                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5220


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ALFREDO HOMES SUSI,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00119-FDW-DCK-4)


Argued:   March 25, 2010                   Decided:   May 14, 2010


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


ARGUED: Michael David Gelety, Fort Lauderdale, Florida, for
Appellant.    Ellen Ruth Meltzer, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.     ON BRIEF: Lanny A.
Breuer, Assistant Attorney General, Criminal Division, Patrick
M. Donley, Peter B. Loewenberg, Fraud Section, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Alfredo Homes Susi (“Susi”) appeals his conviction of one

count of conspiracy to defraud, in violation of 18 U.S.C. § 371,

and   multiple    counts     of    aiding       and     abetting       wire     fraud,       in

violation of 18 U.S.C. § 1343, as well as his sentence.                                  Susi

alleges    insufficient      evidence          existed        for     his     convictions,

prosecutorial misconduct, multiple errors at trial, and argues

that his sentence is unreasonable and should be vacated.                                     For

the   following     reasons,       we   affirm          all     the    convictions            as

adjudicated by the district court, but vacate Susi’s sentence

and remand for resentencing.



                                           I.

      Susi’s     convictions       arise       from     his     participation           in     a

telemarketing sweepstakes scheme that operated in Costa Rica. 1

The   scheme     consisted    of     the    following          pattern:       first,         the

“opener,” an employee at the call center, would call and inform

the victim that he had won second prize, usually several hundred

thousand   dollars,    in    a     sweepstakes.           The       telemarketer        would

fraudulently     represent       himself       as   a   federal       agent    of   a    non-


      1
       Approximately sixteen call centers in Costa Rica ran
similar schemes, as evidenced by a number of recent federal
prosecutions. See, e.g., United States v. Llamas, ___ F.3d ___,
2010 WL 963195 (4th Cir. 2010).



                                           2
existent “United States Sweepstakes Security Commission,” or of

the “United States Sweepstakes Security Bureau,” or some similar

moniker.     The opener would then tell the victim that, in order

to claim the prize, he must wire several thousand dollars via

Western    Union        to   “Lloyds    of   London     of       Costa    Rica”   as     an

insurance    premium         to   insure   delivery    of    the    money.        If    the

victim     was    successfully         persuaded      to     send        money,   a     co-

conspirator known as a “loader” would call again and tell him

that a mistake had been made and that the victim had actually

won first prize, typically several million dollars.                          The loader

would tell the victim that, because the prize was larger, the

insurance fees would also be higher.                  The co-conspirators would

continue to call and “load” a victim for as long as the victim

continued to wire money.               The sweepstakes concept was a pure

fraud and never existed so no prize money was ever paid to any

of the victims of the scheme.

        The call center at issue in this case (hereinafter “the

Kalchstein       call    center”)      was   operated       by    Martin     Kalchstein

(“Kalchstein”), a former business associate of Susi’s.                                 Susi

began working at the call center in Costa Rica during May 2005

but left during October 2005 and returned to the United States.

Susi called victims, initially playing the part of an opener but

eventually working as a loader.                   Kalchstein testified during

trial     that    Susi        earned    between    $50,000          and     $60,000      in

                                             3
commissions        during      his   time    working         at    the    call    center      and

directly       caused    approximately        $250,000        in     losses      to    victims.

Kalchstein also testified that the call center as a whole took

in about $40,000 per week and approximately $2.5 to $3 million

total during its total operating history.

       The jury returned a verdict convicting Susi on all counts,

and     also       rendered      a   forfeiture         verdict           of    approximately

$1,885,000. 2

       The     Presentence       Investigation          Report       (“PIR”)        determined

that the actual loss attributable to the Kalchstein call center

during     Susi’s       time   working      there      was    approximately           $760,000.

This       figure       was     calculated        by     multiplying             Kalchstein’s

estimation that the call center took in an average of $40,000

per week by the amount of time Susi was on site—roughly 19

weeks.       The PIR estimates that the total loss for all sixteen

Costa      Rican    call      centers   utilizing        similar          schemes      was   $4.2

million, which included the Kalchstein call center.

       During Susi’s sentencing hearing, the defense withdrew its

objections         to   the    advisory     Guidelines            range    of    168    to    210

months’ imprisonment, and instead argued for a variance based on


       2
        Susi and his co-conspirators were prosecuted in the
Western District of North Carolina because Western Union, the
wire service they used to facilitate the fraud scheme, processed
funds through Charlotte, North Carolina.



