                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4342



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHN MAURICE HENOUD, a/k/a John Harvey, a/k/a
J. M. Harvey, a/k/a J. M. Hardey, a/k/a Jon M.
Hardey, a/k/a Jerry Geohn Davidson, a/k/a
George   J.   Mansour,    a/k/a   Richard   L.
Harrington, a/k/a Dave Harvey,

                                            Defendant - Appellant.


                            No. 05-4447



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RALPH COLLINS,

                                            Defendant - Appellant.


                            No. 05-4448



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,
          versus


SHARON KAY MOORE,

                                            Defendant - Appellant.


                            No. 05-4449



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RONALD CLARK MORRISON,

                                            Defendant - Appellant.


                            No. 06-6156



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHN MAURICE HENOUD,

                                            Defendant - Appellant.


Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-04-4; 2:04-cr-00004-JBF-TE)


Submitted:   November 30, 2006            Decided:   April 20, 2007


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Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.


Nos. 05-4342, 05-4447, 05-4448, 05-4449 affirmed; No. 06-6156
dismissed by unpublished per curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Gretchen L. Taylor,
Larry M. Dash, Assistant Federal Public Defenders, Frances H.
Pratt, Research and Writing Attorney, Norfolk, Virginia; Brett D.
Lucas, GABRIEL & ASSOCIATES, P.C., Virginia Beach, Virginia;
Charles R. Burke, Virginia Beach, Virginia; Keith Loren Kimball,
COLGAN, KIMBALL & CARNES, Virginia Beach, Virginia, for Appellants.
John Maurice Henoud, Appellant Pro Se. Paul J. McNulty, United
States Attorney, Michael C. Moore, Joseph E. DePadilla, Assistant
United States Attorneys, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           These consolidated appeals arise out of the convictions

of co-defendants John Maurice Henoud, Sharon Kay Moore, Ronald

Clark   Morrison,    and   Ralph   Collins.         The   charges   against   the

Defendants stem from various schemes to defraud businesses and

individuals under the aegis of a purported charity, the Youth-at-

Risk    Foundation    (“YARF”),     and       two   businesses,     Just   Sports

Publications (“JSP”), and the Senior Shopping Guide (“SSG”). After

considering the various issues raised by the Defendants, we affirm

the sentences challenged by Henoud, Moore, and Collins, and affirm

the convictions challenged by Moore, Collins, and Morrison. Henoud

also appeals the district court’s denial of his motion for return

of property; we dismiss this appeal as moot.

           Henoud was convicted of one count of conspiracy to commit

mail and wire fraud, in violation of 18 U.S.C. § 1349 (2000); ten

counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2

(2000); four counts of use of fictitious name to further mail fraud

scheme, in violation of 18 U.S.C. § 1342 (2000); ten counts of wire

fraud, in violation of 18 U.S.C. §§ 1343 and 2 (2000); one count of

fraud in connection with access devices, in violation of 18 U.S.C.

§§ 1029(a)(2), 1029(b)(1), and 1029(c)(1)(A)(i) (2000); one count

of conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h) (2000); five counts of promotional and concealment money

laundering,   in     violation     of    18     U.S.C.    §§   1956(a)(1)(A)(i),


                                        - 4 -
1956(a)(1)(B)(i) and 2 (2000); and eight counts of promotional

money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and

2 (2000).      In appeal No. 05-4342, Henoud presents three arguments.

First, Henoud contends that the district court erred when it

applied   a     preponderance       of    evidence    standard    to   the    factual

findings underpinning the calculation of the advisory sentencing

guideline range, he asserts that the magnitude of the enhancements

applied required a higher standard of proof.                     Our decisions in

United States v. Urrego-Linares, 879 F.2d 1234, 1237 (4th Cir.

1989), and United States v. Pierce, 409 F.3d 228, 234 (4th Cir.

