                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4259


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL WAYNE CARROLL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:09-cr-00011-jpj-pms-1)


Argued:   May 13, 2011                    Decided:   June 29, 2011


Before GREGORY, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Gregory and Judge Diaz joined.


ARGUED: Randy Virlin Cargill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.         Jennifer R.
Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.    ON BRIEF: Larry W. Shelton, Federal
Public Defender, Roanoke, Virginia, Brian J. Beck, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Abingdon, Virginia, for Appellant.     Timothy J. Heaphy, United
States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

      Defendant      Michael      Wayne   Carroll       pled    guilty     to   charges

arising from his involvement in a conspiracy to possess and pass

counterfeit     instruments.              On    appeal,        he     challenges       the

reasonableness        of    his     sentence       on     both        procedural       and

substantive grounds.        For the reasons explained below, we affirm

Defendant’s sentence.



                                          I.

      In September 2009, Defendant pled guilty, without a plea

agreement,    to     one   count    of    conspiracy      to        possess    and    pass

counterfeit money orders with intent to defraud, in violation of

18 U.S.C. § 371; three counts of possession with intent to pass

false documents purporting to be actual security or financial

instruments,    in    violation      of    18   U.S.C.    §    514(a)(2);       and   one

count of possession of counterfeit currency, in violation of 18

U.S.C.   §     472.         Defendant’s          Presentence          Report     (“PSR”)

recommended    a   total    offense       level   of    19,    a     criminal   history

category of IV, and an advisory Guideline range of 46-57 months’

imprisonment.

      When Defendant made his initial appearance in federal court

in   August   2009,    it    was    by    writ    from    a     Kentucky       detention

facility.      Following Defendant’s pleas of guilty in September

2009, a sentencing date was scheduled for December 15, 2009.

                                           2
However, the sentencing date was rescheduled for February 2010

because      the   probation         officer       needed    more     time       to    complete

Defendant’s PSR.          Defendant was released from the custody of the

state of Kentucky on December 31, 2009.

       In Defendant’s PSR, paragraph 59 noted his 2007 conviction

in Kentucky state court for possession of a forged instrument,

for which he received five years’ incarceration.                                 Defendant’s

PSR recommended no criminal history points on the basis of this

conviction.        Paragraph 60 of Defendant’s PSR noted that in March

2006     Defendant       advertised      on        the    internet        that    he    had    a

Yorkshire puppy for sale.              A purchaser agreed to buy the dog for

$1,500 and sent a Western Union money transfer.                                Defendant did

not, however, send a dog in return.                       Defendant was convicted in

Kentucky     state       court   for    theft      by     deception       in   August     2007.

Defendant’s        PSR    recommended      the       addition        of    three       criminal

history points on the basis of this conviction.

       Defendant objected to Paragraph 60 of his PSR, arguing that

the Kentucky theft by deception constituted relevant conduct to

his federal charges and therefore should not have resulted in

additional criminal history points.                       Defendant also argued that

he     was   entitled       to   a     downward          departure    under       Sentencing

Guideline § 5K2.23, which would award him a credit for a prior

fully-served       state     sentence     involving          relevant      conduct.           The

district court overruled Defendant’s objections.

                                               3
       Additionally,          Defendant’s        PSR    recommended        an    increase    in

the base offense level by eight levels since the intended loss

amount was more than $70,000 but not more than $120,000.                                     See

U.S.    Sentencing          Guidelines     Manual       (“USSG”)      §    2B1.1(b)(1)(E).

The district court found, however, that due to the scope and

nature of Defendant’s scheme “it is probable that there are more

victims       who    have    not    been    identified.”            The    district       court

stated    that        while       the    actual       loss    “cannot       be     determined

precisely enough to apply to the advisory guideline calculation,

the facts are sufficiently clear to allow the court to consider

a greater loss in judging the seriousness of the defendant’s

conduct.”           The    district      court       noted   that    had    the    loss     been

calculated at the next higher level, Defendant’s Guideline range

would have been 57 to 71 months of imprisonment.