                                              4
Susi’s    purportedly          limited    role    in    the    conspiracy.        Susi’s

brother,       Sam    Susi    (“Sam”),    testified      for    the    defense   at    the

hearing.       Sam attempted to show that Susi’s involvement in the

conspiracy was relatively limited and that he was being treated

differently          from    other    similarly-situated         defendants      because

their sentences had been based on the amount of loss directly

attributable to them, and not on the amount of loss caused by

the conspiracy as a whole.

       The district court imposed a within Guidelines sentence of

180 months’ imprisonment for each count of aiding and abetting

wire     fraud,       to     run   concurrently        with    each    other,    and    an

additional concurrent sentence of 60 months’ imprisonment for

conspiracy to defraud.               The district court entered a separate

order     of     restitution         of   $4.2    million.            This   Court     has

jurisdiction over Susi’s appeal pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a).



                                           II.

                                            A.

       Susi first argues that the district court erred by denying

his motion for judgment of acquittal.                         Although he made the




                                            5
motion    in   district    court      on   general      grounds, 3      he    makes   an

insufficiency of the evidence argument on appeal.                    Specifically,

Susi contends that “the government had not proven one overall

conspiracy.” (Appellant’s Br. 16-17).                  Susi’s argument here is

confusing but we interpret it to mean that, although he concedes

that the evidence was sufficient to prove his involvement in the

Kalchstein center conspiracy, Susi argues that the evidence was

insufficient     to   prove     the   existence        of   a    larger      conspiracy

consisting of other call centers.              Moreover, Susi argues that he

“withdrew from any arguable and limited conspiracy . . . with

the raid of the call center coming eight (8) months after Susi

left . . . .” (Appellant’s Br. 21).

     In    reviewing      the   sufficiency       of    the     evidence      we   must

determine      whether,    viewing     the     evidence     in    the     light    most

favorable to the government, any rational trier of fact could

find the essential elements of the crime beyond a reasonable

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

court will uphold the jury’s verdict if there is substantial

evidence to support it. United States v. Beidler, 110 F.3d 1064,

     3
       In his brief, Susi contends that he moved for acquittal
based on insufficiency of the evidence. However, Susi only made
a general motion for acquittal, simply stating that “I found
various defects in the government’s case.” (J.A. 229). In fact,
the district court asked defense counsel whether they were
“going to make argument as to” the motion, and defense counsel
answered “No.” (S.J.A. 41).



                                           6
1067 (4th Cir. 1997).          Because Susi moved for acquittal only on

general grounds, we review for plain error. See United States v.

Olano, 507 U.S. 725, 732-34 (1993).

     Susi’s       argument    that    he       was    charged       with   an    overall

conspiracy      involving    call    centers         beyond   the    Kalchstein        call

center is based on a misreading of the record.                             Contrary to

Susi’s contentions on appeal, the indictment charges Susi only

with being a member of the Kalchstein call center conspiracy.

The evidence presented at trial was limited to proving that Susi

was a member of the Kalchstein call center conspiracy.                          Although

other    call     centers     operating        in     Costa    Rica    were      briefly

mentioned    during    trial,    there     were       no   details     elicited        from

witnesses as to the other call centers. 4                     Because Susi concedes

that the evidence was sufficient to prove his involvement with

the Kalchstein call center conspiracy, his insufficiency of the

evidence claim clearly fails.

     Susi’s argument that he withdrew from the conspiracy is

also without merit.          Withdrawal from a conspiracy “requires the

defendant    to    take     affirmative        actions     inconsistent         with   the

object of the conspiracy and communicate his intent to withdraw


     4
       In fact, after Special Agent Vernon Roberson (“Roberson”)
mentioned the other “16 locations,” the prosecution redirected
Roberson’s focus to the “call center that was associated with
Mr. Kalchstein and Mr. Susi.” (J.A. 51).



                                           7
in a manner likely to reach his accomplices.” United States v.

Cardwell, 433 F.3d 378, 391 (4th Cir. 2005).                           “A mere cessation

of activity in furtherance of the conspiracy is insufficient.”

