                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4624


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KELVIN QUADE MANRICH,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:11-cr-00122-CCB-20)


Submitted:   May 17, 2013                 Decided:   June 18, 2013


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Bruce A. Johnson, Jr., LAW OFFICES OF BRUCE A. JOHNSON, JR.,
LLC, Bowie, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Kathleen O. Gavin, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           After   five      days    of     trial    testimony,      Kelvin     Quade

Manrich, a former officer with the Baltimore Police Department

(“BPD”),     entered   a    straight        guilty    plea     to   conspiracy    to

obstruct, delay, and affect commerce by extortion by means of

unlawfully obtaining, under color of official right, money and

other property from Hernan Alexis Moreno and Edwin Javier Mejia,

who jointly owned and operated Majestic Auto Repair Shop, LLC,

(“Majestic”), in violation of 18 U.S.C. §§ 371, 1951(a) (2006),

and three substantive counts of the same, in violation of 18

U.S.C. §§ 1951(a), 2 (2006).           Manrich was sentenced to forty-one

months’ imprisonment and three years of supervised release.

           On appeal, Manrich challenges the calculation of his

advisory Guidelines range.             Specifically, Manrich argues that

the   district   court     clearly    erred    in    its     application   of    U.S.

Sentencing       Guidelines          Manual         (“USSG”)        §§ 2B1.1(b)(1),

2C1.1(b)(2) (2011), in determining the monetary value reasonably

foreseeable to him.        For the reasons that follow, we vacate the

judgment and remand this case for resentencing.

                                       I.

           As alleged in the indictment, the overarching purpose

of the underlying conspiracy was to “enrich” the involved BPD

officers and to “benefit” Moreno and Mejia by bribing police

officers to use “their official positions and influence to cause

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vehicles    to     be    towed      or     otherwise       delivered          to    Majestic       for

automobile services and repair.”                        (J.A. 11). *           The scheme was

simple:     a BPD officer would respond to the scene of a vehicle

accident; the officer would encourage the vehicle owner to have

Majestic     tow       the    damaged       vehicle        and/or       repair       the      damage

sustained during the collision.                       Moreno and Mejia paid the BPD

officers    a    “referral          fee”    for       directing        accident          victims    to

Majestic.        This        fee,    more     appropriately            called       a     kickback,

ranged from $250 to $300 per vehicle.

            The record established that Majestic would repair the

damage sustained in the accident.                          However, for some vehicles,

Majestic would also repair pre-existing damage and/or add damage

to that resulting from the accident.                        Majestic would then submit

an insurance claim reflecting these fraudulent damages.

            Seventeen officers, as well as Moreno and Mejia, were

ultimately       arrested.           Included         in    the    record          are    the   plea

agreements       and    stipulated          statements        of       facts       agreed     to   by

Officers Osvaldo Valentine, Jerry Diggs, Jr., Henry Yambo, and

Leonel    Rodriguez.           In    their     stipulated          statements            of   facts,

these officers admitted to receiving the following payments from

Majestic:       Valentine — $14,400 in checks and an unknown amount


     *
       Citations to the                  “J.A.”       refer       to    the    joint       appendix
submitted in this case.



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in cash; Diggs — $3550 in checks and at least $1500 in cash;

Yambo — $4500, including four checks; and Rodriguez — $8450 in

checks and an unknown amount in cash.

             In      his       post-arrest       statement,           Manrich     admitted

receiving     approximately         $5000     in      kickbacks       and   knowing      that

Valentine, Diggs, Rodriguez, and Yambo were part of the scheme.

Manrich      further       admitted    that       he    and     Valentine       split    the

referral fee on a few occasions.

                                           II.

              This      court    reviews    any    criminal       sentence,       “whether

inside, just outside, or significantly outside the Guidelines

range,”      for     reasonableness,        “under       a    deferential        abuse-of-

discretion standard.”             United States v. King, 673 F.3d 274, 283

(4th Cir.), cert. denied, 133 S. Ct. 216 (2012); see Gall v.

United States, 552 U.S. 38, 51 (2007).                          Of course, the first

step   in    procedural         reasonableness         review    is    to   evaluate      the

district court’s Guidelines calculations.                       Gall, 552 U.S. at 51.

