                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4112



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


MARK ANTHONY REYNOLDS,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (CR-04-88)


Argued:   February 3, 2006                    Decided:   May 3, 2006


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per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


ARGUED: James Byron Lees, Jr., HUNT & LEES, L.C., Charleston, West
Virginia, for Appellant.       John Park Pearson, UNITED STATES
DEPARTMENT OF JUSTICE, Public Integrity Section, Criminal Division,
Washington, D.C., for Appellee.     ON BRIEF: Richard C. Pilger,
UNITED STATES DEPARTMENT OF JUSTICE, Public Integrity Section,
Criminal Division, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        This criminal appeal arises from Mark Anthony Reynolds’s wire

fraud and obstruction of justice convictions, for which he was

sentenced to 120 months’ imprisonment. Reynolds challenges both of

his convictions, principally contesting the sufficiency of the

evidence to support them.           With respect to his sentence, Reynolds

challenges the district court’s five-level upward departure.                  For

the reasons herein, we affirm Reynolds’s convictions, but vacate

his sentence and remand for resentencing.



                                        I.

       The facts giving rise to Reynolds’s convictions began in 2003,

when a West Virginia man named Bill Buzzo was under federal

investigation for money laundering. Carl R. Mapel, Jr., offered to

serve    as   Buzzo’s    attorney,     with      Reynolds   acting    as   Mapel’s

paralegal. Unbeknownst to Buzzo, Mapel could not legally represent

Buzzo because Mapel’s Pennsylvania bar license had been placed on

inactive      status    in   1996    for       his   failure   to    comply   with

Pennsylvania’s rules for continuing legal education.                    Reynolds,

however, was aware that Mapel was no longer authorized to practice

law.

       Mapel and Reynolds told Buzzo and his family members that they

were well connected to key Republican political figures in West

Virginia.     In this vein, the two falsely asserted that they could


                                           2
obtain leniency in Buzzo’s case if Buzzo provided them with funds

to bribe these officials.   Mapel and Reynolds charged $50,000 for

their services, with an additional $50,000 in payments “for the

Republicans.”   J.A. 220.

     Mapel misrepresented his Pennsylvania bar status to the West

Virginia district court and was admitted pro hac vice to represent

Buzzo on the money laundering charges.    Between July and October

2003, Mapel negotiated a plea agreement for Buzzo. As Buzzo’s case

proceeded, Reynolds grew more insistent in his requests for money,

at one point seeking as much as $250,000 from Buzzo.    Buzzo became

increasingly uncomfortable with Reynolds’s demands and threats to

cut off representation such that he began conversing with Mapel and

Reynolds solely from his office phone, which was located at an

ambulance service where all calls were recorded. By November 2003,

Reynolds and Buzzo’s relationship had deteriorated to such an

extent that they discontinued speaking to each other.   Thereafter,

Buzzo communicated solely with Mapel, and Mapel distanced himself

from Reynolds in conversations with Buzzo by stating that he had

not had contact with Reynolds and questioning whether Reynolds had

the political connections he claimed.    In fact, however, Reynolds

continued to assist Mapel with Buzzo’s case.

     Buzzo pled guilty to his money laundering charges on December

8, 2003. In February 2004, while Buzzo awaited sentencing, the FBI

learned of Mapel and Reynolds’s scheme and began to investigate.


                                 3
By then, Buzzo had paid $15,000 of the arranged bribe, with the

understanding that this money had gone to the Republicans in

exchange for a “good judge” and a lower sentencing range.      J.A.

908, 932.

     As part of its investigation, the FBI also began to record

Buzzo’s telephone calls.    One such call occurred between Mapel in

Arizona and Buzzo in West Virginia on February 18, 2004 (the

“February 18, 2004 call”).   During the conversation, Mapel stated

that the chair of the West Virginia Republican Party would only

seek home confinement for Buzzo’s sentence if paid $10,000 more

toward the $50,000 bribe.    The FBI arranged for Buzzo’s grandson,

Jason Smyth, to make a controlled payment of that amount to Mapel

on March 25, 2004.    Investigators arrested Mapel as he left the

meeting with the money.