United   States       v.    Walker,   796     F.2d      43,       49   (4th    Cir.   1986).

Instead, “a defendant must provide evidence that he acted to

defeat or disavow the purposes of the conspiracy.” United States

v. Barsanti, 943 F.2d 428, 437 (4th Cir. 1991).

     Susi      made    no    such     showing.              Although      Allen     Fialkoff

(“Fialkoff”),     a    co-conspirator,            testified        that    Susi     told   him

that he planned to quit working at the call center because Susi

thought it “wasn’t the right thing to do,” (J.A. 143), this

conversation took place prior to the time Susi actually left the

call center, and there is no evidence that he communicated this

sentiment to anyone else.             Instead, Susi did not “indicate that

he was going to take any steps to make right what he had done,”

(J.A. 95), and one day “he just didn’t come in.” (J.A. 107).

Consequently,      there      is    substantial             evidence      to   support     the

jury’s   conclusion          that     Susi        did       not    withdraw       from     the

conspiracy.



                                             B.

     Susi   next       argues      that   “[t]hroughout            the     course     of   the

trial,   the    prosecutor         engaged        in    a    pattern      of   prejudicial



                                             8
misconduct,        the    cumulative      effect     of    which   destroyed”    Susi’s

right to a fair trial. (Appellant’s Br. 26).

        As to an allegation of prosecutorial misconduct, this Court

reviews a district court’s factual findings for clear error and

its legal determinations de novo. United States v. Washington,

398   F.3d    306,       310   (4th    Cir.    2005).       In   determining    whether

prosecutorial        misconduct        occurred,     this    Court   first    evaluates

whether      the    prosecutor’s        remarks      or    conduct   were     improper.

United States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998).

However, if this Court finds that the remarks were improper, the

conduct      “do[es]      not    always       mandate     retrial.      The    relevant

question is whether the prosecutors’ comments so infected the

trial    with      unfairness     as    to    make   the    resulting   conviction   a

denial of due process.” United States v. Mitchell, 1 F.3d 235,

240 (4th Cir. 1993) (quotation omitted).

        In evaluating whether the defendant was prejudiced, this

Court considers the following factors:

        (1) the degree to which the prosecutor’s remarks had a
        tendency to mislead the jury and to prejudice the
        defendant; (2) whether the remarks were isolated or
        extensive; (3) absent the remarks, the strength of
        competent proof introduced to establish the guilt of
        the   defendant;   (4)   whether    the    comments   were
        deliberately   placed   before   the    jury   to   divert
        attention to extraneous matters; (5) whether the
        prosecutor’s remarks were invited by improper conduct
        of   defense   counsel;   and   (6)    whether    curative
        instructions were given to the jury.



                                               9
United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002).



                                               1.

       Susi     first      objects       to    certain        comments         made    by     the

prosecutor during closing argument.                     Specifically, Susi objects

to    remarks      to    the     effect       that    the   crime        was    particularly

heinous, that Susi was of bad character, and that the victims

were elderly and vulnerable.

       Susi’s argument that the prosecutor improperly commented on

the    victims’      age    or     vulnerability         is       without      merit.         The

prosecutor questioned the elderly witnesses about their age, the

origin of the money they sent to the call centers, and their

testimony     that      losing     the    money       created      hardships        for     them.

These lines of questioning were relevant and proper.                                  Thus, the

district court correctly held that “it is relevant questioning

to show that the nature of this conspiracy is to find a person

with   liquidity,        good     credit,       and    hit[]       them     daily      with   an

additional requirement of funds . . . .” (J.A. 182).

       There is also no evidence that the prosecutor’s statements

that, for example, the crime was “horrific,” or that Susi was a

“greedy, merciless man,” crossed the line of vigorous advocacy.

This    Court      has     held     that       “prosecutors         enjoy       considerable

latitude      in    presenting       arguments         to     a    jury,       because      ‘the

adversary       system     permits       the     prosecutor         to    ‘prosecute        with

                                               10
earnestness and vigor.’’” Bates v. Lee, 308 F.3d 411, 422 (4th

Cir.       2002)    (quoting   United    States   v.    Young,   470     U.S.    1,   7

(1985)).           Consequently,   “[c]ommitted    advocates       do    not    always

present antiseptic closing statements, and the jury is entrusted

within       reason    to   resolve     such   heated    clashes    of    competing

views.” Id.