2005), foreclose this argument.              See also United States v. Mares,

402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

               Second,     Henoud        challenges     the    district       court’s

calculation of the amount of intended loss.                    Our review of the

district court’s loss calculation is for clear error.                          United

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

sentencing, the district court makes a “reasonable estimate of the

loss, given the available information.”                 Miller, 316 F.3d at 503;

U.S.   Sentencing        Guidelines      Manual   §   2B1.1,   comment.      (n.2(C))

(2003). Enhancements under § 2B1.1(b) are determined by the amount

of loss suffered as a result of the fraud.                The amount of loss is

the greater of the actual loss or the intended loss.                   USSG § 2B1.1,

comment. (n.2(A)).         “Intended loss” is defined as “the pecuniary

harm that was intended to result from the offense . . . and . . .


                                          - 5 -
includes intended pecuniary harm that would have been impossible or

unlikely   to   occur.”   USSG   §   2B1.1,   comment.   (n.2(A)(ii)).

Consequently, the intended loss amount may be used, “even if this

exceeds the amount of loss actually possible, or likely to occur,

as a result of the defendant’s conduct.”      Miller, 316 F.3d at 502.

           Henoud’s argument that sister circuit courts of appeals

have used either a different methodology, or the amount of actual

loss, to derive a loss amount for sentencing purposes does not

compel the conclusion that the district court clearly erred in the

estimation of the intended loss in this case.         As we stated in

Miller, the intended loss may include money that the defendant

might not have collected, or could not have collected.      Id.   Here,

the intended loss calculations were based on a methodology that

took into account the duration of the conspiracy, the number of co-

conspirators, and the extent to which their activities might have

impacted the community.   We therefore conclude that the district

court did not clearly err in calculating the amount of the intended

loss.

           Third, Henoud argues that his sentence is unreasonable

because it is greater than necessary to achieve the purposes of

sentencing and is disproportionately long when compared with the

sentences of both his co-defendants and defendants convicted of

more serious fraud offenses in other districts.     Henoud’s sentence

of 360 months’ imprisonment was reasonable because it was within


                                 - 6 -
the    correctly   calculated     advisory     guideline     range   and   was

determined according to a reasoned process in accordance with the

law.   United States v. Green, 436 F.3d at 449, 457 (4th Cir. 2006).

In its discussion of each of the factors listed in 18 U.S.C.

§ 3553(a) (2000), the district court specifically addressed the

type of crime, the need for deterrence, the risk of recidivism, and

Henoud’s history and circumstances.             We therefore reject his

contention that the sentence was greater than necessary to fulfill

the purposes of § 3553(a).

            With respect to Henoud’s argument that his sentence is

disproportionately greater than that of his co-defendants, this

court has stated that a district court is not required to consider

the sentences of co-defendants, and further allows co-defendants

and co-conspirators to be sentenced differently for the same

offense.    United States v. Foutz, 865 F.2d 617, 621 (4th Cir.

1989); United States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004).

Similarly, we deem irrelevant a comparison of Henoud’s sentence to

the    sentences   imposed   on   defendants    in   other    districts    for

different conduct.     We therefore conclude that the sentence the

district court imposed was reasonable, and we affirm Henoud’s

sentence in appeal No. 05-4342.

            In appeal No. 06-6156, Henoud challenges the district

court’s denial of his motion to compel the release of a hard drive

seized as evidence pursuant to Fed. R. Crim. P. 41(g).                     The


                                   - 7 -
district court concluded that it lacked jurisdiction to consider

the motion during the pendency in this court of Henoud’s appeal of

his sentence, appeal No. 05-4342. We conclude it is unnecessary to

resolve whether the district court correctly dismissed Henoud’s

Rule 41(g) motion because our decision in the direct criminal

appeal removes the only potential jurisdictional impedment to the

district   court’s         consideration    of     the   Rule    41(g)       motion.

Accordingly, we dismiss the appeal in No. 06-6156, and Henoud may

refile his Rule 41(g) motion in the district court, where the

motion may be addressed on the merits.