       The district court ultimately ruled that an upward variance

from the recommended Guideline range was justified because (1)

the    loss    amount       attributable         to    Defendant     underestimated          the

actual    harm;        (2)    Defendant      utilized         vulnerable          persons     as

accomplices;         and     (3)   Defendant          used   threats       of    violence    to

intimidate          some     of    his    accomplices.              The    district       court




                                                 4
therefore          sentenced         Defendant       to   a     term    of    72     months’

imprisonment. 1             Defendant appeals.



                                               II.

       We review the sentence imposed by the district court for

reasonableness under a deferential abuse of discretion standard.

Gall v. United States, 552 U.S. 38, 51 (2007).                           We first ensure

that       the    district         court   committed      no    significant    procedural

error,       such       as    improperly      calculating       the    Guideline     range,

selecting          a    sentence      based    on    clearly     erroneous     facts,    or

failing to explain the sentence imposed.                         Id.; United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).                        We then consider the

substantive reasonableness of the sentence.                            Gall, 552 U.S. at

51; United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir.

2010).           When reviewing substantive reasonableness, we consider

the    extent          of    any   deviation     from     the   recommended        Guideline

range, giving due deference to the district court’s decision

that the 18 U.S.C. § 3553(a) factors justify the extent of the

variance.          Gall, 552 U.S. at 51.




       1
       The district court published its findings at United States
v. Carroll, 691 F. Supp. 2d 672 (W.D. Va. 2010).



                                                 5
                                     III.

     Defendant argues that the district court miscalculated his

criminal history category by attributing three criminal history

points    to   his   Kentucky     conviction     for    theft    by    deception.

Defendant contends that this offense was relevant conduct to his

instant   offenses       and   therefore    should     not   have     resulted   in

additional criminal history points.

     The Guidelines provide that three criminal history points

are to be allocated “for each prior sentence of imprisonment

exceeding one year and one month.”              USSG § 4A1.1(a).         However,

§ 4A1.1(a) excludes convictions for conduct that is “relevant

conduct” to the instant offense.               See USSG § 4A1.2 cmt. n.1.

Relevant conduct includes all acts and omissions “that were part

of the same course of conduct or common scheme or plan as the

offense of conviction.”         USSG § 1B1.3(a)(2).

     We    review    a    district    court’s    determination         concerning

relevant conduct for clear error.             United States v. Hodge, 354

F.3d 305, 313 (4th Cir. 2004).             This standard requires reversal

only if we are “‘left with the definite and firm conviction’”

that the district court has made a mistake.                   United States v.

Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson

v. Bessemer City, 470 U.S. 564, 573 (1985)).                    If the district

court’s account is plausible in light of the entire record, we



                                       6
will not reverse the finding simply because we would have come

to a different conclusion.              Id.

       The district court found that Defendant’s Kentucky theft by

deception    conviction          was    not    substantially    connected      to   the

present    offenses.         It        explained    that    “[a]lthough    occurring

during the same general period of time as the present offenses,

[the    Kentucky    theft        by     deception]    lacked    a   common    victim,

accomplice, purpose, or modus operandi as [Defendant’s] present

scheme.”     Other than being fraudulent and fueled by greed, the

district    court        said,    “the     offenses    have    no   connection      or

similarity.”

       We hold that the district court did not clearly err in

ruling that the Kentucky theft by deception was not relevant

conduct     to     the     instant        offenses.         Defendant’s       Kentucky

conviction arose from his failure to deliver a dog that he had

advertised on the internet.                   By contrast, the instant offenses

arose      from     Defendant’s           obtaining        counterfeit       financial

instruments and then cashing them with the help of accomplices.

Given these circumstances, the district court could reasonably

conclude that the Kentucky theft by deception conviction was not

relevant conduct to Defendant’s instant offenses.                         See Hodge,

354 F.3d at 314 n.3 (noting that mere fact that two offenses

both involved cocaine distribution along the East Coast would



                                               7
not    be     alone      sufficient        to   support      a    finding       of    relevant

conduct).



                                                IV.

       Defendant         next   argues      that      the    district        court    did   not

adequately explain its decision to deny him a downward departure

for    time    served      on   his     Kentucky        state    court       conviction     for

possession of a forged instrument.