       Furthermore, even assuming arguendo that the prosecutor’s

remarks were improper, there is no evidence that the comments

“so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Mitchell, 1 F.3d at 240

(quotation omitted).           The comments were relatively isolated, and

the district court gave a curative instruction to the jury to

“disregard” the prosecutor’s comment as to Susi’s character. See

Scheetz, 293 F.3d at 186.



                                          2.

       Second, Susi alleges that the prosecutor committed a so-

called “Golden Rule” violation 5 during closing, asking “the jury


       5
       When counsel argues the “Golden Rule,” they argue that
“the jurors should put themselves in the shoes of the plaintiff
and do unto him as they would have him do unto them under
similar circumstances.      Such an argument is universally
recognized as improper because it encourages the jury to depart
from neutrality and to decide the case on the basis of personal
interest and bias rather than on the evidence.” Ivy v. Security
Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1977); Ins. Co.
of N. Am., Inc. v. U.S. Gypsum Co., 870 F.2d 148, 154 (4th Cir.
(Continued)
                                          11
to     put     themselves          into    the     position     of     the     victims.”

(Appellant’s      Br.        29).         Specifically,      Susi    objects      to    the

prosecutor’s statement that “we all may think that you’d never

have fallen for this scheme.                First of all, none of us are going

to know what we’re like at a later, older age.” (J.A. 207).

       However, this remark does not clearly violate the Golden

Rule.    The prosecutor did not improperly appeal to the jurors’

sympathy, nor did he ask the jury to make a decision as if they

were in the victims’ position.                     Instead, the statement called

for the jurors to decide whether the witnesses’ testimony was

plausible based on context.                  See United States v. Kirvan, 997

F.2d    963,    964    (1st    Cir.       1993)    (“[T]he   invitation      is   not    an

improper appeal to the jury to base its decision on sympathy for

the victim but rather a means of asking the jury to reconstruct

the situation in order to decide whether a witness’ testimony is

plausible.”).

       Moreover, Susi has not carried his burden of showing that

the    remarks,       even    if    improper,      “prejudicially      affected        [his]

substantial rights so as to deprive [him] of a fair trial.”

Mitchell, 1 F.3d at 240 (quotation omitted).                        The district court

gave a curative instruction to the jury, reminding them that



1989) (“The law is clear that . . . it is improper to ask jurors
to place themselves in the position of a party.”).



                                              12
“their duty is to determine the truth of this matter; and they

determine the truth of this matter by making a decision based

exclusively on the evidence.” (J.A. 213).



                                    3.

      Finally, Susi objects to the prosecutor’s call to the jury

to “send a message” to the community. (See J.A. 210).                             Even if

we assume the remark to have been improper, it was not unduly

prejudicial.    Not only did the district court give the general

curative    instruction    mentioned     above,         but           the    court     also

specifically reminded the jury that “[y]our duty is not to be

sending deterrent signals.         Deterrence issues are matters for

the   Court.”   (J.A.    213).     Thus,    even    if        the           comment    were

improper, “[t]he slight prejudice suffered by [Susi] was most

assuredly   cured   by    the    district    court’s              .     .    .    curative

instruction.” Scheetz, 293 F.3d at 186.



                                    C.

      Susi next contends that the cumulative effect of certain

evidentiary rulings by the trial court denied him a fair trial.

Specifically, Susi alleges that the district court erred when it

denied the defense motion for mistrial “after there was improper

and   prejudicial   contact      with    jurors     by        a        member     of   the

prosecution’s    staff,”     (Appellant’s         Br.     38),              and    because

                                    13
prosecution          witness    Kalchstein           “made    direct      and    prejudicial

comments        on     Appellant          Susi’s      right        to     remain     silent.”

(Appellant’s Br. 40).

     This Court reviews evidentiary rulings and denials of a

motion for mistrial for an abuse of discretion. United States v.

Bostian, 59 F.3d 474, 480 (4th Cir. 1995).

     Pursuant   to  the   cumulative error   doctrine,  the
     cumulative effect of two or more individually harmless
     errors has the potential to prejudice a defendant to
     the same extent as a single reversible error. . . . To
     satisfy this requirement, such errors must so fatally
     infect the trial that they violated the trial’s
     fundamental fairness.