     Later that day, Smyth called Reynolds at the FBI’s direction

and told him that Mapel had not arrived to pick up the payment.

The two arranged to meet so that Smyth could give the funds to

Reynolds instead. When Reynolds picked up the money, he told Smyth

that he had continued to work on Buzzo’s case, having recently

prepared a motion and objections, and that he planned to meet with

Mapel that evening.   Reynolds again emphasized his close ties with

the West Virginia Republican Party Chairman and the Republican

gubernatorial candidate and told Smyth that he was running for

state senate.   As Reynolds accepted the money, he refrained from


                                  4
explicitly confirming what the payment was for, explaining that he

had to be careful of what he said “because any irregularities for

me, you know, they hit me.”             J.A. 872.      Investigators arrested

Reynolds immediately after the meeting.

     When Mapel and Reynolds’s scheme came to light after their

arrests, the judge presiding over Buzzo’s case had to “essentially

start over with Mr. Buzzo’s case” to avoid any taint from Buzzo’s

representation by an unlicensed lawyer and the promises of improper

influence.      J.A. 302.    The judge set aside Buzzo’s guilty plea and

ordered the appointment of a new lawyer.               This resulted in a need

to renegotiate Buzzo’s plea agreement, hold additional conferences

and proceedings, and prepare new filings.

     Mapel and Reynolds were charged with two counts of wire fraud

and aiding and abetting wire fraud, in violation of 18 U.S.C. §§

1343 and 2, and one count of obstruction of justice and aiding and

abetting obstruction of justice, in violation of 18 U.S.C. §§ 1503

and 2.         Mapel pled guilty to these charges.                  A superceding

indictment against Reynolds added a third count of wire fraud,

which    was    subsequently       dismissed   prior   to    trial.     The    jury

convicted Reynolds of one count of wire fraud (based upon the

February 18, 2004 call) and the count of obstruction of justice,

but found him not guilty of the other wire fraud charge.

     At    sentencing,       the    district   court    calculated     Reynolds’s

sentencing      range   as   follows.        First,   the   court   followed    the


                                         5
calculations      in      the    presentence       investigation      report.        It

determined that, with enhancements, the wire fraud count had an

adjusted offense level of 17 and the obstruction of justice count

had an adjusted offense level of 19.                    Applying the rules for

multiple counts of conviction in Part D of Chapter Three of the

United   States       Sentencing       Guidelines    Manual    (2003),     the   court

grouped each count separately and assigned 1 unit to each group.

Pursuant to § 3D1.4, it therefore added 2 levels to the obstruction

of justice count, which had the highest offense level (19).                      Thus,

Reynolds’s combined adjusted offense level was 21. With Reynolds’s

criminal history category of VI, the sentencing range under the

Guidelines    was      77   to   96    months.       Neither   Reynolds     nor     the

Government objected to this calculation of the Guidelines range.

     The court then considered the Government’s motion for an

upward departure under § 5K2.7 of the Guidelines for significant

disruption of a governmental function.                 According to the policy

statement    of   §    5K2.7,     an    upward    departure    on   this    basis    is

permitted “to reflect the nature and extent of the disruption and

the importance of the governmental function affected.” However, it

also provides that such a departure “ordinarily would not be

justified when the offense of conviction is an offense such as

bribery or obstruction of justice; in such cases interference with

a governmental function is inherent in the offense, and unless the

circumstances       are     unusual      the     guidelines    will    reflect      the


                                           6
appropriate punishment for such interference.”      U.S.S.G. § 5K2.7

(emphasis added).    So as not to offend this policy statement, the

court determined that it could increase Reynolds’s sentence by

departing on the wire fraud count only.      The court reasoned that

the wire fraud resulted in a substantial disruption of Buzzo’s

proceedings and called into question the integrity of the court.