           In    appeal      No.   05-4448,      Moore   challenges:         (1)   the

sufficiency     of   the    evidence,     claiming   she   did    not    have      the

requisite mens rea; and (2) the reasonableness of her sentence in

light of her particular circumstances.*            Moore was convicted of one

count of conspiracy to commit mail fraud, in violation of 18 U.S.C.

§ 1349; six counts of mail fraud, in violation of 18 U.S.C. §§ 1341

and 2; ten counts of wire fraud, in violation of 18 U.S.C. §§ 1343

and 2; one count of conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h); one count of promotional and

concealment     money       laundering,     in    violation      of     18    U.S.C.

§§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 2; and five counts of


     *
      Moore’s counsel has moved to withdraw due to his impending
retirement. We deny the motion without prejudice to its renewal if
counsel cannot complete his duties under the Fourth Circuit Plan in
Implementation of the Criminal Justice Act, § 5(2), by the time
counsel retires.

                                      - 8 -
promotional        money    laundering,         in     violation     of     18     U.S.C.

§§ 1956(a)(1)(A)(i) and 2.

             In reviewing a sufficiency challenge, “[t]he verdict of

a 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 (1942).                           This court

“ha[s] defined ‘substantial evidence,’ in the context of a criminal

action, as that evidence which ‘a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.’”                      United States v.

Newsome,     322    F.3d    328,   333    (4th       Cir.   2003)   (quoting       United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)).                      In evaluating

the sufficiency of the evidence, this court does not “weigh the

evidence or review the credibility of the witnesses.”                              United

States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                             When the

evidence supports differing reasonable interpretations, the finder

of fact decides which interpretation to believe.                     Id.    Here, the

evidence presented at trial was sufficient for a reasonable jury to

conclude that Moore was aware of the fraudulent activities of

JSP/YARF     and   had     the   mens    rea    required     for    her    offenses    of

conviction.

             With respect to Moore’s sentence, she does not contest

the calculation of the advisory guideline range, which called for

a sentence of between 210 and 262 months’ imprisonment.                               The


                                         - 9 -
district court imposed a variance sentence of 120 months, which was

ninety months below the low end of the guideline range.                          In so

doing,    the     district    court    stated    that     it    considered   several

§ 3553(a) factors, including Moore’s criminal history, her mental

health problems, her history as a victim of child sexual abuse, her

persistent drug and alcohol addiction, and the lesser role she

played in the scheme.          Pursuant to our holding in Green, we find

the sentence reasonable because it “was selected pursuant to a

reasoned process in accordance with the law, in which the court did

not   give   excessive       weight   to   any    relevant      factor,    and   which

effected a fair and just result in light of the relevant facts and

law.”    436 F.3d at 457.      We therefore affirm Moore’s conviction and

sentence.

             In    appeal    No.   05-4449,      Morrison       contends   that    the

evidence failed to establish beyond a reasonable doubt that he was

aware of the conspiracy or that he knowingly participated in the

conspiracy.       Morrison was convicted of conspiracy to commit mail

and wire fraud, in violation of 18 U.S.C. § 1349; two counts of

mail fraud, in violation of 18 U.S.C. §§ 1341 and 2; six counts of

wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; one count of

conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h); and one count of promotional and concealment money

laundering,       in   violation      of   18    U.S.C.    §§    1956(a)(1)(A)(i),

1956(a)(1)(B)(i) and 2.         We have carefully considered the evidence


                                       - 10 -
and conclude that it is sufficient to support the finding that

Morrison had the mens rea required for the offenses for which he

was convicted.       We therefore affirm Morrison’s conviction.

              In No. 05-4447, Collins appeals from his conviction and

108-month sentence for conspiracy to commit mail and wire fraud, in

violation of 18 U.S.C. § 1349; six counts of mail fraud, in

violation of 18 U.S.C. §§ 1341 and 2; nine counts of wire fraud, in

violation of 18 U.S.C. §§ 1343 and 2; one count of conspiracy to

commit money laundering, in violation of 18 U.S.C. § 1956(h); and

one count of promotional and concealment money laundering, in

violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 2.

