United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 26, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 03-30916
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE RIEMER CALHOUN, JR,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
Before DAVIS, EMILIO M. GARZA, and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Maurice Riemer Calhoun Jr. (“Calhoun”) pled guilty to one count of wire fraud in violation
of 18 U.S.C. § 1343 and one count of conspiracy to commit equit y skimming in violation of 18
U.S.C. § 371, arising out of his rehabilitation and maintenance of affordable housing developments
in Louisiana and Texas. The district court determined that Calhoun’s total offense level was 24 and
sentenced him to 60 months of imprisonment on each count, to be served concurrently. On appeal,
Calhoun challenges the district court’s application of the Sentencing Guidelines. He contends that
the district court erred in (1) its loss calculation under U.S.S.G. § 2F1.1; and (2) in assigning two
points for obstruction of justice under U.S.S.G. § 3C1.1. We find that the district court applied the
Sentencing Guidelines correctly and accordingly we affirm Calhoun’s sentence.
I
Calhoun was charged with wire fraud based on his development of thirty-five distressed
properties in Louisiana under the Low-Income Housing Tax Credit Program run by the Louisiana
Housing Finance Agency (“LHFA”). The LHFA provides tax credits for investors in low-income
apartment complexes to finance the development and rehabilitation of the complexes. The LHFA
approves projects based on LHFA guidelines and monitors construction and related costs to insure
that the projects comply with the program guidelines as established in the Qualified Application Plan
(“QAP”).
The QAP limits the developer’s fee to a maximum of 15% of the costs of development plus
8% of the costs of acquisition of distressed properties. In addition, the builder is entitled to a profit
of 8% of the costs of construction. If, however, there is an identity of interest between the developer
and the builder, the developer is not entitled to both the 15% developer’s and the 8% contractor’s
profit. The developer is limited to a developer’s fee consisting of the 15% developer’s profit plus the
costs of acquisition. However, in order to gain bonus points for the competitive application selection
process, a developer may agree to limit their developer’s fee to 10% of the costs of development
only.
As developer of the thirty-five distressed pro perties, Calhoun hired Ham Contracting Inc.
(“HCI”) as general contractor. Calhoun and HCI agreed that HCI would perform the construction
on these properties and that the profits from the construction work would be diverted to Calhoun.
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Calhoun did not, however, reveal this identity of interest to the LHFA, which enabled Calhoun to
collect a larger overall fee. Calhoun also increased his overall fee by submitting fraudulent cost
certificates which overstated costs and understated profits.
HCI diverted the contractor’s profits and the overages from the inflated costs to Calhoun by
purchasing gold coins, which were listed as assets of HCI. These coins were kept in safe deposit
boxes under Calhoun’s control at the Louisiana Coin Exchange. The district court found that the
total excess profit gained by Calhoun as a result of the wire fraud was $2,463,995.
Calhoun also plead guilty to conspiracy to commit equity skimming based on loans he
received from Rural Development for the acquisition and rehabilitation of forty-seven multi-family
affordable housing units in Louisiana and Texas. Rural Development is an agency of the United
States Department of Agriculture that lends money for the construction of rural low-income and
elderly multi-family housing projects. The Rural Development loans are collateralized by reserve
accounts maintained by the borrower that can only be used to meet necessary expenses of the
property. In order to use the reserve accounts the borrower must submit reserve requests to Rural
Development for approval.
Calhoun owned Calhoun Property Management, L.L.C., which acted as a manager for the
partnerships that owned the housing complexes financed by the Rural Development loans. Calhoun
decided to request reserve funds to make capital improvements on the various housing complexes.
He directed an employee to submit reserve requests that exceeded the amount estimated to complete
the repairs on the properties by approximately 130%. These reserve requests required the solicitation
of at least three competitive bids prior to the release of funds. Calhoun, however, rigged the bidding
process so that a construction company he controlled would always do the work. Calhoun then
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diverted the undisclosed profits for his own use.