       We recognized in Carter that “[r]egardless of whether the

district      court      imposes      an   above,       below,    or     within-Guidelines

sentence,         it    must    place      on    the     record     an       ‘individualized

assessment’ based on the particular facts of the case before

it.”    Carter, 564 F.3d at 330 (quoting Gall, 552 U.S. at 50)).

Moreover, “the district court must ‘state in open court’ the

particular reasons supporting its chosen sentence.”                              Id. at 328

(quoting      18       U.S.C.   §   3553(c)).           We   stated      that    when     “‘the

defendant         or     prosecutor        presents      nonfrivolous           reasons     for

imposing      a    different        sentence’         than   that      set    forth    in   the

advisory Guidelines, a district judge should address the party’s

arguments and ‘explain why he has rejected those arguments.’”

Id. (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).

       Sentencing Guideline § 5G1.3 prescribes an adjustment to

the sentence when the defendant is (1) currently serving a term

of incarceration for another offense that is relevant conduct to

                                                 8
the instant offense, and (2) the relevant conduct was the basis

for an increase in the offense level for the instant offense.

USSG § 5G1.3(b).         Application Note 4 states that a downward

departure “is not prohibited” when the defendant has completed

serving a term of imprisonment, and the Guideline would have

otherwise provided an adjustment.               USSG § 5G1.3(b) cmt. n.4.

This departure is codified by Guideline § 5K2.23, which states

that a downward departure may be appropriate if the defendant

(1)   has   completed    a   term   of   imprisonment,    and     (2)   §5G1.3(b)

would have provided an adjustment “had that completed term of

imprisonment been undischarged at the time of sentencing for the

instant offense.”       USSG § 5K2.23.

      The   district    court   rejected       Defendant’s      argument    for   a

downward departure, explaining that “the Kentucky offense was

not a basis for an increase in the offense level for the instant

offenses    of   conviction.”        The     district   court    believed    that

Defendant was therefore not entitled to the § 5G1.3 adjustment.

See USSG § 5G1.3(b).          It followed that Defendant was also not

entitled to the § 5K2.23 departure.               See USSG § 5K2.23.          The

district court stated that “even if [§ 5K2.23] did apply, I

would not exercise my discretion to grant a downward departure.

. . .   [A]n appropriate punishment in this case does not include

a reduction for the time served for the Kentucky conviction.”



                                         9
     Insofar as Defendant argues the district court failed to

explain its decision, our review of the record convinces us that

the district court satisfied its responsibility to explain its

sentencing determination.            Indeed, the language excerpted above

indicates that the district court considered and rejected his

argument for a downward departure.                Defendant’s argument that

the district court erred in this regard is without merit.                       See

Rita,    551    U.S.   at   358-59    (district    court’s    explanation       for

denying   a     downward    departure    was   sufficient    when      record   and

context revealed it had considered evidence and arguments).

     To the extent Defendant seeks our substantive review of the

district court’s determination, we decline the invitation. 2                    The

denial    of    a   downward   departure     is   not   subject   to    appellate

review “unless the court failed to understand its authority to

do so.”        United States v. Brewer, 520 F.3d 367, 371 (4th Cir.

2008).    The record shows that the district court understood its

authority to depart and chose not to do so.                 This determination

is therefore not subject to appellate review.




     2
        Defendant also argues the district court abused its
discretion in not granting an adjustment where it was the
district court’s own rescheduling of Defendant’s sentencing that
made him ineligible for the adjustment under § 5G1.3. Defendant
does not, however, cite any authority recognizing such an error.
We note moreover that the district court explained why Defendant
was not eligible for the adjustment.



                                        10
                                          V.

      Defendant      also    argues    that    the   district      court     erred   in

anchoring      its     significant        upward     variance       upon     unproven

financial losses.

      The Guidelines specify that the district court “need only

make a reasonable estimate of the loss.”                         USSG § 2B1.1 cmt.

n.3(C).      The Application Notes to the Guidelines contain a list

of factors to consider when estimating loss amount, including

the scope and duration of the offense.                    Id. at cmt. n.3(C)(vi).

District     courts    are    not     prohibited     from     extrapolating      loss

amount where there is an evidentiary basis for the calculation.