              Collins first argues that he was prejudiced by the

district      court’s   denial    of   his   motion    for     severance    because

evidence was admitted against Henoud, his co-defendant, that would

not have been admitted if Collins were tried separately. A pretrial

ruling   on    a   motion   for   severance     is    within    a   trial   court’s

discretion and will not be overturned “absent a clear abuse of that

discretion.”       United States v. Rivera, 412 F.3d 562, 571 (4th Cir.

2005).     Generally, individuals indicted together should be tried

together, and “[a] defendant is not entitled to severance merely

because separate trials would more likely result in acquittal, or

because the evidence against one defendant is not as strong as that

against the other.” United States v. Strickland, 245 F.3d 368, 384

(4th Cir. 2001) (internal quotation omitted).                   A defendant must


                                       - 11 -
instead show prejudice, and “[c]onvictions should be sustained if

it may be inferred from the verdicts that the jury meticulously

sifted the evidence.”     United States v. Porter, 821 F.2d 968, 972

(4th Cir. 1987).

           Collins claims that he worked only part-time with JSP,

and, if he were granted a separate trial, Henoud would have

testified that the business Collins directed out of his home, SSG,

was independent of JSP.    Collins concedes, however, that the jury

was able to sift through the evidence at trial and determine that

Henoud had no involvement with SSG, as reflected by the jury’s

verdict finding Henoud not guilty of the one count that alleged his

involvement with SSG.     Accordingly, we conclude that Collins has

not shown that he was prejudiced in the denial of his motion for

severance.

           Second,   Collins   argues   that   evidence    recovered   from

searches of Henoud’s office and home was admitted in violation of

the rule against hearsay because there was no custodian of record

or business associate available to testify to the accuracy of the

records.   Because Collins did not contemporaneously object to the

admission of the records, our review is for plain error.                See

United States v. Olano, 507 U.S. 725, 732 (1993).         We conclude that

the district court did not plainly err in admitting the evidence at

issue, and we affirm Collins’ convictions.




                                 - 12 -
            Lastly,     Collins   challenges     the   district    court’s

calculation of the amount of the intended loss and the number of

victims, both of which were used to compute the advisory sentencing

guideline range.       In reviewing the calculation of the advisory

sentencing guideline range, this court “review[s] the district

court’s legal conclusions de novo and its factual findings for

clear error.      United States v. Hampton, 441 F.3d 284, 287 (4th Cir.

2006).

            Here,     the   district    court   employed   a    reasonable

methodology to compute the intended loss, and, pursuant to our

decision in       United States v. Bolden, 325 F.3d 471, 499-500 (4th

Cir.     2003),     particularized     its   calculation   to     Collins’

participation in the conspiracy and his ability to foresee that

other JSP telemarketers would be engaged in the same type of fraud

as he employed in his own business, SSG.          We therefore conclude

that the district court did not clearly err in its factual findings

regarding the amount of intended loss.

            Collins argues that the number of victims should be

limited to the number of people with whom he had dealings, rather

than all victims of the conspiracy.          A victim is defined as “any

person who sustained part of the actual loss.”             USSG § 2B1.1,

comment. n.1(A).      Collins conceded that he was involved in JSP’s

advertising solicitation for the 30th Annual Peninsula Relays

programs — a solicitation for an event with which JSP had no


                                  - 13 -
association — and the district court found that this solicitation

alone supported the factual finding that the number of victims was

in excess of 250.    At trial, the Government admitted into evidence

216 checks from businesses buying advertising in the fraudulent

“30th Annual Peninsula Relays” program, and an additional forty-

nine checks from businesses made out directly to Peninsula Relays,

for which no advertising was placed in the fraudulent programs. We

therefore conclude that the district court did not clearly err in

its calculation of the number of victims.    The district court did

not err in the calculation of the advisory guideline range, and we

affirm Collins’ sentence, which incorporated a variance below that

range.

          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.



                    Nos. 05-4342, 05-4447, 05-4448, 05-4449 AFFIRMED
                                               No. 06-6156 DISMISSED




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