                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4280


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

LEONARD STUART COLEMAN,

                  Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:07-cr-00128-1)


Submitted:    November 26, 2008             Decided:   March 23, 2009


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, L. Anna Forbes, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Leonard   Stuart   Coleman    pled    guilty      to   mail   fraud,

18 U.S.C.A. § 1341 (West Supp. 2008), and was sentenced to a

term of thirty-three months imprisonment.                He was also ordered

to pay restitution in the amount of $192,740, plus interest.

Coleman appeals his sentence, contending that (1) the district

court erred in denying his motion to exclude U.S. Sentencing

Guidelines    Manual   § 2B1.1(b)(1)      (2007)    from    consideration     at

sentencing    on   constitutional   grounds;       (2)   the    district   court

erred by finding that Coleman abused a position of trust, USSG

§ 3B1.3; and (3) the district court erred by dismissing without

prejudice Coleman’s post-judgment motion to modify his interest

payments.     We affirm the sentence.         However, because we agree

that the district court had jurisdiction to consider Coleman’s

post-judgment petition for waiver of interest, 1 we vacate the

district court’s dismissal order and remand for a ruling on the

merits as to that issue.




     1
       Coleman did not file a notice of appeal from the district
court’s April 23, 2008 order dismissing his petition. However,
we conclude that the docketing statement he filed in this appeal
may be treated as the functional equivalent of a notice of
appeal from that order.     Smith v. Barry, 501 U.S. 244, 248
(1992). The docketing statement was filed within the thirty-day
extension period provided in Fed. R. App. P. 4(b)(4), and we
find that good cause exists to excuse the late filing.    United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).



                                     2
               Coleman pled guilty to an information charging that,

in 2004 and 2005, he embezzled money from the law firm where he

worked    as    an     attorney       specializing         in    municipal         bond     work.

Coleman stipulated that he embezzled client fees of $195,740 and

attempted to embezzle another $37,500 by causing clients to pay

fees into his own personal bank account.                             Coleman reserved the

right to contest the amount of loss for sentencing purposes.                                  At

sentencing, the district court overruled Coleman’s due process

objection       to    use     of    the       loss   table      in    § 2B1.1(b)(1),         and

determined that he had abused a position of trust within his law

firm,    which       resulted       in    a    two-level        adjustment         under    USSG

§ 3B1.1.       After judgment was entered and Coleman had noted his

appeal,    he       filed    a     petition     seeking      waiver     of    the    interest

payments    on       the    restitution         he   was    obligated        to    pay.      The

district court found that it no longer had jurisdiction over the

sentence and dismissed his petition without prejudice.

               On      appeal,            Coleman          first        challenges           the

constitutionality of the loss table in § 2B1.1.                                   He observes

that    defendants         whose    crimes      result     in    a    loss    of    less     than

$1 million may receive enhancements of up to fourteen levels,

while    offenses          resulting      in    losses      between      $1       million    and

$400 million may receive no more than fifteen additional levels.

See USSG § 2B1.1(b)(1).               Coleman argues that the table produces

a disparity similar to the 100:1 ratio for crack cocaine and

                                                 3
powder cocaine offenses addressed in Kimbrough v. United States,

128 S. Ct. 558 (2007), and thus violates due process.

              However, the sentences for offenses involving losses

over     $1   million       are       more      severe       than     those       for    offenses

involving smaller losses.                    Therefore, we conclude that Coleman

has not shown a due process violation in the district court’s

consideration of the loss table generally, or in its application

in his case.         Additionally, as the district court found, because

Coleman’s offense involved a loss of less than $1 million, he

cannot    claim      to     have      been    adversely         affected,         even      if    his

argument has merit.

              Next,       we    review          de     novo     the       district        court’s

determination        that      Coleman        held      a    position        of     trust    under

§ 3B1.3,      and    review        the    factual           findings      that      support       the

adjustment for clear error.                  United States v. Ebersole, 411 F.3d

517,     535-36      (4th      Cir.      2005);        United       States     v.       Caplinger,

339 F.3d      226,    235-36        (4th        Cir.     2003).        Under      § 3B1.3,            an

adjustment is required if “the defendant abused a position of

public or private trust . . . in a manner that significantly

facilitated the commission or concealment of the offense.”                                            A

“position      of     trust”       is     “characterized             by    professional               or

managerial discretion.”               USSG § 3B1.1, comment. (n.1).

              Coleman       argues       that    the        adjustment     for      abuse        of    a

position of trust was inappropriate because he did not occupy a

                                                 4
position of trust with respect to the clients whose money he

diverted, whom he characterizes as the victims of his offense.

He further claims that he did not use any special skill in

preparing the invoices to the clients.

          Coleman’s law firm was the victim of his offense.     The

firm lost the money paid by its clients when Coleman diverted

the money to his personal use.   Coleman acknowledged that within

his firm he “held a position of authority and operated with a

level of independence in his day to day work.”   We conclude that

the district court did not clearly err in finding that Coleman

occupied a position of trust within his law firm and that his

position of trust facilitated the commission of his offense.

          Finally, we agree with Coleman that the district court

erred in declining to address his post-judgment petition for

waiver of interest.    Once judgment is entered, the sentencing

court loses jurisdiction to change the sentence except in a few

circumstances where a statute or Rule 35 permits it to revisit

the sentence.   United States v. Lawrence, 535 F.3d 631, 637 (7th

Cir. 2008); United States v. Goode, 342 F.3d 741, 743 (7th Cir.

2003).   One such statute is 18 U.S.C. § 3612 (2006).         While

§ 3612(f)(1) provides that payment of interest is mandatory on

restitution of more than $2,500, § 3612(f)(3) permits the court,

post-judgment, to waive or limit the payment of interest upon a

finding that the defendant is unable to pay interest.

                                 5
                  In   Goode,      the    defendant         filed        a    post-sentencing

petition          seeking    a     waiver       of    interest      on       his    fines,       and

alternatively asking that the fines be remitted or suspended.

The district court denied the petition.                           The appeals court held

that,       regardless        of    its      merits,       the     district          court       had

jurisdiction           to   consider      the    post-judgment        petition           under    18

U.S.C. § 3572(d)(3) (2006).                     Goode, 342 F.3d at 743.                        Under

Goode,       Coleman        is     correct       that      the     district          court       had

jurisdiction to consider his petition, and erred in dismissing

it without a ruling on the merits.                          Therefore, we vacate the

court’s order dismissing the petition without prejudice.                                          On

remand, the court should reconsider Coleman’s petition and rule

on the merits of his request for a waiver of interest payments. 2

                  We   otherwise     affirm          the   sentence          imposed      by     the

district      court.         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 IN PART,
                                                       VACATED IN PART, AND REMANDED




        2
            We express no opinion on the merits of Coleman’s petition.



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