     To apply the departure only to the wire fraud count, the court

recalculated Reynolds’s sentencing range starting with the adjusted

offense levels for each count before grouping.    The court took the

wire fraud’s offense level of 17 and applied a 5-level § 5K2.7

upward departure to reach level 22. It then reapplied the grouping

rules, this time increasing the wire fraud count’s new adjusted

offense level of 22 by 2 levels.    The resulting total offense level

of 24 increased Reynolds’s sentencing range from 77 to 96 months to

100 to 125 months.    The court sentenced Reynolds to 120 months’

imprisonment on the wire fraud count, over Reynolds’s objection to

this new calculation.   This appeal followed.



                                   II.

     We first examine Reynolds’s challenge to the denial of his

motion for a judgment of acquittal.        Reynolds argues that the

evidence was insufficient to support both his wire fraud and

obstruction of justice convictions. We review de novo the district

court’s denial of a motion for a judgment of acquittal.       United


                                    7
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).           “If the

motion was based on insufficiency of the evidence, the verdict

‘must be sustained if there is substantial evidence, taking the

view most favorable to the Government, to support it.’”                Id.

(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)).



                                    A.

     In Count Two, the superceding indictment charged Reynolds with

wire fraud and aiding and abetting wire fraud.          To establish the

substantive crime of wire fraud, the government must prove “1) a

scheme to defraud and 2) the use of a wire communication in

furtherance of that scheme.”       United States v. Bollin, 264 F.3d

391, 407 (4th Cir. 2001) (internal quotation marks omitted).           One

who aids and abets the commission of an offense “is punishable as

a principle.”    18 U.S.C. § 2.   “A defendant is guilty of aiding and

abetting    if   he   has   knowingly    associated   himself   with   and

participated in the criminal venture.” United States v. Burgos, 94

F.3d 849, 873 (4th Cir. 1996) (en banc) (internal quotation marks

omitted).    We have held that “to be convicted of aiding and

abetting, participation in every stage of an illegal venture is not

required, only participation at some stage accompanied by knowledge

of the result and intent to bring about that result.”                  Id.

(internal quotation marks and alteration marks omitted).           In the

specific context here:


                                    8
     [T]o be convicted of aiding and abetting a wire fraud
     offense, it is not necessary for the defendant to be
     directly or personally involved in the wire communication
     as long as the wire communication was reasonably
     foreseeable to the defendant in the execution of the
     alleged scheme to defraud in which the defendant is
     accused of participating.

United States v. Pasquantino, 336 F.3d 321, 335 (4th Cir. 2003) (en

banc) (citing United States v. Griffith, 17 F.3d 865, 874 (6th Cir.

1994)), aff’d on other grounds, 544 U.S. 349 (2005).

     The indictment described the fraud scheme as having two

specific objectives: (1) to obtain money from Buzzo by falsely

claiming that Mapel was a properly licensed attorney able to

represent Buzzo, and (2) to obtain money from Buzzo by falsely

claiming that Mapel and Reynolds could corruptly influence public

officials to provide Buzzo with a more lenient sentence.         The

interstate communication identified as the basis for Count Two was

the February 18, 2004 call between Buzzo in West Virginia and Mapel

in Arizona, during which Mapel discussed Buzzo’s case, reviewed

with Buzzo the “successes” of the bribery scheme, and sought the

immediate payment of another $10,000.

     Reynolds argues that the evidence was insufficient to convict

him even under an aiding and abetting theory because he had nothing

to do with the February 18, 2004 call.   He points out that he and

Buzzo stopped communicating after November 2003 and that thereafter

Mapel downplayed his relationship with Reynolds and dismissed the

connections that Reynolds purported to have when speaking to Buzzo.


                                9
In addition, he notes that he was neither a party to the February

18, 2004 call nor mentioned during this call.                  We find Reynolds’s

arguments to be unavailing.