United    States       v.   Basham,       561    F.3d    302,      330    (4th     Cir.    2009)

(internal quotations and citations omitted).



                                                1.

     Susi alleges that, during trial, Ms. Bachman (“Bachman”),

who was “working with the U.S. Attorney’s Office contacted or

spoke to one of the jurors,” specifically, Alternate Juror 1.

(J.A.    215;    220).         Upon   investigation           by    the    district       court,

Bachman denied having contact with a juror and instead stated

that the    entirety           of   her    conversation        during      the     sidebar   at

issue was with a “court security officer [who] was moving my

bags off of the chair and I apologized to him for putting it on

the wrong chair.            He informed me that his chair was squeaking. .



                                                14
.   .     That   was    the   entire   extent   of    my   conversation   during

sidebar.” (J.A. 225).

        The district court found that

        Mr. Susi did, in fact, hear something, but he
        misunderstood what he heard.
             There’s    consistent    testimony,  or    rather
        consistent proffers from the court security officer,
        Ms. Bachman and Alternate 1 that there was a brief,
        kind of a friendly exchange between Ms. Bachman and
        the court security officer about the squeaky chair.
        And Alternate 1 did hear the reference to the “squeaky
        chair” and apparently turned around, or made some
        passing comment to the court security officer having
        to fix the squeaky chair.
             . . . .
             So I do not believe that [there] was any
        inappropriate contact with Alternate 1.

(J.A. 228-29).

        In evaluating allegations of extrajudicial juror contact,

this Court conducts the following analysis:

        First, “[t]he party who is attacking the verdict bears
        the initial burden of introducing competent evidence
        that the extrajudicial communications or contacts were
        more than innocuous interventions.”        Second, upon
        satisfaction of this “minimal standard . . ., the
        [presumption     of     prejudice]     is      triggered
        automatically.” And, “[t]he burden then shifts to the
        prevailing party to prove that there exists no
        ‘reasonable possibility that the jury’s verdict was
        influenced by an improper communication.’”

Basham, 561 F.3d at 319 (quoting United States v. Cheek, 94 F.3d

136,    141   (4th     Cir.   1996))   (internal     citations   omitted).   In

determining whether contact was innocuous, this Court considers

the following factors: “(1) any private communication; (2) any

private contact; (3) any tampering; (4) directly or indirectly

                                         15
with   a   juror      during    trial;      (5)     about       the    matter   before    the

jury.” Cheek, 94 F.3d at 141.

       Susi has not carried his initial burden of “introducing

competent      evidence       that    the      extrajudicial           communications      or

contacts were more than innocuous interventions.” Id. at 141

(internal quotation omitted).                  First, the district court did not

abuse its discretion by finding that Bachman did not actually

have extrajudicial contact with a juror.                              Alternatively, even

assuming that Bachman did speak with the alternate juror, the

communication would have been innocuous.                          There is no evidence

that any communication, if it occurred, was “about the matter

before     the     jury,”      id.,      and    the      alternate       juror     did    not

ultimately       participate        in    deliberations.               Consequently,      the

district      court    did    not    abuse     its      discretion       in   finding     that

there has been “no impropriety arising out of that instance in

this trial.” (J.A. 229).



                                               2.

       Susi      argues      that     Kalchstein,           a     government       witness,

inappropriately         made        “direct       and     prejudicial          comments    on

Appellant Susi’s right to remain silent.” (Appellant’s Br. 40).

Susi     contends      that     Kalchstein’s            statement       that     other    co-

conspirators like Dunkan and Burkes “lied, and . . . ended up in

jail with a much stiffer penalty for lying,” (J.A. 95-96) was “a

                                               16
clear comment on the non-testifying Susi’s exercise of his Right

to Silence.” (Appellant’s Br. 40).           Second, Susi argues that the

following exchange was also an improper comment on his decision

not to testify:

     Q: You were asked by Mr. Young: Where he comes from in
     Texas, a thief is also a liar?
     A: I guess he’d say the same about his client then if
     I was his client and he was on the witness stand –-

(J.A. 111).       Because defense counsel did not object to this

testimony during trial on due process grounds, we review for

plain error. Olano, 507 U.S. at 732-34.

     Susi’s due process rights were not violated by Kalchstein’s

testimony.      While it is true that “[t]he Constitution . . .