With   regard      to    the    calculation      of     the   Guidelines        range,    “we

review      the    [sentencing]       court’s      factual       findings       for     clear

error, its legal conclusions de novo, and unpreserved arguments

for plain error.”           United States v. Strieper, 666 F.3d 288, 292

(4th Cir. 2012) (citations omitted).

              There is no dispute that Manrich’s base offense level

was fourteen and that two levels were properly added for the

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offense    involving     more   than    one   bribe.     USSG       § 2C1.1(a)(1),

(b)(1).      It is the application of USSG § 2C1.1(b)(2) that is

contested in this case.         This provision provides:

      If the value of the payment, the benefit received or
      to be received in return for the payment, the value of
      anything obtained or to be obtained by a public
      official or others acting with a public official, or
      the loss to the government from the offense, whichever
      is greatest, exceeded $5,000, increase by the number
      of levels from the table in § 2B1.1 (Theft, Property
      Destruction, and Fraud) corresponding to that amount.

USSG § 2C1.1(b)(2).        The district court appears to have utilized

the third enumerated measure in that the court added the amounts

Majestic paid to Manrich and the four admitted co-conspirators

to the amounts Majestic received for the fraudulent repairs.

             Despite Manrich’s argument to the contrary, we discern

no   error   in   the   court’s     inclusion    of    the   kickback      payments

received by the four acknowledged co-conspirators.                   Manrich pled

guilty to conspiracy to commit extortion and admitted knowing

that these particular officers were involved in the conspiracy.

Accordingly,      the    kickback      amounts   that    his    co-conspirators

admitted     receiving     were     properly     included      in    the   court’s

relevant conduct analysis.             See United States v. Offill, 666

F.3d 168, 180 (4th Cir. 2011), cert. denied, 132 S. Ct. 1936

(2012); USSG § 1B1.3(a)(1)(B).               That Manrich did not know the

precise number of vehicles that the other officers brought to

Majestic is simply of no moment.


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               The district court next increased the value amount by

adding the losses incurred by the insurance companies in paying

fraudulent claims.           Because those payments inured to Majestic’s

benefit,       the    district      court    properly          included    them   in    its

calculation.         See, e.g., United States v. Roussel, 705 F.3d 184,

199-200    &    n.13    (5th      Cir.    2013)       (determining    the    appropriate

“benefit” amount under § 2C1.1(b)(2) by looking at the aggregate

benefit to each member of the conspiracy).                          To calculate this

amount, the court relied on an exhibit proffered at sentencing

that detailed a sampling of damage claims submitted by Majestic.

               According to this exhibit, referred to in the district

court as “Exhibit A,” Majestic received approximately $120,000

for vehicle repairs made between January 2009 and February 2011.

The court ruled that at least one-third of the claim amounts

itemized in Exhibit A were fraudulent and thus added $40,000 to

the value determination.                 In doing so, the court accepted the

Government’s         contention     that    the       value     determination     was    at

least $70,000, which corresponded with an eight-level increase

pursuant to USSG § 2B1.1(b)(1)(E).

               But we have found no evidentiary support in the record

for the court’s determination as to the percentage of fraudulent

claim amounts.          Although submitted by Manrich, the Government

prepared       Exhibit       A,     and     nothing        therein        justifies     the

determination         that     one-third         of     each     claimed     amount     was

                                             6
fraudulent.    Nor did the court indicate that it was relying on

trial testimony from any particular witness to substantiate this

critical finding.

           To be sure, the sentencing court “need only make a

reasonable estimate of the loss.”            USSG § 2B1.1 cmt. n.3(C); see

United   States   v.   Miller,   316   F.3d    495,   503   (4th   Cir.   2003)

(recognizing that the loss amount “need not be determined with

precision”    (internal   quotation        marks   omitted)).      But   on   the

record as it exists now, we have no basis of which to conclude

that it is a reasonable estimate.

           For these reasons, we vacate the criminal judgment as

to Manrich’s sentence and remand this case for resentencing in

accordance with this opinion.              We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.



                                                        VACATED AND REMANDED




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