     First, a reasonable factfinder could conclude that Reynolds

knowingly   associated       with   and    participated        in   the   scheme   to

defraud.    Smyth testified that Reynolds attended meetings with

Mapel and the Buzzo family in 2003, with Reynolds acting as Mapel’s

paralegal for the case.          During these meetings, Buzzo testified

that Mapel and Reynolds discussed the fee for their services and,

emphasizing their connections with members of the Republican party,

told Buzzo and his family that “they could put a certain amount of

money in the right places and could get things done.”                     J.A. 530.

In   addition,      the     Government        introduced   recorded       telephone

conversations in which Mapel specifically discussed the purported

bribery and what Buzzo was receiving in exchange for his payments

to the Republicans.         Although Reynolds was somewhat more cryptic

than Mapel over the telephone, the jury heard several recordings of

Reynolds pressuring Buzzo for money. See, e.g., J.A. 826 (Reynolds

telling    Buzzo,    with    respect     to    securing    a   sentence    of   home

confinement, “[W]e gotta go to some people and get it done. . . .

But you gotta work with us and give us, give us the, ah, the tools

to work with.       And I, and I think you, being who you are and what

I know about you, you know what I mean.”).




                                          10
       Second, the evidence supports the inference that the February

18, 2004 call between Buzzo and Mapel was reasonably foreseeable to

the execution of the fraudulent scheme. Having involved himself in

the scheme to defraud and having himself attempted to further that

scheme   through    conversations       with    Buzzo      and   Smyth   over     the

telephone, Reynolds had every reason to foresee the call that

formed the basis for his conviction here.             It is of no consequence

that   Reynolds    did   not   participate      in   the    conversation.         See

Pasquantino, 336 F.3d at 336.

       Finally, to the extent that Reynolds suggests he disassociated

himself from the scheme to defraud prior to the February 18, 2004

call so as to avoid culpability arising from it, neither the law

nor the facts here support his contentions. As noted above, aiding

and abetting does not require participation at every stage of an

illegal venture, but instead requires participation at some stage

accompanied by the requisite intent.                 Burgos, 94 F.3d at 873.

Moreover,   the    evidence    showed    that    Reynolds        did   continue    to

participate in the scheme up until his arrest on March 25, 2004,

although he assumed a less conspicuous role. Reynolds’s retreat to

the background was consistent with the Government’s theory that

Reynolds had pushed Buzzo too hard in his demands for money and

threats to cut off representation--resulting in Mapel taking over

communications with the Buzzo family and outwardly distancing

himself from Reynolds.         In addition, Reynolds willingly met with


                                        11
Smyth on March 25, 2004 to pick up a payment when he believed Mapel

was unavailable.   During that meeting he told Smyth that he was

still working with Mapel on Buzzo’s case and had recently prepared

a motion and objections for Buzzo’s sentencing.           Thus, Reynolds’s

suggestions of abandonment or withdrawal are without merit.

     Accordingly, we affirm Reynolds’s conviction for aiding and

abetting wire fraud.



                                      B.

     Reynolds also challenges the sufficiency of the evidence to

support his conviction for obstruction of justice.                 He contends

that because he, as a paralegal, had no affirmative duty to stop

Mapel from practicing law or to inform the district court that

Mapel was not licensed, he did not obstruct justice.                     These

arguments misunderstand the law of obstruction of justice.

     The obstruction of justice statute provides, in pertinent

part: “Whoever . . . corruptly . . . influences, obstructs, or

impedes, or endeavors to influence, obstruct, or impede, the due

administration of justice, shall be punished . . . .”              18 U.S.C. §

1503(a).   Thus, we have required that to be guilty of obstructing

justice “a defendant must have knowledge or notice of a pending

judicial   proceeding,   and   must    have   acted   with   the    intent    to

influence,   obstruct,   or    impede      that   proceeding   in     its    due




                                      12
administration of justice.”     United States v. Littleton, 76 F.3d

614, 619 (4th Cir. 1996).