‘forbids   either   comment    by     the   prosecution     on   the   accused’s

silence    or   instructions    by    the   court    that   such    silence   is

evidence of guilt,’” United States v. Francis, 82 F.3d 77, 78

(4th Cir. 1996) (quoting Griffin v. California, 380 U.S. 609,

615 (1965)), the statements to which Susi objects were not made

by   the    prosecutor,   nor        were   they     directly      prompted   by

prosecutorial    questioning.         Moreover,     the   testimony    at   issue

clearly was not “of such character that the jury would naturally

and necessarily take it to be a comment on the failure of the

accused to testify.” United States v. Anderson, 481 F.2d 685,

701 (4th Cir. 1973) (quotation omitted).                  Instead, Kalchstein




                                       17
was merely explaining his own reasons for testifying honestly

and emphasizing that he was telling the truth.

      Consequently, because “none of the individual rulings work

any cognizable harm, it necessarily follows that the cumulative

error    doctrine    finds   no   foothold.”     Basham,      561   F.3d    at    330

(quotation omitted).



                                        D.

      Finally, Susi contends that the district court abused its

discretion “in imposing a sentence on the defendant that was

unfounded, unsupported and unreasonable.” (Appellant’s Br. 42).

Susi argues that,       “although no-one ever mentioned loss figures

up to $2 mililion [sic], Judge Whitney spoke of a loss of $4.2

million for which Susi was responsible, as an attempt to justify

the wildly divergent sentence imposed.” (Appellant’s Br. 49).

Susi contends that this was because he “was confused with other

defendants that the Judge had seen while also being lumped among

those    unrelated    defendants    for      purposes    of    increasing        loss

calculations and, ultimately, for the purpose of imposing one of

the     harshest     sentences     on     one    of     the    least       culpable

telemarketers.” (Appellant’s Br. 50).

      This Court reviews a sentence for reasonableness, applying

an abuse of discretion standard.                Gall v. United States, 552

U.S. 38, 51 (2007); see also United States v. Pauley, 511 F.3d

                                        18
468, 473 (4th Cir. 2007).          The appellate court first must ensure

that the trial court did not commit any procedural error, such

as

      failing to calculate (or improperly calculating) the
      Guidelines   range,   treating    the  Guidelines   as
      mandatory, failing to consider the [18 U.S.C.] §
      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.

Gall, 552 U.S. at 51.          If the Court finds the sentence to be

procedurally     sound,       it    then       considers     the       substantive

reasonableness of the sentence, taking into consideration the

totality of the circumstances.           Id.

      We   conclude    the    district     court   did     make    a   significant

procedural error because Susi’s sentence was based, in part, on

a material and clearly erroneous factual finding as to the loss

attributable to Susi.        The district court found that

      [w]e   have  approximately $4.2  million   in  claims
      collected by the U.S. Probation Office and the U.S.
      Government at that time. Those are actual claims. We
      don’t know that -– we haven’t totaled up the exact
      number, the U.S. Probation Office has not for the
      Court, but the estimate right now from the Probation
      Office is 4.2 million.

(J.A. 396).      Although the district court recognized that Susi

was   “working    at    one    call      center    and     [he    was]    directly

responsible for a small portion of that,” the district court

also noted that “[i]t’s hard for [Susi] to have been involved in

hundreds of thousands of dollars of fraud without understanding

                                      19
the   scope    of     this    fraud    involved      millions     and       millions     of

dollars.” (J.A. 396) (emphasis added).

      It was clearly erroneous for the district court to find

that the scope of the loss attributable to “this fraud” was $4.2

million.        The     $4.2       million     figure    represents         the     losses

attributable to all sixteen Costa Rican call centers, but as the

Government concedes, “the indictment and proof in this case were

limited    almost       exclusively          to    Kalchstein’s        call       center.”

(Appellee’s Br. 17).              The record simply does not support a loss

finding of $4.2 million as to Susi based on all the Costa Rican

schemes when Susi can only be properly charged with the acts of

the Kalchstein call center.

      Therefore,       the    district       court    abused    its     discretion       by

basing Susi’s sentence on the clearly erroneous understanding

that the fraud of which Susi was convicted resulted in $4.2

million in losses.            This is true notwithstanding the fact that

the   sentence        was     within    the       properly     calculated         advisory

Guidelines      range,       to     which     Susi    withdrew     his      objections.