Calhoun submitted these fraudulent requests for at least 47 properties. Although Rural
Development in Louisiana denied many of the request s as excessive, Rural Development in Texas
approved eleven out of twenty-four reserve requests. The district court determined that the correct
measure of the loss caused by Calhoun’s fraud was the intended loss and not the actual loss.
Accordingly, the district court considered all of Calhoun’s fraudulent reserve requests, including those
not approved, to determine that the intended loss from the equity skimming scheme was
$1,106,303.62. When the loss from the wire fraud charge was added to the loss from the conspiracy
to commit equity skimming count, it totaled $3,570,298.62. Under U.S.S.G. § 2F1.1, because the
loss total was greater than $2.5 million, but less than 5 million, the district court enhanced Calhoun’s
sentence by thirteen points.
The district court also enhanced Calhoun’s sentence by two points for obstruction of justice
based on the following facts: Calhoun became aware of the government’s investigation of him
between mid-1999 and early 2000. During the course of his schemes, Calhoun had gold coins placed
in three boxes at the Louisiana Coin Exchange. In May 2002, Calhoun asked his employee, Thomas
Frye, to retrieve the gold coins from one of these boxes, numbered box 122. Before Frye arrived at
the Louisiana Coin Exchange, however, Calhoun called to tell him that the government was already
there drilling the boxes. The government found that boxes 120 and 121 were empty. Box 122,
however, contained gold coins, which the government confiscated.
The following month, Calhoun visited his safe deposit box at Hibernia Bank in Mansfield,
Louisiana. Shortly thereafter, he brought gold coins to his son’s house in Louisiana and left them in
a trash can outside the residence. His daughter-in-law subsequently moved the coins to her brother’s
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home.
II
Calhoun asserts that the district court erred in calculating his sentencing guideline loss under
U.S.S.G. § 2F1.1. The calculation of the amount of loss is a factual finding, reviewed for clear error.
United States v. Sanders, 343 F.3d 511, 521 (5th Cir. 2003). This means that the finding must be
plausible in light of the record as a whole. Id.
Calhoun first contends that the district court’s loss calculation was incorrect because it failed
to take into account an 8% cost of acquisition fee to which he was legally entitled. During the
competitive application process, however, in exchange for bonus points Calhoun agreed to limit his
developer’s fees to 10% of the Developer Fee Base. Calhoun thus relinquished any claim to the extra
5% of the Developer Fee Base and 8 % of the Acquisition Cost Base to which he normally would be
entitled. Calhoun was not entitled to a fee consisting of 8% of the cost of acquisition of the distressed
properties.
Calhoun also contends that the wire fraud guideline loss calculation should have taken into
account the $355,653 in losses he sustained on certain of the rehabilitation projects. We need not
address this argument, because even assuming that Calhoun is correct, reducing his loss by $355,653
would not effect his sentence range under § 2F1.1.
Calhoun also objects to the district court’s calculation of the loss stemming from the
conspiracy to commit equit y skimming charge. He asserts that it was incorrect to use the gross
amount of reserve funds that he requested from Rural Development instead of the amount actually
approved by Rural Development to calculate the loss. The Sentencing Guidelines state that
“[c]onsistent with the provisions of § 2X1.1 (Attempt, Solicitation, or Conspiracy), if an intended loss
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that the defendant was attempting to inflict can be determined, this figure will be used if it is greater
than the actual loss.” U.S.S.G. § 2F1.1 cmt. n. 8. Intended loss is the appropriate measure of loss
when the loss is “1) resulting from convictions for an ‘Attempt, Conspiracy or Solicitation’ to commit
some other substantive offense which the Defendant was attempting to commit; 2) which is capable
of being determined; and 3) is greater than the ‘actual loss.’” See Sanders, 343 F.3d at 522.
Here, the intended loss should be used to determine Calhoun’s sentence. First, the loss is a
result of Calhoun’s conviction for conspiracy to commit equity skimming. Second, the intended loss
can be calculated based upon the amount of reserve that Calhoun initially requested. The reserves
requested by Calhoun were not disbursed because of actions taken by Rural Development, not as a
result of any action taken by Calhoun. The refusal to grant certain of Calhoun’s requests did not
impact Calhoun’s intent to cause loss. Cf. Sanders, 343 F.3d at 514-15 (Actual loss was the
appropriate measure of loss where a smaller loan was disbursed than initially requested when the
defendant reduced the loan amount requested of his own accord). The intended loss in this case is
commensurate with the amount of reserve funds Calhoun requested. Finally, the intended loss is
greater than the actual loss as Rural Development did not approve all of Calhoun’s reserve requests.
