                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4819



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES BRAGG NEWMAN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00094-nkm)


Submitted:   January 29, 2008             Decided:   September 4, 2008


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Melvin L. Hill, WARE & HILL, L.L.P., Roanoke, Virginia, for
Appellant.   John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               James Bragg Newman appeals his conviction and sentence

following his guilty plea to one count of transportation of stolen

money taken by fraud, in violation of 18 U.S.C. ' 2314 (2000).                          He

claims his sentence was unreasonable, asserting error in the

district court=s calculation of loss, in its increase of his base

offense level by two levels based on an offense involving ten or

more victims pursuant to U.S. Sentencing Guidelines Manual (USSG)

' 2B1.1(b)(2)(A)        (2004),     in   its   alleged        sixteen-level       upward

adjustment       for    loss   exceeding       $1,000,000        pursuant    to     USSG

' 2B1.1(b)(1)(H),        and   in    failing       to   grant   his   request     for   a

downward departure.1

               The charge arose from, and the evidence established, a

scheme    by    which   Newman      created    a    company     operating    as    Basic

Strategies Corporation located in Charlottesville, Virginia, held

himself    out    as    a   licensed     investment        broker     with   Fidelity

Investments, with which he was neither a licensed broker nor a

representative, and made false representations to potential and

actual investors in order to obtain their trust and their money.

Among other things, Newman failed to reveal to his customers that

he previously had been convicted of fraud.                  At Newman=s direction,


     1
      The district court placed Newman in a total offense level of
twenty-two, and a criminal history category of IV, with an
attendant sentencing range of sixty-three to seventy-eight months=
imprisonment.


                                          2
clients opened new accounts with Fidelity Investments and Merrill

Lynch.   Newman provided his victims with financial advice on stock

purchases and, in some cases, was given authority to make trading

decisions and to manipulate transactions without conferring with

the customer.       Newman directed several clients to fund Self-

Employed Individual Retirement Accounts, or ASEP IRAs,@ and then

failed to open many of these accounts, taking the money intended

for the SEP IRA for his personal use.         In some instances, Newman

perpetrated   his   scheme   by   providing   victims   with   fraudulent

statements detailing how the money in the SEP IRA and other

accounts purportedly had been invested.

           The probation officer placed Newman at a base offense

level of six, pursuant to USSG ' 2B1.1(a)(2), and then added

sixteen levels for a loss exceeding $1,000,000, pursuant to USSG

' 2B1.1(b)(1)(H); an additional two levels for abuse of trust

because Newman claimed to be a licensed financial investor or

broker, pursuant to USSG ' 3B1.3; and an additional two levels

because the offense involved more than ten victims, pursuant to

USSG ' 2B1.1(b)(2)(A), for a total offense level of twenty-six.2

With a criminal history category of IV, the probation officer

calculated Newman=s advisory guidelines range to be 92 to 115

months= imprisonment.    Newman filed objections to the presentence


     2
      The PSR identified eighteen victims, with a corresponding
total loss of $1,242,219.


                                    3
report (APSR@), which objections included a challenge to the PSR=s

calculation of loss and the number of victims.     Following a full

evidentiary hearing, the district court ultimately sentenced Newman

under the advisory federal sentencing guidelines to seventy-eight

months= imprisonment, three years of supervised release, and ordered

payment of restitution of $148,749.16, representing total losses

incurred by fifteen victims.34

          With regard to the calculation of loss issue, Newman

alleges on appeal that he should only have been held responsible

for $61,500 in losses, and that the court should have found only

six victims, such that the two-point enhancement for more than ten

victims was wrongly applied.5    Newman further asserts error in the

alleged sixteen-level adjustment for losses exceeding $1,000,000.

     3
      Specifically, the district court determined that Newman was
responsible for an actual total loss of $186,992.16, for losses
sustained by fifteen victims, and ordered restitution to be paid to
twelve of those victims in the total amount of $148,749.16.
     4
      The district court also found that Newman=s testimony was not
credible and that he had not accepted responsibility, stating that
Newman had obstructed justice in Aso many ways that are hard to
enumerate@ but specifically with regard to the information he
supplied to his counsel and the court regarding certain
transactions with specific victims.
     5
      Newman   does  not   contest   the   district   court=s  loss
determination as to the following victims and loss amounts: (1)
David Artigues, in the amount of $10,000; (2) Edmond Hoskins, in
the amount of $5000; (3) Marietta McCarty, in the amount of $7000;
(4) Robert Stumm, in the amount of $13,000; and (5) Keith Stumm, in
the amount of $6500. He also agrees that he absconded with $20,000
from Hannah Watters, but disagrees with the $40,000 amount
determined by the district court to be the actual loss sustained by
Watters.