      Under our precedent, participation in a scheme to defraud that

interferes with a judicial proceeding can satisfy the intent

requirement of 18 U.S.C. § 1503.      See United States v. Neiswender,

590 F.2d 1269 (4th Cir. 1979).       In Neiswender, the appellant had

falsely represented to an attorney that for $20,000, he could

ensure a favorable outcome for the attorney’s client by influencing

a juror.   Id. at 1270.   The appellant argued that his only intent

was to defraud the attorney, not to actually obstruct justice. Id.

at 1272.   The government argued that success in this fraud would

naturally have led to an obstruction of justice because it would

reduce the attorney’s efforts on behalf of his client.            Id.   We

affirmed the appellant’s obstruction of justice conviction, holding

that the defendant “need only have had knowledge or notice that

success in his fraud would have likely resulted in an obstruction

of justice.”   Id. at 1273.   Moreover, such notice was “provided by

the   reasonable   foreseeability     of   the    natural   and   probable

consequences of one’s acts.”    Id.

      Here, Reynolds plainly had knowledge of the pending judicial

proceeding in Buzzo’s money laundering case.           The evidence also

supports the reasonable inference that Reynolds possessed the

requisite intent to obstruct justice.            As discussed above, the

evidence showed that Reynolds participated in a scheme to defraud


                                    13
Buzzo by making him believe that his sentence could be favorably

influenced through bribery.        The jury could reasonably infer that

it was natural and probable that this fraud would result in an

obstruction of justice. Indeed, obstruction actually did result in

this case.    For one, Buzzo’s guilty plea and plea agreement had to

be   thrown   out,   causing     additional    judicial   resources    to   be

expended.     See United States v. Silverman, 745 F.2d 1386, 1394-95

(11th Cir. 1984) (following Neiswender to affirm conviction where

a possible result of defendant’s fraudulent sentence-fixing scheme

was that the victim’s conviction and sentence would be set aside).

In addition, Buzzo and Smyth testified that they were less diligent

in collecting information about Buzzo’s infirmities to support his

request for home confinement.           See United States v. Buffalano, 727

F.2d   50,    54   (2d   Cir.   1984)    (applying   Neiswender   to   affirm

conviction where the defendant’s fraudulent bribery scheme “had the

potential to lull an ‘innocent victim’ into a false sense of

security, deterring him from taking an active role himself to

secure a more favorable sentence”).

       Thus, the evidence was more than sufficient to support the

jury’s finding of the elements of this charge.             Accordingly, we

affirm Reynolds’s conviction for obstruction of justice.




                                         14
                                     III.

       Finally, we address the district court’s grant of a five-level

upward departure for a significant disruption of a governmental

function pursuant to § 5K2.7 of the Guidelines.            At the outset, we

note that although Reynolds’s sentencing took place prior to United

States v. Booker 543 U.S. 220 (2005), the argument we address here

is not an assertion of Booker error, but a challenge to the

calculation of the Guidelines.       This particular issue involves the

district court’s legal interpretation of the Guidelines, which we

review de novo.        United States v. Reevey, 364 F.3d 151, 156 (4th

Cir. 2004).    See also United States v. Collins, 415 F.3d 304, 315

(4th    Cir.   2005)     (“This   court     reviews   ‘a   district   court’s

interpretation of the applicable sentencing guidelines de novo and

its factual findings for clear error.’”          (quoting United States v.

Quinn, 359 F.3d 666, 679 (4th Cir. 2004))).

       The “Application Instructions” for use of the Guidelines set

forth nine sequential steps to be followed by the sentencing court

in applying the provisions of the Guidelines manual.            See U.S.S.G.

