UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 96-4400
FULTON LEE HINEBAUGH, Individually
and d/b/a Hinebaugh Fox Group,
Incorporated,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-94-65)

Submitted: September 30, 1997

Decided: October 30, 1997

Before HALL and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Peter B. Bennett, Michael V. Gilberti, BENNETT & LEAHEY, Red
Bank, New Jersey, for Appellant. Mark T. Calloway, United States
Attorney, Thomas R. Ascik, Assistant United States Attorney, Ashe-
ville, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

F. Lee Hinebaugh, an administrator of corporate benefit plans,
appeals his convictions on five counts of wire fraud 1 and sentence to
fifty-five months incarceration. Hinebaugh asserts that counsel was
ineffective, and that the district court abused its discretion by denying
his Fed. R. Crim. P. 33 motion for a new trial. Additionally, he con-
tends that the district court erred in applying the federal sentencing
guidelines by departing upward to a criminal history category V and
enhancing his sentence for abusing a position of trust. Finding no
reversible error, we affirm Hinebaugh's convictions and sentence.

Hinebaugh's primary contention on appeal is that he suffered inef-
fective assistance of counsel. Essentially, Hinebaugh asserts that
counsel failed to adequately investigate and prepare his case for trial.
According to Hinebaugh, counsel's failure to prepare resulted in such
a breakdown of the attorney-client relationship that he was denied his
Sixth Amendment right to counsel. While we have consistently
observed that a claim of ineffective assistance of counsel is more
properly raised on collateral review than on direct appeal,2 this court
will review a claim of ineffective assistance of counsel on direct
appeal if the record conclusively discloses that defense counsel failed
to provide effective representation.3 With respect to counsel's alleged
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1 See 18 U.S.C. § 1343 (1994).
2 See United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995); United
States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir. 1994).
3 See United States v. Gastiaburo , 16 F.3d 582, 590 (4th Cir. 1994)
(recognizing the exception, but failing to apply it because the record did
not "conclusively demonstrate" that counsel was ineffective); Matzkin,
14 F.3d at 1017 (declining to address a claim of ineffective assistance of
counsel because counsel's alleged ineffectiveness was not conclusively
apparent from the record).

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deficiencies, we do not believe that the record conclusively shows
that Hinebaugh was deprived of effective assistance of counsel. Fur-
thermore, we do not find that the district court abused its discretion
by denying Hinebaugh's Rule 33 motion for a new trial based on the
claim of ineffective assistance of counsel.4

Judicial scrutiny of counsel's performance must be highly deferen-
tial. It is all too tempting for a defendant to second-guess counsel's
assistance after conviction or adverse sentence, and it is all too easy
for a court, examining counsel's defense after it has proved unsuc-
cessful, to conclude that a particular act or omission of counsel was
unreasonable, rather than sound trial strategy. 5 In determining Hine-
baugh's Rule 33 motion, the district court found that counsel con-
ducted a reasonable investigation and presented all the issues
Hinebaugh now claims should have been addressed at trial. Moreover,
Hinebaugh failed to offer specific examples of how a more intense
investigation would have exonerated him, and conclusory allegations
are insufficient to warrant relief. Finally, Hinebaugh's assertion of a
break-down of the attorney-client relationship is without merit
because there is no statutory or constitutional right to a "meaningful
attorney-client relationship."6

Next, Hinebaugh asserts that the district court misapplied the sen-
tencing guidelines by departing upward. Hinebaugh's claim is without
merit. Hinebaugh's original guideline range was twenty to thirty-three
months incarceration because his offense level was 18 and he was in
criminal history category I. However, Hinebaugh had numerous prior
fraud-type convictions, including three convictions subsequent to his
indictment in this case, so prior to sentencing the government moved
for an upward departure based on the inadequacy of Hinebaugh's
criminal history and the likelihood that he would commit further crimes.7
After hearing argument on the issue at sentencing, the court found
that Hinebaugh had engaged in criminal conduct while on bail and
that those incidents were each the equivalent of three criminal history
_________________________________________________________________

4 See Smith, 62 F.3d at 650-51.
5 See Strickland v. Washington, 466 U.S. 668, 689 (1984).
6 Morris v. Slappy, 461 U.S. 1, 13-14 (1983).
7 See USSG § 4A1.3.

