United States v. Dowdell

306 F. App'x 16
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 5, 2009
Docket08-4299, 08-4300, 08-4308
StatusUnpublished
Cited by1 cases

This text of 306 F. App'x 16 (United States v. Dowdell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dowdell, 306 F. App'x 16 (4th Cir. 2009).

Opinion

PER CURIAM:

In early 1998, Terry Dowdell started operating a Ponzi scheme through his company, Vavasseur Corporation. Federal investigations of the scheme ensued and on November 19, 2001, Dowdell’s assets were frozen through a temporary restraining order which was later extended through a series of orders culminating in a permanent injunction. Ten*y Dowdell eventually pled guilty to securities and wire fraud charges.

In April 2007, a federal grand jury charged two brothers, Mark and Gregory Smyth, and Terry’s wife, Mary Ellen Dow-dell, in Count Three of a multi-count, multi-defendant superseding indictment with conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343, 2 (2006). Specifically, the indictment charged that over $800,000 in funds subject to the orders freezing Terry Dowdell’s assets were wired to the Smyth brothers and that Mary Dowdell received and negotiated checks drawn on the accounts into which these funds were transferred and that she otherwise benefited from the funds when they were used to make payments on a credit card account she held with her husband.

The Smyth brothers each pled guilty to aiding and abetting to commit wire fraud. A jury convicted Mary Dowdell of conspiracy to commit wire fraud. The district court sentenced Gregory Smyth to thirty-seven months’ imprisonment, Mark Smyth to forty-four months’ imprisonment, and Dowdell to sixty months’ imprisonment. Gregory and Mark Smyth appeal from their sentences. Mary Dowdell appeals from her conviction and sentence. The appeals have been consolidated.

We first address Dowdell’s challenge to her conviction. Dowdell argues that the district court erred by denying her Fed. R.Crim.P. 29 motion for judgment of acquittal because there was scant evidence that she specifically received and negotiated the series of checks made payable to her from the Smyths or that she had any involvement in the payments made on the credit card.

We review de novo the district court’s denial of Dowdell’s Rule 29 motion. United, States v. Reid, 523 F.3d 310, 317 (4th Cir.2008). Where, as here, the motion was based on a claim of insufficient evidence, “[t]he verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Reid, 523 F.3d at 317. To prove conspiracy to commit wire fraud, the Government need only establish that the defendant knowingly and voluntarily *19 agreed to participate in a scheme to defraud and that the use of the interstate wires in furtherance of the scheme was reasonably foreseeable. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir.2003).

Viewing the evidence in the light most favorable to the Government, there was substantial evidence that Dowdell knowingly and voluntarily agreed to participate in a scheme to defraud and that the use of the interstate wires in furtherance of the scheme was reasonably foreseeable. The Government presented evidence that the assets of Dowdell’s husband, Terry, and his alter-ego, Vavasseur Corporation, were frozen continuously from November 19, 2001. Dowdell herself was named as a relief defendant in the order and received a copy of the order the day it issued. The Government also introduced evidence of the various transfers of Vavasseur funds from the Smyth brothers to Mary personally, to her company, Willowood, and to the credit card account held by the Dowdells and evidence of Mary’s personal involvement in cashing checks issued by the Smyths. Viewing this and the other trial evidence of transfers of funds to Mary’s benefit from the time that the asset freeze went into effect, we find that the evidence was sufficient to support Mary’s conviction for conspiracy to commit wire fraud.

Turning to the sentencing issues, we review a sentence imposed by the district court for reasonableness. United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In sentencing a defendant post-Booker, a district court must correctly calculate the appropriate advisory guidelines range. Gall v. United States, — U.S. —, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)). The court then must consider that range in conjunction with the 18 U.S.C. § 3553(a) (2006) factors. Gall, 128 S.Ct. at 596. In imposing a sentence, the court “may not presume that the guidelines range is reasonable,” but rather “must make an individualized assessment based on the facts presented.” Id. at 596-97. The district court also “must adequately explain the chosen sentence to allow for meaningful appellate review.” Id. at 597.

Appellate review of a district court’s imposition of a sentence (whether inside or outside of the guidelines range) is for abuse of discretion. Id.; see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir.2007). The appellate court

must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.

Gall, 128 S.Ct. at 597.

Turning first to Dowdell’s sentence, the district court determined that her base offense level was six, under U.S. Sentencing Guidelines Manual § 2B1.1 (a)(2) (2007) . She received a fourteen-level increase under USSG § 2Bl.l(b)(l)(H) because the offense involved a loss amount of more than $400,000 and less than $1 mil *20 lion. Because the offense involved the violation of a court order, Dowdell’s offense level was raised an additional two levels pursuant to USSG § 2Bl.l(b)(8)(C).

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306 F. App'x 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dowdell-ca4-2009.