                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4810


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES LESTER ROUDABUSH, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:13-cr-00195-CMH-1)


Submitted:   June 30, 2014                 Decided:   July 18, 2014


Before KING, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Edwin S. Booth, SHUTTLEWORTH, RULOFF, SWAIN HADDAD & MORECOCK,
PC, Virginia Beach, Virginia, for Appellant.     Dana J. Boente,
United States Attorney, Kimberly R. Pedersen, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James       Lester   Roudabush,        Jr.,    was   convicted     after    a

jury trial of one count of forgery of a passport, in violation

of 18 U.S.C. § 1543 (2012) (count one), one count of use and

attempted use of a false passport, in violation of 18 U.S.C.

§ 1543 (count two), and five counts of wire fraud, in violation

of 18 U.S.C. § 1343 (2012) (counts three through seven), and was

sentenced    to    seventy-seven       months’      imprisonment.         On   appeal,

Roudabush challenges the district court’s denial of his motion

to suppress statements he made to law enforcement, the court’s

admission at trial of certain evidence, and its calculation of

the loss amount attributable to him under the U.S. Sentencing

Guidelines Manual (“USSG”) (2012).                We affirm.

            We review the factual findings underlying a district

court’s ruling on a motion to suppress for clear error and the

court’s legal conclusions de novo.                       United States v. Hilton,

701 F.3d 959, 963 (4th Cir. 2012), cert. denied, 133 S. Ct. 1839

(2013).     When evaluating the denial of a suppression motion, we

construe    the     evidence      in   the       light    most   favorable     to   the

Government,       the    party    prevailing        below.       United   States       v.

Foster, 634 F.3d 243, 246 (4th Cir. 2011).

            Pursuant to the Fifth Amendment, no person “shall be

compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V.            This privilege against self-incrimination

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is protected by the warnings required by Miranda v. Arizona,

384 U.S. 436, 479 (1966), which inform an accused of his right

to remain silent and his right to counsel.                                See Berkemer v.

McCarty, 468 U.S. 420, 428 (1984) (noting that, in Miranda, the

Supreme       Court       afforded        protection        to    the     Fifth      Amendment

privilege        against            compelled        self-incrimination           “from       the

coercive pressures that can be brought to bear upon a suspect in

the    context      of     custodial       interrogation”).              When   an    “accused

indicates that he wishes to remain silent, the interrogation

must    cease.        If       he   requests     counsel,        the   interrogation         must

cease    until      an     attorney        is    present.”         Edwards      v.    Arizona,

451 U.S. 477, 482 (1981) (internal quotation marks omitted).                                  An

accused who has invoked his rights to silence and counsel may,

however, validly waive those rights.                        If an accused invokes his

right to counsel, a court “may admit his responses to further

questioning         only       on    finding     that      he    (a)    initiated      further

discussions with the police, and (b) knowingly and intelligently

waived the right he had invoked.”                          United States v. Cummings,

937    F.2d    941,      946     (4th    Cir.    1991)     (internal      quotation       marks

omitted).

               After review of the record and the parties’ briefs, we

conclude      that       the    district        court   did      not    reversibly     err    in

determining:         that       questioning        of   Roudabush        ceased      after    he

invoked       his   rights          to   silence     and    counsel      during      custodial

                                                 3
interrogation;       that,        after    invoking       these      rights,     Roudabush

initiated     further       discussions      with       law    enforcement;       and    that

Roudabush did not volunteer an incriminating statement until he

was   advised      of   his       rights    under       Miranda      and    indicated      he

understood     them.         We    further       find    no     merit      to   Roudabush’s

assertion that the actions of Agent Nelson — the agent to whom

Roudabush gave the incriminating statement — prior to advising

him of his Miranda rights amounted to the functional equivalent

of improper interrogation.                See Rhode Island v. Innis, 446 U.S.

291, 300-03 (1980).

             Next, Roudabush argues that the district court abused

its discretion by admitting at trial prejudicial evidence of his

prior bad acts in support of counts three through seven.                                This

court reviews the district court’s admission or exclusion of

evidence     for    abuse    of     discretion.          United      States     v.   Lighty,

616 F.3d 321, 351 (4th Cir. 2010).                      A district court does not

abuse    its       discretion         unless       it         acts    “arbitrarily        or

irrationally” in admitting evidence.                    United States v. Benkahla,

530   F.3d   300,    309     (4th    Cir.    2008)      (internal       quotation       marks

omitted).

             Under Rule 404(b) of the Federal Rules of Evidence, a

district court should exclude from admission “[e]vidence of a

crime, wrong, or other act” if such evidence is offered “to

prove a person’s character in order to show that on a particular

                                             4
occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1).            However, evidence of other bad acts

“may be introduced if it concerns acts intrinsic to the alleged

crime because evidence of such acts does not fall under Rule

404(b)’s limitations to begin with.”                         United States v. Otuya,

720 F.3d 183, 188 (4th Cir. 2013) (internal quotation marks and

alteration omitted), cert. denied, 134 S. Ct. 1279 (2014).                               In

this Circuit, evidence of other bad acts is “intrinsic” if “it

arose out of the same series of transactions as the charged

offense or if it is necessary to complete the story of the crime

on trial.”       United States v. Kennedy, 32 F.3d 876, 885 (4th Cir.

