                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-4299


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

MARY ELLEN DOWDELL,

                 Defendant - Appellant.


                             No. 08-4300


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

MARK SMYTH,

                 Defendant - Appellant.


                             No. 08-4308


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

GREGORY SMYTH,

                 Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville.     Norman K. Moon,
District   Judge.    (3:07-cr-00010-nkm-6; 3:07-cr-00010-nkm-8;
3:07-cr-00010-nkm-9)


Submitted:   November 24, 2008          Decided:     January 5, 2009


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David A. Eustis, EUSTIS & GRAHAM, PC, Charlottesville, Virginia;
B. Stephanie Commander, Charlottesville, Virginia; David L.
Heilberg, Charlottesville, Virginia, for Appellants.     Julia C.
Dudley, United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

            In early 1998, Terry Dowdell started operating a Ponzi

scheme   through     his   company,      Vavasseur       Corporation.          Federal

investigations of the scheme ensued and on November 19, 2001,

Dowdell’s   assets      were    frozen   through     a    temporary      restraining

order    which    was   later    extended       through    a   series     of   orders

culminating in a permanent injunction.               Terry Dowdell eventually

pled guilty to securities and wire fraud charges.

            In    April    2007,   a     federal    grand      jury     charged   two

brothers, Mark and Gregory Smyth, and Terry’s wife, Mary Ellen

Dowdell,    in    Count    Three    of    a     multi-count,       multi-defendant

superseding indictment with conspiracy to commit wire fraud, in

violation of 18 U.S.C. §§ 1343, 2 (2006).                      Specifically, the

indictment charged that over $800,000 in funds subject to the

orders freezing Terry Dowdell’s assets were wired to the Smyth

brothers and that Mary Dowdell received and negotiated checks

drawn on the accounts into which these funds were transferred

and that she otherwise benefited from the funds when they were

used to make payments on a credit card account she held with her

husband.

            The   Smyth    brothers      each    pled     guilty   to    aiding   and

abetting to commit wire fraud.            A jury convicted Mary Dowdell of

conspiracy to commit wire fraud.                The district court sentenced

Gregory Smyth to thirty-seven months’ imprisonment, Mark Smyth

                                          3
to forty-four months’ imprisonment, and Dowdell to sixty months’

imprisonment.        Gregory        and   Mark    Smyth     appeal      from    their

sentences.       Mary      Dowdell     appeals     from     her   conviction      and

sentence.     The appeals have been consolidated.

            We     first     address       Dowdell’s        challenge      to     her

conviction.      Dowdell argues that the district court erred by

denying her Fed. R. Crim. P. 29 motion for judgment of acquittal

because there was scant evidence that she specifically received

and negotiated the series of checks made payable to her from the

Smyths or that she had any involvement in the payments made on

the credit card.

            We   review     de     novo   the    district    court’s     denial   of

Dowdell’s     Rule 29 motion.         United States v. Reid, 523 F.3d 310,

317 (4th Cir. 2008).         Where, as here, the motion was based on a

claim of insufficient evidence, “[t]he verdict of the 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); Reid, 523 F.3d at 317.

To prove conspiracy to commit wire fraud, the Government need

only   establish    that     the     defendant    knowingly       and   voluntarily

agreed to participate in a scheme to defraud and that the use of

the interstate wires in furtherance of the scheme was reasonably

foreseeable.     United States v. Hasson, 333 F.3d 1264, 1270 (11th

Cir. 2003).

                                          4
               Viewing the evidence in the light most favorable to

the   Government,         there        was    substantial     evidence    that     Dowdell

knowingly and voluntarily agreed to participate in a scheme to

defraud and that the use of the interstate wires in furtherance

of    the     scheme      was    reasonably          foreseeable.      The    Government

presented evidence that the assets of Dowdell’s husband, Terry,

and     his        alter-ego,          Vavasseur        Corporation,      were     frozen

continuously from November 19, 2001.                        Dowdell herself was named

as a relief defendant in the order and received a copy of the

order    the       day    it    issued.          The    Government   also     introduced

evidence of the various transfers of Vavasseur funds from the

Smyth brothers to Mary personally, to her company, Willowood,

and to the credit card account held by the Dowdells and evidence

of Mary’s personal involvement in cashing checks issued by the

Smyths.            Viewing      this     and     the      other   trial   evidence      of

transfers of funds to Mary’s benefit from the time that the

asset freeze went into effect, we find that the evidence was

sufficient to support Mary’s conviction for conspiracy to commit

wire fraud.