Because the sentence was procedurally unreasonable, we do not

consider substantive reasonableness and end our analysis here as

the case must be remanded for resentencing. See United States v.

Wilkinson,     590     F.3d    259,    269    (4th    Cir.     2010)    (“Only      if   we

conclude      that    the     district       court    committed        no   significant

procedural error . . . may we move on to the second step of

                                             20
considering the substantive reasonableness of [the] sentence . .

. .”).

     It   also       follows    that    the    district    court     abused    its

discretion      by    ordering     that       Susi   pay   $4.2      million    in

restitution. 6       This Court’s recent decision in a related case,

Llamas,   ___    F.3d    ___,    2010   WL    963195   (4th   Cir.    2010),    is

instructive:

          In    pertinent     part,    the    Mandatory   Victims
     Restitution Act of 1996 (the “MVRA”) directs a
     sentencing    court,     when    sentencing    a   defendant
     convicted of an offense involving, inter alia, fraud
     or   deceit,    to   order    “that    the  defendant   make
     restitution to the victim of the offense.” 18 U.S.C.
     § 3663A(a)(1).      Because the MVRA focuses on the
     offense of conviction rather than on relevant conduct,
     “the focus of [a sentencing] court in applying the
     MVRA must be on the losses to the victim caused by the
     offense.” United States v. Newsome, 322 F.3d 328, 341
     (4th Cir. 2003) (emphasis added).             Thus, in the
     context of a conspiracy, a restitution award under the
     MVRA is limited to the losses attributable to the
     specific conspiracy offenses for which the defendant
     was convicted. See id.
          At     the    sentencing      hearing,    investigators
     testified    that    the    Kearns    Call   Center   caused
     approximately $1.7 million in losses between March
     2004 and April 2006.       Yet, in applying the MVRA, the

     6
       We note that Susi raised the issue on appeal in terms of
“imposing a sentence . . . that was unfounded, unsupported and
unreasonable.” (Appellant’s Br. 42) (emphasis added).   Although
Susi may have been remiss in not specifically arguing that the
restitution order, as well as the order of imprisonment, was in
error,   we  nonetheless   consider   both   on  appeal  because
“restitution is . . . part of the criminal defendant’s
sentence,” United States v. Cohen, 459 F.3d 490, 496 (4th Cir.
2006), as it “is fundamentally ‘penal’ in nature.” United States
v. Bruchey, 810 F.2d 456, 461 (4th Cir. 1987).



                                        21
     district court ordered Llamas to make restitution of
     more than $4.2 million, concluding that he was jointly
     and severally liable for losses caused not only by the
     Center, but also by other Costa Rican call centers
     utilizing similar sweepstakes schemes.    See J.A. 468
     (“All those that were involved in any call center are
     subject, under the [MVRA], [to] the same joint and
     several liability.”).    Because the restitution order
     was not limited to losses attributable to the Center,
     the Government has properly recognized — and conceded
     — the legal error underlying the restitution order.

Llamas, at *7.    Like Llamas, Susi was charged with and convicted

of participating in a conspiracy involving only one call center,

and not of a conspiracy involving all sixteen Costa Rican call

centers.     Thus the restitution order in this case should also

have been “limited to the losses attributable” to the Kalchstein

call center conspiracy. 7



                                     III.

     For the foregoing reasons, we hold that the district court

did not err in denying Susi’s motion for acquittal, committed no

cumulative   evidentiary    error,    and   no   prosecutorial    misconduct

occurred.    Therefore, we affirm Susi’s convictions.            However, we

     7
       Although government counsel, who also handled the Llamas
case, conceded error as to the restitution order in Llamas, they
did not make that concession here.     During oral argument the
government explained that this distinction was based on its
belief that Susi failed to raise the restitution issue on
appeal.    However, the government did concede that Susi’s
situation was factually the same as Llamas’ as to the
restitution order and we concluded Susi did sufficiently raise
the restitution issue.



                                      22
vacate Susi’s sentence, including the order of restitution, and

remand the case for resentencing consistent with this opinion.



                                                AFFIRMED IN PART,
                                                 VACATED IN PART,
                                                     AND REMANDED




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