The Sanders factors that determine when to use intended loss as the measure of loss have been
satisfied. The district court thus correctly used the requested reserve requests to calculate the loss
stemming from the equity skimming charge.
Calhoun also contends that the district court erred by enhancing his sentence for obstruction
of justice under U.S.S.G. § 3C1.1. The district court gave three reasons for applying the obstruction
of justice enhancement: (1) Calhoun requested that Frye remove the gold from safe deposit box 122;
(2) Calhoun transported gold to New Orleans; and (3) Calhoun altered an employment agreement and
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destroyed the computer on which it was made.
Section 3C1.1 provides for a two-point enhancement
[i]f (A) the defendant willfully obstructed or impeded, or attempted to
obstruct of impede, the administration of justice during the course of
the investigation . . . and (B) the obstructive conduct related to (i) the
defendant’s offense of the conviction, and any relevant conduct; or (ii)
a closely related offense.
U.S.S.G. § 3C1.1 (2000). Calhoun contends that he did not request that Frye remove the gold from
safe deposit box 122 with the intent to obstruct justice.
We review the question of whether Calhoun acted with the intent to obstruct justice for clear
error. See United States v. Chavarria, ___ F.3d ___ , 2004 WL 1551371 (5th Cir. July 12, 2004).
The Government must show that Calhoun had the specific intent to obstruct justice by a
preponderance of the evidence. United States v. Greer, 158 F.3d 228, 239 (5th Cir. 1998). The
district court is permitted to use circumstantial evidence to find that Calhoun engaged in a conscious
and deliberate attempt to obstruct or impede the administration of justice. Id. The district court may
draw all reasonable inferences from the evidence. See United States v. Khedr, 343 F.3d 96, 102 (2nd
Cir. 2003). Here, it was reasonable to infer that a request to remove gold coins that were purchased
with the proceeds of a fraud during a pending investigation was done with the intent to obstruct
justice. The obstruction of justice enhancement based on Calhoun’s request that Frye retrieve the
gold coins from safe deposit box 122 is supported by the evidence.1
The record also supports an obstruction of justice enhancement based upon Calhoun’s
transportation of gold from Mansfield to New Orleans. Although Calhoun claims that the transported
1
The Sentencing Guidelines provided Calhoun with sufficient notice that the district court
might enhance his sentence for obstruction of justice on the basis that he requested Frye retrieve the
gold coins because Calhoun had actual knowledge of his request. See United States v. Marmolejo,
89 F.3d 1185, 1201 (5th Cir. 1996).
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gold was unrelated to the charged conduct because it legitimately belonged to his wife, Marcia, the
evidence shows that: 1) Calho un transported gold from Mansfield to his son’s residence in New
Orleans; 2) Calhoun placed the go ld in a trash can at the back of his son’s house; 3) Calhoun’s
daughter-in-law then retrieved the gold from the trash and brought it to her brother’s house; and 4)
the gold was placed in a vacant room. The evidence also shows that the reason Calhoun placed the
gold in a trash can outside his son’s home was that his son did not want the gold in the house. This
is strong circumstantial evidence that the transported gold was not legitimately owned. The
Government met its burden to establish by a preponderance of the evidence that in transporting the
gold to New Orleans Calhoun tried to obstruct justice by hiding his illegitimate gold. The two-point
enhancement for obstruction of justice is supported by the evidence.2
AFFIRMED.3
2
We need not address the district court’s other basis for finding obstruction of justice, the
creation of a false employment agreement and destruction of a computer, because the other two bases
are sufficient to support the obstruction of justice enhancement.
3
The appellee’s motion to file a letter supplementing the argument made at oral argument is
denied.
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