               Turning to the sentencing issues, we review a sentence

imposed       by    the    district          court    for   reasonableness.        United

States v. Booker, 543 U.S. 220, 260-61 (2005).                         In sentencing a

defendant post-Booker, a district court must correctly calculate

the   appropriate         advisory           guidelines     range.     Gall   v.   United

                                                 5
States,    128   S.   Ct.    586,    596     (2007)    (citing      Rita   v.   United

States, 127 S. Ct. 2456, 2465 (2007)).                       The court then must

consider that range in conjunction with the 18 U.S.C. § 3553(a)

(2006)    factors.     Gall,    128     S.     Ct.    at   596.      In    imposing   a

sentence, the court “may not presume that the guidelines range

is   reasonable,”      but     rather      “must      make     an    individualized

assessment based on the facts presented.”                    Id. at 596-97.        The

district court also “must adequately explain the chosen sentence

to allow for meaningful appellate review.”                 Id. at 597.

            Appellate review of a district court’s imposition of a

sentence (whether inside or outside of the guidelines range) is

for abuse of discretion.            Id.; see also United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007).              The appellate court

     must first ensure that the district court committed no
     significant procedural error, such as failing to
     calculate (or improperly calculating) the Guidelines
     range, treating the Guidelines as mandatory, failing
     to consider the § 3553(a) factors, selecting a
     sentence based on clearly erroneous facts, or failing
     to adequately explain the chosen sentence--including
     an explanation for any deviation from the Guidelines
     range.   Assuming that the district court’s sentencing
     decision is procedurally sound, the appellate court
     should then consider the substantive reasonableness of
     the sentence imposed under an abuse-of-discretion
     standard.    When conducting this review, the court
     will, of course, take into account the totality of the
     circumstances, including the extent of any variance
     from the Guidelines range.

Gall, 128 S. Ct. at 597.




                                           6
                 Turning    first    to    Dowdell’s      sentence,   the   district

court determined that her base offense level was six, under U.S.

Sentencing Guidelines Manual § 2B1.1(a)(2) (2007).                    She received

a   fourteen-level         increase       under   USSG   § 2B1.1(b)(1)(H)    because

the offense involved a loss amount of more than $400,000 and

less       than    $1   million.          Because   the     offense   involved   the

violation of a court order, Dowdell’s offense level was raised

an additional two levels pursuant to USSG § 2B1.1(b)(8)(C).                      The

offense       level        was   raised       two    more    levels    under     USSG

§ 2B1.1(b)(9)(B) because a substantial part of the scheme was

committed outside of the United States.                     Finally, the district

court applied a two-level increase in offense level under USSG

§ 3C1.1 for obstruction of justice because the court found that

Dowdell committed perjury when she testified at trial.                      Dowdell

had no criminal history points.                   With a total offense level of

twenty-four and criminal history category I, Dowdell’s guideline

range      was    sixty-three       to    seventy-eight     months’   imprisonment.

USSG ch. 5, pt. A (sentencing table).                        However, because the

then-applicable statutory maximum sentence of five years under

§ 1343 * was less than the guideline range, the statutory maximum

became the guideline range.               See USSG § 5G1.1.

       *
       The statutory maximum for § 1343 offenses has since been
raised to twenty years.     See 18 U.S.C.A. § 1343 (West Supp.
2008).