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points.8 Adding those nine points to the one point awarded to Hine-
baugh in the presentence report, the court determined Hinebaugh's
criminal history to be category V. Accordingly, the court departed
upward to category V and sentenced Hinebaugh in the middle of the
new guideline range of fifty-one to sixty months.

Hinebaugh argues that the departure was unjustified, and that the
district court failed to consider each successively higher level and
make specific findings before proceeding to the next higher level.9
Hinebaugh's claim is without merit. In the addendum to the record,
the court stated that categories II, III, and IV did not adequately
reflect the seriousness of Hinebaugh's criminal conduct, and that only
category V with its requirement of ten criminal history points
reflected Hinebaugh's serious criminal record and risk of recidivism.10
The court's comments indicate that it intended to comply with the
dictates of Cash and Rusher, and that it considered the intervening
levels inadequate to account for Hinebaugh's past criminal conduct.
Thus, we find the district court's decision to depart was not an abuse
of discretion.11

Additionally, Hinebaugh claims that the district court erred by
adopting the presentence report's findings concerning the amount of
loss. Hinebaugh asserts that the court should have used "actual loss"
in setting his base offense level, instead of the"intended loss" of his
fraud. This circuit reviews the district court's legal interpretation of
the term "loss" de novo, but the determination of the amount of loss
is a factual matter that is only reviewed for clear error.12 Further, the
district court's factual findings need only to be supported by a pre-
ponderance of the evidence.13
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8 See USSG § 4A1.1(a).
9 See United States v. Cash, 983 F.2d 558, 561-63 (4th Cir. 1992);
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992).

10 See United States v. Blake, 81 F.3d 498, 504 (4th Cir. 1996).
11 See Koon v. United States, ___ U.S. ___, 64 U.S.L.W. 4512 (U.S.
June 13, 1996) (Nos. 94-1664/8842).
12 See United States v. Castner , 50 F.3d 1267, 1274 (4th Cir. 1995).

13 See United States v. Engleman , 916 F.2d 182, 184 (4th Cir. 1990).

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In calculating the total amount of loss attributable to Hinebaugh,
the sentencing court included all amounts in trust that Hinebaugh
improperly diverted for non-trust purposes. While Hinebaugh offers
various explanations for the diversions and contends that the "actual
loss" was much less than the total amount diverted, it does not change
the fact that the money was actually diverted. "Loss" under U.S.
SENTENCING GUIDELINES MANUAL § 2F1.1 (1995), does not always
equal the actual financial harm suffered by the victim. The guidelines
provide that where the "intended" loss is greater than the "actual
loss," intended loss will be used to determine a sentence.14 Moreover,
fraudulent losses come about through an ever-expanding variety of
means and each case must be determined on its own facts.15 Accord-
ingly, we find that the district court did not err by adopting the pre-
sentence report's loss computations.

Finally, Hinebaugh asserts that the district court erred in enhancing
his sentence by two points for an "abuse of a position of trust" under
USSG § 3B1.3. Hinebaugh's claim is without merit, and we review
the district court's application of the guidelines' abuse-of-trust provi-
sion only for clear error.16

The phrase "position of public or private trust," refers to positions
"characterized by professional or managerial discretion,17 and whether
a person holds a position of trust is determined from the perspective
of the victim.18 Additionally, USSG § 3B1.3 provides that "[i]f the
defendant abused a position of public or private trust ... in a manner
that significantly facilitated the commission or concealment of the
offense," his sentencing range should be enhanced by two levels.
Applying those principles, Hinebaugh's position as an administrator
of corporate benefit plans with discretionary power over trust funds
is the type of position that the sentencing guidelines describe. We
therefore hold that the district court properly enhanced Hinebaugh's
sentence for abusing a position of trust.
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14 See USSG § 2F1.1, comment (n.7).
15 See United States v. Mancuso , 42 F.3d 836, 849 (4th Cir. 1994).
16 See United States v. Helton, 953 F.2d 867, 869 (4th Cir. 1992).
17 See USSG § 3B1.3, comment (n.1).
18 See United States v. Moore, 29 F.3d 175, 180 (4th Cir. 1994).

                     5
Accordingly, we affirm Hinebaugh's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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