bey
attempted to deposit a second East Potomac check for $12,500 in
McCown's Credit Union account. The teller had been warned about
checks drawn on that account and notified the assistant manager.
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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While the assistant manager was trying to verify the check, Young-
Bey left the Credit Union without completing the transaction. Neither
the teller nor the assistant manager could make an in-court identifica-
tion of Young-Bey, but the jury was able to view photographs of the
man with whom they dealt that were taken by the Credit Union's
security cameras.
The next day, Young-Bey was arrested for an unrelated theft by a
state police officer and his car was searched. Officers searching the
car found Ricardo McCown's Credit Union statement, as well as sev-
eral East Potomac checks which had a stamped signature and the sig-
nature stamp. In February 1995, Young-Bey was arrested for bank
fraud. He identified himself as Ricardo Ware and was carrying identi-
fication with that name but with his own photograph. The investigat-
ing Secret Service agent subsequently tried to obtain handwriting
samples from Young-Bey. Young-Bey first provided disguised hand-
writing samples and then refused to cooperate.
Young-Bey argues that the evidence was insufficient to convict
him of bank fraud because it was circumstantial. He contends that no
physical evidence connected him to the offenses charged in the indict-
ments. He also maintains that the Credit Union did not suffer any loss
in connection with Counts Three and Four because no funds were
withdrawn from McCown's account.
"To sustain a conviction the evidence, when viewed in the light
most favorable to the government, must be sufficient for a rational
trier of fact to have found the essential elements of the crime beyond
a reasonable doubt." United States v. Brewer , 1 F.3d 1430, 1437 (4th
Cir. 1993); accord Glasser v. United States, 315 U.S. 60, 80 (1942).
An appeals court may consider direct and circumstantial evidence and
allow the government the benefit of all reasonable inferences from the
facts proved to the facts sought to be established. United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Even if some facts
support a contrary conclusion, this Court does not weigh the evidence
or judge the credibility of witnesses. United States v. Reavis, 48 F.3d
763, 771 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3890
(U.S. June 19, 1995) (No. 94-9316).
The bank fraud statute provides that:
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Whoever knowingly executes, or attempts to execute, a
scheme of artifice--
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets,
securities, or other property owned by, or under the
custody or control of, a financial institution, by means
of false or fraudulent pretenses, representations, or
promises; shall be fined . . . or imprisoned.
18 U.S.C.A. § 1344.
We find that the evidence amply supports Young-Bey's bank fraud
conviction. Given that the jury found Warren and McCown to be
credible witnesses, there was substantial evidence that Young-Bey
deposited or caused the deposit of four checks totalling $108,900 in
two Credit Union accounts, knowing that the checks were drawn on
closed accounts, with the intent of defrauding the Credit Union, and
that he succeeded in fraudulently obtaining $24,610 from Warren's
account. We therefore affirm Young-Bey's conviction.
At sentencing, the district court calculated a total offense level of
16 and determined that Young-Bey had 25 criminal history points,
which placed him in category VI, producing a sentencing range of 46-
57 months. Both the probation officer and the Government suggested
an upward departure under USSG § 4A1.3 in view of Young-Bey's
prior convictions for various kinds of fraud, including two federal
bank fraud convictions. In addition, just before his arrest he had swin-
dled a lady out of $500 and her Mercedes under the guise of running
a debt consolidation service. The Government argued that there was
a high probability that Young-Bey would commit other crimes when-
ever possible. At sentencing, the district court adopted the Govern-
ment's suggestion to increase Young-Bey's total offense level five
points to 21 (resulting in a new guidelines range of 77-96 months) and
imposed a sentence of ninety-six months.
Young-Bey maintains that the district court failed to provide a jus-
tification for the five-level departure above category VI and failed to
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explain why a departure to one of the intervening levels would not
have adequately reflected the seriousness of his past criminal conduct.
His first claim is without merit. A criminal history which is more seri-
ous than the average defendant in the same category is an encouraged
factor under the guidelines. See USSG § 4A1.3. Young-Bey's numer-
ous prior convictions, his 25 criminal history points, and his generally
fraudulent behavior provided ample reason for a departure above cat-
egory VI.
In departing upward by increasing the total offense level, the dis-
trict court followed a procedure approved by this court. See United
States v. Harrison, 58 F.3d 115, 118 (4th Cir. 1995) (following
United States v. Cash, 983 F.2d 558, 561 & n.6 (4th Cir. 1992);
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992)). Young-
Bey argues that the court failed to make the necessary level-by-level
findings. See Harrison, 58 F.3d at 118. The district court departed by
five levels without making a specific determination that each of the
intervening levels was inadequate, but did state that it had considered
each of the lower sentencing ranges.
On balance, we are satisfied that the court complied with Harrison,
Cash, and Rusher and considered the intervening offense levels and
sentencing ranges and found none of them adequate.
We therefore affirm Young-Bey'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 argu-
ment would not aid the decisional process.
AFFIRMED
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