                                              7
              Dowdell     challenges     her    sentence     on    several    grounds.

First, she contends that the district court erred by imposing

the obstruction of justice enhancement.                 A sentencing court must

impose a two-level adjustment under § 3C1.1 if the defendant

willfully obstructed or impeded the administration of justice

during      the    investigation,      prosecution,     or       sentencing    of   the

offense of conviction.             In the case of perjury, the obstruction

of    justice       increase     applies   if    the    court      finds     that   the

defendant gave false testimony under oath “concerning a material

matter      with    the   willful     intent    to   provide      false     testimony,

rather than as a result of confusion, mistake, or faulty memory.

United States v. Dunnigan, 507 U.S. 87, 94 (1993); USSG § 3C1.1

cmt. n.4(b).         In the face of substantial evidence of her guilt,

Dowdell took the stand and flatly denied any wrongdoing.                            We

find no clear error in the § 3C1.1 enhancement.

              Dowdell also challenges the inclusion of a $512,000

check she co-signed in determining the loss attributable to her

for   relevant       conduct,      contending    that   this      transfer    was   not

related      to    the    conspiracy.      Under     USSG    §    1B1.3(a),     unless

otherwise specified, relevant conduct shall be determined based

on    (1)    “all    acts    and    omissions     committed,       aided,     abetted,

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

the defendant,” and (2) “in the case of a jointly undertaken

criminal      activity      (a     criminal     plan,   scheme,       endeavor,      or

                                           8
enterprise undertaken by the defendant in concert with others,

whether       or     not     charged         as    a     conspiracy)      all       reasonably

foreseeable acts and omissions of others in furtherance of the

jointly       undertaken          criminal        activity.”         USSG       §    1B1.3(a).

Uncharged       crimes       may       be    considered         “relevant      conduct”     for

sentencing purposes, as can charges that were dismissed or for

which the defendant was acquitted.                       United States v. Watts, 519

U.S. 148, 155-56 (1997).

               The evidence presented at trial supported a finding

that the transfer of the $512,000 was related to the conspiracy.

The     day    after       her     husband’s           assets    were     frozen,      Dowdell

facilitated the transfer of $512,000 from an account over which

Terry had signatory authority into an account over which he had

no such authority.               Although this particular transaction was not

charged in the indictment and did not itself include a wire

transfer,       it   reflects          the   general      conspiracy      charged      in    the

indictment to move funds in accounts covered by the asset freeze

into other accounts where the Dowdell family and others could

benefit       from   them.         We    therefore       conclude       that   the    district

court    did       not     err    by    including        the     $512,000      in    the    loss

calculation.

               Finally, Dowdell argues that the district court failed

to adequately consider the § 3553(a) factors. A district court’s

explanation for the sentence it imposes must be sufficient to

                                                  9
enable     the       appellate        court        to    effectively        review       its

reasonableness,        but     need     not        mechanically      discuss      all   the

factors listed in § 3553(a).                   United States v. Montes-Pineda,

445 F.3d 375, 380 (4th Cir. 2006).                           The court’s explanation

should indicate that it considered the § 3553(a) factors and the

arguments raised by the parties.                        Id.     This court does not

evaluate the adequacy of the district court’s explanation “in a

vacuum,”       but    also     considers       “[t]he         context    surrounding       a

district court’s explanation.”                Id. at 381.

             The     district        court     correctly        calculated     Dowdell’s

guideline       range,       treated    the        guidelines       as   advisory,       and

considered the § 3553(a) factors.                       The court sentenced her to

the statutory maximum, which was her guideline range.                               We find

that Dowdell presented no information to rebut the presumption

that her within-guideline sentence is reasonable.

             The guideline calculations for the Smyth brothers were

identical.           The     base    offense        level     was    six,   under       U.S.

Sentencing Guidelines Manual § 2B1.1(a)(2) (2007).                          This offense

level    was     increased      by     fourteen         levels,     pursuant      to    USSG

§ 2B1.1(b)(1)(H)           because     the         offense      involved     more       than

$400,000,      but    less     than    $1     million.          Because     the     offense

involved the violation of a court order, the offense level was

raised      an       additional        two          levels      pursuant       to       USSG

§ 2B1.1(b)(8)(C).            The offense level was raised an additional

                                              10
two levels under USSG § 3C1.1 for obstruction of justice for

providing       a    false     and    misleading       accounting     of    $500,000      the

brothers       received        from    Terry       Dowdell     and    Vavasseur.          The

brothers       also      received      a    two-level        downward      adjustment      in

offense       level      pursuant     to    USSG    § 3E1.1(a)       for   acceptance      of

responsibility.