                                  4
          This court reviews the determination of the amount of

loss, to the extent it is a factual matter, for clear error, and

reviews de novo the district court=s legal interpretation of the

term Aloss@ under the Sentencing Guidelines.           United States v. West,

2 F.3d 66, 71 (4th Cir. 1993).          Here, the district court heard and

considered oral and documentary evidence, as well as arguments from

both parties, during a two-day sentencing hearing regarding the

various sentencing issues, including the calculation of loss.

          While    Newman      takes    issue   with   the   amount     of   loss

determined by the district court, the record clearly reflects that

the   district    court=s    loss      determination    followed    a     lengthy

sentencing hearing and was made after review of documentary and

testimonial evidence, and an extended and detailed analysis of the

transactions each victim had with Newman.                The court=s careful

consideration and determination as to which losses properly were

attributable to Newman=s fraudulent activity, and its findings in

distinguishing    such      properly    attributable    losses     from   losses

sustained by other causes not properly includable including stock

market instability,6 fully support our conclusion that there is no

clear error with regard to the district court=s loss calculation.




      6
      The court=s restitution order also reflects that it subtracted
out the amounts that, as to some victims, already had been returned
or recovered by each victim, as well as amounts that reasonably
were incurred for legitimate services rendered.


                                         5
             Secondly, Newman challenges the district court=s finding

that the number of victims was ten or more, thus triggering a two-

level enhancement under USSG ' 2B1.1(b)(2)(A).              We find this claim

to be without merit, given the district court=s fact-finding at

sentencing, which was based on the government=s ample evidence

demonstrating that more than ten victims were affected by Newman=s

fraudulent     activities.        The   enhancement       was   reasonable    and

appropriate.

           Nor   do   we   find   merit     to   Newman=s   challenge    to   the

application of the sixteen-level upward adjustment for losses

exceeding $1,000,000 pursuant to USSG ' 2B1.1(b)(1)(H), that was

recommended in the PSR.           The record clearly reflects that the

district court did not apply the recommended adjustment, finding

instead the total loss amount for which Newman should be held

responsible for purposes of calculating his advisory guidelines

range to be $186,992.16.

           Finally, Newman asserts error in the district court=s

failure to grant him a downward departure.              Specifically, he claims

he should have benefitted from a departure because of family

circumstances, because he suffers from Type II diabetes, and

because he had been involved in charitable causes.

             We review a post-Booker sentence for reasonableness.

This   court   affords     sentences    that     fall    within   the   properly

calculated guidelines range a presumption of reasonableness, a


                                        6
presumption permitted by the Supreme Court.                       Rita v. United States,

551 U.S.               , 127 S. Ct. 2456, 2462 (2007).                 Where the district

court       is   aware    of     its   authority         to   depart   under       a   specific

guidelines provision, but exercises its discretion not to depart,

this       court      lacks   jurisdiction         to    review   that    portion        of   the

sentencing decision.             See United States v. Wood, 378 F.3d 342, 351

n.8 (4th Cir. 2004); United States v. Bayerle, 898 F.2d 28, 30-31

(4th Cir. 1990).

                 In    this    case,   the    district        court    was    aware      of   its

authority to depart, but chose not to do so.                              A review of the

sentencing transcript reveals that the district court considered

the information in the PSR, the evidence presented by Newman and

his    arguments         relating      to    his       physical   condition        and   family

situation,         as    well    as    his    educational         level      and   charitable

activities.7             After    considering           the   statutory      factors      under

' 3553(a), the facts, arguments, and evidence presented to it, as

well as the applicable advisory guidelines range, the district

court deemed a within-guideline sentence to be appropriate.                                   We

find Newman has not overcome the presumption of reasonableness that

this court accords such a sentence.                      Rita, 551 U.S. at             , 127 S.

Ct. at 2462.



       7
      The district court granted leave to Newman=s counsel to
proffer or summarize information relative to Newman=s charitable
work.


                                                   7
           Accordingly, we affirm Newman=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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