§ 1B1.1.   See also United States v. Johnson, 155 F.3d 682, 684 (3d

Cir. 1998) (reading the § 1B1.1 instructions “as providing a

sequence of steps for the court to follow in the order in which

they appear”).         In the first four steps under § 1B1.1, the

sentencing court must determine the offense guideline and level for

each count of conviction, apply the relevant adjustments, and, as


                                      15
pertinent here, group multiple counts according to the grouping

guidelines in Part D of Chapter Three.            See U.S.S.G. § 1B1.1(a)-

(d).     Thereafter,     the   court   is   to   apply    any   adjustment   for

acceptance of responsibility, determine the defendant’s criminal

history category, and ascertain the guideline range and options

related to probation, imprisonment, supervision conditions, fines,

and restitution. See U.S.S.G. § 1B1.1(e)-(h). Not until the final

step is the court to “[r]efer to Parts H and K of Chapter Five,

Specific Offender Characteristics and Departures, and to any other

policy statements or commentary in the guidelines that might

warrant consideration in imposing sentence.”              U.S.S.G. § 1B1.1(I).

       The grouping provisions in Part D of Chapter Three reinforce

the understanding that grouping is to occur before departures are

considered.   Specifically, § 3D1.5 provides that sentencing courts

should    “[u]se   the   combined      offense    level    to   determine    the

appropriate sentence in accordance with the provisions of Chapter

Five.”   U.S.S.G. § 3D1.5.      See also United States v. Reis, 369 F.3d

143, 148 (2d Cir. 2004) (“It is only from this single [combined]

offense level that the final sentence is calculated ‘in accordance

with the provisions of Chapter Five.’” (quoting U.S.S.G. § 3D1.5));

United States v. Milan, 304 F.3d 273, 296 (3d Cir. 2002) (observing

that departing prior to making multiple-group adjustments would put

“the departure cart before the Guidelines Range horse” (internal

quotation marks omitted)).


                                       16
     Here, the district court attempted to circumvent the policy

statement of § 5K2.7--that a disruption of a governmental function

departure is not justified for an obstruction of justice conviction

absent unusual circumstances--by departing on the wire fraud count

before applying the grouping rules of Chapter Three, Part D.        In so

doing, the district court failed to calculate Reynolds’s sentencing

range according to the framework provided by the Application

Instructions of § 1B1.1 and § 3D1.5.        As a result, the Government

effectively obtained a § 5K2.7 departure on a combined offense

level that included an obstruction of justice conviction, even

though the district court apparently did not believe that unusual

circumstances   were   present.    Calculating    the   range   this   way

violated the § 5K2.7 policy statement, which echoes the broader

goal of the Guidelines that departures should be used only where

conduct has not otherwise been accounted for in the calculation of

the defendant’s guideline range.        See United States v. Terry, 142

F.3d 702, 705 (4th Cir. 1998) (“[I]f an encouraged factor is

already taken into account in the applicable guideline, or if a

factor is discouraged, the sentencing court may depart ‘only if the

factor is present to an exceptional degree or in some other way

makes the case different from the ordinary case where the factor is

present.’” (quoting Koon v. United States, 518 U.S. 81, 96 (1996)).

     Due   to   this   erroneous   application    of    the   Guidelines,

Reynolds’s sentencing range went from 77 to 96 months to 100 to 125


                                   17
months, and the judge imposed a 120-month sentence.    Accordingly,

we must vacate Reynolds’s sentence and remand for resentencing.



                               IV.

     In his brief, Reynolds also raised several challenges to the

district court’s decisions to admit or exclude certain evidence.

We note that under our review, we give great deference to the

evidentiary rulings of trial court judges, and will not overturn

them absent an abuse of discretion.    See United States v. Godwin,

272 F.3d 659, 670 (4th Cir. 2001).    With that standard in mind, we

have reviewed carefully each of Reynolds’s challenges and found

them to be without merit.    Accordingly, for the reasons stated

herein, we affirm Reynolds’s convictions, but vacate his sentence

and remand for further proceedings consistent with this opinion.



                                                  AFFIRMED IN PART;
                                       VACATED AND REMANDED IN PART




                               18