               Neither brother had any criminal history points.                          With

a     total    offense       level     of    twenty-two        and    criminal      history

category       I,    each    brother’s       guideline       range   was    forty-one      to

fifty-one months’ imprisonment.

               In     Gregory    Smyth’s       case,    the    Government        asked    the

court to consider that he pled guilty and convinced his brother

to plead guilty, saving the Government and the court time from

preparing          for   Mark    Smyth’s       trial.         Stating      that    it     had

considered the § 3553(a) factors and the advisory guidelines,

the    court       sentenced     Gregory      Smyth     to    thirty-seven       months    in

prison, four months below the bottom of the guideline range.

               Mark Smyth contended that it was he who convinced his

brother       to    plead      guilty.       After      considering        the    § 3553(a)

factors and the advisory guidelines, the court initially planned

to sentence Mark Smyth to fifty-one months in prison, the top of

the guideline range.              However, Mark Smyth asserted that it was

he who convinced his brother to plead guilty and to avoid a

gross    disparity        in    sentences,      the    court    ultimately        sentenced

                                               11
Mark Smyth to forty-four months in prison, a sentence in the

middle of his guideline range.

               On appeal, the Smyths argue that the district court

erred by applying USSG § 3C1.1 to increase their offense levels

for obstruction of justice.                This enhancement was based on the

brothers’ false accounting of the $500,000 they received from

Vavasseur that they presented to Terry Dowdell.

               When    they   prepared      the    accounting,         the    Smyths      were

well    aware     that   Terry     Dowdell       was     the   lead    defendant          in   a

pending civil action filed by the SEC in federal court involving

the mishandling of funds.             They knew that, in response to Terry

Dowdell’s      admissions      that   Vavasseur          was   a     Ponzi    scheme,      the

court issued an order shutting down the company and freezing

Terry    Dowdell’s       assets.      They        also    knew     that      the    SEC    was

interested in the $500,000 that the Smyths received.                               They sent

Dowdell    a    false    accounting        of    the     funds,    knowing         that   this

information was going to “the lawyers.”

               The    relevant     guideline       commentary         to     USSG    § 3C1.1

lists “producing or attempting to produce a false, altered, or

counterfeit document or record during an official investigation

or     judicial       proceeding”     as    a     ground       for     the     obstruction

adjustment.          USSG § 3C1.1 cmt. n.4(c).             The brothers claim that

the enhancement should not apply because they did not provide

the false accounting to any court, law enforcement officer, or

                                            12
any other government official or entity, but rather to Terry

Dowdell and his attorney.

            Even though the brothers sent the false information to

private    individuals,        they      knew     that   it    would     be    used    in

connection with a federal court case.                    A preponderance of the

evidence    supported        the   district       court’s     conclusion      that    the

purpose of the letter was to obstruct justice by deceiving the

SEC about these funds.             Accordingly, we find that the district

court properly applied the § 3C1.1 enhancement to each of the

Smyths.

            Finally, like Mary Dowdell, the Smyths argue that the

district    court     failed       to    adequately      address       the    § 3553(a)

factors.     We find that district court correctly calculated the

Smyth     brothers’     respective           guideline      ranges,     treated        the

guidelines as advisory, and considered the § 3553(a) factors.

We find that Mark Smyth failed to rebut the presumption that his

within-guideline       sentence         is   reasonable.         We     further       find

Gregory Smyth’s below-guideline sentence to be reasonable.

            For these reasons, we affirm Mary Dowdell’s conviction

and sentence and affirm Gregory and Mark Smyth’s sentences.                             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.

                                                                               AFFIRMED

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