No. 13-4738
Appeal from the United States District Court for the District of
South Carolina, at Greenville.
Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-00894-HMH-1)
Submitted:
Decided:
Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant.
William N. Nettles, United States
Attorney, William J. Watkins, Jr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
PER CURIAM:
A jury found Robert Gartrell Bowling guilty of:
count
of
conspiracy
to
make,
pass,
and
possess
one
counterfeit
possession
with
intent
to
use
or
transfer
five
or
more
counts
of
aggravated
identity
theft,
in
violation
of
18
assaulting
Special
Deputy
U.S.
Marshall
who
was
18
U.S.C.
111(a)(1),
(b)
(2012).
The
district
court
district
court
found
that
all
but
one
of
Bowlings
With regard to
Bowlings
for
claim
that
counsel
was
2
ineffective
failing
to
object
to
his
presentence
investigation
reports
(PSR)
offenses,
the
district
court
found
that
Bowling
was
the
first
sentence
was
resentencing, 1
PSR,
except
identified
the
that
for
district
the
correct
the
1028
court
statutory
maximum
convictions.
immediately
clarified
At
its
So [Bowling]
can
adopted
raise
Guidelines
any
objection.
range
as
The
calculated
district
in
court
Bowlings
revised
the
PSR,
(2012)
factors
relevant
to
Bowlings
case,
and
Bowling timely
appealed.
On appeal, Bowling asserts that his offense level was
improperly enhanced in two respects.
of
Sentencing
fraud
offenses
Guidelines
by
six
Manual
levels
(USSG)
pursuant
to
3A1.2(c)(1)
U.S.
(2012)
enforcement
flight
officer
therefrom).
showing
that
attributed
to
he
during
Second,
intended
him,
so
the
the
he
to
course
contends
inflict
district
of
the
that
the
court
offense
there
amount
erred
was
of
by
or
no
loss
further
(2012)
(requiring
that
offense
level
asserts
that
he
should
not
have
been
assigned
be
Bowling
three
deferential
abuse-of-discretion
standard.
Gall
v.
first
error,
examine
including
the
sentence
failing
to
for
significant
calculate
(or
procedural
improperly
sentence
based
on
clearly
erroneous
facts,
In
reviewing
Guidelines,
we
the
review
district
findings
5
of
courts
fact
or
failing
to
for
clear
of
the
error
and
in
First,
the
erred
we
pursuant
district
reject
when
it
to
arguments
courts
Bowlings
increased
USSG
to
the
contrary,
Guidelines
range
argument
that
fraud
offense
his
3A1.2(c)(1).
Under
we
the
discern
calculation.
district
level
that
no
six
court
levels,
provision,
an
substantial
risk
of
serious
bodily
injury,
the
person
was
law
enforcement
officer,
assaulted
such
federal
officer
offense,
the
increase
was
inappropriately
Specifically, Bowling
Kleinebreil, 966 F.2d 945, 954 (5th Cir. 1992) (holding that
because the assault count was not grouped with the marijuana
counts,
the
district
court
erred
in
increasing
the
offense
level for the marijuana convictions under USSG 3A1.2, and also
increasing the assault count).
Bowlings
Kleinebreil,
only
argument
Bowlings
is
meritless.
fraud
First,
grouping
offense
unlike
level
in
was
upon which the enhancement was based, Bowling was fleeing from
authorities
and
had
in
his
possession
the
no
error
in
the
PSRs
application
identification
Accordingly, we
of
the
3A1.2
to
also
discern
enhance
2B1.1(b)(1)(G).
no
error
Bowlings
in
the
offense
district
level
courts
under
USSG
from
the
offense[,]
and
intended
loss
is
the
pecuniary harm that was intended to result from the offense and
includes
intended
impossible
or
pecuniary
unlikely
to
harm
that
occur[.]
would
USSG
have
been
2B1.1
cmt.
n.3(A)(i)-(ii) (2012).
In making loss calculations, the sentencing court is
instructed to hold the defendant responsible for the amount of
loss
which
sustained[.]
Cir.
1997)
was
intended,
not
the
actual
loss
ultimately
to
apply
net
loss
theory
and
credit
possible,
or
defendants conduct.
likely
to
occur,
as
result
of
the
this
case,
the
Government
established
that
$356,981.44.
Although
Bowling
objected
that
he
did
not
intend to take all of the money for which the counterfeit checks
were written, and speculated that some of the checks may have
8
been
old
or
canceled,
Bowling
presented
no
evidence
to
$200,000.
court
did
Accordingly,
not
err
in
we
conclude
applying
the
that
USSG
the
district
2B1.1(b)(1)(G)
guilty
to
that
offense,
and
did
not
knowingly,
generally
convictions
used
to
may
enhance
not
collaterally
his
sentence.
attack
United
prior
States
v.
of
the
right
to
counsel
fall
outside
this
general
collateral
constitutional
attack
grounds,
on
the
final
presumption
conviction
of
rests
regularity
on
that
violation
of
preponderance
right
of
to
the
counsel,
evidence
he
that
must
demonstrate
prior
convictions
by
were
constitutionally invalid).
Bowlings conclusory assertions to the contrary, the
record establishes that at the time Bowling pled guilty to the
failure
to
stop
for
blue
light
offense,
the
state
court
(1) was
good
plea
deal.
In
fact,
during
his
self-
suspended
to
one
year
of
probation.
Given
Bowlings
we
reject
Bowlings
argument
that
the
in
restitution
and
was
not
because
the
proven
by
10
amount
the
was
allegedly
Government
by
preponderance
of
the
evidence.
Under
the
Guidelines,
USSG
2B1.1,
cmt.
n.3(C)
(2012).
In
fact,
the
evidence.
Id.
For
this
reason,
the
courts
loss
Id.
it
acts
judicially
arbitrarily
recognized
or
irrationally,
factors
fails
constraining
its
to
consider
exercise
of
552, 557 (4th Cir. 2013) (internal quotation marks and citation
omitted).
We
court.
discern
no
abuse
of
discretion
by
the
district
as
an
addendum
to
the
amended
judgment.
This
the case agent confirmed, that the $204,781.35 was derived from
taking
the
account
possession
and
numbers
checks
that
of
stolen
he
was
checks
in
Bowlings
negotiating,
and
then
the
Bowling
Government
presented
to
only
present
the
speculation
agents
to
testimony
suggest
that
and
the
Accordingly, Bowling
or
legal
premises,
or
committed
an
error
of
law,
pro
sentence.
legal
before
se
supplemental
brief
and
affirm
his
192-month
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
12