1994) (internal quotation marks and alterations omitted).

            It    is   clear     after       review      of    the   record     that    the

evidence to which Roudabush objects — evidence from Agent Nelson

and William Adams, Jr., concerning their investigation of his

activity    in    returning      merchandise           and    obtaining     refunds    from

JC Penney    department       stores     —       was   admissible      because    it    was

connected with and explanatory of the fraud charged in counts

three   through     seven    such   that         its    proof    was      appropriate    to

complete    the    story    of    those      crimes.           Id.   at    885-86.      The

district court thus did not abuse its discretion in allowing the

admission of the evidence.

            Finally,       Roudabush      challenges           the   district    court’s

application of a fourteen-level enhancement to his base offense

                                             5
level under USSG § 2B1.1(b)(1)(H) for a loss exceeding $400,000,

arguing that the court erred in its calculation of the loss

amount.

            Enhancements           under     USSG     § 2B1.1(b)        are     to   be

determined by the amount of loss suffered as a result of the

fraud.    The loss amount is the greater of the actual loss or the

intended loss.         USSG § 2B1.1, cmt. n.3(A).              “Actual loss” means

“the reasonably foreseeable pecuniary harm that resulted from

the   offense.”        Id.       cmt.    n.3(A)(i).     “Reasonably      foreseeable

pecuniary harm” means “pecuniary harm that the defendant knew

or, under the circumstances, reasonably should have known, was a

potential    result         of    the     offense.”      Id.     cmt.    n.3(A)(iv).

Further, Application Note 3(C) to USSG § 2B1.1 provides that the

district court need only make a reasonable estimate of the loss.

            In calculating a fraud loss, a sentencing court must

apply principles of relevant conduct.                  United States v. Bolden,

325 F.3d 471, 498 (4th Cir. 2003).                    Pursuant to USSG § 1B1.3,

specific offense characteristics such as the fraud loss properly

attributable to a defendant must be determined on the basis of,

inter alia, “the acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by

[the]     defendant.”              Id.     (citing     USSG     § 1B1.3(a)(1)(A)).

The district court’s determination of a loss attributable to a

fraud    scheme   is    a    factual       matter    reviewed   for     clear   error.

                                             6
United States v. Allmendinger, 706 F.3d 330, 341 (4th Cir.),

cert. denied, 133 S. Ct. 2747 (2013).

              In    this         case,       the     presentence           report     (“PSR”)

recommended application of the fourteen-level enhancement under

USSG § 2B1.1(b)(1)(H) for a loss exceeding $400,000 but less

than $1,000,000 because the loss JC Penney suffered as a result

of Roudabush’s retail fraud was at least $620,800.                                In reaching

this conclusion, the PSR relied on Roudabush’s own statements

regarding     his    earnings         from    his     fraud    at    JC    Penney     and    the

length   of    time      he   perpetrated           the   fraud     and    an     analysis    by

JC Penney of the loss it suffered as a result of Roudabush’s

fraud.   The district court adopted the PSR’s finding of the loss

amount and applied the fourteen-level enhancement.

              On appeal, Roudabush argues that the district court

erred in relying on his statement and JC Penney’s analysis in

calculating        the     loss    amount.           Roudabush,       however,       has     not

asserted any challenge to the accuracy or correctness of this

information.        As Roudabush made no affirmative showing in the

district court that the information in the PSR was incorrect,

the court was free to adopt and rely on the information therein

in sentencing him.            See United States v. Randall, 171 F.3d 195,

210-11   (4th       Cir.      1999)      (“If      the    district        court    relies    on

information in the presentence report (PSR) in making findings,

the   defendant          bears     the     burden         of   establishing         that     the

                                                7
information      relied    on    by    the       district    court       in    making       its

findings    is     incorrect;     mere       objections       are       insufficient.”);

United    States     v.   Love,    134    F.3d      595,     606     (4th      Cir.    1998)

(“Without an affirmative showing the information [in a PSR] is

inaccurate, the court is free to adopt the findings of the [PSR]

without     more     specific     inquiry          or     explanation.”             (internal

quotation    marks    omitted)).         The      relevant        conduct      in    the    PSR

easily    establishes      a    loss   exceeding          $400,000.           We therefore

conclude    that    the   district       court      did     not    reversibly         err   in

holding Roudabush accountable for a loss exceeding $400,000 but

less than $1,000,000 and applying the fourteen-level enhancement

under USSG § 2B1.1(b)(1)(H).

            Accordingly, we affirm the district court’s judgment.

We deny Roudabush’s pro se motion to recuse all judges of the

Fourth Circuit, United States v. Cherry, 330 F.3d 658, 665 (4th

Cir. 2003), and 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.

                                                                                     AFFIRMED




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