See United States v. Pierce, 409 F.3d 228, 234 (4th Cir. 2005)

(approving district court’s extrapolation of loss amount from

known data).         We review a district court’s calculation of loss

amount under a clear error standard.                 United States v. Miller,

316 F.3d 495, 503 (4th Cir. 2003).

      This    Court    reviews      the   substantive       reasonableness      of    a

variance sentence under an abuse of discretion standard.                             See

Carter, 564 F.3d at 328.            When reviewing a variance sentence, we

consider the district court’s decision to vary and the extent of

the   variance,      giving    due    deference      to    the    district    court’s

decision “‘that the [18 U.S.C.] § 3553(a) factors, on a whole,

justify the extent of the variance.’”                 United States v. Engle,

592 F.3d 495, 500 (4th Cir. 2010) (quoting Gall, 552 U.S. at

                                          11
51), cert. denied, 131 S. Ct. 165 (2010).                      Variance sentences

that contain plausible justifications grounded in §3553(a) will

be deemed reasonable, but the district court must support its

determination with reasons “‘sufficiently compelling to support

the degree of the variance.’”             United States v. Morace, 594 F.3d

340, 346 (4th Cir. 2010) (quoting Gall, 552 U.S. at 50), cert.

denied, 131 S. Ct. 307 (2010).

     In this case, Defendant argues that the district court’s

above-Guideline sentence contravenes the Sentencing Commission’s

attempt to equalize punishments for fraud offenders based on

loss amount and was “contrary to the policies of the Sentencing

Commission.”     Brief of Appellant at 14-15.

     Defendant’s offense level was determined with reference to

Guideline   §    2B1.1.         That    provision       contemplates     an   upward

departure   when     the    prescribed         offense     level   “substantially

understates the seriousness of the offense.” 3                  USSG § 2B1.1 cmt.

n.19(A).        Insofar    as    §     2B1.1   does      not   mandate   a    strict

correlation between the loss amount and the sentence imposed,

Defendant   cannot    demonstrate         that    the     Sentencing     Commission

sought to equalize punishments based on loss amount alone.                       He

     3
       We have recognized that the practical effects of applying
a departure and a variance are the same.    See United States v.
Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011), cert. denied,
__ S. Ct. __, No. 10-10257, 2011 WL 1671037, (U.S. May 31,
2011).



                                          12
consequently fails to show that his sentence is contrary to any

Sentencing Guideline policy.

       Defendant     also    argues    that      his    sentence     contradicts         the

notions of due process and sufficient proof behind the Guideline

scoring system.         He claims his enhanced sentence was based on

“the    unproven     suspicion    that      a    higher     loss    figure       might   be

applicable.”        Brief of Appellant at 18.

       At     Defendant’s    sentencing          hearing,       Special    Agent     Greg

Watson testified that he believed the government was not able to

identify the full amount of loss due to the number of victims,

not all of whom could be found, and the nature of Defendant’s

scheme,     which    involved    counterfeit           money    orders,    not     all   of

which could be traced.          Under the Guidelines, the district court

need only make a reasonable estimate of the loss.                         USSG § 2B1.1

cmt. n.3(C).        The district court’s finding that the loss caused

by Defendant exceeded $120,000 was not clearly erroneous given

the scope and duration of the offense.

       More     importantly,     the   district         court      did    not    actually

reject the probation officer’s loss assessment and recalculate

the    Guideline     range   based     on    a    higher       amount.      It    instead

imposed a variance sentence based, in part, on its finding that

“the loss amount attributable to the defendant underestimate[d]

his    actual    harm.”      Indeed,     the     district       court’s    decision      to

impose an upward variance was not based on loss amount alone,

                                            13
but also took into account Defendant’s use of vulnerable persons

as   accomplices,     and   his    use    of    threats   to    intimidate    his

accomplices.        Because       the     district     court     supported    its

determination    to     vary      upward        with   reasons     sufficiently

compelling to support the degree of the variance, we do not

believe   that   the    district        court    abused   its    discretion   in

sentencing Defendant to 72 months’ imprisonment.                    See Morace,

594 F.3d at 346.



                                         VI.

     For the reasons stated herein, Defendant’s sentence is

                                                                      AFFIRMED.




                                         14
